author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY MALDONADO, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—2428
    Opinion filed December 21,1989.
    Rehearing denied February 7, 1990.

      Frederick F. Cohn, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Theodore F. Burtzos, and Susan J. Crane, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Roy Maldonado, was convicted of two counts of murder (Ill. Rev. Stat. 1983, eh. 38, pars. 9 — 1(a)(1), (a)(2)) following a jury trial in the circuit court of Cook County. The trial judge sentenced defendant to the penitentiary for two concurrent terms of natural life.

Defendant now appeals, contending he did not receive a fair trial because: (1) the trial judge refused to suppress involuntary statements he made to the police; (2) defense counsel, during discovery, was not informed where a State’s witness lived or worked; (3) the trial judge restricted the scope of the cross-examination of a State’s witness; (4) a portion of a tape-recorded telephone conversation was excluded from evidence; (5) the evidence was insufficient to prove beyond a reasonable doubt his guilt; (6) the prosecutor made several improper and prejudicial remarks throughout the trial; (7) the jury did not have the tape-recorded telephone conversation in the jury room during its deliberations; and (8) the trial judge refused defendant’s proffered jury instruction.

We affirm.

Background

The record contains the following pertinent facts. The victims, Theresa Musto and Vincent Pagano, lived together at 4520 North River Road in Schiller Park, Illinois. On April 7, 1982, their bodies were found in their home, on the living room floor with pillows and sofa cushions lying over them.

The victims were fatally shot. Sheriff’s police found live bullets and .38 caliber spent cartridge casings in the living room and kitchen. Additionally, several areas in the apartment were ransacked.

On March 3, 1983, Chicago police officer Phillip Handzel questioned defendant’s brother Fidel and a woman regarding another shooting. Handzel asked the woman for identification. When she opened her purse, the officer saw three guns. They were arrested; car keys were discovered in a pat-down search of Fidel. A search of their automobile uncovered a .38 caliber semiautomatic pistol. Subsequent testing of the pistol, and of the bullets recovered from the bodies of Musto and Pagano and from their apartment, determined that the pistol was the murder weapon in the Musto and Pagano shooting.

On March 6, 1983, Detective Thomas West arrested defendant as a suspect in another shooting (hereinafter the Rojas murder). After being advised of his Miranda rights, he was questioned first on the Rojas murder and then on the Musto and Pagano murders. Present for the interrogation were Detectives West, Robert O’Neill, and Joseph Carroñe. Defendant had previously been an informer for Detective O’Neill. Defendant refused to talk about the Rojas murder because his brother was involved and in custody.

Defendant, however, did make statements regarding the Musto and Pagano murders. He stated that he was at the scene when the shooting occurred. He and an acquaintance, “Crazy Ricky” Berrera, went to the couple’s apartment to sell them approximately $35,000 worth of narcotics and a machine gun. Defendant left the apartment and went to their automobile to retrieve the narcotics. While he was away, Berrera had shot and killed Musto and Pagano. He and Berrera ran to the car and drove away. Defendant was afraid to take the gun away from Berrera. He dropped Berrera off at a bus stop.

Michael Van Amburgh, a special agent of the United States Treasury Department, Bureau of Alcohol, Tobacco, and Firearms, questioned defendant on March 22, 1983. Defendant told the agent that he and family members purchased pistols, using different names, from a gun dealer in Ottawa, Illinois. Defendant stated that after he bought the pistols, he had them converted to fully automatic weapons equipped with silencers. Van Amburgh went to the gun dealer. He learned that defendant and family members did buy six or seven weapons. The serial number of one of the pistols they bought matched that of the pistol recovered from Fidel Maldonado’s car — the weapon in the Musto and Pagano murders.

Duane McQuiston was an inmate at Cook County jail with defendant. In 1983 and a part of 1984, he and defendant were assigned to the same tier in the jail and spent approximately 12 hours together per day. They discussed crime. Defendant boasted to McQuiston about making money, shooting people, and enjoying guns equipped with silencers. Defendant explained to McQuiston that one could stage a narcotics deal, where one could pose as selling cocaine and then rob the buyer of his money, or pose as buying cocaine and rob the seller of the narcotic. Defendant further told McQuiston how he had done this to Musto and Pagano. He explained to McQuiston that he and Berrera learned that Pagano had money for a cocaine deal, so they shot him and Musto also.

Defendant was indicted for the murder of Musto and Pagano; the cause was tried to a jury. On April 23, 1987, the jury convicted defendant as charged. At the sentencing hearing on July 23, the trial judge denied defendant’s post-trial motions. Defendant having waived a jury for the penalty phase of the trial, the trial judge heard the evidence in aggravation and mitigation. At the close of the evidence and arguments, the judge determined that defendant qualified for the death penalty. However, the trial judge ruled that imposing the death penalty on defendant would be inappropriate. Pursuant to statute, he sentenced defendant to the penitentiary for a natural life term on each conviction, to be served concurrently. Defendant appeals.

Opinion

I

Defendant claims that he did not receive a fair trial because his statements to the police were involuntary. Noting that he was an informer for Detective O’Neill, defendant contends that whatever information he provided to the police would not be used against him. Further, the detectives acknowledged this relationship. Defendant argues that he made the statement to the detectives as an informer.

An individual who is subjected to custodial police interrogation concerning matters that might tend to incriminate him is entitled to the procedural safeguards that the United States Supreme Court outlined in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. The person interrogated may waive these rights, but a heavy burden rests on the State to show that he waived his constitutional rights knowingly and intelligently. (384 U.S. at 475, 16 L. Ed. 2d at 724, 86 S. Ct. at 1628.) The trial court must initially determine whether defendant knowingly, intelligently, and voluntarily waived these rights (People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234), based on a preponderance of the evidence. People v. King (1986), 109 Ill. 2d 514, 525, 488 N.E.2d 949, 955.

While the relationship of an interrogator to the person being interrogated is a relevant consideration in assessing a statement’s voluntariness, it is only one factor out of the totality of the circumstances. (People v. Wipfler (1977), 68 Ill. 2d 158, 173-74, 368 N.E.2d 870, 876.) The test is whether the defendant made the statement freely, voluntarily, and -without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. Our standard of review is not the criminal standard of beyond a reasonable doubt, but rather, that of manifest weight of the evidence. (People v. Prim (1972), 53 Ill. 2d 62, 70, 289 N.E.2d 601, 606, cited in Martin, 102 Ill. 2d at 426-27, 466 N.E.2d at 234.) In other words, the trial court’s determination will not be reversed on appeal unless it is against the manifest weight of the evidence. King, 109 Ill. 2d at 525, 488 N.E.2d at 955.

After reviewing the record, we cannot say that the trial court’s finding of voluntariness was against the manifest weight of the evidence. Defendant was given Miranda warnings. He then refused to discuss the Rojas murder, but chose to make a statement on the Musto and Pagano murders. Although defendant previously had given information to the police as an informer, his past conversations had never been preceded by Miranda warnings. Further, after the detectives gave defendant the Miranda warnings, there was no evidence that they would, or defendant should, disregard the warnings. Detectives West, O’Neill, and Carroñe all testified that they made no promises to defendant. They denied telling him that if he gave information it would not be used against him. We uphold the trial court’s denial of defendant’s amended motion to suppress.

II

Defendant claims that he was denied a fair trial because, during discovery, defense counsel was not informed where McQuiston lived and worked. The trial judges found that the disclosure of McQuiston’s home and work addresses would result in a substantial risk to him of physical harm; further, this risk outweighed the disclosure’s usefulness to defense counsel. During trial, however, the trial judge ordered the State to provide defense counsel with the information and allowed defense counsel to reopen his cross-examination of McQuiston if any issues arose from the information.

Our supreme court requires the State to disclose to defense counsel the names and last known addresses of persons whom the State intends to call as witnesses. However, the trial court may deny disclosure if it finds that there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment resulting from the disclosure which outweighs any usefulness of the disclosure. (See 107 Ill. 2d R. 412.) A defendant carries the burden of showing that the nondisclosure of the names and addresses of prospective witnesses resulted in surprise and prejudice. Absent such a showing, a reviewing court will not find an abuse of discretion. People v. Gutierrez (1985), 136 Ill. App. 3d 774, 784, 483 N.E.2d 944, 951.

