No. 2--07--0393 Filed: 12-23-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Ka ne Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 05--CF--1643 ) MANUEL J. RINCON, ) Honorab le ) Leonard J. Wojtec

ki, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ PRESID ING

JUSTICE

ZENOF F delive

red the o pinion of t

he court : Following a bench trial, defendant, Manuel J. Rincon, was convicted of attempted arson (720 IL CS 5/20--1( a), 8-- 4(a) (We st 2004)). Defend

ant appe als, arg

uing tha t his right to a jury

trial was vi olated, that the State failed to prove his guilt bey ond a reasonable doubt, and that the Stat e committed a prejudicial discovery error. For the following rea sons, we affirm.

FACTS Defendant

was indicted

for atte mpted ar son (720 I

LCS 5/2 0--1(a

), 8--4( a) (West

2004)) and criminal trespass to land (720 ILCS 5/21--3(a)(2) (West 2004)). The indictment stemmed from an incident in the early morning

hours of July 13, 2005. Prior to trial, the State dismissed the criminal trespass to land charge. At the arraignment on January 19, 2006, defenda

nt was pre sent with

his attorney when the court infor med hi m of hi s right s, in cludi ng the f ollo wing:No. 2--07--0393

1 We note that

defendant's brief, though it descr ibes Mr. Corbett's indication of a bench trial and the court 's reservation of the matter of whether ther e would be a jury

trial, omits mention of the
em ph as iz ed po rt io n o f t he co ll oq uy. -2-

"You have constitutional right s. You have the right to be represente d by a lawy er. It ap pears that y

ou are a bly repres ented by

Attorney Corbett. You have the rig ht to rema

in silent. Yo u h av e t he ri gh t t o p le ad no t g ui lt y. You are presume d innocen

t. You have the right to a trial by judge or jury ." Defendant

pleaded not guilty

and reserved his right to a trial by jury. The com

mon- law record contains jury trial orders dated April 21 and July 21, 2006, setting the ca se for jury tria l on October 27, 2006. On Octo ber 27, 2006, defendant was present in open cour t at a final pretrial confe rence . After granting the State's motion to deny defendant inquiry

into the criminal histor ies o f its witnesse s, the court

asked defense counsel i f he had a

ny motions in limine . Defense counsel replied: "Judge, noth ing in writi ng. We are ind icati ng a bench trial on this matter, so we are answering re ady to go." Additionally , the following colloquy took plac e:

"THE COURT: I don't believe we 've addressed Mr . Rincon as to a jury waive r. Yo u' re ad vi si ng th e c ou rt he wa nt s t o w ai ve ju ry? MR. CORBET T [defens e counse l]: Yes, sir. 1 TH E C OU RT : D o yo u w an t t o r es er ve un ti l M on da y? MR . C OR BE TT : C an we re se rv e i t u nt il Mo nd ay?No. 2--07--0393

-3- THE COURT: We'll reserve until Monday . So I'll show that both sides are ready ." (Emphasis added.) Following that exchange, the court and def ens e counsel discussed possible arrival times for witnesses, depending upon whether the trial was a bench or a jury

trial. OnOctober 30, 2006, with defe ndant present, the court asked defense c ounsel if the trial would be a bench trial, and counsel responded affirmatively . As on October 27, 2006, defendant voiced no objection. After a conference pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402), whichwas of

f the record, d efenda

nt electe d to go to t

rial. The court the n returned to the St

ate its tendered jury instructions and heard opening arg uments. A written jury

waiver signed by

defendant was file d Octobe

r 30, 2006 , as well. Maria Loyo la was t

h e State's first witness. She testified that she lived in a townhome at 2009 Berksh

ire Circ le, apar

tment J, in Car

pentersville, Illinois, with her husband, four children, and son-in-law. Through her nephew, Loyola had known de fendant by his nickna me, Payaso, for a

few years prior to July 2005. I

n the days lea

ding up to the incident of July 13, 2005, L oyola' s two nephews , her son, and others gathered in her front ya

rd, wearing blue shirts and khaki-colored pants. Thesewere the

colors of the Suren

o Thirtee ns street gang , to which the nephews and several of the others belonged. Loy

ola's son was not a gang me mber, but his school uniformwas blue and khak i. From Loy ola's ya rd, the gro

up reg ularly "flash ed signs " to other boys. Latin Kings gang members also com monly "threw" Kings' signs toward Loyola' s house. On the evening of July 12, 2 005 , Loyola's daughter told her that defendant had gone b y their home " making signs." This worried Loy ola, who consequently spe nt the night in her living room.No. 2--07--0393

-4-

The living room had a

sliding door

that opened onto a small patio at the front of the house. At the time, the glass in the door was broken, leaving only a screen. At about 1:40 on the morning of July 13, 2005, the motion sensor light ove r the driveway

was acti vated, il luminating

the y ard in front of the pa tio. L oyo la obser

ved in her y ard thre e person s approa

ching the two truc

ks parke d in her dr iv ew ay. She recognized defendant when she sa w his surprised expression in the light of the motion sensor, and

she was able to identify

a second man, whom she knew as "Psycho." She was unable to identify the third person, who wa s wearing a black hoodie. The menwere about 10 or 15 feet from the trucks in the driveway . Loy ola testified that defendant tried twice with a lighter to light something white sticking out from the top of a bottle being held by

Psycho. There was something inthe bottle , but L oyo la

could not identify it and did not smell gasoline. When L oyola saw sparks, she yelled and went outside the screen door onto the patio. The three ran off in the direction from whichthey

had come, to a car parked about three townhouses

down the s treet. F our peop le were in th e c ar wh en it dr ov e a wa y. Loy ola never found the bottle or the lighter. No one in her home awakened. There was no damage to her property . Rather than calling the police immediately , because she felt that they would nottake her

seriously , Loy ola waite d until that

afternoon to go

to the polic e sta

ti on and report the incident
. Subsequently, L oyola identified def endant and a codefendant, Fernando Rodrig uez (a.k.a. Psycho), from photo lineups. Loyola's 18-year

-old daughter, Uesenia Ramirez, testified that she lived at the Berkshire Circle townhome with her parents, siblings, and husband. Inthe days leading up to July 12, 2005, members of the Sureno gang had " hung out" in the y ard, dressed

in blue and khaki. It was common to have gang signs fla shed back and forth. On the even ing of July

12, 2005, Ramirez was in the frontNo. 2--07--0393

-5-

ya rd, sitting on the sma

ll patio with her young er

sister. H er brother and ot her siste r were going in and outof the sliding patio door. No Sureno members were pres ent then. A ccor

ding to Ram irez, at about 8 p. m., a gr

ay , four-d oor Pontia

c drove by with

two girls in the front seat and defendant and Rodriguez in the bac

k seat, with defe

ndant nea rest t he t ownhouse. Ramirez said that she knew defendant because he used to

"hang around w

ith his fri ends" in

that are a. As th e car drove by , it slowed and defendant was "throwing sig ns and saying

things." From the car, defendant said, "King Love, Sureno Killa [Killer]." Ramirez was afraid, so the family called the police, but they did not respond. Ramirez wa s asleep during t he 1:40 a. m. incident and did not hear any thing, but she went with her mother that afternoon to the police station. Manuel Medel, Ramirez's brother-in-law, testified that he owned a 2004 Dodge Ram pickup truck. He had financed it for approximately $30,000. Medel had parked it in Loy ola's driveway

for the nigh t of July 12-13, 20 05. He ha

d given no one pe

rmission to

damage it or to be near it. Detective Thomas He itk amp of t he Carpentersville police department testified that he inv estigat ed

the attempted arson at Berkshire Circle. Afte r being assigned to the case on July 19, 2005, he compiled photo lineups and showed them t o Loyola the same d ay. This w as Hei tkamp 's first contact with Loy ola. Heitkamp was accompanied by Officer George Gonzalez, who served as
a tran slator. Go nzale z translated t he standard photo spread advisory form, which stated that the suspect may or may not be in the lineu p, that Loyo la

did not have to make an identification, and that Lo yol a wa s n ot to as su me th at th e o ff ic er s k ne w w he th er th e s us pe ct wa s i n t he li ne up . Lo yo l a signed the form and then immediat el y identified defendant in the first lineup. She then identified Rodriguez from the second lineup. Heitkamp had Loy ola sign her name and write a brief description of what she had seen

each suspect do on July 13. Eac h of the identified photos was one of six photosNo. 2--07--0393

