text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY MILAM, Defendant-Appellant.
    Third District
    No. 3-91-0066
    Opinion filed January 30, 1992.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Terry A. Mertel and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Jerry Milam, appeals his conviction for unlawful possession of a controlled substance (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)). We affirm.

Prior to trial, the defendant filed a motion to quash arrest and suppress evidence. At the hearing on the motion, Deputy Ken Vitek testified that on August 7, 1989, around 10 a.m., he spoke to a confidential informant. On at least 10 previous occasions the informant had given information which Vitek had corroborated. On over 100 other occasions, the informant had given information to police.

The informant told Vitek that Edward Holmes was presently travel-ling to Aurora to obtain cocaine and heroin. Holmes was accompanied by a black female and a black male known as T-Boy. According to the source, the subjects would return to Joliet by first taking Route 30 through Plainfield, then following 1-55 and 1-80 until they came to Chicago Street in Joliet. Their car was a light blue AMC Concord with a half-vinyl top and license plate PW7922.

Vitek testified that he and other law enforcement officers set up a surveillance in Plainfield on Route 30. Around 11:35 a.m., they stopped an automobile matching the description and license number given by the informant. The defendant drove the car, while Cynthia Hudson sat in the front passenger seat and Edward Holmes sat in the right rear passenger seat. When the officers searched the car, they found a clear plastic bag containing a white powder and a clear plastic bag containing brown chunks. The bags were in plain view on the floor in front of the right rear passenger seat.

The defendant testified that on the morning of August 7, he gave Holmes and Hudson a ride to Aurora so Holmes could get some money from his uncle. When they arrived at a home that Holmes said belonged to his uncle, Holmes went inside while the other two waited in the car. About 45 minutes later, Holmes returned to the car. After the defendant put gas in his car, they began driving back to Joliet. While they were on Route 30, they were stopped by police. The police ordered the three out of the car and told them they were the subject of a drug investigation.

Following the testimony, the trial judge found that the police had probable cause to stop the car. He therefore denied the motion to quash and suppress.

The defendant and Cynthia Hudson were then tried in a joint trial. Deputy Vitek’s testimony at trial was generally consistent with his testimony at the suppression hearing. Of special note was his testimony that the informant simply said that a female black and two male blacks would be in the car. He also testified that the defendant admitted to him that he owned the car.

Sergeant Harold Strothers testified that the packages were found in plain view in an area that would have been between Holmes’ legs. A forensic chemist testified that the white powder in the bag weighed four grams and was 88.6% pure cocaine.

Edward Holmes testified that he had pled guilty to possession of narcotics in connection with this case. He did so in order to obtain treatment for his drug problem. He had not yet been sentenced for the charge.

Holmes further testified that on the morning of August 7, he was drinking some wine when he saw the defendant and Hudson. After the defendant drank some of Holmes’ wine, he said he was driving to Aurora. Holmes agreed to come along for the ride. When Holmes entered the car, he noted that it was strewn with rubbish. After they arrived in Aurora, the defendant went inside a house that was unfamiliar to Holmes. He returned a short while later. On the way back to Joliet, they were stopped by police in Plainfield. Holmes said that when he was ordered out of the car, he did not know the drugs were in it. He stated that the drugs were not his.

On cross-examination, Holmes admitted that he was a heavy drug user at the time of the offense. The defendant did not say anything about drugs during the ride, but Holmes said he wished he had something to make him high. He then changed his testimony and said he had made that statement before leaving Joliet. When the police stopped them, one of the officers said, “We got you now, Cry Baby.” Holmes noted that Cry Baby was the police officers’ nickname for him.

The defendant testified that he was unemployed and had a drug problem. He previously had been convicted of burglary and other theft-related felonies. He also admitted that his nickname was T-Boy. On the morning of August 7, Holmes asked the defendant to drive him to Aurora so Holmes could get some money from his uncle. Holmes offered to pay the defendant for the ride. The defendant agreed, and the two men and. Hudson then drove to Aurora. The defendant estimated that they left between 9:30 and 10:30 a.m. Holmes directed the defendant to a white house on a street named Calhoun or Calhom. Holmes went inside the house for about a half-hour. After he came out, they drove to a gas station. Holmes tried to get change for a large bill but was unable to do so.

When the police stopped them on Route 30, one of the officers said, “We got you this time, Holmes.” The defendant had no idea where the cocaine came from, but he assumed Holmes had put it there. Sergeant Struthers told the defendant that he knew the drugs did not belong to him, but he would make it hard on him if he did not reveal where they had obtained the drugs.

In rebuttal, Sergeant Struthers denied telling the defendant that he knew the drugs did not belong to him. Deputy Vitek testified that Holmes had no money on him when he was searched.

During closing arguments, the prosecutor made the following statements:

“And Mr. Holmes had said they weren’t my drugs, but he pled guilty. He is a drug addict. He knows there is [sic] treatment programs available. He was trying to get some help. * * *
*** There was no testimony that [Sergeant Struthers] was looking for Mr. Holmes and drugs versus Mr. Milam and Miss Hudson for drugs. You recall the information that Sergeant Vitek received dealt with three people, two male blacks and a female black in a car. There was no testimony that their information said we are looking for Mr. Holmes and drugs. There was no testimony that it was we are looking for Mr. Milam, Miss Hudson for drugs. It was there is [sic] three people. And they are going to be coming back from Aurora. There was no finger pointed at any one person.”

The jury acquitted Hudson but convicted the defendant of the charge. The defendant appeals.

The defendant first argues that the trial court erred in denying his motion to quash arrest and suppress evidence. He contends that the informant’s tip and its partial corroboration did not establish probable cause for the stop.

In determining whether an informant’s tip establishes probable cause, a court must examine the totality of the circumstances. (People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147.) The officer’s factual knowledge, based on his prior law enforcement experience, is relevant. (People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809.) The reliability of a tip may also be established by its wide range of details or its corroboration by the police. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) The trial court’s decision on a motion to suppress will not be reversed unless it was manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 445 N.E.2d 766.

Here, Vitek testified that the informant had given reliable information on at least 10 occasions. The police spotted a car matching the informant’s detailed description at a time and place consistent with the information supplied in the tip. The informant correctly stated that Holmes, another black man, and a black woman were in the car. Based on the informant’s past record, the number of details in the tip, and the corroboration of those details by the police, we find that the trial court’s denial of the motion to quash and suppress was not against the manifest weight of the evidence.

The defendant next argues that he was not proved guilty beyond a reasonable doubt. He contends that the State failed to establish that he possessed the cocaine, because it was found near Holmes on the floor of the back seat.

In order to be convicted of possession of a controlled substance, the defendant must have had knowledge and control of the substance. (People v. Briggs (1983), 112 Ill. App. 3d 979, 446 N.E.2d 305.) Knowledge is seldom susceptible of direct proof. (People v. Whalen (1986), 145 Ill. App. 3d 125, 495 N.E.2d 122.) Accordingly, it may be inferred where the substance is found on premises under the defendant’s control. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361.) Control may be actual or constructive, and constructive possession may be inferred from the defendant’s exclusive control over the premises where the substance is found. People v. Hester (1980), 87 Ill. App. 3d 50, 409 N.E.2d 106.

Although it has been said that possession must be exclusive, that does not mean that it may not be joint. (People v. Whalen (1986), 145 Ill. App. 3d 125, 495 N.E.2d 122.) Thus, the mere access by others to an area in which drugs are found will not defeat a charge of constructive possession. (People v. Gallagher (1990), 193 Ill. App. 3d 566, 550 N.E.2d 255.) Moreover, the driver of a car is not deprived of immediate and exclusive control of the interior simply because he also has a passenger. (People v. Turnbeaugh (1983), 116 Ill. App. 3d 199, 451 N.E.2d 1016.) On review of a conviction, a court must view all of the evidence in the light most favorable to the State in order to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

Here, the defendant admitted that he owned the vehicle. Officers Vitek and Struthers testified that the cocaine was in plain view in the rear of the car. Holmes testified that he neither owned the cocaine nor saw it. Even if the jurors did not believe him, they could have concluded that Holmes and the defendant had joint control of the cocaine. Moreover, the defendant testified that Holmes had a large bill on him that the gas station could not change. The police, however, did not find any money on Holmes when he was searched. This and other factors raised questions about the defendant’s credibility. Viewing the evidence in the light most favorable to the State, we hold that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

The defendant next argues that he was denied a fair trial because Holmes testified and the prosecutor argued that Holmes pled guilty to receive drug treatment. He alleges that these statements indicated that the defendant might receive drug treatment if he was convicted. He therefore concludes that the consequences of a guilty verdict were diminished in the jurors’ eyes.