The record in the case at bar contains no evidence of prejudice. Defense counsel vigorously cross-examined McQuiston and chose not to reopen the cross-examination after investigating the information. We find no abuse of discretion.

III

Defendant claims he was denied a fair trial because the trial judge restricted the scope of his cross-examination of McQuiston. Defendant contends that- McQuiston was subjected to limited cross-examination concerning his prior street gang affiliation and various issues relating to his background as a burglar.

Defendant invokes his constitutional right to confront the witnesses against him. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8.) Impeachment through showing bias comes within the ambit of the constitutional guarantee; a defendant has the right to cross-examine a prosecution witness. People v. Rufus (1982), 104 Ill. App. 3d 467, 472, 432 N.E.2d 1089,1094.

At common law, a court should allow a defendant the widest latitude in cross-examination for establishing bias. (Rufus, 104 Ill. App. 3d at 473, 432 N.E.2d at 1095.) This latitude rests in the sound discretion of the trial court; a reviewing court will interfere in the trial court’s decision only where there is a clear abuse of discretion resulting in manifest prejudice to the defendant. People v. Franklin (1976), 42 Ill. App. 3d 408, 420, 355 N.E.2d 634, 644.

The constitutional guarantee and the common law right are separate. The discretionary authority of the trial court to restrict the scope of cross-examination comes into play only after the court has permitted, as a matter of right, sufficient cross-examination to satisfy the constitutional guarantee. (Rufus, 104 Ill. App. 3d at 473, 432 N.E.2d at 1095.) To determine the constitutional sufficiency of cross-examination, a court looks not to what a defendant had been prohibited from doing, but to what he had been allowed to do. If the entire record shows that the jury had been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because defendant had been prohibited on cross-examination from pursuing other areas of inquiry. Rufus, 104 Ill. App. 3d at 473-74, 432 N.E.2d at 1095, quoting People v. Heins (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420, 425-26.

After reviewing the entire record in the case at bar, we conclude that the jury had been made aware of adequate factors to determine whether McQuiston was worthy of belief. Through McQuiston’s testimony and defendant’s cross-examination of McQuiston, the jury heard evidence on McQuiston’s possible bias stemming from several areas, including his custodial status and criminal record. We find sufficient cross-examination to satisfy the constitutional guarantee. Additionally, we cannot say that the trial court’s restrictions on defendant’s cross-examination of McQuiston were a clear abuse of discretion that resulted in manifest prejudice to defendant.

IV

Defendant claims he was denied a fair trial because a portion of a tape-recorded telephone conversation was excluded from evidence. McQuiston knew Dan Slaughter and introduced Slaughter to defendant. Slaughter arranged a three-way telephone conversation between himself, McQuiston, and defense counsel. With permission, defense counsel tape-recorded the telephone conversation. First, defense counsel spoke to McQuiston, with a few interruptions from Slaughter. Then, defense counsel spoke with Slaughter. The trial court limited the playing of the tape to that part of the conversation between defense counsel and McQuiston. Defendant claims that the edited portion of the conversation with Slaughter was relevant to the issue of McQuiston’s bias.

The trial court reasoned that playing Slaughter’s portion of the conversation would essentially be his testimony on behalf of the defense, without an opportunity for the State to cross-examine him. We agree; it was hearsay and, therefore, inadmissible. See People v. Carpenter (1963), 28 Ill. 2d 116,121, 190 N.E.2d 738, 741.

Defendant, however, attempts to analogize the conversation with Slaughter as an exception to the hearsay rule. He argues that the Slaughter conversation was an admission by silence on the part of McQuiston. The analogy fails. The hearsay exception of admission by silence generally applies only to a party to the action. (McCormick, Evidence §270 (3d ed. 1984).) In criminal law, this hearsay exception applies to the accused’s silence. (People v. Cihak (1988), 169 Ill. App. 3d 606, 611, 523 N.E.2d 975, 978; C. Torcia, 4 Wharton’s Criminal Evidence §657 (14th ed. 1987).) McQuiston is a witness; he is not the accused. We find no abuse of discretion.

V

Defendant next claims that the State failed to prove beyond a reasonable doubt his guilt. He contends that “the sole basis” of his conviction was McQuiston’s testimony, which was insufficient to sustain his conviction.

Of course, the State carries the burden of proving beyond a reasonable doubt each element of the offense and defendant’s guilt. On appeal, however, a reviewing court, considering all of the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77.

We have reviewed the entire record in the case at bar. We cannot say that the evidence was so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt.

VI

Defendant claims he did not receive a fair trial because the prosecutor made several improper and prejudicial remarks throughout the trial.

A

Defendant assigns error to the prosecutor eliciting from Detective Carroñe the fact that defendant was arrested for the Rojas murder. Defendant also contends that the testimony of Officer Handzel regarding defendant’s brother Fidel was prejudicial with no probative value. Defendant failed to object at trial to this questioning; thus, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Defendant additionally assigns error to the prosecutor mentioning during closing rebuttal argument the Rojas murder. The trial judge sustained defendant’s objection and instructed the jury to disregard the remarks. Thus, the error was cured. People v. Lloyd (1981), 93 Ill. App. 3d 1018,1025, 418 N.E.2d 131,136.

B

Also during his closing rebuttal argument, the prosecutor reflected on the absence of certain witnesses and suggested that defendant could have called them to appear. The trial judge sustained defendant’s objection and instructed the jury. Thus, the error was. cured. Lloyd, 93 Ill. App. 3d at 1025, 418 N.E.2d at 136.

C

During his opening statement and closing argument, the prosecutor remarked that Schiller Park police spoke with unknown persons in investigating the Musto and Pagano murders. Defendant also assigns error to the prosecutor remarking during closing rebuttal argument that defendant was responsible for the crime. Defendant failed to object to these statements at trial; thus, these issues are waived. Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.

D

The prosecutor remarked during closing argument that McQuiston’s life was in danger after cooperating with the police in their investigation. Defendant argues that the prosecutor improperly inferred that he (defendant) threatened McQuiston. A prosecutor is allowed wide latitude in closing argument as long as his comments are based on the evidence or reasonable inferences therefrom. (People v. Piscotti (1985), 136 Ill. App. 3d 420, 441, 483 N.E.2d 363, 378.) After reviewing the record, we conclude that this remark was a reasonable inference from the evidence. We hold that none of the prosecutor’s remarks, considered individually or cumulatively, denied defendant a fair trial.

VII

Defendant claims that he did not receive a fair trial because the jury did not have the tape recording of the telephone conversation between defense counsel and McQuiston in the jury room during its deliberations. This determination was within the sound discretion of the trial judge; it will not be disturbed unless it constitutes an abuse of discretion resulting in prejudice to the defendant. People v. Fernandez (1978), 66 Ill. App. 3d 103,105, 383 N.E.2d 663, 665.

As mentioned earlier, the tape was played during trial. The record shows that the jury had an edited transcript of the conversation, with all references to Slaughter deleted. This was sufficient. We find no abuse of discretion.

VIII

Defendant lastly claims that he did not receive a fair trial because the trial judge refused his proffered jury instruction. Defendant tendered a non-Illinois Pattern Jury Instruction (hereinafter IPI) regarding the testimony of an informer. The trial judge refused the instruction. He ruled that: (1) McQuiston was not an informer; and (2) as a result, IPI Criminal No. 1.02 (2d ed. 1981) adequately advised the jury of the applicable law.

The decision whether to give a tendered non-IPI instruction rests within the sound discretion of the trial court. Further, the trial court may properly refuse a non-IPI credibility instruction where an IPI instruction is given which adequately addresses the same issue. People v. Barnes (1983), 117 Ill. App. 3d 965, 975, 453 N.E.2d 1371,1380.