-6-

in its lineup and

was located in the top left position. Prior to July 19, Heitkamp had been familiar with defendant and knew his nickname, Pay aso, which was included in the police report. Following Loy

ola's id entifica tions, Heitkamp

had a wa rrant iss ued for d efenda nt's ar rest. He did not speak

with defendant or defendant's fa mily prior to having

the warrant issued. No phy sical evidence or other eyewitnesses were found; consequently, there was no evidence of what was in the bottle. No one took a

statement from Rodriguez. The police report, made on July 13, 2005, at

12:50 p.m., listedthe incident as criminal damage to property (not attempted

arson) o ccurri

ng at 1:4 0 a.m. that d ay. Heitkamp wa s not awa re of an y c alls made

to the polic e depar

tment from the L oyo la residence. Gonzalez testified that he ha d b een part of the gang and drug unit, also known as the
commun ity

response team, for four y ears. After describing his experience and training, and over defense objec tion , Gonz alez w as qua lifi ed by the co urt as an ex pert o n ga n gs. Gonzalez was kno wledge able about two street gangs in Carpentersville--the Latin Kings and the Sure n os. Th e Kings and the Su re no s w er e r iv al ga ng s i n J ul y 20 05 . E ac h g an g h ad ar ea s o f t he ci ty t hat i t considered

its own. The Kings considered the area of B erkshire Circle to be theirs. To intimidate, th ey use d the slog ans "Kin

g Love" and

"King Hood" a nd the sig

n of a cr own. Acc ording t

o Gonza lez, rival ry between the gan gs resulted inphysical confr

ontations, including driving by rival gang members'

homes, y

elling g ang slogans, throwing up gang si gns , damaging property , and committing arson. A common method of arson was the "Molot ov cock tail ," a bot tle co ntain ing a flammabl e liquid with a rag placed in it, which would be lit and either placed on or thrown at th e target.No. 2--07--0393

-7-

After testifying a

bout the gangs in gener

al, Gonzalez testified that defendant's nickname was Payaso and that he was a member of the Latin Kings in July 2005. Rodriguez was a Latin King too. Loyola's son, Raymond Perez, was not known to be a gang member , but he a ssociated with the Surenos and allowed them to congr egate in his yard. Perez wore the Suren o colors, blue and k

haki,
as part of his school uniform. Loy ola's two nephews were

Sureno members. When

questioned about five oth er men, Gonzalez said that two of them were known Surenos. Gonzalez's only role in the investigation

was to accompany

Heitkamp, as a

translat or, to L oyo la's home for the photo line

ups. After Gonzalez's testimony, the State rested a nd the court denied defend ant's mo tio n for a directed finding. The defense beg an its case by c alling Blanca Rincon, defendant' s sister. In July 2005, she lived

in a four -bedroom house in Ca

rpentersville with

defendant, their parents, her three sons, and her boyf

riend. The house had ceramic flooring . The family had a Chihuahu a dog tha t barked lo udl y whe n ca rs o r st ran ger s pa ss ed b y. Bl anc a's bed roo m wa s at th e fr ont of t he h ous e. It had very light cu rtain s such that she could see if the moti on sensor

light on t he front of the hou se
were on. Next to Blanca's bedroom were he r son s' bedroom, then defendant's be droom, and her parents ' bedroom, all in a row. The front screen door was noisy , and the ma in do or wa s " to o h ea vy" and equipped with a special lock that made it "kind of noisy " too. Blanca testified that Jul y 12, 2005, was "just a normal day like every day." Nothing special happened. She arrived home from work at about 4

p.m. Blanca

could not r

ecall what they

ate, but,
as was typical, the

entire family, including

defendant, ate dinner together a t about 5 p.m. Defendant may have g one out, b

ut was home

by 9p.m. when the ir mother went to bed. At that time, Blanca
was in her b edroom, reading to her. After that, B lanca saw defendant watching videos with her boyfriend. The

dog was there too. Blanca went to bed at about 10:30 p.m. and was joined by herNo. 2--07--0393

-8-

boyfriend around 11 p.m. Defendant went to his room at that time. Betwe en then and 5:30 a.m., Blanca heard nothing and did not see the motion sens or light come on. When she left for work at 6:30 a.m., Blanca knocked on defenda nt's bedroom

door to tell him she was leaving, since he baby sat for her son s; defen

dant res ponded to

her knock. Althoug

h she had not gotte n up at 1:30

a.m. to check, Bla nca was sur e th at d efe nda nt had bee n ho me t hen . If he had left the house, she would have heard him because he was he av y, noisy , and clum sy. She was a lso sure that, had he

left, she would have heard

the dog barking and the

front door slamming, because her window wa s open and located only two feet

from the front door. Blanca was awa re that defendant was a Latin King and a friend of Rodri gue z i n July 2005 . Having previously lived on Berkshire Circle, Blanca ha d noticed that Latin Kings frequented that area. Blanca had not gone to the police or State' s Attorney to repor t that defendant was innocent, despite her certainty that defendant had been home all that night. No one from the p olice de

partmen t attempte d to interv

iew her a bout the in

cident. Maria DeJesus Rincon, def

endant' s mother, testifie d similarly to Blanca . Maria

was a light sleeper and had gone to bed at about 8:30 p.m. on July 12, 2005. Nothing special happened on that date to make it memorable. Defendant's bedroom door wa s noisy likethe front door. Although she did not go to c

heck on d efenda nt at 1:30 a .m. on July 13, Maria wassure tha t defend ant was home all night, because she had not heard him leave. If he had gone out, she would have heard his heavy footsteps on the ceramic-tiled floor, as she had in the past. She also did not hear the dog bark, and the dog alway s barked

if someone came up the driveway . No one from the State's Attorney 's office
or the police department had spoken with Maria. Defenda nt turned himself in to police on July 25, 2005. Maria did not go to the authorities to voice her belief that def endant w as innoce

nt, beca use "they were the ones wh o should have come to se e." Mar ia was aware tha

t defend ant was a LatinNo. 2--07--0393

-9-

King in July 2005. Although she used to live on Berkshire Cir cle and was awar

e of "boys t

hat would hang out there," she never talked to them. Defendant

testified and admitted that he was "associated with" the L atin Kings and that he had been convicted of a felony charge of harassment

of a witness. He was familiar with Latin King gang signs and had "thrown up the crown" in the past. Defendant was also f

amiliar w ith the L atin King manifest

o (consti tution), byla

ws, and c olors. The King s and Sure nos were rivals an d did not get along. During J uly 2005, the "Latin King gang nei ghborhood" inc luded the Be rk shire Cir cle
area. Defendant had seen people w earin g Sureno colors gathered in fr ont of Loy

ola's townhome, while Latin Kings were

congregating

just down the street. He and Loy ola had known

each other for 11⁄2 or 2 year

s. Defendant knew Loy

ola's nephews and had seen one of themin Loy

ola's ya rd with other Surenos, wearing

Sureno c olors, but

he did not kn ow Perez. Prior to July 12, 2005, defendant had driven by Loyola' s townhome and "showed them [the Surenos] the crow n. " The Surenos responded

by "throwing

down the crown," which was a sign of disrespect to the Kings. Unde r the gang's constitution, a King was expected to respond to such confrontation. Theresponse could take the form of th

rowing more signs or damaging proper ty, including prope

rty where Sureno gang members were known to assemble. Defendant

confirmed Blanca's and Ma ria's testimony r

egarding the cer

am ic floor ing, the do g, and the motion sensor lig

ht. On July

12, 2005, he had dinner with hi s family and then went out wit

h his friends as he usually

did, returningat about 8 p.m. He had not throw n gang si gns th at even ing,
or even driven by