The defendant objected to Holmes’ testimony on the grounds of relevancy, not because of any implications it might have for the defendant’s punishment. He did not object to the prosecutor’s statement, nor did he mention either statement in his post-trial motion. Accordingly, the issue is waived. People v. Shumate (1981), 94 Ill. App. 3d 478, 419 N.E.2d 36.

Where an issue has been waived, the conviction will only be reversed if plain error has occurred. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Plain error is defined as error occurring in a trial where the evidence was closely balanced, or where the error was of such magnitude as to deny the defendant a fair trial. (People v. Whitehead (1987), 116 Ill. 2d 425, 508 N.E.2d 687.) Here, based on our foregoing discussion of the facts, we find that the evidence was not closely balanced. Moreover, Holmes testified that he had not yet been sentenced. Although he and the prosecutor stated that he had pled guilty to receive treatment, neither of them said he would not also receive some form of punishment. It is unlikely the jury would draw any inferences about the defendant’s punishment based on these statements. Accordingly, we find that the defendant was not denied a fair trial, and therefore, plain error did not occur.

The defendant lastly argues that he was denied a fair trial because the prosecutor knowingly misled the jurors in closing argument. He bases his argument on the fact that Vitek testified at the suppression hearing that he had been told that Holmes would obtain drugs while accompanied by a black male and female. Since the prosecutor knew this testimony, the defendant further argues, she should not have told the jury that the police were not looking for any particular person when they stopped the car.

The defendant did not raise this issue at trial or in his post-trial motion. Accordingly, the issue is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Moreover, the gist of the prosecutor’s argument was that the police were not looking for Holmes and the drugs to the exclusion of the other two suspects. That statement is consistent with Vitek’s testimony at trial and at the suppression hearing. Accordingly, plain error did not occur.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

BARRY, P.J., and STOUDER, J., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD HARRIS, Defendant-Appellant.
    Third District
    No. 3-90-0673
    Opinion filed January 31, 1992.
    Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial in the circuit court of Whiteside County, defendant Leonard Harris was convicted of aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12—4). On appeal, defendant contends that the trial court erred in allowing the prosecution to introduce evidence of defendant’s prior misdemeanor convictions for battery and unlawful use of weapons.

The record shows that on November 12, 1989, defendant and Corey DeWaele, the victim, had a fight outside of the Lyndon Tavern. The defendant was the manager of the tavern. DeWaele was a patron who had been asked to leave the bar three times on that date but had returned each time. During the fight, defendant hit DeWaele several times about the head with a club-like object.

At trial, the defendant admitted hitting the victim, but maintained that he acted in self-defense. Defendant introduced evidence of the ■victim’s prior conviction for aggravated assault as evidence of the victim’s violent character. The State was allowed to introduce evidence of defendant’s prior misdemeanor convictions for battery and unlawful use of weapons.

Defendant contends that the trial court erred in admitting evidence of his prior misdemeanor convictions for battery and unlawful use of weapons. We agree.

It is well settled that when a theory of self-defense is raised in a battery case, evidence of the peaceful or violent character of either the accused or the victim may be relevant as circumstantial evidence to show which party was the initial aggressor. (People v. Randle (1986), 147 Ill. App. 3d 621, 498 N.E.2d 732.) Evidence of specific instances of conduct probative of the violent character of either party may be admissible. (People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018; People v. Devine (1990), 199 Ill. App. 3d 1032, 557 N.E.2d 953.) However, because of the inflammatory nature of such evidence, it must first be determined whether the danger of undue prejudice outweighs the relevance of the evidence. (Lynch, 104 Ill. 2d 194, 470 N.E.2d 1018.)

“Under this balancing test, character evidence offered by the accused to show the complainant’s propensity to violence is admissible because the danger of undue prejudice to the accused lies in not admitting such evidence. [Citation.] On the other hand, similar character evidence offered by the prosecution to show the accused’s propensity to violence is generally inadmissible because the danger of unfair prejudice to the defendant in being portrayed as a ‘bad man’ substantially outweighs the probative value of the evidence. [Citation.] Such evidence of bad character may be introduced by the prosecution only if the defendant first opens the door by introducing evidence of good character to show that he is a quiet and peaceful person.” Randle, 147 Ill. App. 3d at 625, 498 N.E.2d at 736.

The State argues that the defendant’s prior convictions were properly admitted as evidence of defendant’s violent character because defendant opened the door by introducing evidence of his own good character and the violent character of the victim. The State relies on People v. Devine (1990), 199 Ill. App. 3d 1032, 557 N.E.2d 953, where the State was allowed to introduce evidence of the defendant’s two prior misdemeanor battery convictions. This court affirmed, holding that where the defendant “initially introduces evidence that the victim had a violent character and that he [defendant] was a peaceful person, the interests of fairness require that the prosecution be allowed to rebut this portrayal by the defendant.” (Devine, 199 Ill. App. 3d at 1037, 557 N.E.2d at 957.) Devine reaffirmed the general rule that evidence of a defendant’s violent character to prove he acted in conformity with that character may be introduced by the State “only if the defendant first opens the door by introducing evidence of [his] good character to show that he [was] a quiet and peaceful person.” (Emphasis added.) Randle, 147 Ill. App. 3d at 625, 498 N.E.2d at 736.

The defendant introduced evidence of the victim’s violent character when he submitted into evidence a certified copy of the victim’s prior conviction for aggravated assault. The question is whether the defendant opened the door on the issue of his own character by introducing evidence to show that he was a quiet and peaceful person.

The State cites three specific instances during the trial where the defendant allegedly introduced evidence of his good character. First, the defendant testified on direct examination that he would not have hit the victim if the victim had not swung first. This was merely a contention on the part of the defendant that he was acting in self-defense at the time of the alleged offense and not evidence of defendant’s general good character.

Second is the response given by the defendant when he was asked if he considered himself to be a “generally peaceable guy.” The defendant responded “yes.” This question was asked by the State on cross-examination. Therefore, it was the State, not the defendant, which first raised the issue of defendant’s character. As noted above, evidence of a defendant’s violent character is inadmissible until the defendant has introduced evidence of his peaceful character. In other words, the State is barred from first injecting the issue of defendant’s character into the trial by introducing evidence of defendant’s bad character. (People v. Meares El (1980), 83 Ill. App. 3d 31, 403 N.E.2d 547.) It follows that the State cannot circumvent this rule by eliciting testimony from the defendant concerning his good character on cross-examination and then using that as a basis upon which to offer rebuttal evidence. Such a tactical ambush would result in the defendant being forced to either denounce his own character or open the door on the issue. While fairness requires that the State be allowed to rebut evidence of defendant’s peaceful character, this is but a corollary to the general rule that when the defendant “elects not to offer proof of a pertinent character trait, the prosecution may not comment thereon.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.3, at 185 (5th ed. 1990); see also People v. Haas (1920), 293 Ill. 274, 127 N.E. 740.

Third, the State contends that the defendant introduced evidence of his peaceful character during cross-examination of one of the State’s witnesses who was at the bar on the day of the incident. The State relies on the following dialogue:

“Q. [Defense attorney]: Mrs. Vance, you indicated that you been going to the Lyndon Country Inn for about a year?