The record in the case at bar shows that McQuiston was a witness as any other; he was not an informer. Therefore, IPI Criminal No. 1.02 (2d ed. 1981) was sufficient. (See People v. Melchor (1989), 180 Ill. App. 3d 372, 375-76, 534 N.E.2d 1082, 1084-85.) We find no abuse of discretion.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE K1ZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEXANDER HEREDIA, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—2017
    Opinion filed December 28,1989.
    Rehearing denied February 27,1990.

      Dennis A. Giovannini and Herbert L. Goldberg, both of Giovannini & Goldberg, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., John A. Gasiorowski, and Christine C. Perille, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE K1ZZI

delivered the opinion of the court:

Defendant-appellant, Alexander Heredia (Heredia), was charged with murder and armed violence in connection with his wife’s death. After a bench trial, Heredia was found guilty of voluntary manslaughter and sentenced to 24 years’ imprisonment. Heredia appeals the conviction and sentence.

On appeal, Heredia argues that (1) the court abused its discretion in sentencing him to 24 years where the court considered improper materials in the presentence report, made findings which were inconsistent with the facts presented at trial and considered improper testimony during the hearing in aggravation; (2) the court erred in finding him guilty of voluntary manslaughter where the State failed to negate theories that the death was a result of an accident or reckless conduct; and (3) the prosecution committed reversible error by questioning him about an alleged aggravated assault of his wife and by allowing the admission of evidence regarding his prior conviction of taking indecent liberties with his daughter. We disagree and affirm.

At trial the following facts were revealed. Laura Heredia died on December 16, 1984, at the age of 29. Thirteen-year-old Lisa Heredia testified that on that date, she, her brother, David, sister, Laura, and mother resided at 7148 South Fairfield in Chicago. Heredia, her father, had not resided at the home on a consistent basis for the preceding two to three weeks.

According to Lisa, on the evening of December 16, she, David and Laura were in the living room while her parents argued for approximately one-half hour in their second-floor bedroom. Heredia insisted upon returning to the home while her mother stated that she did not want him' to live there. Thereafter, her father walked out the front door, and her mother went into the kitchen and looked out the window while she smoked a cigarette.

Lisa recalled that she went upstairs and telephoned her grandmother from her mother’s bedroom. Moments later, her mother came upstairs and Heredia approached, crying and carrying a gun, which he later pointed at his temple. Lisa watched her mother attempt to hold Heredia back by placing her hands on his shoulders. Her mother did not have a weapon and did not hit or strike Heredia. Heredia pushed Laura and caused her to fall backwards on the floor. They were now out of Lisa’s sight.

After informing her grandmother that her parents were fighting, Lisa concluded her conversation and called the police.

Lisa testified that she heard a struggle from inside the room and a door open and close. In addition, she heard her mother say, “Alex, don’t.” Lisa heard shots “right after the other,” but could not recall the exact number fired. Heredia came out of Lisa’s room, dropped the gun, and knelt on the floor. Lisa ran to Heredia, knelt down and held him. She got up, saw her mother lying on the floor, grabbed her little sister, and ran down the stairs and out of the house.

According to Lisa, Heredia moved out of the house in June and November of 1984. He returned to visit his children, and occasionally, they went with him to his mother’s home, where he resided. On December 15, 1984, Heredia spent the night at their home on Fairfield, and the family went shopping on December 15 and 16.

Twelve-year-old David Heredia similarly testified that on December 16, 1984, he resided at 7148 South Fairfield with his mother, Laura, and two sisters and that his father would visit the home “once in a while.” Heredia moved out of the home two weeks prior to December 16. David recalled his parents’ 30-minute argument and saw Heredia come down the stairs and leave the house. He also observed his mother come downstairs, enter the kitchen for two minutes and then return upstairs empty-handed, followed by Lisa.

According to David, Heredia returned in five to eight minutes and climbed the stairs followed by three-year-old Laura. David heard his mother exclaim, “Why Alex?” followed by “a lot of noise and screaming.” Baby Laura started to cry, and then his sisters screamed, “Daddy, no.” David ran into the kitchen and remained there for 10 seconds before running out of the house. Once outside David heard five shots. He heard one shot followed by two shots, “a lot of screaming and yelling,” and two additional shots. Thereafter, David ran to a neighbor’s house and asked them to call the police because his parents were arguing and his father had a gun.

David testified that his father normally kept a gun in his car and that on December 16, 1984, he parked his car directly in front of the house. On December 15, 1984, his father stayed overnight at their home on Fairfield, and the family went shopping on the 15th and 16th.

On cross-examination David testified that immediately after the shooting, he told the police that Heredia returned from his car within one minute and that the five scattered shots rang out within 5 to 10 seconds.

Chicago police officer Walter Wronski testified that on December 16, 1984, at approximately 7:30 p.m., he and his partner, Cathy Branigan, responded to a call of a man with a gun at 7148 South Fairfield. Upon arrival he spoke with Lisa Heredia, who stated that her father was in the house with a gun and that she heard him shoot the gun. Once in the house Wronski heard someone crying and called out “come to the stairs and show me your hands.” Heredia responded, “I can’t, I hurt my wife real bad, help her.”

Officer Wronski testified that after Heredia came downstairs, he handcuffed him, arrested him and advised him of his Miranda rights from a preprinted card. Heredia acknowledged that he understood his rights. Officer Wronski investigated the scene, recovered an automatic handgun from the second-floor hallway and observed bullet casings and a pool of blood on the floor in one of the bedrooms. At the police station, Wronski readvised Heredia of his rights.

Chicago police detective John Smith also investigated the scene and observed blood on the floor just inside the door, a number of shell casings strewn on the floor, and two spent bullets. Smith found a bullet in the bedroom closet. There was no blood on the closet floor.

Detective Smith was present when Assistant State’s Attorney Dawn Overend spoke with Heredia. Overend advised him of his rights and explained her role in the investigation. Heredia stated that he understood the rights and agreed to make a statement. Detective Smith related the following:

“[Heredia] informed Miss Overend at that time him [sic] and his wife had been separated, that he had gone over to the house that evening to talk to her, that an argument had ensued between them at which time she laughed at him, called him a bum. He left the house, went out to his car, got his gun, returned to the house, went upstairs to the bedroom at which time she continued laughing. He fired the gun, she ran into the closet, he fired into the closet, she came out of the closet and he fired the gun again. He could not remember how many times he fired.”

Assistant State’s Attorney Overend related that on December 16, 1984, after having spoken with Lisa, David, and the police officers and read the police reports, she spoke with Heredia at approximately 11 p.m. She advised Heredia of his Miranda rights, and Officer Smith informed him of his wife’s death. Thereafter, he gave the following oral statement:

“He (Heredia) told me that he was separated from his wife so he wasn’t living with her but had gone to the house that night and that they had begun arguing, that he had wanted to move back into the house with his wife and that she said no and he said that she was laughing at him and he said that he felt like he must mean [sic] nothing to her if she could laugh at him like that and he then said he left the house and he went out to his car and he got a gun that he keeps [sic] and I asked him at that point what kind of a gun it was and he told me a .25 caliber and it was silver and I asked him what he did then and he said he went back in the house and he went upstairs with the gun and he said that he again said something to his wife and then he shot her. *** He said that she ran into the closet and that he chased her and that he pulled her back out and then he shot her and I asked him if he knew how many times he had shot her and he said no, that he couldn’t remember. *** After he shot her and he said that she fell to the ground and that he got down and tried to hold her and he said that his daughter had been upstairs when this happened.”

According to Detective Smith and Assistant State’s Attorney Overend, Heredia agreed to give a written statement and read the statement aloud and signed it. Overend testified that she informed Heredia that she could write down what he told her on a felony review statement form or a court reporter could come and transcribe verbatim what he would say. Heredia preferred not to have anyone else in the room and elected to have her write his statement. Over-end left the room and transcribed Heredia’s statement on a felony review form. At approximately 11:45 p.m., in Smith’s presence, Overend showed Heredia the statement, and he read it aloud as she pointed to each word with her pen.

Overend testified that when Heredia finished reading the statement she asked him if it was the truth. He responded affirmatively and declined to make any changes. Heredia, Detective Smith and Assistant State’s Attorney Overend then signed the statement.