Loy ola's home. Defend

ant had no

contact with Rodrig

uez that nig

ht. He did

not leave the house after 9 p.m. on July 12; he watc hed MTV videos wi th his brother-in-law, as he usually did. Defendant was home sleeping at 1:30 a.m. on July 13, 2005. Hehad never heard of aNo. 2--07--0393

-10-

Molotov cocktail. Defendant did not attempt to start a fire that night in Be rkshire Circle and had
never done so in the past. Defendant said that the police had not interviewed him about the incident butthat, whe

n he discovered a

few day s later f rom a fri end th at there wa s a warr ant for h is arrest, he turned himself in. After defendant's testimony , the defense rested and the State offered no rebuttal. Following closing arguments, on November 3, 2006, the cour t found de fendant

guilty of attempted arson. The court concluded that defendant had a motive; that essentially he was trying

to l ight a Molotov cocktai l; that there were sparks; and that defenda nt was positively identified as the person w iththe lighter. The court believed Loy ola's te stimony

but did not b elieve d

efenda nt or his wi

tnesses, as they were "somewhat i ncredible." OnDecember 4, 2006, defendant filed a motion for a cqu ittal or f

or a new trial, alleging insufficiency

of the evidence. The court denied def endant's motion at a posttri al hear in g on December

22, 2006. Defendant appealed f rom this denial on January 22, 2007. Howeve r, on January 26, 2007, upon defendant's motion, the trial court struck the appea l as premature. An agree d sentence of

two y ears'imprisonme

nt was sub sequentl

y imposed on

Februa ry 16, 2007, w

ith cred it for time served and with one y ear of mandatory

supervised release. Defendant filed a notice o f appeal on the same date. However, on March

9, 2007, defendant filed an emerge ncy motion for acquittal or for a new trial, based on

a supplemental an swer to di scovery tendere d to defe

nse counsel on the same date. It advised t hat, onOctober

25, 2006, t

he assista nt State' s Attorne

y a nd two polic e offic ers met with Loy ola at her home to review the July 13, 2005, p olice re

port and that, "[w]hen Officer Gonzalez read aloud [from the police report] that Maria Loy ola reported to the police that the bottle was 'red,'No. 2--07--0393

-11-

Ms. Loy ola responded

in Spanish, and Officer Gonzalez translated that she had told the police officer that the bottle was green." On Mar ch 16, 2007, defendant also filed a motion to re consider his sentence, to vacate or commute the sentence , and/or for a new trial. Onthe same date, the trial court dismissed defendant's appeal on his own motion, pursuant to Supreme Court Rule 309 (134 Ill. 2d R . 30 9). It then heard argument on his March 9 and Ma rch 16 motion s. Defe ndant argued that the supplemental discovery answer evidenced a contradiction by Loy ola, the St

ate's onl y eyewitness. He contended that this contradiction constituted impeachment

evidence, materially fa

vorable to him, and that he had been p rejud iced b y the Stat e's failure to disclose it before trial. The court denied defendant's motions, finding that the color of the bottle was n ot material, that Loy ola was "absolutely " credible, and that defendant wa s not at al l believable. This timely appe al followed on April 16, 2007. ANA LYSIS A. Jury Trial Right Defendant

first argues that his right to a jury trial was violated. Defendant alleges tha t he did not waive his right to a jury trial knowingly a

nd understandingly

and in open co

urt, bec ause it is a personal ri ght t

hat cann ot be waived by

his attorney . The State

responds that def endant va lidly waived his jury trial right by

remaining silent during his attorney 's waiver of it and that defendant also waived his right to a jury trial in writing. We agree with the State. Defendant

concedes that he did not question the validity of the jury waiver in the trial court; rather, he raise s it

for the first time on appeal. Althoug h this proc edural h

istory normally results in proceduraldefault

( In re R.A.B. , 197 Ill. 2d 358, 362 (2001)), defendant asks us to review the issue under the plain er

ror doct rine. Pla in error review i s permitte d when ei ther (1)the evide

nce is closelyNo. 2--07--0393

-12-

balanced (regardless of the seriousness of the error) or (2) the er

ror itsel f is so serious that the "integrity of the judicial process" is at stake (regardless of the close ness of the evidence). R.A.B. , 197 Ill. 2d at

363. As de fendant

sugge sts, we wi ll review

his claim u

nder the second prong, b ecause of the f undamental nature of the right at stake. See People v. Bracey , 213 Ill. 2d 265, 270 (2 004 ) ("Whether

a defendant's fundamental rig ht to a jury trial has bee

n violated is a matter

that may be considered under the plain error rule" ). Our review is de novo because the facts are not i

n dispute and the issue of wheth er defe

ndant val idly

waived h

is right t o a ju ry trial is a question of law. R.A.B. , 197 Ill. 2d at 362 . The right to a

jury trial is pr otected by t he United States Constitution (U .S. Const., a mends. VI, XIV) and the I

llino is Constitut ion (Ill. Const. 1970, art. I , §8), and it has been codified by the Illinois legislature (725 ILCS 5/103--6 (West 2006)). Bracey , 213 Ill. 2d at 269. Our supreme court has construed the statute to mean that "a def endant va lidly waives h is right to a jury

trial only if [the waiver is] made (1) understandingly [] and (2) in open co urt." People v. Scott , 186 Ill. 2d 283, 285 (1999). The circuit court has a duty to ensure that a jury

waiver is "mad e expr essly and understandingly ." People v. Smith , 106 Ill. 2d 327, 334 (1985). However, the re is no constitutional requirement

that the court appr ise a de fendant of the jury trial right, though this would be "preferable." People v. Steiger , 208 I ll. App. 3d 979, 981 ( 1991). Al

though a waiver should be in writing (see 725 IL CS 5/115--1(West 2006)), the lack of a writing may

be harmless error. People
v. Eyen , 291 Ill. App. 3d 38, 41 ( 1997). Conversely, the pr esence of a writing does not in and of itself establish the validity of a waiver
. Scott , 186 Ill. 2d at 284 (holding that a written waiver alone is an invalid waiver). No set formula exists, and each case must be examined on its particular facts. R.A.B. , 197 Ill. 2d

at 364. "[T]he court need not impart to defendant any set admonition or advice."No. 2--07--0393