A. Yes.

Q. You also indicated that you always had a good time there?

A. Sure, I like Sue and Leonard. I have a good time with them. I never had no problems.

Q. So this is the first time you really had a problem there?

A. Yeah.

Q. Leonard had never beat on you before, had he?

A. No.

Q. You never seen [sic] him beat on anybody else, had you?

A. No.

Q. You went to the Lyndon Country Inn because you had fun there and seemed to be a decent place; isn’t that right?

A. Yeah.”

Throughout the trial, the State characterized the tavern managed by the defendant as a rough and somewhat dangerous establishment. This line of questioning by the defense was simply an attempt to rebut that characterization. Moreover, while specific instances of violent conduct may be probative of violent character (Lynch, 104 Ill. 2d 194, 470 N.E.2d 1018), the State cites no authority for the proposition that testimony establishing that the defendant has not committed specific acts of violence is probative evidence of the defendant’s good character for peacefulness. In fact, the case law is to the contrary. (People v. Flax (1986), 147 Ill. App. 3d 943, 498 N.E.2d 667 (defendant not allowed to offer evidence establishing that he had no prior criminal record).) Therefore, the fact that this witness had never seen the defendant beat anyone is not probative evidence of the defendant’s general good character for peacefulness. This cross-examination did not open the door on the issue of defendant’s character.

We note in holding that prior convictions for crimes of violence are reasonably reliable evidence of a violent character, our supreme court in Lynch was addressing the admissibility of prior convictions of the victim. The court stated that “[s]uch evidence is ordinarily inadmissible against a defendant for the purpose of proving the offense charged, because the danger of prejudice outweighs the relevance of the evidence where the defendant stands to lose his liberty *** if convicted.” (Lynch, 104 Ill. 2d at 201, 470 N.E.2d at 1021.) We hold that when the theory of self-defense is raised the relevancy of the defendant’s prior convictions for crimes of violence outweighs the prejudicial effect of such convictions only when the defendant clearly puts his character in issue by introducing evidence of his good character to show that he is a peaceful person.

The judgment of the circuit court of Whiteside County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

BARRY, P.J., and STOUDER, J., concur.


text:
    THE PEOPLE ex rel. ROLAND W. BURRIS, as Comptroller of the State of Illinois, Plaintiff, v. MEMORIAL CONSULTANTS, INC., Defendant (Memorial Consultants, Inc., Petitioner-Appellant, v. Roland W. Burris, as Comptroller of the State of Illinois, Respondent-Appellee).
    Third District
    No. 3—91—0308
    Opinion filed January 30, 1992.

      Karen L. Kendall and Matthew S. Hefflefinger, both of Heyl, Royster, Voelker & Allen, of Peoria (Richard N. Molchan, of counsel), for appellant.
    James R. Sneider, of Chicago, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Memorial Consultants, Inc. (MCI), appeals from the trial court’s entry of summary judgment in favor of Roland W. Burris (the Comptroller) on MCI’s petition to enforce a settlement agreement and complaint for mandamus. We affirm.

MCI manages and operates 11 cemeteries in the State of Illinois and sells burial vaults to consumers on a “pre-need” basis. On June 2, 1971, the Auditor of Public Accounts of the State of Illinois (predecessor to the Comptroller; see Ill. Rev. Stat. 1989, ch. 15, par. 222) filed suit against MCI seeking to force MCI to comply with the Illinois funeral or burial funds act (the Act) (Ill. Rev. Stat. 1971, ch. 111½, par. 73.101 et seq.). The trial court ruled in favor of MCI, but the judgment was reversed by this court and remanded for further proceedings. (People ex rel. Lindberg v. Memorial Consultants, Inc. (1977), 50 Ill. App. 3d 1005, 366 N.E.2d 127.) The trial court subsequently ordered MCI to make an accounting of its contracts entered into for the sale of vaults to determine the amount of money which should be deposited into trust in accordance with the Act. The Comptroller eventually determined that MCI was required to deposit the sum of $2,463,039 into trust. This amount represented 95% of the selling price of the burial vault contracts entered into between MCI and its customers. This level of funding was required under the Act.

As a result of subsequent negotiations between MCI and the Comptroller, a judgment order and stipulation were entered on December 27, 1979. The stipulation outlined the method by which MCI was to meet its funding obligations under the Act. The stipulation distinguished “A” contracts (those paid in full) from “B” contracts (those on which payments were still due), and also provided that a trust agreement would be entered into between MCI and a trustee, subject to the Comptroller’s approval. Paragraph 15 of the stipulation stated:

“Comptroller agrees to amend the funding requirements if the Funeral and Burial Funds Act is amended at a future date to require a lesser funding requirement on these ‘A’ and ‘B’ contracts, if applicable.”

In addition, Article XII of the trust agreement stated:

“This Agreement may not be amended, modified or altered in any way without first securing the written consent of the Comptroller. Comptroller agrees to amend as provided in Paragraph 15 of Stipulation attached as Exhibit A and to return any excess funding to MCI and Cemeteries.”

Effective September 1, 1989, the Act was amended to require 85% of the purchase price of burial vaults to be placed in trust rather than the 95% required under the prior law. MCI then requested an amendment to the trust agreement to reflect the change in the Act and sought the return of $208,364.98 in excess funding. The Comptroller refused to amend the trust agreement, and MCI filed its petition to enforce settlement agreement and complaint for mandamus. The parties filed cross-motions for summary judgment, and after a hearing the trial court denied MCI’s motion, granted the Comptroller’s motion, and entered judgment in favor of the Comptroller. The court found that both the stipulation and the trust agreement were unambiguous. The court further found that paragraph 15 of the stipulation required the Comptroller to amend the funding requirements on contracts entered into before September 1, 1989, only if the amendment to the funeral or burial funds act was effective retroactively. The court also ruled that the September 1, 1989, amendment was not to be applied retroactively. This appeal followed.

The essence of this dispute is the parties’ differing interpretations of paragraph 15 of the stipulation. According to MCI, paragraph 15 was inserted at its insistence to address the possible reduction in the funding requirements of burial vaults. MCI maintains that it was aware of ongoing negotiations between the cemetery and funeral industries and the Comptroller, and MCI anticipated changes in funding requirements under the Act, including reduced funding for vaults. MCI argues that the “if applicable” language of paragraph 15 was designed to make clear that any amendments to the Act which changed the funding requirements of burial vaults, rather than other funeral merchandise or services, would change the funding requirements of the trust agreement.

The Comptroller contends that the “if applicable” language was inserted into paragraph 15 at the Comptroller’s insistence to make it clear that the trust agreement would not be amended unless any future amendment to the Act was applicable to funds already on deposit. That is, if a future amendment was not retroactive, then it was not applicable to the existing contracts and no amendment to the trust agreement would be required. Regarding Article XII of the trust agreement, the Comptroller maintains that the reference to the “return [of] any excess funding” is consistent with the trial court’s interpretation of paragraph 15 because any retroactive amendment to the Act would result in “excess funding” by MCI. However, if any amendment had only a prospective effect, then there would be no excess funding to return to MCI.

On appeal from a grant of summary judgment, a reviewing court’s function is to determine whether the trial court properly concluded that there was no genuine issue of material fact, and if there was not, whether the judgment was correct as a matter of law. (Scottish & York International Insurance Group/Guarantee Insurance Co. v. Comet Casualty Co. (1990), 207 Ill. App. 3d 881, 566 N.E.2d 477.) Construing the language employed in a contract is a matter of law appropriate for summary judgment (Scottish & York, 207 Ill. App. 3d 881, 566 N.E.2d 477; In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 510 N.E.2d 1057), unless the contract is ambiguous (Lease Management Corp. v. G.I.C. Financial Services (1990), 202 Ill. App. 3d 188, 559 N.E.2d 880; Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178). Whether an ambiguity exists in a document is a question of law. (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30; In re Estate of Bresler, 159 Ill. App. 3d 535, 510 N.E.2d 1057.) A contract is ambiguous if it is reasonably susceptible to more than one meaning (W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 475 N.E.2d 273), but an ambiguity is not created merely because the parties disagree (Hanover Insurance Co. v. Showalter (1990), 204 Ill. App. 3d 263, 561 N.E.2d 1230; Srivastava, 168 Ill. App. 3d 726, 523 N.E.2d 30). Where no ambiguity exists, the intent of the parties at the time the contract was entered into must be determined from the language used in the contract itself, not from the construction placed upon it by the parties. Lenzi v. Morkin (1984), 103 Ill. 2d 290, 469 N.E.2d 178.