The parties stipulated to Dr. Kirschner’s postmortem examination of Laura Heredia. The cause of death was multiple gunshot wounds to the head and trunk. Specifically, there were one gunshot wound to the head, two wounds to the back, and two wounds to the abdomen. Dr. Kirschner found severe cerebral injury, in addition to injuries to the right lung, liver and small intestine. Dr. Kirschner recovered five copper-jacketed bullets of approximately .25 caliber size from the victim’s body.

One wound was located in the top of Laura’s head, one-half inch to the left of the midline, in the superior parietal region. The bullet entered the skull in a downward direction, passing through the medial portion of the left parietal lobe and lodged within the brain stem.

The second wound was located on the right side of her back, IOV4 inches from the top of her head, five inches to the right of the midline. The path of the bullet causing this injury was in an anterior direction downward and toward the left.

The third injury, also a back injury, was located on the left side of the back 141/4 inches from the top of her head and 2V2 inches to the left of the midline. The bullet’s path was downward to the left and in a slightly anterior direction.

The fourth gunshot was located on the abdomen, 25 inches from the top of her head and 21k inches to the left of the midline. The bullet’s path was slightly downward, in a posterior direction and toward the midline.

The fifth wound was located in the left lower quadrant of the abdomen, 26 inches from the top of her head and 21k inches from the left of the midline. The bullet’s path was slightly downward and toward the midline of the posterior direction. With respect to all of the wounds, the doctor noted no evidence of close-range firing. The doctor noted abrasions to both knees and found no evidence of ethanol or opiates in the bloodstream. Also, the parties stipulated that the bullets originated from the gun Officer Wronski obtained in the hall of the Heredia home.

Heredia’s family members, residing in his mother’s home on North Oakley in Chicago, testified that since December 1984 Heredia lived in the basement apartment, appeared tired, constantly smoked cigarettes, and drank coffee.

Heredia’s co-workers at Fabricated Air Systems similarly testified that in December 1984 Heredia drank a lot of coffee, smoked more and looked tired. They described him as a hardworking, nice guy. John Peterman, the company partner and shareholder, testified that he hired Heredia in 1982 as a sheet metal worker and that within one year he advanced to the position of shop foreman. Peter-man described Heredia as an excellent employee, but noted that Heredia’s performance declined in December 1984. Peterman’s partner, William Sterm, Jr., characterized Heredia as congenial, mild and accurate.

Heredia testified that he resided at his mother’s home on North Oakley and that he had three children, Lisa, David, and Laura Rose-maria. At the time of trial, the children lived with his sister-in-law, Alma Alvarado, and Heredia was still employed by Fabricated Air Systems.

Heredia married Laura Alvarado on July 26, 1972. They purchased the home on Fairfield in early 1984. In June 1984, Heredia moved out of the home for approximately one week and a half. Heredia testified that in 1978 Laura told him that she was seeing another man.

According to Heredia, in November and December 1984 when he came home at night Laura was not there. Specifically, one evening after Thanksgiving, Laura did not come home until 6:30 a.m. the next morning. Heredia had locked the doors, and when Laura rang the door bell, he asked her where she had been. Laura responded, “none of your business.” Approximately two weeks later he moved out of the house. After Thanksgiving, until December 9 or 10, Heredia stated that he experienced difficulty sleeping, averaging about four hours of sleep per night, smoked more and drank 10 cups of coffee per day.

Heredia recalled that on December 9 or 10 he bought a Christmas tree and decorated it at their home on Fairfield. Thereafter, his wife asked him to leave the house and inquired whether he was going to secure an apartment. When he refused to leave, Laura said that she would take the children and leave.

The following day, Heredia arrived at the house after work and Laura told him that she was going out. Heredia took the youngest daughter to his mother’s house. Heredia testified that when he returned their daughter the following morning, Laura told him that she had been seeing another man, asked for his forgiveness and promised to stop seeing him. Heredia forgave her, and she asked him to spend the night. The next day she asked him to leave.

Early Friday morning, December 14, 1984, Heredia arrived at the Fairfield home and Laura informed him that he would have to care for the children because she was going out. Heredia asked her not to go. After work he returned, and Laura left the children under his supervision. Heredia took the children to his mother’s home.

At midnight Heredia returned to the Fairfield house, unlocked the door and waited approximately 30 minutes for Laura to arrive. Thereafter, Heredia went back to his mother’s home and telephoned the Fairfield house to no avail. At 1:45 a.m., Heredia drove back to the Fairfield house and waited an hour for Laura’s return.

Saturday, December 15, 1984, at 5 a.m., Heredia again went to the Fairfield house to determine if Laura had returned. He found no one home and subsequently reported to work for a half day. At 3 p.m., Laura telephoned Heredia and asked him to bring the children home. After they arrived, Heredia, Laura and the children went shopping. According to Heredia, Laura asked him to stay overnight and he agreed.

On Sunday, December 16, 1984, the family went shopping again. When they returned home, Heredia asked Laura why he had to leave and told her that he loved her. According to Heredia, Laura said that she was still seeing and had slept with another man. Laura stated that everything was Heredia’s fault, she had been involved with other men and that David and Laura were not his children.

Heredia asked Laura why she was hurting him that way. She laughed and called him a faggot. Heredia replied that he wanted out, did not want to see her or anyone and left the house crying. Heredia recounted that he got his gun out of his car and returned to the house. He wanted his wife to witness his suicide. As he put the gun to his head, Laura struck him. He did not point the gun at Laura. When the gun fired, it stunned him. Laura hit him again, and he fell over the bed as the gun kept firing. Heredia had no intention of shooting his wife, but intended to kill himself in her presence. He did not recall signing his written confession.

The court found that Heredia had deliberately killed Laura, and given the circumstances, had committed voluntary manslaughter.

At the sentencing hearing, the court remarked that it had received and read numerous letters regarding the case. Defense counsel objected to the presentence investigation which contained numerous letters, arguing that the letters were not properly before the court. One of the letters, captioned “Justice for Laura Heredia,” summarized the case and urged community members to write the judge and complain of the miscarriage of justice. The court ruled that the letters would be considered for what they were worth.

At the hearing in aggravation, Alma Alvarado, Laura’s sister and legal guardian of her children, testified to the following. Heredia verbally abused Laura and his violence led to their repeated separations during the 12-year marriage. In 1984, Heredia sexually abused their daughter. Also in 1984, he hit his wife with an ash tray, causing a head laceration. On cross-examination, Alvarado could not recall observing any marks, cuts or bruises on her sister.

Lisa Heredia expressed guilt regarding her mother’s death since she had informed her mother of the sexual abuse. Lisa experienced difficulty concentrating in school and on school assignments. In addition, Lisa described Heredia as a “very, very, violent person,” frequently hitting the children on their ears and head, using foul language and threatening to knock them “through walls.” Lisa pleaded that the court sentence Heredia to the maximum term of 30 years.

On cross-examination, Lisa acknowledged that she never saw Heredia hit her mother. Lisa further testified that she gave Heredia a plaque with the inscription, “To the best daddy in the world, I love you. Merry Christmas, 1982. Lisa,” and that after her mother’s death when packing she put the plaque in Heredia’s suitcase.

In response, Heredia testified that he threw the ash tray during an argument after Laura hit him with a pan of hot oil. In addition, Heredia asserted that he did not beat Laura or hit the children in a manner so as to hurt them. Heredia apologized to everyone for his actions, asked for his children’s forgiveness and said that he loved his children and his wife.

The trial court noted that Heredia had no prior convictions for violent offenses and that he had been a hard-working man. The court found, nonetheless, that under the circumstances an extended term was appropriate since this was the second crime he had committed against a family member and sentenced him to a 24-year term of imprisonment.

On appeal, Heredia first argues that the trial court abused its discretion in sentencing him to 24 years of imprisonment upon the conviction of voluntary manslaughter where the court considered improper materials contained in the presentence report, made findings during sentencing that were inconsistent with the facts presented at trial and considered improper testimony during the hearing in aggravation. We disagree.