-13-

Bracey , 213 Ill. 2d at 270. Still, our supreme court has "neve r found a valid jury waiver where the defen dant was not present in open co

urt when a jury waiver, written or otherw ise, was a

t least discussed." Scott , 186 I ll. 2d at 28 5. A valid waiver e xists if ther

e is an expres s s tatement by defense counsel i n open co urt, in the defendant's presence , without objection fromhim or her, that the defendant opts to waive his jury trial ri ght in fav or of a bench trial. People v. Elders , 349 I ll. App. 3d 573, 578 ( 2004); Eyen , 291 Ill. App. 3d at 41. Some

thing in t he discus sion must ind

icate to the defendant that

his or her right to a jury

trial is being waived. See Peoplev. Williamson , 311 Ill. App. 3d 54, 59 (1999). Defendant

only selectively

cites the record to support his contenti on that the

re was e rror in that there was no discussion of a j ury waiver in his presence. But defendant wa s advised at the arraignment

on January 19, 2006, that he had the "right to a trial by

judge or jury ." He wa s presen

t, inopen court, on October 27, 2006, when his attorney indica ted that defendant had chosen a bench trial and want ed to waive a jury trial. Defe ndant made no objection. Nonetheless, defendant contends that no waiver

could have occurred as of Octobe r 27 because there wasno discussion of it on October 27 and the court "merely reserved the issue for l ater discussion." Defendant then asserts that no discussion occurred on October 30 either. Defend ant's argu ment fails. As a preliminary matter we again note that defenda nt's briefs omit mention of the portion of the October 27 collo quy in whi ch the court speci fical ly stated : "I don't believe we've

address ed Mr. Rinc on as to a j ury waiver. You're

advising the cour t he wants to waive jury?" De fe nd an t' s a tt or ne y re sp on de d a ff ir ma ti ve ly. All of this occurred in defendant's prese nce inopen c ourt, with out h is ob jecti on, an d prio r to th e court 's reser ving the matter. Imme diately following this valid waiver, the court asked if defendant wanted "to reserve until Monday ," OctoberNo. 2--07--0393

-14-

30, and defe

nse counsel indicated that defendant did. On October 30, defendant was ag ain present inopen cou

rt when the court, after a scerta ining tha t defend ant did not

need an interpre ter, said "Before I begin, I have been looking at

the court fil e here t

oday . Is th

is a bench trial?" De fense counsel responded affirmatively , without objection from defen dant. This Monday, October 30, colloquy cannot be

viewed in

is olatio n; ra th er , i t m us t b e v ie we d i n t he co nt ex t o f t he Fr id ay, October 27, discussion. See Scott , 186 Ill. 2d at 286 (finding no valid jury waiver "[f]rom [the ] context"). On Friday

defendant waived a

jury but acce

pted the court's offer

to reserve the issue over the weekend, and on Monday he confirmed his jury

waiver. This conclusion is supported by People v. Frey , 103 Ill. 2d 327 (1984). I n Frey , the defendant
was indicted

on two counts of

reckless homicide stemming from an automobile accident on Mar ch 6, 1981. Frey , 103 Ill. 2d at 329. On October 8, 1981, the trial court entered an orde r continuing the
casefor bench trial and

stating that defense counsel indicated that the de fe nd an t w as wa iv in g a ju ry. Frey , 10 3 Il l. 2d at 32 9. Su bs eq ue nt ly, on January 27, 1982, the State filed an infor mation charging the defenda

nt with one

count of d

riving w hile unde r the infl uence, based on

the same accide nt. Frey , 103 Ill. 2d at 330. Sometime between then and the trialon March 18, 1982, the parties agree d to try the reckless homicide charges separately from the driving under the influence cha rge. Frey , 103 I ll. 2d at 330. On March 18, 1982, the defendant was prese n t and di d not objec t to t he tri al cou rt's statement that "these causes were set today for purposes of bench trial." (Emphasis omitted.) Frey , 103 Ill. 2d at 331. The trial court then rec ognized the parties' agre ement to try the cha rges se pa ra te ly. Frey , 103 Ill. 2d

at 331. The defendant

was acquitted of the reckless homicide charges but convicted the next day of driving unde r the influence. Frey , 103 Ill. 2d at 331. At a hearing on a motion for
a new trial, in the defendant's presenc e, the prosecutor gave unrebutted testimony that the defe ndantNo. 2--07--0393

-15-

had been present during discussions of a bench trial a nd that "at some point was a

dvised of his right to tr ia l b y a jury or by the court." Frey , 103 I ll. 2d at 33 0. Althoug h this motion

was appa rently denied, the appellate court granted the defendant a ne w trial because it found no valid jury waiver. Frey , 103 Ill. 2d at 331-32. The supreme

court, however, reversed the appe llate court
. Frey , 103 I ll. 2d at 33 3. Despite the lack of a complete re cord of the pr etrial proceedings, the court found fr om the orders in the common-lawrecord and the prosecutor's te stimony from the p osttrial motion hearing that the defendant had been "present at some point prior to trial when the jury waiver was di scussed." Frey , 103 Ill. 2d at 332-33. Adding the conte xt of the defendant's silence on theday of trial when the court stated that all counts were set for a bench trial, the supre me court held that the defendant had validly waived his jury rig

ht. Frey , 103 Ill. 2d at 333. As in Frey , defendant here was present in open c ourt and did not object when the jury wa

iver
was discussed on October 27. Defendant was also advised e arlier at his arraignment that he had the right to a trial by jury

or judge, as the Frey

court concluded that the defenda nt there h ad been

so advised "at some poin t." Moreover, the record before us provides even strong er support for finding
a valid jury waiver , be ca us e h er e t he di sc us si on to ok pl ac e t hr ee da ys prior to tr ial, wher eas in Frey it occurred months earlier. Furthermor e, altho ugh the defendant in Frey apparently ne

ver signed a waiver, here defendant's signe d jury waiver was filed on the day of tria l. This underscores defend ant's knowing waiver. Steiger , 208 Ill. A pp. 3d at 9 82 (noting

that "the signed jury

waiver *** lessens the probability that the wa iver was not made knowingly "). Yet defe ndant ar gues tha t there w as no disc

ussion of t

he writte n waiver in open court and, hence, no confirmation by the c ourt that the written waiver was act ual ly si gne d by d efe nda nt . In fact,No. 2--07--0393

-16-

his opening brief

refers to the written waiver as "pur portedly signe d" by de fendant. First, however, the law does not require such discussion or confirm ation. See Br acey , 213 Ill. 2d at 270 ("[T]he court need not impart to defendant any

set admonition or advice"). Rather, it is sufficient that there is " 'some affirmative

statement by defe

ndant's attorney , in his presence, that the defendant wishes notto exercise his right to a jury trial and, instead, chooses a bench trial ' " ( Elders , 349 Ill. App. 3d at 578, q uoti ng People v. Roberts , 263 I ll. App. 3d 348, 351 (1994)), which there was at the October 27 hearing. Second, defendant adva nces no argument that the signature on the waiver i s not his and cites no author

ity t o support h

is contention that the State bore the burden of proving that defendant signed the waiver. We accept the re cord on its face and decline to speculate. The written waiver, thou gh alone not dispositive, supports our finding that defendant made a valid waiver in light of the discussions held in his presence in open court. Nonethe less, defendant asks us to find t hat th e waiv er made by his att orney was n ot bi ndin g. The right to a jury

trial is a fund amental r ight of a criminal defenda nt, who ha s the "ul

timate
au th or it y" to waive it. Jones v. Barnes , 463 U.S. 745, 751, 77 L. Ed. 2d 987, 993, 103 S. Ct. 3308, 3312 (1983); see Peoplev. Segoviano , 189 Ill. 2d 228, 240 (2000). The right cannot be waived by
a defendant's attorney

"without the fully informed a nd publicly acknowledged consent of t he [defendant]." See Tay

lor v. I llinois , 484 U.S. 400, 408-09, 418 n.24, 98 L. Ed. 2d 798, 810, 816 n.24, 108 S. Ct. 646, 652 , 657 n.24 ( 1998). However: "A defend ant speaks and acts through his attorney ; therefore, a trial court may rely on the defense attorney to execute his prof essional responsibilities. [Citation.] Th us, where t he defense counsel informs the trial court of the defendant's desire to waive his right to a juryNo. 2--07--0393