In the instant case we find that the language used in paragraph 15 of the stipulation is not ambiguous, and we agree with the trial court that paragraph 15 requires the Comptroller to amend the funding requirements on the existing contracts only if an amendment to the Act applies retroactively. Paragraph 15 states that the funding requirements will be changed if the Act is amended “to require a lesser funding requirement on these ‘A’ and ‘B’ contracts, if applicable.” (Emphasis added.) In other words, if an amendment to the Act is applicable to these (i.e., existing) contracts, then the funding requirement would be lowered. There is no dispute in this case that the amendment to the Act is not applicable to existing contracts and therefore the Comptroller is not required to lower the funding requirements and refund the “excess funding.”

We find MCI’s argument that it understood the phrase “if applicable” to simply distinguish amendments to the Act which apply to burial vaults from amendments which apply to other funeral merchandise or services unpersuasive. The subject of the “A” and “B” contracts referred to in paragraph 15 is burial vaults, not other funeral merchandise or services. Indeed, the subject matter throughout the entire course of this litigation, spanning more than 20 years, has been burial vaults. We will not ignore the ordinary and natural meaning of the language contained in paragraph 15 and create an ambiguity where none exists. The judgment of the circuit court is affirmed in all respects.

Affirmed.

BARRY, P.J., and STOUDER, J., concur.


text:
    JESSE HILL, Petitioner-Appellant, v. KENNETH McGINNIS, Director of the Illinois Department of Corrections, et al., Respondents-Appellees.
    Third District
    No. 3-90-0791
    Opinion filed January 30, 1992.
    Rehearing denied March 6, 1992.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of Chicago, of counsel), for appel-lees.
   JUSTICE SLATER

delivered the opinion of the court:

The petitioner, Jesse Hill, filed a habeas corpus petition seeking the reinstatement of good-time credit and his release from prison. The State filed a motion to dismiss for failure to state a cause of action. The petitioner appeals the order granting the State’s motion. We reverse in part and remand.

The record shows that on August 8, 1982, the petitioner began serving a nine-year sentence for armed robbery. He later received a consecutive two-year sentence for aggravated battery. On March 14, 1990, he filed a habeas corpus petition alleging he had been improperly denied good-time credit in four different disciplinary proceedings, three of which are at issue in this appeal. He further alleged that if his good-time credit was restored, he would be entitled to release from the Department of Corrections.

The record shows that on August 14, 1985, the petitioner received a disciplinary report charging him with “assaulting any person,” possessing “dangerous contraband,” and “violating state or federal laws.” Specifically, the report alleged that the petitioner had provided a homemade weapon used in stabbing inmate Vance on March 17, 1985. Based on an investigative report stating that the petitioner had provided the weapon used in stabbing Vance, the adjustment committee (the Committee) found him guilty of the alleged violations. Accordingly, it revoked 360 days of his good-time credit, demoted him to C-grade for 360 days, and placed him in segregation for 360 days.

The habeas corpus petition alleged with regard to that incident that the Committee had improperly denied the petitioner’s request to interview Silas Mason regarding the offenses. Attached to the petition was a Department of Corrections (the Department) investigative report stating that Richard McGuire admitted stabbing Vance. According to the report, McGuire said that he had received the knife from Silas Mason. Also appended to the petition was an affidavit from Silas Mason stating that the petitioner had not provided him with the weapon used in the assault.

The record next shows that on October 19, 1986, the petitioner received three disciplinary reports charging him with 10 offenses. On October 23, 1986, the Committee found the petitioner guilty of the offenses and revoked 360 days of good-time credit, demoted him to C-grade for 360 days, and placed him in segregation for 360 days.

The habeas corpus petition alleged with regard to those incidents that the disciplinary reports were so illegible that the petitioner did not know what he was charged with prior to the hearing. Consequently, he requested a continuance at the beginning of the hearing. The Committee denied the request. After the petitioner filed a grievance concerning the disciplinary reports, the Menard Institutional Inquiry Board found that they were legible.

The record next shows that on January 27, 1990, the petitioner received a disciplinary report charging him with “assaulting any person,” creating a “dangerous disturbance,” and “intimidation or threats.” The allegations arose out of a physical confrontation between the petitioner and Captain Patrick Sullivan on January 26,1990.

At a hearing on the report, the petitioner admitted hitting Sullivan. However, he said that Sullivan initiated the confrontation by grabbing him and attempting to strike him. Based on the petitioner’s admission to a physical confrontation and on various incident reports, the Committee found him guilty of the violations and revoked one year of good-time credit, demoted him to C-grade for one year, and placed him in segregation for one year.

The habeas corpus petition alleged with regard to that incident that the Committee improperly refused the petitioner’s request to interview William Adkins. Appended to the petition was a Departmental report stating that Adkins was an eyewitness to the incident. Also appended was an affidavit from Adkins stating that Sullivan initiated the confrontation by striking the petitioner, and that the petitioner only struck back in self-defense.

After the habeas corpus petition was filed, the State filed a motion to dismiss it for failure to state a cause of action. The trial court granted the motion.

The petitioner argues on appeal that the court erred in dismissing his petition. He first contends that he presented a claim for relief from the 1990 disciplinary proceeding because the Committee improperly refused to call William Adkins.

Since this appeal is taken from a dismissal for failure to state a cause of action, we must consider as true all well-pleaded facts set forth in the petition as well as all reasonable inferences therefrom. (First National Bank v. Mutual Trust Life Insurance Co. (1988), 122 Ill. 2d 116, 522 N.E.2d 70.) The petition must be construed liberally, especially since it was filed by an inmate. (Smallwood v. Fornaciari (1986), 149 Ill. App. 3d 79, 500 N.E.2d 637; Haines v. Kerner (1972), 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594.) If the petition demonstrates any possibility of recovery, the order of dismissal must be vacated. First Security Bank v. Bachleda (1987), 165 Ill. App. 3d 725, 520 N.E.2d 660.

In Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, the Supreme Court held that an inmate facing revocation of good-time credit is entitled to a due process hearing. At the hearing, he has the right to call witnesses on his behalf, so long as he does not violate institutional safety or correctional goals. (Wolff 418 U.S. at 566, 41 L. Ed. 2d at 956, 94 S. Ct. at 2979.) The Committee’s refusal to call an inmate’s witness should be explained either in the record of the disciplinary proceedings or through testimony in court in response to an inmate’s challenge to disciplinary proceedings. Ponte v. Real (1985), 471 U.S. 491, 85 L. Ed. 2d 553, 105 S. Ct. 2192.

According to the Department’s report, Adkins was an eyewitness to the incident. He stated in an affidavit that Captain Sullivan began the physical altercation by attacking the petitioner, and that the petitioner acted in self-defense. Based on the record before us, Adkins appears to have been a material witness, and we find no reason justifying the Committee’s refusal to call him. Accordingly, we find that the petitioner stated a claim upon which relief could be granted from the 1990 disciplinary proceeding.

The petitioner next argues that he presented a sufficient claim for relief from the 1986 disciplinary proceeding. He contends that his disciplinary reports were inadequate because they were illegible. The State argues that this issue has been rendered res judicata because it was raised in a previous case. Hill v. Lane (3d Dist. 1989), No. 3—88—0424 (unpublished order under Supreme Court Rule 23).

We have reviewed the briefs filed in the previous appeal and are satisfied that the issue regarding the 1986 proceeding was litigated at both the trial and appellate court levels. Consequently, the plaintiff’s claim as to the 1986 proceeding is barred under the doctrine of res judicata. (Hill v. Lane (3d Dist. 1989) No. 3—88—0424 (unpublished order under Supreme Court Rule 23).) Res judicata applies when there is a final judgment on the merits, an identity of the cause of action in both an earlier and later suit, and an identity of parties in the two suits. People v. DeJesus (1989), 127 Ill. 2d 486, 537 N.E.2d 800.