The purpose of a presentence investigation is to insure that the trial judge will have all the necessary information concerning the defendant before the court, prior to the time that sentence is imposed. (People v. Youngbey (1980), 82 Ill. 2d 556, 564, 413 N.E.2d 416, 420-21.) A sentencing judge may look at facts of the crime and may search anywhere within reasonable grounds for other facts which would tend to aggravate or mitigate the offense, without being strictly bound by rules of evidence which apply to findings of guilt. People v. Ramsey (1975), 24 Ill. App. 3d 1038, 1041, 322 N.E.2d 547, 549.

Factors from which an appropriate sentence may be deduced include defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) Other considerations include abnormal or subnormal tendencies, natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and something of his life, family, occupation, and criminal record. (People v. Gaines (1974), 21 Ill. App. 3d 839, 847, 316 N.E.2d 14, 21.) An important factor is the seriousness of defendant’s crime. (People v. Morgan (1974), 59 Ill. 2d 276, 282, 319 N.E.2d 764, 768.) Moreover, sentencing is a matter of judicial discretion, and absent a showing of abuse of that discretion, the sentence of the trial court may not be altered upon review. People v. Perruquet (1977), 68 Ill. 2d 149,153, 368 N.E.2d 882, 883.

Appellant argues that the letters to the court expressing outrage at its finding of not guilty on the murder charge and demanding the imposition of the maximum extended term violated his right to an impartial sentencing hearing. We disagree.

When considering a presentence report, the court must exercise care to insure the accuracy of the information considered and to shield itself from the potentially prejudicial effect of improper material. (People v. Peacock (1982), 109 Ill. App. 3d 684, 685-86, 440 N.E.2d 1260, 1262.) Here, the court shielded itself from the potentially prejudicial effect of the letters by its consideration of the letters “for what they [were] worth disregarding] general hearsay allegations of abuse.”

Appellant additionally argues that the court considered unfounded accusations of wife abuse of the witnesses who testified during the aggravation hearing. Generally, when reviewing a bench trial, a court of review presumes that the judge considered only competent evidence. (People v. White (1980), 84 Ill. App. 3d 1044, 1049, 406 N.E.2d 7, 11.) As previously stated, the court announced that it would disregard hearsay allegations of abuse in the letters. Under these circumstances, we find that during the hearing in aggravation, the judge considered only competent evidence and disregarded any unfounded accusations of abuse.

Statutory authority provides that an extended-term sentence may be imposed when a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony when such conviction occurred within 10 years after the previous conviction excluding time spent in custody, and such charges are separately brought and tried and arise out of a different series of acts. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1).) The presence of a single factor in section 5 — 5—3.2 is sufficient to support the imposition of an extended-term sentence. People v. Ferguson (1989), 132 Ill. 2d 86, 95.

Specifically, a second conviction of a Class 1 felony within 10 years is sufficient in itself to support an extended-term sentence. (People v. Timmons (1984), 127 Ill. App. 3d 679, 687, 469 N.E.2d 646, 652.) The crime of taking indecent liberties with a child is a Class 1 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 4(e) (repealed July 1, 1984).) The extended-term range for voluntary manslaughter, a Class 1 felony, is from 15 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—2(a)(3), 9 — 2(c).) Thus Heredia’s 24-year sentence is within the statutory guidelines. When imposing the extended-term provisions, the court should look at the nature of the offense committed as well as the defendant’s prior criminal record. (People v. Sias (1980), 91 Ill. App. 3d 1095, 1103, 415 N.E.2d 618, 624.) Here, the court articulated that the sentence was based upon the nature of the crime committed, the intentional firing of five gunshots after a heated argument, in addition to the prior crime of taking indecent liberties with a child, perpetrated against another family member, their child, Lisa. We find no abuse of discretion by the court’s application of the extended-term sentencing provisions to the case at bar.

Heredia further contends that the court’s findings during the sentencing hearing were inconsistent with the facts presented at trial. We disagree. The court weighed the aforementioned factors, including factors in mitigation, and considered the competent evidence presented at trial. We hold that the findings made during sentencing were consistent with the manifest weight of the evidence presented at trial and that the 24-year sentence was not an abuse of discretion.

Heredia argues that the court erred in finding him guilty of voluntary manslaughter because the State failed to negate his theory that the death was caused by either recklessness or accidentally. We disagree.

Voluntary manslaughter occurs when a person kills an individual without lawful justification when at the time of the killing he acts under a sudden and intense passion resulting from serious provocation by the person killed. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Ill. Rev. Stat. 1985, ch. 38, par. 9 — 2(a).

Our review of the record indicates that the trial court’s ruling that Heredia’s acts were intentional, not accidental or reckless, was proper and not against the manifest weight of the evidence. This is so particularly given the nature of the five gunshot wounds, Heredia’s statement that he chased Laura, shot her, pulled her out of the closet and shot her again, and Lisa’s testimony that she heard the opening and closing of the closet door, corroborating that Laura tried to escape his attack.

Lastly, Heredia argues that the court erred in allowing the admission of testimony regarding his alleged prior assault of his wife and conviction for taking indecent liberties with his daughter. We disagree.

During cross-examination of Heredia, the following questions were asked by the assistant State’s Attorney and answered as follows:

“Q. During that period of time [1973-1978] did you ever physically abuse her [your wife]?
A. No.
Q. Did you in that period ever threaten your wife with a weapon?
A. No.
Q. Isn’t it true that in 1977 you were arrested by the police for aggravated assault on a complaint signed by your wife?”

Defense counsel objected and the objection was sustained.

“Q. Do you recall being arrested in 1977?
A. Probably, but for aggravated assault?
Q. Did it concern a weapon?
A. I was arrested for what they call U.U.W. [unlawful use of a weapon],
Q. Did your wife sign a complaint?”

Defense counsel objected.

“A. I don’t know. There was no charge. You want to go on with it?
Q. I will take it one step further. And the charges were subsequently dismissed in court. Isn’t that correct?
A. A night in jail I guess if you want to look at it that way, yes. ***
Q. When you were arrested for that gun, your wife was the complaining witness, wasn’t she?”

Defense counsel objected.

Evidence of a defendant’s prior misconduct may be admitted, in an appropriate case, if it is offered for a purpose other than to show the defendant’s propensity to commit crime. Specifically, evidence of a defendant’s prior acts of violence toward a victim has been admitted as proof of the defendant’s intent at the time of the commission of the offense charged. People v. McCarthy (1989), 132 Ill. 2d 331.

We find these questions appropriate because they were relevant to Heredia’s disposition toward and relationship with his wife. Heredia argued that his actions were accidental or reckless. His testimony depicts Laura’s actions during the marriage and culminating on December 16 as just provocation for his actions. The testimony as to his violence toward her is relevant to a determination of whether her death was more likely the result of an accident or violence. Accordingly, we find that the probative value of this evidence outweighed any prejudicial effect.

On cross-examination, Heredia was asked why he left the home in May 1984 and responded that he had pled guilty to taking indecent liberties with his child. In May 1984 Heredia was sentenced to four years of probation for taking indecent liberties with his daughter during the time period when she was 9 to 11 years old.

The subject matter of the charge was elicited on direct examination and the parties stipulated to the admission of a certified copy of the conviction. In addition, we conclude that these family circumstances shed light on the tension between the decedent and Heredia as well as her reasons for asking him to leave the home. Thus, the evidence was properly admitted.

Accordingly, we affirm the conviction and sentence of the circuit court.

Affirmed.

FREEMAN, P.J., and CERDA, J., concur.


author: JUSTICE JOHNSON

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellee, v. WILKIN INSULATION COMPANY et al., Defendants-Appellants (Commercial Union Insurance Company et al., Intervening Plaintiffs-Appellees).
    First District (4th Division)
    No. 1—87—2684
    Opinion filed December 28,1989.
    Rehearing denied February 28,1990.