-17-

trial, the defe

ndant has knowing ly a

nd under standingly c onsented to the waiver. [Citat

ion.]" Steiger , 208 Ill. App. 3d at 981-82. Inthe case at bar, on October 27, 2006, defe ndant was present in open court and did not object

when his attorne

y informed the court t

hat defe ndant cho se to waive his jury trial right. Thus, defendant effectively

waived his, albeit personal and fundamental, right to a jury trial. Moreover, in People v. Tucker , 183 Ill. App. 3d 333 (19 8 9), this court found a valid jury waiver on facts even les s favora

ble to the State. In Tucker , the cas e was scheduled f or a benc h trial, and a jury waive

r was to be taken on that same date. Tucker , 183 Ill. App. 3d at 334. The trial court asked, " 'Jury trial?' " Tucker , 183 I ll. App. 3d at 334. De fense

counsel, in the defendant's presence and without his objection, responded, " 'No. Bench.' " Tucker , 183 Ill. App. 3d at 334. (There wa s
no written waiver

inthat case, but it was not statutorily requir ed at the time. Tucker , 183 Ill. App. 3d at 335. ) Reason

ing that "the tri al court

is entitle d to rely

on the def

ense att orney to execute

his professional responsibilities," we affirmed that there was a valid waiver
. Tucker , 183 Ill. App. 3d at 335. The case at bar contains a similarly valid waiver be cause defendant was present in open court when his attorney a

dvised the court that he was waiving a jury trial. All the same, defendant focuses on the October 27, 2006, discussion regarding scheduling for a bench versus a jury

trial (asserting that referenc e to a bench trial in the context of a scheduling discussion does not c onstitute waiver), and the court's Octobe r 30 return to the State of its tendered jury instructions (maintaining that he reasonably could have believed that he had no c hoice abou t
a jury trial sinc e the cou

rt sua spontereturned the jury instructions, or that it was the State that opted to have a bench trial instead of a jury trial since it had tendered the instructions to the court in the first place). Defendan

t correctly

asserts that neither the October 27 scheduling discussion nor theNo. 2--07--0393

-18-

court 's return o f the State 's jury instructi ons on Oct

ober 30 c onstituted

a vali d jury waiver . Yet defend ant's argume

nt m isses t

he mark and, we note, omits relevant portions of the recor d. As discussed above, the October

27 explicit dis cussion of

a jury waiver i n open co urt resu lted in a v alid waiver, su pp or te d b y the signed written waiver. Thus, the fact that neither the October 27 scheduling discussion nor

the October 30 return

of the State's jury

instructions constituted a valid jury waiver is irrele vant. Furthermore, we distingu

ish the ca ses cited

by d efenda nt in suppor

t of his contention that he did not validly waive

his right to a jury tria

l. In People v. Thornton , 363 I ll. App. 3d 481 (2006), and Peoplev. Williamson , 311 Ill. App. 3d 54 (1999), the appe llate cou rt held tha t refer ences to a bench trial made only in the context of discussions of

ot her mat ter s we re i nsu ffi cie nt as j ury w aiv ers . In Thornton , the references to a bench tria l were made only

during discussions of continua nc es (Thornton , 363 Ill. App. 3d at 482-83), and, in Williamson , the benc h trial re ferenc es were

merely inthe conte

xt of sched

uling dis cussions (

Williamson , 311 Ill. App. 3d at 55-56). S imilarly , in Peoplev. Ruiz , 367 Ill. App. 3d 2 36, 238-39 (2006), reference to a be nch trial occurred only

in a scheduling discussion. Additionally, in Ruiz the appellate court held that the trial court's re ference to the defendant's signed jury waiver did not constitute a "discussion" of the jury waiver
. Ruiz , 367 Ill. App. 3d at

238-39. N one of the se case s involved an actua l dis cussion of a jury w aiver in defend ant's presence in open court. Finally, Peoplev. Elders , 349 Ill. App. 3d 573 (2004) , is even less relevant

because it involved an attempted retroactive waive r, secured after the finding of guilt
. El ders , 349 Ill. App. 3d at 576-77
. All of these cases are unlike our case, w here defendan

t wa s admonis hedat the arra ignment of his right t o a tri al by jury or j udge an d then , in d efenda nt's presence at the final p retrial h earing in open court, the judge e xplicitly asked if defendant wante dNo. 2--07--0393

-19-

to waive a jury

and his attorney a

nswered in the af firmative without o

bjection from def endant. As defendant entered a valid jury waiver, he has not established error, much less plain er ror. B. Sufficiency

of the Evidence Defendant

argues that the trial cou

rt erre d in findin

g him gu ilty of attempted arson becau se the State's evidence was insufficient to establish that he had the requisite intent and took a substantial step toward the co mm ission of arson. Defendant contends that the evidence c onsisted solely of Loyola's unconvincing testimony, unc orroborated by other witnesses or by phy sical evidence. He argues that, in lig

ht of this w eak evid

ence, h is own test

imony , and that

of his alibi witne ss es, a
reasona ble doubt existe d as to

his g uilt. We find that

the evidence was sufficient to convict bey ond
a reasonable dou

bt. "When a court reviews the sufficiency o f the evidence, it must ask 'whether, afte r viewing the evidenc e in

the light most favorable to the prosecution, any rationa l trier of fact could have found the essential elements of the crime bey ond a reasonable doubt.' " (Empha sis in original.) Peoplev. Phillips , 215 Ill. 2d 554, 569-570 (2005), quoting Jackson v. Virgini a , 443 U.S. 307, 319, 61 L. Ed 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). It is the province of the fac tfinder to assess th e credi

bility of wit nesse s, wei gh the evidence, decide what infere nces it supports, and

settle an y c onflicts i

n it. Peoplev. Ortiz , 196 I ll. 2d 236, 2 59 (2001) . In a bench tr ial, it is the judge, as the trier of fact, who makes these determinations. People v. Mullen , 313 Ill. App. 3d 718, 724 (2000). We will neither retry defendant

nor impose our judgment upon the trier of fact. People v. Cunningham , 212 Ill. 2d 274, 279 (2004); Ortiz , 196 Ill. 2d at 259
. Mor eover, a complainant's testimony re quires no corroboration and "need not be unequivocal ." People v. Doll , 371 Ill. App. 3d 1131, 1138 (2007). In fact, "the identification of aNo. 2--07--0393

-20-

single witness is sufficient to sustain a conviction if the witness viewed the acc used under cir cum stances that allow ed a positi ve identifi cation." Mullen , 313 I ll. App. 3d at 724. F actors to be considered in determin ing the s ufficie ncy of the te stimony

of a single ey

ewitness include: "(1) the opportunity the victim had to view the criminal at

the time of the crime; (2) the witness' deg ree of attention; (3) the accuracy of the witness' prior

description of the criminal; (4) the leve l of cer tainty demon strated

by the victim at the identification conf rontation; and (5) the length of time between the crime and the identification confro ntation. " People v. Slim , 127 Ill. 2d 302, 307-08 (1989)
. Fi na ll y, the trial

court is not obliga

ted to bel i eve a defen dant's alibi witn esses over t he St ate's witnesse s, especially whe re the defendant's witnesses are related to the defendant

and fail ed to come forward during the initial investigation. Mullen , 313 Ill. App. 3d at 729. The elements of attempt are an intent to co mmit the specific offense (here, arson) a nd the commission of an act constituting a substantial step toward that end
. 720 I LCS 5/8 --4(a)(West 2004). "A person commits arson when, by means of fire or e xplosive, he

knowing ly

*** [d]amages any re al pr op er ty, or any per

sonal property ha

ving a value of $150 or more, of another without his consent." 720 I LCS 5/20--1(a) (West 2004). Therefore, the State bor e the burden of showing

that defendant intended to damage by

fire the truck in Loy

ola's dri veway a

nd took a substantial step toward that end. Inte

nt must usua

lly b e infer

red from the surroundi ng circumstances. People v. Moreira , 378 Ill. App. 3d 120, 129 (2007)
. Althoug h "mere prepar ation" d oes n ot qual ify

as a substantial step, the State n eed not prove that "a defenda nt complete[d] the la st proximate act in order to be convic ted of attem pt." People v. Smith , 148 Ill. 2d 454, 459 ( 1992). A f act-spe cific analy sis is required; the facts can be placed on a "continuum between

preparation and perpetration." People v. Terrel l , 99 Ill. 2d 427, 434 (1984).No. 2--07--0393