The cause of action in both cases was the same. In both cases, the plaintiff filed a writ of habeas corpus. In both cases, the plaintiff claimed that because the October 19, 1986, disciplinary reports were illegible, due process, various regulations, and various statutes were violated. Also, the parties were the same in both cases. The Director of the Illinois Department of Corrections was named a party-defendant in both cases. Thus, the plaintiff’s claim as to the 1986 proceeding is barred by res judicata. That portion of the order dismissing the claim for relief from the 1986 proceeding is affirmed.

The petitioner further argues that he sufficiently stated a claim for relief from the result of the 1985 disciplinary proceeding. He asserts that the Committee should have granted his request to interview Silas Mason.

As we have already noted, an inmate has a due process right to call witnesses on his behalf, so long as it is consistent with institutional safety and correctional goals. Here, according to an investigative report, McGuire said that Mason had given him the knife. Mason stated in an affidavit that the petitioner had not given him the knife. Mason therefore appears to have been a material witness, and we see no reason in the record before us for the Committee’s refusal to call him. We therefore find that the petitioner has sufficiently stated a claim for relief from the 1985 disciplinary proceeding.

The record indicates that the petitioner’s maximum release date is August 8, 1993. Since we have found that he stated a claim for relief in two proceedings in which he was denied a total of two years’ sentencing credit, we also find that he sufficiently stated a claim for habeas corpus relief. (See generally People ex rel. Johnson v. Pate (1970), 47 Ill. 2d 172, 265 N.E.2d 144 (stating that relief is available in a habeas corpus action where the inmate has shown his right to immediate release).) Having found, contrary to the trial court’s determination, that the petitioner has stated claims upon which relief could be granted, we find it unnecessary to address his other arguments. Instead, we reverse in part the order granting the motion to dismiss and remand for further proceedings consistent with this opinion.

The judgment of the circuit court of Will County is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

BARRY, P.J., and STOUDER, J., concur.


author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY WASHINGTON, Defendant-Appellant.
    Third District
    No. 3-91-0267
    Opinion filed January 30, 1992.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

A jury convicted the defendant, Anthony Washington, of residential burglary and robbery (Ill. Rev. Stat. 1989, ch. 38, pars. 19—3(a), 18—1(a)). The trial court sentenced him to concurrent terms of 15 years’ imprisonment for the robbery and 7 years’ imprisonment for the residential burglary. The defendant appeals his 15-year sentence for robbery.

The evidence introduced in the defendant’s trial showed that the defendant and four of his friends broke into the home of Robert and Janet Vespa during the early morning hours, threatened them, and robbed them of several possessions before leaving. The following is a summary of facts relevant to determining the issue the defendant has raised on appeal.

At trial, 66-year-old Robert Vespa, Sr., testified that on May 16, 1990, at about 2:30 a.m., he and his wife were asleep in their bed when he was shaken awake and five intruders threatened to kill him unless he gave them money. After jumping up, he was pushed down onto the bed and a flashlight was shined in his eyes. Something that felt like a gun was pressed to his temple. The intruders yelled that they had guns and repeatedly demanded money and threatened to kill the Vespas. When Mr. Vespa told them there was money in the dresser, they ransacked it. They also took Mrs. Vespa’s purse after she told them it was in the kitchen. The intruders then left, and Mr. Vespa called the police.

Mr. Vespa testified that his wallet, credit cards, two watches, paper money, some silver coins, a ruby ring, and a black onyx ring with a diamond set in it were taken by the intruders. He could not identify anyone in the courtroom as being one of the intruders because he could not see their faces in his bedroom on the night in question.

Robert’s 64-year-old wife, Janet Vespa, also testified at the trial. Her testimony largely corroborated her husband’s.

Kevin Eskridge, a friend of the defendant, testified that he went with the defendant to a pawnshop on May 17, 1990. The defendant asked Eskridge to pawn a black onyx and diamond ring for him because the defendant did not have identification with him. Eskridge pawned the ring and gave the defendant the money he received for it. Eskridge testified that he assumed the ring belonged to the defendant as he gave no indication that the ring was stolen. Peoria police detective Kenneth Boddie testified that he recovered the ring from the pawnshop on May 19, 1990. Robert and Janet Vespa identified the ring as one that was taken in the robbery.

Peoria police officer Michael Leroy Johnson testified that he questioned the defendant at the police station on the afternoon of May 19, 1990. Earlier that day, the defendant had denied any involvement in the Vespa robbery to other police officers. According to Johnson, he asked Raymond Clauson, who was also being questioned at the police station in a separate room, to help the police recover the Vespas’ rings. Clauson asked to speak with the defendant. Johnson took the defendant to Clauson, left them alone for a few minutes, returned, and took the defendant to another interview room where they were alone. The defendant then told Johnson that his friend, Kevin, had pawned the ring. Johnson relayed this information to Detective Bod-die. The defendant subsequently admitted that he had been with Gary Stein, Adam Wilkerson, and Raymond and Ronald Clauson at the Yes-pas’ house.

Johnson further testified that the defendant agreed to give a written statement. According to the statement, the 18-year-old defendant met with Stein, Wilkerson, and the Clausons on the night in question. They went riding with Stein in his car. The defendant did not know what was going on because he was “under the influence.” Stein drove to a gas station where he and Wilkerson bought flashlights and gloves. Stein then drove to a private residence. Stein, Wilkerson, and Ronald Clauson entered the house through a window and then let the defendant and Raymond Clauson in the front door. The defendant was called into the bedroom, where he saw Stein threatening the Yespas and asking for money. He also saw Ronald Clauson taking things out of the dresser drawers. The defendant picked up a ring that Clauson dropped on the floor. He later pawned the ring.

The defendant testified at trial and denied any involvement in the robbery. He stated that he got the ring from Ron Clauson in the early morning hours of May 16, 1990. According to the defendant, he was partying at a friend’s house with about 17 other teenagers when Clau-son and Stein tried to sell jewelry to people at the house. The defendant said he acquired the ring in exchange for a quarter bag of cocaine.

The defendant also testified concerning his interrogation at the police station. He basically asserted that after lengthy questioning by the police during which he repeatedly denied any involvement in the robbery, he was taken to Raymond Clauson. According to the defendant, Clauson had tears in his eyes and told him that the police were going to impound Clauson’s car unless the defendant told the police where the ring was. Officer Johnson told the defendant that he wanted Stein because he was the ringleader, and that the defendant would not serve much time if he testified against the others. The defendant then told Johnson that the ring was at the pawnshop and gave a statement admitting his involvement. The defendant further testified that everything he said in the statement came from information he had received that day from Officers Perkins and Johnson.

The presentence report showed that the 18-year-old defendant had no prior criminal record. In a letter attached to the report, the defendant apologized for his offense and asked to be put on probation so he could finish school. At the sentencing hearing, the defendant’s foster mother testified that the defendant was nice and had never stolen anything from her.

In contesting his sentence to the statutory maximum term of imprisonment for robbery, the defendant contends that the trial court failed to give proper consideration to his youth, his remorse, and his lack of prior convictions. He also asserts that his sentence was disparate from the sentences given to other defendants for their convictions arising from the same incident.

Sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The defendant’s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed. (People v. Darnell (1981), 94 Ill. App. 3d 830, 419 N.E.2d 384.) When mitigating evidence is before the trial court, it is presumed the court considered the evidence absent some indication, other than the sentence itself, to the contrary. People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.

Here, the sentencing court specifically found in mitigation that the defendant did not have a criminal record. The court also stated that it had considered all the evidence given at trial, the presentence investigation report, and the arguments presented at the sentencing hearing. Thus, the court was also aware of the defendant’s age. However, the court placed great weight on the circumstances of the offense, particularly that the Yespas were awakened from their sleep in the middle of the night in their own home, terrorized, and threatened with harm unless they told where their valuables were.