      William C. Murphy, Craig S. Mielke, and Gerald K. Hodge, all of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, for appellants.
    Robert L. Kiesler and Cynthia A. Meister, both of Kiesler & Berman, of Chicago, for appellee United States Fidelity and Guaranty Company.
    Williams & Montgomery, of Chicago (James K. Horstman, Barry L. Kroll, Anthony P. Katauskas, and Lloyd E. Williams, Jr., of counsel), for appellees Commercial Union Insurance Company and Employers Fire Insurance Company.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Thomas M. Hamilton, Fritz K. Huszagh, and Katherine S. Derick, of counsel), for appellees Argonaut Insurance Company and Argonaut Midwest Insurance Company.
    Rivkin, Radler, Dunne & Bayh, of Chicago (Barbara B. Guibord, Steven R. Merican, and Mark R. Sargis, of counsel), for appellee Aetna Casualty & Surety Company.
    Phelan, Pope & John, of Chicago (Peter C. John and Matthew J. Gehringer, of counsel), for appellee Zurich Insurance Company.
    Neil F. Hartigan, Attorney General, of Springfield (Shawn W. Denney, Solicitor General, and Donna Dagnall and G. Michael Taylor, Assistant Attorneys General, of Chicago, of counsel), for amicus curiae Attorney General of the State of Illinois.

      Arthur G. Leisten and Christopher J. McElroy, both of United States Gypsum Company, and James T. Otis, Robert A. Creamer, Robert C. Gislason, Patty J. Dyer, and Jeanine M. Jiganti, all of Keck, Mahin & Cate, both of Chicago, for amicus curiae United States Gypsum Company.
    Don E. Glickman, of Rudnick & Wolfe, of Chicago, and Wiley, Rein & Fielding, of Washington, D.C. (Thomas W. Brunner, Laura A. Foggan, and Frank Winston, Jr., of counsel), for amicus curiae Insurance Environmental Litigation Association.
    Richard L. Sandler, of McDermott, Will & Emery, of Chicago, and Wilson M. Brown III, Stewart Dalzell, Stephen P. Chawaga, and Cynthia M. Eighty, all of Drinker, Biddle & Reath, of Philadelphia, Pennsylvania, for amici curiae American Motorists Insurance Company, American Manufacturers Mutual Insurance Company, and Lumbermens Mutual Casualty Company.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendants, Wilkin Insulation Co., Wilkin Properties, Inc., and Architectural Sales, Inc., appeal from an order of the circuit court of Cook County granting the summary judgment motions of plaintiff, United States Fidelity and Guaranty Company, and intervening plaintiffs, Commercial Union Insurance Company (hereinafter Commercial Union), Employers Fire Insurance Company (hereinafter Employers), Argonaut Insurance Company and Argonaut Midwest Insurance Company (hereinafter Argonaut), and Zurich Insurance Company (hereinafter Zurich), and denying defendants’ cross-summary-judgment motion. Aetna Casualty & Surety Company (hereinafter Aetna) did not file a summary judgment motion but agreed to be bound by the trial court’s decision. The trial court found that defendants were not entitled to insurance coverage under the various comprehensive general liability policies, issued by plaintiff and intervening plaintiffs, for asbestos-related complaints filed against defendants by several school districts and building owners.

The following issues are presented for review: (1) whether the trial court properly found that no potential for coverage exists since the complaints filed against defendants did not allege “property damage” as defined in the various policies; (2) whether the trial court properly found that no potential for coverage exists since the complaints filed against defendants did not allege an “occurrence” as defined in the policies; (3) whether the trial court correctly found that coverage was precluded because of various exclusionary provisions contained within the policies.

Amicus curiae briefs were filed by United States Gypsum Company and the Attorney General of the State of Illinois which support defendants’ position. An amicus curiae brief was also filed by Insurance Environmental Litigation Association, and a joint amicus curiae brief was filed by American Motorists Insurance Company, American Manufacturers Mutual Insurance Company, and Lumbermens Mutual Casualty Company, which supports the position of plaintiff and intervening plaintiffs.

We reverse.

Defendants are engaged, primarily, in the contract installation of thermal insulation. Various lawsuits were brought against defendants to recover damages arising from the alleged installation of asbestos-containing materials in a number of schools and other public buildings. Defendants sought defense and indemnification against these asbestos-related suits from plaintiff and intervening plaintiff insurers. Defendants note that although Wilkin Insulation Company is the only named defendant in the underlying suits brought by the various schools and building owners, Wilkin Properties, Inc., and Architectural Sales, Inc., are parties by virtue of being named insureds under the various comprehensive general liability policies.

All of the insurers, with the exception of plaintiff, agreed to defend defendants under a reservation of rights. Plaintiff, instead, brought an action against defendants for a declaratory judgment that there was no duty to defend or provide indemnity since the damages that were alleged were not covered under its policy. The other insurers then filed intervening petitions also seeking such declarations. Defendants subsequently filed a declaratory judgment action against all of their insurers seeking a declaration of the rights and obligations of the parties under the various policies. All of the parties, with the exception of Aetna, then filed cross-summary-judgment motions.

In ruling on the summary judgment motions, the trial court found that no “property damage” caused by an “occurrence,” as defined in the policies, was alleged in any of the complaints filed against defendants. The court reasoned that the damages claimed were pure economic losses which fell outside of insurance coverage and, therefore, there was no duty to defend or indemnify defendants. Furthermore, the court found that even assuming, arguendo, that “property damage” was alleged, various exclusions in the policies would preclude coverage for the damages claimed in the underlying suits. This appeal followed.

Summary judgment is granted when the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. (Western Casualty & Surety Co. v. Adams County (1989), 179 Ill. App. 3d 752, 755-56; Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) The right to summary judgment must be clear beyond question, and an order granting summary judgment must be reversed if a reviewing court determines that questions of material fact exist or that judgment for the movant was incorrect as a matter of law. International Amphitheater Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571.

The allegations in the underlying complaint in the context of relevant policy provisions determine whether an insurer owes a duty to defend an action brought against an insured. (United States Fidelity & Guaranty Co. v. Specialty Coatings Co. (1989), 180 Ill. App. 3d 378, 383-84.) If the complaint alleges facts potentially within the coverage of the policy, the duty to defend has been established. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 193.) “At the duty-to-defend stage *** the court [cannot] adjudicate disputed facts. That is the genesis of the rule that the court must look only to the complaint to see if the allegations show that the insured’s conduct is potentially within coverage.” State Farm Fire & Casualty Co. v. Shelton (1988), 176 Ill. App. 3d 858, 866.

The court in Western Casualty & Surety Co. v. Adams County (1989), 179 Ill. App. 3d 752, defined “potential coverage” as follows:

“ ‘Potentially covered’ means that the insurer’s duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the possibility of a recovery under the policy. [Citation.] The complaint need not allege or use language affirmatively bringing the claims within the scope of the policy, as the question of coverage should not hinge exclusively on the draftsmanship skills or whims of the plaintiff in the underlying action. [Citation.]” (Western Casualty, 179 Ill. App. 3d at 756.)

The threshold that a complaint must meet to present a claim for potential coverage is low. Doubt as to coverage must be resolved in favor of the insured. La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 451.

The operative language in each of the basic insuring clauses of the various policies is essentially the same in that coverage will be provided for “property damage” that has been sustained as a result of an “occurrence.” The insurers argue that the underlying complaints do not allege “property damage” as defined within policies. The trial court found that only economic loss was claimed since the parties in the underlying suits were asking for costs and repair and replacement. This decision was based, in part, upon another circuit court memorandum opinion, Board of Education of Chicago v. A,C & S, Inc. (Cir. Ct. Cook Co. February 26, 1986), Nos. 85—CH—00811, 85—CH—00812, 85—CH—03905 (hereinafter No. 85-CH-00811)). This cause represents a consolidation of two of the underlying suits in the instant case, Board of Education of Chicago v. A,C & S, Inc. (Cir. Ct. Cook Co.), No. 85—CH—00811, and Evanston Community Consolidated School District No. 65 v. A,C & S, Inc. (Cir. Ct. Cook Co.), No. 85 — CH—00812.