-21-

Defendant

first argues that the testimony of the State's ey

ewitne s s, Loy

ola, was unconvincing and insufficient to establish his identity as the person w ith the l ighter in Loy

ola's ya rd. The trial court stated that i t beli eved Loyola's testi mony, bu t foun d defen dant's testimony and that of his alibi witnesses to be "somewhat incredible." These determinations were the proper province of the trial court, as finder of fact. Ortiz , 196 I ll. 2d at 25 9; Mullen , 313 Ill. App. 3d at 724. The court found that Loy ola positiv ely

identifie d defend

ant as one of t hree persons in her front y ard at 1:40 in the morning on July 13, 2005. It c oncluded that defendant tried to li ght a ra

g in a bottle (essentially, a Molotov cocktai l) held by Rodriguez. Moreover, the court found that sparks were emitted. All of the factor s to b e used in eva luati ng a wit ness i denti ficat ion s uppor t Loyola's credibi lity . First, L oyo la had a good opportunity to view defendant, as she h ad an uno bstr ucted view of him in the ya rd, illuminatedby the motion sensor light. Second, she had a high degree of attention since she was awake, concerned about the safety of he r family, when the

light was activated, and

her identification therefore was not hindered by her just having awakened. Third, Loy ola gave an accura

te initial description, having known defendant for a few y ears an d identify ing him by

his nickna

me at the t ime of her report to t

he police. Fourth, she had a high level of cer tainty, even desc

ribing his facial expression indetail. F inally , Loy ola not onl

y immediate ly id

entified defenda nt in her in

itial rep ort, butshe also identified him without hesitation one we ek later in the photo lineup and again at the trial. Whether L

oyo la had a motive to lie was a determination for the trial court as fa ct finder. It was inthe best position to asses s credi bi li ty, we ig h t he ev id en ce , a nd re so lv e c on fl ic ti ng te st im on y. Peoplev. Dominguez , 38 2 Ill. App. 3 d 757, 771 (2008). The trial c ourt foun d that the defense witnesses lacked credibility, be ing related to defendant and failing to have come forward

earlier. See Mullen , 31 3 Il l. Ap p. 3d at 72 9. Ac co rd in gl y, we wil l not dist urb th e tria l cour t's fi ndin gs regardingNo. 2--07--0393

-22-

credi bi li ty, because

a rational trier

of fact could have found that Loyol a was cr edible, w hil e th e defense witnesses were not. Defendant

next argue s that the S tate fai led to meet its bu rden of proving b eyond a rea sonable doubtthat defendant had the intent to commit arson and t hat h e took a substantial step toward that end. Defendant's intent could be inferre d from his conduct. The evidence supports the finding that d efendant was a L atin King

who had dr

iven by Loy ola's r esidenc e while th

rowing gang signs a n d calling out a threatening gang slogan. The record

reflects that in the past the Surenos had responded to this beha

vior with d

isrespe ctful g ang sig

ns. Defe ndant' s testim ony corrob orated Gonz alez's testimony that gang members were

expected to respond to disrespect with some form of intimidation, suchas arson. Viewed in this context, defend ant's pr esence in Loy ola's y ard at 1: 40 a.m. an

d his attemptsto light a Molotov cocktail supp ort the reasona ble infe rence t hat defe ndant inte

nded to commit arson. Viewing this evidencein the light most favorable to the prosecution, a rational trier of fact could have found the element of intent bey ond a reasonable doubt. Si mi la rl y, the evidence was sufficient to support the finding that defendant took a substantial step toward committing arson. Defendant was within throwing distance of the truck and had gotten
as far as producing

sparks w hile try ing to light an inc endia ry device. Alth ough the last proximate step would have been to throw the lit bottle a t the truck, it was r

easonab le for the

trial cou rt to find that defendant had exceeded mere pre paration and begun perpetration of a rson. Our conclusion that the State presented sufficient evidence to support a finding that defendant took a substantial step toward committing arson is supported by a factually

similar case in which the appella te court found the evidence sufficient to sustain a conviction of attempted a ggravated arson. In People v. Johnson , 102 Ill. App. 3d 122 (1981), the trial court found that

the defendant threatenedNo. 2--07--0393

-23-

to burn down the house of h is former girlfriend, purchase d gasoline, took it to the house, and poured it beside the foundation of the wood-frame structure. Johnson , 102 Ill. App. 3d at 126. He stopped pouring the gasoline when police arrived. Johnson , 102 I ll. App. 3d at 126. The appell ate cour t held that the evidence was sufficient to support the defenda nt's conviction becaus e "the only re maining step to be taken to complete the arson was the igniting of the gasoline." Johnson , 102 Ill. App. 3d at 126-27. This was true despite the fact tha t th e defen

dant did not have a s ource of ignition on his person at the time
. Johnson , 102 Ill. App. 3d at 127 (noting that it was just as consistent with the evidence to conclude that the defendant mistakenly believed he had an ignition source). Si mi la rl y, inthe instan

t case, d efenda nt stopped

his attempt when L oyo la scre amed. A r atio nal trier of fact could have fou nd that, bu

t for L oyo la's int

erventi on, defe

ndant wou

ld have taken

the last pr

oximate step and thrown the lit bottle at the truck. Our review indicates that the State presented sufficien t evidenc e to find d

efenda nt guilty be yond a reasonable dou

bt of atte mpted ar son. We thus see no reason to disturb the tri al court ' s finding s. C. Discovery Defendant

argues that the State violated Supreme Court Rule 412 (188 Ill. 2d R. 412) when it failed to disclose Loy

ola's contradiction of the police report re garding the color of the bottle used inthe incid

ent. Acc ording t

o defend ant, this violation r

esulted in an unfai r trial and a viol ation of h

is right to due pro cess. He

contends that, if defe

nse counsel had known of the discrepancy regarding this material fact, he would have been able to impeach L oyola' s testimony, thus creating reasona ble doubtof defenda nt's g uilt, espe cially

since Loyo la was the

only eyewitness . Defen

dant addi tionally argues that prior knowledge of the discrepancy

could have resulted in his optingfor a jury tr ial andNo. 2--07--0393

2 Defendant filed two motions as a result of the State's supplemental answer to discovery
. The March 9, 2007, motion was for acquittal or for a new trial; the March 16, 2007, motion was to reconsider his sentence, to vacate or c ommute the sentence, and/or for a new trial. The tria l court denied both motions on March 16, 2007.