Furthermore, the trial judge stated that he was aware of the defendant’s letter of apology, but was entitled to balance the defendant’s letter against the statements he made at trial. We agree that in evaluating the defendant’s character and his potential for rehabilitation, the trial court may consider what the defendant says during sentencing in light of all the other information presented to the court during the trial and sentencing hearing. (See People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422.) Thus, it was proper to consider that the letter was the first time the defendant appeared to acknowledge his participation in the offense and express remorse for it.

The defendant also complains that his sentence was disparate from that of defendants Adam Wilkerson and Ronald Clauson, who also received 15-year sentences upon pleading guilty to home invasion based upon the instant offense. Both Clauson and Wilkerson have previous criminal records. The defendant has asked this court to take judicial notice of their sentencing records. We have done so and have determined that the sentences are not disparate.

Initially, we note that both Wilkerson and Clauson pled guilty. A defendant cannot properly compare his sentence with those imposed upon persons who have entered a plea of guilty. It is proper for a trial court to grant leniency to a defendant who, by his plea, has ensured prompt and certain application of correctional measures, acknowledged his guilt, and showed willingness to assume responsibility for his conduct. (People v. McClendon (1986), 146 Ill. App. 3d 1004, 497 N.E.2d 849.) Thus, Wilkerson and Clauson may well have received some leniency based on their pleas.

Furthermore, the same trial judge sentenced the instant defendant, Wilkerson, and Clauson. Therefore, he was well aware of each defendant’s background. While Wilkerson and Clauson had previous criminal records and the instant defendant did not, the trial court properly considered that Wilkerson and Clauson were only 15-year-old minors at the time of the offense. In contrast, the instant defendant was already 18 years old. A trial court may consider the defendant’s relative maturity in imposing sentence. People v. Centanni (1987), 164 Ill. App. 3d 480, 517 N.E.2d 1207.

Based upon our review of the record in the instant case, and the sentencing records in Clauson’s and Wilkerson’s cases, we are satisfied that the trial judge did not abuse his discretion in sentencing the instant defendant.

We therefore affirm the judgment of the circuit court of Peoria County.

Affirmed.

BARRY, P.J., and GORMAN, J., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH L. EAGLIN, Defendant-Appellant.
    Third District
    No. 3—91—0040
    Opinion filed January 15, 1992.
    Rehearing denied March 6, 1992.
    Lawrence J. Essig, of State Appellate Defender’s Office, of Springfield, and Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Kenneth L. Eaglin was charged by information with one count of solicitation of murder for hire. (Ill. Rev. Stat. 1989, ch. 38, par. 8—1.2.) He was convicted by a jury and sentenced to 34 years’ imprisonment.

The State alleged that Eaglin solicited an undercover officer to commit first degree murder. The victim was to be Joan C. Scott, the Fulton County State’s Attorney. Eaglin’s purported animosity arose from an attempt by Scott to remove Eaglin’s children from his household under charges of neglect. These custody battles, which ran from 1987 until March of 1990, included the filing by Scott of perjury charges against the defendant’s wife and his parents. Defendant’s wife was also briefly imprisoned on a contempt charge.

At trial, much of the State’s evidence came from the testimony of an informant named Joseph Roberts. Roberts began working at Eaglin’s construction company in April of 1990. During this time, Roberts and Eaglin had several conversations about Eaglin’s custody problems.

On or about June 27, 1990, Roberts allegedly told Eaglin that State’s Attorney Scott had hired a man named Paul Long to kill Eaglin’s wife. Long was a former cellmate of Roberts, but there is no evidence that he was actually aware of any of the circumstances described here. Eaglin claims that, out of fear for his family’s safety, he wanted to pay off Long.

Defendant and Roberts met several times over the next few days. According to Eaglin, Roberts told him that Roberts had made contact with the hit man and persuaded him to kill State’s Attorney Scott for payment instead of killing Mrs. Eaglin. Roberts also allegedly told Eaglin that if he attempted to back out of the deal, his family would be killed.

On July 12, 1990, Roberts telephoned Officer Daniel Daly of the Fulton County sheriff’s department. He told Daly that Eaglin was planning to have State’s Attorney Scott killed. He further stated that Eaglin had inquired whether Roberts knew of anyone who could commit the crime. When Roberts volunteered Long’s name, Eaglin reportedly discussed payment and inquired about the length of time Long would need to prepare.

On July 26, 1990, at the request of law enforcement officials, Roberts went to Eaglin’s house and told Eaglin that the hit man was ready to proceed. Eaglin provided Roberts with a photo of State’s Attorney Scott which had been clipped from a newspaper. This conversation was recorded via an eavesdropping device which was hidden on Roberts.

The next day, again at the request of the police, Roberts telephoned Eaglin. He told Eaglin that Long wanted to talk to Eaglin. Roberts then handed the phone to Gerald Kempf, an undercover officer who was portraying Long. The defendant never affirmatively stated that he wanted Scott dead, but agreed to pay Kempf $2,000 to carry out the scheme. This conversation, which was also recorded, was the basis for the solicitation charge.

Kempf and the defendant then arranged to meet at a parking lot. After a short conversation there, Eaglin was arrested.

The complainant in the case was Joan Scott, the Fulton County State’s Attorney. Prior to the trial, on August 8, 1990, the trial court removed Scott as the prosecutor because of the conflict of interest. The court then appointed Kevin Lyons, the Peoria County State’s Attorney, as a special prosecutor. The original information, which had been brought by Scott on August 2, was dismissed in favor of one brought by Lyons. The defendant objected to the appointment of Lyons, but his objection was overruled.

At trial, defendant tendered jury instructions on the defense of entrapment. The trial judge refused these instructions on the basis that defendant had denied committing the crime, relying on People v. Gillespie (1990), 136 Ill. 2d 496, 557 N.E.2d 894.

The jury found the defendant guilty of solicitation of murder for hire, he was sentenced and this appeal followed.

The defendant’s first contention is that the trial court erred in refusing to instruct the jury on entrapment. The defendant does not contend that the evidence established entrapment as a matter of law. Instead, he merely argues that he had presented evidence of the defense and thus was entitled to a jury instruction on the issue.

Traditionally, the rule has been that it is a precondition to raising the entrapment defense that the defendant admit that the crime was committed and that he committed it. People v. Fleming (1971), 50 Ill. 2d 141, 277 N.E.2d 872; People v. Moran (1941), 378 Ill. 461, 38 N.E.2d 760.

The United States Supreme Court, however, has ruled that a defendant is entitled to have the jury instructed on the entrapment defense whenever there is sufficient evidence from which a reasonable juror could find entrapment, even if the defendant denies one or more elements of the crime. Mathews v. United States (1988), 485 U.S. 58, 99 L. Ed. 2d 54, 108 S. Ct. 883.

The Illinois Supreme Court recently reexamined the issue in light of Mathews. (People v. Gillespie (1990), 136 Ill. 2d 496, 577 N.E.2d 894.) There, the court determined that Mathews was not of constitutional magnitude, and thus need not be followed by the State courts. Accordingly, the court reaffirmed the long-standing rule that in Illinois, a defendant who denies committing the offense charged is not entitled to have the jury instructed on the entrapment defense.

The record here reveals that Eaglin did not admit to the commission of the crime. He also repeatedly denied having the intent to kill, which is a necessary element of the crime. At trial, he testified “I didn’t want her killed *** I didn’t want to say ‘kill’ when I didn’t want her killed.” At a later point during direct examination by his attorney, Eaglin’s denials are even more explicit:

“Q. Was it ever your intention to hire anyone to kill Joan Scott?

A. No, sir.

Q. On July 27, 1990, at any time did you hire Paul Long or Gerald Kempf or anyone—

A. No, I did not.

Q. —to kill Joan Scott?”

Having denied the crime, the defendant was not entitled to an entrapment instruction. The trial court was correct in finding that Gillespie is dispositive and in denying the instruction.