One of the issues in No. 85 — CH—00811 was whether plaintiffs had sufficiently pleaded a cause of action to recover costs to remove and repair the asbestos-containing materials in the school buildings so as to maintain a tort claim. The trial court found that the underlying complaints failed to allege actual property damage but only sought damages for costs of remedial measures, which constitute economic loss and are not recoverable in tort.

The appellate court, in reversing the trial court’s finding of nonrecoverable economic loss, found that the incorporation of the asbestos physically altered the buildings in a manner which made the structures harmful to their occupants. The court also held that the physical damage caused by the asbestos may be measured by the cost of repairing the buildings to make them safe. Board of Education v. A,C & S, Inc. (1988), 171 Ill. App. 3d 737, 748.

This decision was recently affirmed by the Illinois Supreme Court in Board of Education v. A,C & S, Inc. (1989), 131 Ill. 2d 428, holding that there were sufficient facts alleged to establish tortious property damage. The court also found that the tort action was not barred under the principles established in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69. In Moorman, the Illinois Supreme Court held that there can be no recovery for solely economic losses under the tort theories of negligence, strict liability and innocent misrepresentation, subject, however, to limited exceptions.

Although the issue in the instant case is not whether the underlying complaints sufficiently allege a cause of action in tort, we find the Illinois Supreme Court’s ruling in Board of Education of strong probative value in determining the sufficiency of the allegations in an insurance or contract context. Significant is that the supreme court defined the nature of the damages caused by the asbestos to include property damage.

The determination of whether the underlying complaints in the instant case sufficiently allege “property damage” as defined in the insurance policies is one of first impression in Illinois. Courts, however, in all other jurisdictions, to date, have found that these asbestos-related building cases all involve “property damage” as defined within the standard insurance policies. (See Carey-Canada, Inc. v. Aetna Casualty & Surety Co. (D.D.C. March 31, 1988), No. 85 — 1640 (memorandum opinion); Pittsburgh Corning Corp. v. Travelers Indemnity Co. (E.D. Pa. Jan. 20, 1988), No. 84—3985 (memorandum opinion); Dayton Independent School District v. National Gypsum Co. (E.D. Tx. 1988), 682 F. Supp. 1403.

The insurers first contend that the complaints do not allege “property damage” as defined in the various policies. We disagree. A careful review of the underlying complaints reveals that although all of the complaints generally seek damages for cost of inspection, analysis, containment, removal and replacement of the asbestos-containing materials, there are also express allegations of “property damage” within each of the underlying complaints.

We find that although some of the complaints may have articulated the resulting property damage more than other complaints, we are in agreement with defendants that since the underlying claims arise from the same set of circumstances, the allegations in any single complaint can be inferred in the other complaints. As we found in Associated Indemnity Co. v. Insurance Co. of North America (1979), 68 Ill. App. 3d 807, 816, the insurer must defend if the insurer has knowledge of true but unpleaded facts which when taken together with the allegations in the complaint indicate that the claim is potentially covered by the policy. “To hold otherwise would allow the insurer to construct a formal fortress of the third party’s pleadings and to retreat behind its walls, thereby successfully ignoring true but unpleaded facts within its knowledge that require it, under the insurance policy, to conduct the putative insured’s defense.” Associated Indemnity, 68 Ill. App. 3d at 816-17.

Plaintiff and intervening plaintiffs Aetna and Zurich define “property damage” as follows:

“(1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom; or
(2) loss of use of tangible property which has not been physically injured or destroyed providing such loss of use is caused by an occurrence during the policy period.”

The policies of Commercial Union and Argonaut provide: “ ‘Property damage’ means injury to or destruction of tangible property.” Argonaut also has a separate definition for damages which includes “damages for loss of use of property resulting from property damage.”

The language in the policies of Argonaut and Commercial Union was fairly standardized and used within the industry until 1973. (See Arness and Eliason, Insurance Coverage for “Property Damage” In Asbestos and Other Toxic Tort Cases, 72 Va. L. Rev. 943, 946 (1986).) Cases construing policy coverage under the language of these pre-1973 types of policies hold that the incorporation of a defective product into tangible property constitutes “property damage” if it results in a diminution of value of the larger property. (See Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1980), 90 Ill. App. 3d 1106, 1111 (“property damage” as defined in the policy includes tangible property which has been diminished in value due to the incorporation of defective governor regulating pins, irrespective of any actual physical damage to the property).) Further, physical damage to the larger structure need not be alleged, although we find allegations of physical damage to the buildings, in order to find coverage. See Hauenstein v. St. Paul-Mercury Indemnity Co. (1954), 242 Minn. 354, 65 N.W.2d 122.

We find that the incorporation of the asbestos-containing materials constitutes “property damage” which results in the diminution in value of the greater building structure. As a point of clarification, diminution in value is not “property damage.” The incorporation of the defective product is what constitutes “property damage” as defined in these policies.

The insurers argue that the asbestos was not defective since it served the purpose it was intended to serve, which is to provide fire-proof insulation. We find this argument without merit since the intent was to provide insulation without harm to property or human life.

The policies of plaintiff and intervening plaintiffs Aetna and Zurich use the language of post-1973 standardized forms which redefine “property damage” to mean either (1) physical injury to or destruction of tangible property, or (2) loss of use of tangible property not physically injured. Under this standardized version, there is an additional requirement of physical injury under the first prong of the definition.

The insurers maintain that the incorporation of the asbestos into the buildings does not result in physical injury as required under the first prong of the definition. As authority, the insurers primarily rely upon Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Co. (7th Cir. 1975), 508 F.2d 417; Millers Mutual Fire Insurance Co. v. Ed Bailey, Inc. (1982), 103 Idaho 377, 647 P.2d 1249; and Federated Mutual Insurance Co. v. Concrete Units, Inc. (Minn. 1985), 363 N.W.2d 751. We find these cases distinguishable from the instant case.

In Hamilton Die Cast, Inc. v. United States Fidelity & Guaranty Co. (7th Cir. 1975), 508 F.2d 417, plaintiff sought to recover damages for defective tennis rackets under a complaint which alleged that the supply of rackets was not sufficient to satisfy the demand for such rackets. The court affirmed the district court’s finding that plaintiff’s damages were essentially for “loss of investment, loss of anticipated profits, and loss of goodwill” and that plaintiff could not recover since these were damages for injury to intangible property. (Hamilton, 508 F.2d at 419.) Hamilton was a diversity case which applied the law of Ohio, not Illinois. Further, Hamilton represents a minority view. In Pittway Corp. v. American Motorists Insurance Co. (1977), 56 Ill. App. 3d 338, the Illinois Appellate Court for the Second District disagreed with the Hamilton court’s finding that “property damage” is dependent upon physical injury to property and, instead, found that there was injury, in the sense of diminution in value, to aerosol cans which contained defective valve assemblies. Pittway, 56 Ill. App. 3d at 343.

In Millers Mutual Fire Insurance Co. v. Ed Bailey, Inc. (1982), 103 Idaho 377, 647 P.2d 1249, the insured installed defective polyurethane insulation, which resulted in a fire that occurred two years after installation and after the expiration of the policy. The court found that the claimed property damage had not occurred within the policy period. The issue addressed by the court was whether there was an “occurrence” resulting in property damage during the policy period. Unlike the case at bar, the focus of the inquiry in Millers Mutual was the time of the occurrence, not whether property damage was sustained. Although we will not reach the issue of trigger of coverage, the exposure to asbestos has been described as a continuing physical harm because of the continuous release of the friable asbestos fibers. See Dayton Independent School District v. National Gypsum Co. (E.D. Tx. 1988), 682 F. Supp. 1403, 1409-10.

In Federated Mutual Insurance Co. v. Concrete Units, Inc. (Minn. 1985), 363 N.W.2d 751, 756, the Supreme Court of Minnesota held that the incorporation of defective concrete into a grain elevator, resulting in the decreased market value of the elevator, does not constitute “property damage” under post-1973 insurance policies, since there was no injury to tangible property. We find Federated Mutual factually distinct from the instant case because the incorporation of the asbestos did result in injury to tangible property. The incorporation of the asbestos physically altered the property in such a manner so as to render the various structures harmful until abatement procedures may be undertaken. (See Board of Education of Chicago v. A, C & S, Inc. (1988), 171 Ill. App. 3d 737.) We, therefore, find that the duty to defend arises under the first prong of the definition.