-24- that this is also a basis for finding that he was deprived of a fa ir trial. Therefore, defendant asserts that the tr ial cour t erred in deny ing hismotions for

a new tri al. 2 The State concedes that it violated discovery rules by failing

to disclos e th e d is cr ep an cy b ut as se rt s t ha t i t d id so un in te nt io na ll y. Moreover, the State maintains that the col or of the b ottle was not material, that defendant was therefore not prejudiced by the violation, and that a new trial is not warranted. We agre e. We review

for abuse of discretion a trial court's de nial of a motion for a new trial. People v. Brink , 294 Ill. App. 3d 295, 302 (1998). The parties cite People v. Turner , 367 Ill. App. 3d 490, 499 (2006), to support their assertion that we are reviewing for

abuse of discretion

the trial court's decision to deny a sanction for

a discovery

violation. One of the possible sanctions for a discovery violation where the defendant is denied a full opportunity to prepare his or her defense is the g ranting of a new trial (134 I ll. 2d

R. 415(g); People v. Leon , 306 Ill. App. 3d 707, 713-14 (1999)). Thus, whether we char acte rize our revi ew as be ing of the denial of a motion

for a ne w trial or the denia l of sanctions for a discovery

violation, our review is for abuse of discretion. A trial court a buses its discretiononly if its "decision

is fancif ul, arbitrary , or unreasonable to the degree that no reasonable person would agree with it." Peopl e v. Ort ega , 209 Ill. 2d 354, 359 (2004). The State has a duty

to disclose

evidenc e favor

able to the defense. Brady v. Maryland , 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97 (1963). Regardless of the State' s goodNo. 2--07--0393

-25-

or bad fait

h, the fa ilure to di sclose e

vidence that is "material

either to guilt or to punish

ment" is a violation of a def

endan t's due proc ess rig

hts. Brady , 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. The Brady

rule enc ompasses not just exculp atory evidenc e, but also impeachment evidence. United Stat es v. Ba gl ey , 473 U.S. 667, 676, 87 L. Ed. 2d 481, 490, 105 S. Ct. 3375, 3380 (1985); Peoplev. Williams , 329 I ll. App. 3d 846, 857 ( 2002). I

llinois has

also codified the rule. 188 Ill. 2d R. 412(c). Our supreme court has held:

"A Brady claim re quires a

showing that: (1)the undisc losed evi dence is favora ble to the accuse d becau se it is either exculpatory or impea ching; (2) the evidence was suppressed by the State either wilfully or inadve rtently; and (3) the a

ccused was prejudiced

because the evidence is materi al to gui lt or punishm ent." People v. Beaman , 229 Ill. 2d 56, 73-74 (2008).

If a defendant can show that he suffere d prejudice, unremedied by the trial court, a new trial may be the appropr

iate sanction for the discovery violation. People v. Cisewski , 118 Ill. 2d 163, 172 (1987). Materia lity requires a showing that "there is a reasonable probability

that, had the e vidence been disclosed to the def

ense, the result of the proc eeding

would have been different." Bagley , 473 U.S. at 682, 87 L. Ed. 2d at 494, 105 S. C t. at 3383; see also People v. Anderson , 375 Ill. App. 3d 990, 1011 (2007). Here, the State 's supple

mental an swer to di scovery indicate d that, wh en listeni ng to the police report being read to her in October 2006, L oyola told Gonzalez that the bottle used inthe incident was green, not red as entered on the polic e repor

t. Accor ding to de fendant , Loy

ola "changed her story": either she was an unreliable witness because she did not co nsistently report the bottle color or she categ orically

lied because of her

gang bias. The

State con tends tha t Loy ola consi stently

maintainedNo. 2--07--0393

3 Defendant also argues that the e vidence was insufficient, but we have alrea dy determined its sufficiency a

bove.

-26- that the bottle was green and that the police off icer e ntered the c olor incorrectly on the re

port. Regar dless of its cause, the discrepancy could be used

for impeachment and thus qualifies as evidence favora ble to the defense. Moreover, the State conceded that it had a duty to disclose the discrepancy and that it had

inadver tently breached that du

ty. Theref

ore, the burden r emaining on defen dant in making his Brady

claim wa s to show tha

t h e was prej udiced be cause th is eviden ce was ma

terial. Defendant

maintains that, had he known about this evidence, he would have ch anged h is tr ial st rategy and aggressively

cross-examined Loy

ola and might have req

uested a jury trial ra

ther than a bench trial. He asse

rts that, b ecause

the evidence was clos ely balanc ed 3 and heavily de pendent upon the testimony of Loy ola, had he been able to discredit her testimony , the outcome of the trial likely would have been different. At the hear ing on de fendant's motion s for a ne w trial, the trial court expressly dismissed any chance that the outcome of the trial would have been different had defense counsel used the evidence to impeach Loy

ola: "I don't see how it's material, counsel. I think what is imp ortant in

this case was they had a bottle, not what its color was. Ican tell y

ou that I observe d Ms. Loy

ola's testimony

and I believe her

absolutely. I don't have an

y do ubt that sh e told me the truth. A nd with all

due resp ect to cou nsel, I certain ly didn't be lieve y

our clie nt at all. I

certain ly b elieved

her. I don't se e how this i s materia l. I don't see how the

result would have been dif ferent
. You could have examinedNo. 2--07--0393

-27-

her all afternoon on

the difference in the color assuming that there, in fact, was a differ ence, I am not certain about that, but assuming even there wa s a difference, I don't see how tha t would have been impeaching, not as to a mater ial matter. What was important was that she saw this bottle, not what the color was." The trial court properly

exercised its discretion, a s a reas onable pe rson coul d agre e that the

bottle color discrep ancy

was not ma

terial. T he trial c ourt was i

nthe best position to observe the witnesses and as se ss th ei r c re di bi li ty. The trial cou rt stated that it wa s not even

clear that there

was a di sc re pa nc y, but as sumi ng arguendo that there was, it found that Loy ola was credible and that, even if defendant

had cross-examined her

on the col or of the

bottle, the

outcome o f the tria

l likely would not have been different. This court addressed a similar issue of mistake regard ing th e color of an item in People v. Hoekstra , 371 I ll. App. 3d 720 (2007). Although Hoekstra involved review of the summary

dismissal of the defendant's postconviction petition alleging ineffective assistance of counsel, the underly

ing issue was whether

a witness's description of the defendant' s van as blue, rather than green, invalidated its stop by police. Hoekstra , 371 I ll. Ap p. 3d a t 723. We held that the stop was valid because there
were several other factors supporting it. Hoekstra , 371 I ll. App. 3d at 724 (finding that the timing of the stop, the location of the vehicle, and the defendant's conduc t just prior to the stop supported its validity). Further

more, we found tha t, becau se it

was nig httime and

theref ore dar k, and be cause both green and blue can be considered "dark c olors," the mistake in color was not "fatal." Hoekstra , 371 Ill. App. 3d at 725. Similarly, in the instant case, other f actors sup ported the findin g of g uilt. Defendant

was identified as a Latin King and was positively identified as the man seen in the ya rd of a Sureno supporter, try

ing to lig ht a Moloto v cockta

il that con sisted of a

bottle with

a rag stickingNo. 2--07--0393

-28-

outof it. The color of the b ottle had nothing t o do with the

actions o f defen

dant. Fu rther, e ven if Loy ola had been confused about

the color, her confusion was reasonable since both red and green are dark colors and it was nighttime. Th erefore, the discrepancy had no effect on her observations of defendant's conduct or on the outcome of the trial. Nonethe less, defe nd ant contends that Loy ola lied due to her gang bias and tha t the discrepancy is evidence of her

lyin g. Howe ver, def endant c oncede s that he o therwise had ade quate opp ortunity to cross-examine Loy

ola; indeed, he tried to impeach Loy ola regarding her

bias by focusing

on the facts that she s aid she sc

reamed , but no one

woke up; t

hat she ha

d only a fleeting gli mpse of the perpetr ators; and that she waited to contact the police until the following after noon . The record reflec ts that def