The defendant next contends that the trial court gave an erroneous jury instruction defining the offense of first degree murder. Specifically, the defendant claims that the instruction was defective because it included a mental state other than intent to kill, which is the requisite state for solicitation of first degree murder.

The jury instruction to which defendant objects is as follows:

“A person commits the offense of first degree murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another.” (Emphasis added.)

Initially, we note that this was only a definitional instruction. This instruction did not address the issues or the burden of proof. Furthermore, it is not mandatory to instruct the jury on the definition of murder in a solicitation to commit murder case. People v. Barnett (1988), 173 Ill. App. 3d 477, 527 N.E.2d 1071; People v. Carey (1981), 94 Ill. App. 3d 631, 418 N.E.2d 1119.

No objection was made at trial nor was the issue raised in a post-trial motion. The general rule is that where no objection is made at trial to an erroneous jury instruction, the issue is waived. People v. Thurman (1984), 104 Ill. 2d 326, 472 N.E.2d 414.

Supreme Court Rule 451(c) allows a reviewing court to examine substantial defects in jury instructions despite the defendant’s failure to timely object. (134 Ill. 2d R. 451(c).) Rule 451(c) only applies to correct grave errors, or in cases where the evidence is so close factually that fundamental fairness requires that the jury be properly instructed. Thurman, 104 Ill. 2d at 329-30, 472 N.E.2d at 415.

A similar issue was addressed in People v. Barnett (1988), 173 Ill. App. 3d 477, 527 N.E.2d 1071. There, the defendant was also charged with solicitation of murder. The instruction given was identical. The State agreed that the instruction was erroneous because solicitation requires proof of an intent to kill. The court found that the issue had been waived because no objection was made at trial and any error did not fall into the limited exception provided by Rule 451(c). “[T]he inclusion of these other mental states in the nonmandatory definitional instruction does not constitute ‘grave error’ contemplated by *** Rule 451(c).” Barnett, 173 Ill. App. 3d at 487, 527 N.E.2d at 1078.

The jury was properly instructed as to the issues in the case and to the burden of proof. There is no evidence that this surplus-age confused the jury as to the necessary elements of the offense. While the instruction was erroneous, any error was waived by the defendant’s failure to make a timely objection.

The defendant’s final contention is that the trial court exceeded its authority in appointing Kevin Lyons as special prosecutor. The defendant’s argument is twofold: first, if Lyons was acting in his official capacity as the Peoria County State’s Attorney, he was out of his jurisdiction and thus without authority to prosecute; and second, if Lyons was acting in his capacity as a private attorney, his appointment was improper under a statute that allegedly forbids outside employment.

The appointment of a special prosecutor is controlled by section 3 — 9008 of the Sheriff’s Merit System Law (Ill. Rev. Stat. 1989, ch. 34, par. 3—9008). That section provides, in pertinent part:

“Whenever the State’s attorney is *** interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the State’s attorney would have had if present and attending to the same ***. Any attorney appointed for any reason under this Section shall possess all the powers and discharge all the duties of a regularly selected State’s attorney under the laws of the State to the extent necessary to fulfill the purpose of such appointment ***.” (Emphasis added.)

It is clear that Lyons was not acting in his capacity as Peoria County State’s Attorney. He was acting as a special prosecutor for Fulton County. As such, he stood in the shoes of the Fulton County State’s Attorney and had complete authority to prosecute Eaglin pursuant to section 3 — 9008 (Ill. Rev. Stat. 1989, ch. 34, par. 3—9008). Therefore, defendant’s first argument is without merit.

As to the defendant’s second contention, he cites section 3— 9009 (Ill. Rev. Stat. 1989, ch. 34, par. 3—9009) for the proposition that State’s Attorneys are prohibited from any outside employment. That argument, however, misconstrues the statute. That section provides:

“The State’s attorney shall not receive any fee or reward from or in behalf of any private person for any services within his official duties and shall not be retained or employed, except for the public, in a civil case depending upon the same state of facts on which a criminal prosecution shall depend.” Ill. Rev. Stat. 1989, ch. 34, par. 3—9009.

That section is not a per se ban on outside employment by State’s Attorneys. Instead it merely precludes a State’s Attorney from receiving compensation or employment in two situations which could readily give rise to a conflict of interest. The fact that Lyons was the Peoria County State’s Attorney is of no consequence to this action. It does not prevent him from being appointed as a special prosecutor for a neighboring county on an ad hoc basis.

Accordingly, for the foregoing reasons, we affirm the defendant’s conviction.

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    KENNETH R. HOKE et al., Plaintiffs-Appellees, v. MELVIN D. BECK et al., Defendants-Appellants.
    Third District
    No. 3—91—0106
    Opinion filed January 10, 1992.
    Rehearing denied March 6, 1992.

      Hartzell, Glidden, Tucker & Hartzell, of Carthage (Stanley L. Tucker, of counsel), for appellants.
    Lucie & Carper, of Macomb (Jim D. Lucie, of counsel), for appellees.
   JUSTICE HAASE

delivered the opinion of the court:

The plaintiffs, Kenneth and Annetta Hoke, brought this action against the defendants, Melvin and Carol Beck, for damages because of defects in a house sold to them by the defendants. The third amended complaint set out two counts. The first alleged that the defendants failed to disclose defective conditions of the house in violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1989, ch. 121½, par. 261 et seq.). The second alleged that the defendants had breached a warranty of habitability implied in the sale of the house. Following a bench trial, the trial court entered judgment for the plaintiffs on both counts, awarding them $7,600 in damages and $6,017.30 in attorney fees. Thereafter, the court denied the defendants’ post-trial motion. The defendants appeal.

Count I of the plaintiffs’ complaint alleged that the defendants, as builder-vendors for the purposes of the Consumer Fraud Act, knew or should have known of the following defects and failed to disclose them: (1) that pipes to the master shower leaked, causing damage to the wall, baseboard and floor; (2) that the window trim was improperly installed; (3) that a severe moisture problem existed under the house causing odor and damage to the floor and foundation; (4) that the garage was not completely insulated as stated by the defendants; (5) that two electrical outlets did not work; (6) that overhang was rotten and a section of siding was undone; (7) that the plumbing was improperly installed, causing a continuous sewer gas smell; (8) that the furnace was improperly installed in numerous ways; (9) that shingles on the roof were not properly affixed; (10) that the crawl space was improperly installed; (11) that joist braces were not installed; (12) that the garage door headers were not properly built; (13) that the utility room roof and floor were not level; and (14) that vents were not securely fastened.

Count II of the plaintiffs’ complaint alleged that the defendants, as builder-vendors of a commercial nature, breached the implied warranty of habitability as a result of the above-described defects.

Melvin Beck testified that he was not a construction contractor and had never built a house by himself, but he did have a hand in the construction of several houses. From 1969 through 1982, he had five homes built. He and his wife lived in each of them for about two years before selling them. The first house was built in 1969 and sold in 1971. At the time the first house was sold, construction on a second house had begun. The Becks lived in the second house until they had a third house built next door in 1973. The Becks sold the third house in late 1976 or early 1977. The Becks then had a fourth house constructed adjacent to the two previous new homes. The Becks sold the fourth house in 1979. In November of 1981, construction was begun on the Becks’ fifth house, which is the subject of this lawsuit.

Melvin stated that he performed various tasks in the construction of the homes such as carpentry work, painting and clean up work, common labor, and installation of the plumbing and furnace. He noted that he did not have any written contracts with the carpenters, but paid them on an hourly basis. He also stated that his wife kept the financial books and they both paid the bills for the supplies and materials.

Regarding the house in question, Melvin testified that the house was located across the street from his mother’s house and he did not intend to sell it. He only decided to sell it after suffering a significant financial reversal. He worked on the crawl space, installed the plumbing and heating systems, and helped with the carpentry work. He knew there was a moisture problem in the crawl space area when the house was constructed. According to Melvin, he told the Hokes that he had fixed the water problem, but if it was not fixed, they would have to pump it out with a new sump pump he would give them. Melvin further stated that he had told the Hokes that the garage was insulated and that the best of everything was used in the house.