Even assuming, arguendo, that the buildings had not sustained physical injury, defendants may meet the requirements of the second prong of the test since loss of use of the buildings constitutes “property damage” under this prong of the definition. After reviewing the complaints, we find explicit allegations of loss of use due to the incorporation of the asbestos. Loss of use is also implicit in the various complaints in that until abatement procedures have been completed, the buildings or the affected portions of the buildings may be considered unsafe for use.

Next, the insurers argue that even if “property damage” is alleged, the damage was not the result of an “occurrence.” The term “occurrence” as set forth in the various policies is defined as an accident including continuous or repeated exposure to conditions which result in property damage or bodily injury, neither expected nor intended from the standpoint of the insured.

The trial court found that the installation of asbestos-containing material into the buildings was no “accident” under a plain meaning of the term. We disagree.

The court in Koehring Co. v. American Automobile Insurance Co. (7th Cir. 1965), 353 F.2d 993, 996-97, held that even if the installation was intentional, it may be properly characterized as an “accident” or an “occurrence” if the injury sustained was unforeseen by the insured. We find no evidence that the defendants foresaw the detrimental effects of the asbestos prior to installation. Further, any ambiguity with respect to whether the installation was an “occurrence” or an “accident” must be resolved in favor of the insured. (See United States Fidelity & Guaranty Co. v. Specialty Coatings Co. (1989), 180 Ill. App. 3d 378, 384.) Accordingly, we find that the alleged “property damage” was the result of an “occurrence” as defined within the various policies.

Finally, the insurers maintain that even if the underlying complaints properly allege an “occurrence” resulting in “property damage,” various exclusions preclude coverage for the damages sought in the underlying complaints. An insurer has no duty to defend if an exclusionary provision unambiguously precludes coverage. (Illinois Farmers Insurance Co. v. Preston (1987), 153 Ill. App. 3d 644, 651.) The applicability of the exclusionary clause must, however, be clear and free from doubt; any doubts will be resolved in favor of the insured, since it is within the exclusionary clause that the insurer attempts to limit the insured’s coverage. United States Fidelity & Guaranty, 180 Ill. App. 3d at 384.

The first exclusion that the insurers cite is variously known as the “pollution exclusion.” Although the exclusionary language in all of the policies is essentially the same, the language in the policy issued by plaintiff is typical. Plaintiff’s policy provides:-

“[Coverage will not apply to] bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, gases, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental.”

We must assume, for purposes of construing the language in this exclusion, that there was a discharge, dispersal, release or escape of pollutants which resulted in environmental contamination. (United States Fidelity & Guaranty Co. v. Specialty Coatings Co. (1989), 180 Ill. App. 3d 378, 384.) The exclusion does not apply, however, if the contamination was “sudden and accidental.” The parties have not cited nor are we aware of any case in which the “pollution exclusion” was applied in litigation involving asbestos contamination. The only case which discusses the possibility of applying the exclusion is Carey-Canada, Inc. v. Aetna Casualty & Surety Co. (D.D.C. March 31, 1988), No. 85—1640 (memorandum opinion).

In Carey-Canada, the court found that the issue of whether the “pollution exclusion” would apply in an asbestos context is not one that lends itself to summary judgment in that particular case. There were too many outstanding factual questions that had to be answered before the issue could properly be resolved. These questions included whether the “polluting” should be deemed “intentional” as opposed to “accidental”; whether the exclusion only applies to industrial pollution or contamination; and whether the damage caused by the asbestos was “sudden and accidental.” (Carey-Canada (memorandum opinion at 32).) We also find that this issue is not the proper subject for summary judgment, aside from the questions posed in Carey-Canada, because the exclusion is ambiguous.

The court in United States Fidelity & Guaranty Co. v. Specialty Coatings Co. (1989), 180 Ill. App. 3d 378, also found this exclusion to be ambiguous and construed it against the insurers. Moreover, the court found that the exclusion should be applied only to “active” polluting conduct or where the polluting was expected and intended. (United States Fidelity & Guaranty, 180 Ill. App. 3d at 387.) There is no evidence in the record to indicate that defendants’ conduct, in the instant case, was either expected or intended. We do not find that the exclusion would bar coverage under the circumstances of this case.

The insurers next argue that the “business risk exclusions” preclude coverage. These exclusions include the “sistership exclusion,” “loss of use exclusion,” and the “work product exclusions.”

Plaintiff’s “sistership exclusion,” which is basically the same as the other insurers’ provisions, provides:

“[Coverage will not apply to] damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the named insured’s products or work completed by or for the named insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein ***.”

The applicability of this exclusion in an asbestos context was discussed in Carey-Canada, Inc. v. Aetna Casualty & Surety Co. (D.D.C. March 31, 1988), No. 85—1640 (memorandum opinion). The court found the clause inapplicable and cited to Illinois case law (Marathon Plastics, Inc. v. International Insurance Co. (1987), 161 Ill. App. 3d 452, 465) in holding that the exclusion applies only where the insured withdraws the product from use or from the market. (Carey-Canada (memorandum opinion at 32).) Similarly, since defendants in the instant case have not sought to withdraw asbestos from use or from the market, we also find the exclusion inapplicable.

The “work product exclusions” would also not preclude coverage. Plaintiff’s exclusions, which are virtually the same as the other insurers’ exclusions, provide:

“[The policy does not apply]
* * *
(n) to property damage to the Named Insured’s products arising out of such products or any part of such products;
(o) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith ***.”

We find that these exclusions would not bar coverage since the underlying complaints do not allege property damage to defendants’ own products or to work performed by or on behalf of defendants. In Carey-Canada, the court found that these exclusions were not applicable in any asbestos litigation context to the extent that the insureds’ own products were not damaged. (Carey-Canada (memorandum opinion at 29-31).) “The exclusion would be applicable, thus barring coverage, only if the underlying claimants seek recovery for allegedly defective or faulty asbestos mined and manufactured by plaintiffs. We are aware of no such case.” Carey-Canada (memorandum opinion at 31).

The last exclusionary provision upon which the insurers rely is the “loss of use exclusion.” Plaintiff’s provision, which is typical of the provisions in the other insurers’ policies, states:

“[The policy will not apply]
* * *
(m) to the loss of use of tangible property which has not been physically injured or destroyed resulting from
* * *
(2) the failure of the Named Insured’s products or work performed by or [on] behalf of the Named Insured to meet the level of performance, quality, fitness or durability warranted or represented by the Named Insured; but this exclusion does not apply to the loss of use of other tangible property resulting from the sudden and accidental physical injury to or destruction of the Named Insured’s products or work performed by or [on] behalf of the Named Insured’s products or work performed by or on behalf of the Named Insured after such products or work have been put to use by any person or organization other than an insured ***.”

We find that this exclusion also fails, because it only applies to claims for loss of use of tangible property that has not been physically injured. “Thus this exclusion will fail precisely to the extent that the underlying claimants have alleged property damage as defined in the policies.” Carey-Canada (memorandum opinion at 34).

The trial court in the instant case also ruled on the duty to indemnify. The court found that since there was no duty to defend, there was no duty to indemnify. The court did, however, acknowledge that if “property damage” had properly been alleged, a ruling on the duty to indemnify would be premature because there had been no adjudication on the actions which the insurer “should have” defended pursuant to Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150,156.

The duty to indemnify arises only when the insured becomes legally obligated for a judgment in the underlying action. (See Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 193.) “A declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not then ripe for adjudication.” (Maryland Casualty, 126 Ill. App. 3d at 156.) We, therefore, find that a ruling on the duty to indemnify is premature to the extent that there has been no adjudication on the underlying complaints.

For the foregoing reasons, the judgment of the circuit court is reversed.

Reversed.

McMORROW and LINN, JJ., concur.