endant ma

de it pate ntly clear d uring c ross-exa mination that Sureno

gang memb er s (including Loy

ola's own two nephews), archrivals of the Latin Kings, often gathered in L oyola' s yard. Loyola's alliance with Surenos supported defendant's conte ntion that Loy

ola had a motive to lie, due to the gang rivalry
. Thus, def endant a ttempted, albeit un success fully , to impea ch Loyol a's cr

edibility inseveral way s. Given that the trial court found all of this other evidence unpersuasive to impeach Loy ola, it is unlikely that it would have found her not cr edible simply because

of the bottle color. A similar conclusionwas rea ched in People v. Black , 207 Ill. App. 3d 304, 305 (1991), where following a bench trial the defendant was convicted of criminal sexual assault. The defendant argued that he was p rejud iced b y the Stat e's disco very violation in failing to disclose a statement that the victim made to her examining physician. Black , 207 Ill. App. 3d at 307. That statement indicated that the victim had dated the codefendant a few times and tha t both the codefendant

and the defendant
were intoxicated at the time of the incident. Black , 207 I ll. App. 3d at 306-07 . This was

contrar y to her testimony at trial

where she stated that the codefendant ha d been a friend for about

a month butNo. 2--07--0393

-29-

that th ey h ad never dated. Black , 207 I ll. App. 3d at 306. She

also did no t testify

about th e intoxication. Black , 207 Ill. App. 3d at 307. The defenda nt argued that he was prejudiced because, had he had this evidence, he would have been able to impeac h the victim's credibility. Black , 207 Ill. App. 3d at 307. The appellate court found tha t the def endant ha d had ampl e opportunity to impeach the victim's credibility throug h the codefendant, who testified that he a nd the vict im had dated for about a year and

regula rly engag ed in sexua

l interco urse, an d throug h a defe nse witne ss who testified that he had da ted the vi ctim

and that she had told him that she had slept with the codefendant. Black , 207 Ill. App. 3d at 307-08. The cou rt held tha

t th e defen

dant had " sufficie

ntly present ed this boyfriend/girlfriend

impeach ment angle to the tr

ial cour t without su

ccess" and th at the ad ditional evidence likely

would not have changed outcome of the trial. Black , 207 Ill. App. 3d at 308; s ee also Peoplev. Harr

is , 123 Ill. 2d 113, 152 (1988) (finding a discover y vi olation bu

t no preju dice, be cause the defendants had sufficient opportunity to impeach t he witness). Likewise, in the case at bar, defendant had abundant opportunity to pre sent his theory that Loyola was ly ing due to her gang proclivities, and the trial court similarly rejected tha

t theory. Moreove

r, any discre

pancy re garding the bottle co lor was e

ven less l i ke ly to be material, since it was never the subject of actual trial testimony, unlike the undisclosed statement in Black
. Ad di ti on al ly, defendant asks us to find an abuse of discretion because he was denied a meaningful opportuni

t y to deci de whether he wanted a bench or a jury trial. We first note that defendant does not allege, and we see no reason to find, that he would have chosen a jury trial had he known about the evidence in question. Secon d, the cas es cited by d efenda nt to suppor

t his proposition are inapposite. In People v. Aguilar , 218 Ill. App. 3d 1, 3 (1991), after a bench trial the defendant was conv icted of deliver y of controlle d substanc es. The a ppellate court fo und that the StateNo. 2--07--0393

-30-

wilfully ignored the defendant's discove ry re quest by not disclosing that the State' s informant had been paid. Aguilar , 218 I ll. App. 3d at 9. When t

his fact was r evealed duringthe po lice o fficer 's te st im on y, the trial court granted the defenda nt a six-week continuance to prepare his defense in light of this testimony. Aguilar , 218 I ll. App. 3d at 9. The

appell ate cour

t a cknowledged that the continuance allow ed the d efendant to "obtain the same mileage " from the previously undisclosed evidence. Yet it reversed

and remanded because the defe ndant had been "denied

the full op

portunity to prepar e his def ense and make tactical decisions with the aid of [th e] informa tion." Aguilar , 218 Ill. A pp. 3d at 10, 11. The court concluded that the defendant had suf fered "extreme prejudice" because he may have

chosen a jury trial, wh ich could have re sulted in

a different verdict, rather than a bench trial. Aguilar , 218 Ill. App. 3d at 10. In People v. Blackman , 359 Ill. App. 3d 1013, 1021 (2005), also cited by de fendant, the court relied on Aguilar

to hold tha

t the tria l court' s offer o f a continuance was insufficient to remedy the prejudice suffered

by the defe

ndant when the State failed to disclose that one of its key eyewitnesse s had bee n paid $20,000 in

relocation expenses. The Blackman court not ed that th e defen

dant coul d nothave made "an informed and intellige nt waiver of his rig ht to a jury

trial bec ause the State violated the discover

y r ules" ( Blackman , 359 I ll. App. 3d at 1021) by not disclo sing a ma

terial f act ( Blackman , 359 Ill. App. 3d at 1019). Aguilar and Blackman

are disti nguisha ble from t he case at bar. I n those ca ses, the undisclosed evidence was material. Significantly , that evidence consisted of facts that established the existence of bias in the first place. In other words, the informant in Aguilar arguably had a bias in favor of the State because

he was a

paid polic e inform ant, a nd th is evi dence a lso s uppor ted th e defen dant's entrapment defense. Similarly , in Blackman , the witness had a bias in favor of the State bec ause itNo. 2--07--0393

-31-

paid her relocation expenses. In c ontrast, the undisclosed evidence here cons isted of a possible discrepancy

in Loy ola's de scription

of the co lor of the

bottle. Th

is does not

establish a bias. Rather, the defendant stren

uously arg

ued Loy ola's possible bias at trial. He merely wants to add the color discrepanc y

to the bias evidence that he already presented at trial, in the hope that it would tip th e scale in favor of Loy

ola's impeachment. T he trial cou rt concluded that the discrepancy would not have changed the outcom e and t hus t hat it was no t mat erial . Whi le we d o not condo ne the Stat e's failure to disclose, defendant suffered no prejudice. Accordingly , we cannot say that the trial court abused its discretion in denying defendant's motions for a new trial. Fo r t he re as on s g iv en , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f K an e C ou nt y. Affirmed. SCHOSTOK, J., concurs. JUS TICE McLAR EN, sp ecial ly concurr ing: Ispecial ly c oncur be cause I have a problem

with the lo gic of t

he case law that s

ugge sts that a defendant may waive

his individual right to a jury trial mere ly by remainin g silent in open co

urt while his attorney states

that the right to a jury

has been waived without referencing the fact that

it was the decisionof the defendant al o ne and not that of the attorney . I am aware that the law is well settled, butthat does

not make i

t logica l. I su bmit that, if def

ense counsel had said in open court, without comment by the attending

defendant, "I

have discussed this with m y client an d he objected to the waiver, but I am waiving the rig ht to a jury trial," the

nonsequitur and

error would be re adily

appare nt. (N ote, the error is apparent even without the defe ndant' s acknowledgme

nt or esta blishing that th e defendant knew the right to a jury trial was solely his rig

ht to waive.)No. 2--07--0393

-32-

Iwould affirm the judgmen t of conviction and

conclude that the r

ecord do es not sust

ain defendant's burden of proof on a ppeal as required by

our supreme court in People v. Smith , 106 I ll. 2d 327, 335-36 (1985). Defendant must es tabli sh plain e rror. He claims tha

t he did not knowing ly waive his right to a trial by jury. Ba sed uponthe record that defendant has provided, we have no way of knowi ng whether or not he knowing ly waived the right to a jury trial. "Without that, we mus t
assume that the record indications of a jury waiver are indeed based

on a valid waiver." Smith , 106 I ll. 2d at 336.