The Becks’ tax returns introduced into evidence indicated that they filed a schedule D form and a 2119 form with the IRS only in 1978. A 2119 form is apparently required for the sale of a personal residence.

Tom Leach, an engineer and licensed plumber, testified that he examined the plaintiffs’ furnace on February 12, 1986. In so doing, he smelled carbon monoxide fumes and observed numerous problems with the way the furnace was installed. He called the gas company and had the gas shut off. He advised the Hokes to vacate the premises. Leach further testified that the plumbing system violated several State plumbing laws.

Herb Bozard, a carpenter-builder, testified that various portions of the house did not meet general industry standards. He noted that the use of Visqueen and limestone rock in the crawl space was improper and created additional water problems.

Annetta Hoke testified that Carol Beck approached her regarding the purchase of the house in question. One week later, Melvin Beck showed her the house and told her that he had installed the furnace and plumbing. He also told her that he had built other homes with the help of other people such as his son-in-law and Steve Coatsenberg. According to Annetta, Melvin further stated to her that he guaranteed that the crawl space would be dry and that the most water they would have would be a quart. Melvin also represented to her that the garage was insulated.

Kenneth Hoke testified that both of the Becks showed him the house on two occasions. During that time, Melvin told Kenneth and his wife that the house was the best quality and that it was the best house he had ever built. After they purchased the house, the Hokes noticed that an odor emanated from their crawl space. They eventually determined that the crawl space was very wet. Kenneth also testified regarding various other problems with the construction of the house.

The plaintiffs’ attorney, Jim Lucie, testified that he worked 71.6 hours at $75 per hour, which was a reasonable rate in the area. He introduced into evidence an itemized bill showing dates and times that he rendered services for the plaintiffs.

At the outset, the defendants argue on appeal that the trial court improperly found defendant Carol Beck liable.

We agree. There was no evidence establishing that Carol was a builder-vendor or that she made any misrepresentations in violation of the Consumer Fraud Act. In our opinion, Carol Beck had an ownership interest in the property but was not a builder-vendor either for purposes of the warranty of habitability or for the purposes of the Consumer Fraud Act. Accordingly, we reverse the court’s judgment pertaining to Carol.

Defendant Melvin Beck next argues that he was not a builder-vendor for the purposes of the implied warranty of habitability. He asserts that he was not a builder-vendor because he did not intend to sell the house in question and that his course of conduct in having other homes built over the years was very attenuated.

The warranty of habitability is a creature of public policy to protect purchasers of new houses when latent defects are discovered. (Petersen v. Hubschman Construction Co. (1979), 76 Ill. 2d 31, 389 N.E.2d 1154.) The supreme court in Petersen noted that the primary reason for the warranty is “because of the unusual dependent relationship of the vendee to the vendor.” (Petersen (1979), 76 Ill. 2d 31, 41, 389 N.E.2d 1154, 1158.) In many cases, the purchase of a home is the most important investment of a lifetime and it would be unjust to apply the rule of caveat emptor to an inexperienced home buyer in favor of a builder who is in the business of building and selling homes. (Hefler v. Wright (1984), 121 Ill. App. 3d 739, 460 N.E.2d 118.) Such a vendee is usually not knowledgeable in construction practices and, to a substantial degree, must rely upon the integrity and skill of the builder-vendor. (Petersen, 76 Ill. 2d 31, 389 N.E.2d 1154.) In defining the scope of the warranty, it has been found that the house must be reasonably suited for its intended use and not simply habitable. Redarowicz v. Ohlendorf(1982), 92 Ill. 2d 171, 441 N.E.2d 324.

Since Petersen, the warranty of habitability has been applied in a broad fashion to protect home buyers. In Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651, the Illinois Supreme Court defined a builder-vendor as one who is engaged in the business of building, so that the sale is of a commercial nature, rather than a casual personal one. The court noted, however, that the “commercial” requirement does not demand that the builder-vendor have a long and extensive experience in the construction industry. Liability was found to exist in Park despite the defendant’s arguments that the dwelling was only the second one he had constructed and that the house was not “new” because he had lived in it for a short time.

Applying the principles of the above-mentioned cases, we reject Melvin’s argument that the trial court erred in finding that he was a builder-vendor. Whether a defendant is a builder-vendor for the purposes of the warranty is a question of fact to be determined on a case-to-case basis. (See Park v. Sohn (1982), 89 Ill. 2d 453, 433 N.E.2d 651.) Here, the trial court had before it sufficient evidence from which it could conclude that the sale was of a commercial nature. The record shows that Melvin built five homes in a 13-year period. In so doing, he operated as a general contractor subcontracting for much of the work. He paid the subcontractors on an hourly basis. As time progressed, he personally did more and more of the work on the homes himself. Moreover, he did not claim the sale of any of the five homes as the sale of a personal residence for Federal income tax purposes. While this set of facts does not necessarily mandate a finding that Melvin was a builder-vendor, the trial court here specifically found that he was operating a business for profit in his sale of the homes. We are unable to say that the court’s determination was erroneous.

Melvin claimed that he did not initially intend to sell the house. The trial court, however, as the judge of the credibility of the witnesses, was not obligated to accept his contention. Under the circumstances, the court could properly conclude that the sale was of a commercial nature rather than a strictly personal and casual one.

Having determined that Melvin was a builder-vendor for the purposes of the implied warranty of habitability, we now turn to Melvin’s contention regarding count I of the plaintiff’s complaint, which alleged a violation of the Consumer Fraud Act. He argues that the trial court’s determination that he made misrepresentations in the sale of the house was against the manifest weight of the evidence because the defects were unknown to him.

We disagree. We note that the Consumer Fraud Act should be liberally construed to effect its purposes. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) Under the Act, the plaintiff must show: (1) a deceptive act or practice; (2) an intent by the defendant that he rely on the deception; and (3) the deception occurred in the course of conduct involving trade or commerce. (Ill. Rev. Stat. 1989, ch. 121½, par. 262.) The “intent” required by the statute is only the intent that the plaintiff in the primary action rely on the information that the defendant gave him, as opposed to any intent on the defendant’s part to deceive. Carl Sandburg Village Condominium Association No. 1 v. First Condominium Development Co. (1990), 197 Ill. App. 3d 948, 557 N.E.2d 246.

Here, we find that the evidence was sufficient to show that Melvin violated the Act. Melvin clearly misrepresented the amount of water that would be in the crawl space and whether the garage was fully insulated. The plaintiff was not required to show by direct proof that Melvin knew that these representations were false. The defendant’s knowledge of the falsity could be inferred from the circumstantial evidence. Moreover, we note that a representation made in culpable ignorance of its truth or falsity is fraudulent for the purposes of the Act. Crowder v. Bob Oberling Enterprises, Inc. (1986), 148 Ill. App. 3d 313, 499 N.E.2d 115.

Melvin next argues that the trial court’s judgment should be reversed because the plaintiffs were required to prove their cause of action under the Act by clear and convincing evidence.

Melvin concedes that the courts appear to have assumed that the standard of proof under the Act is a preponderance of the evidence and that the question of which standard of proof applies has not been raised before on appeal. We find it unnecessary, however, to reach the issue, since the record shows that the plaintiffs proved their cause of action by clear and convincing evidence.

Lastly, Melvin contends that the evidence was insufficient to support the trial court’s award of attorney fees.

In Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 527 N.E.2d 374, the court reversed a trial court’s award of attorney fees and remanded the cause, directing that the trial court, before determining the proper award, consider the novelty and difficulty of the question involved, the experience and ability of the plaintiffs’ counsel, the skill necessary to perform the legal services rendered, and the benefits resulting to the plaintiffs. In the case at bar, the record does not reveal that the trial court considered the factors set forth in Kleidon. Furthermore, it does not appear that the trial court made an attempt to apportion the award of attorney fees between the Consumer Fraud Act count in count I and the implied warranty of habitability count in count II. Under section 10a(c) of the Consumer Fraud Act (Ill. Rev. Stat. 1989, ch. 121½, par. 270a(c)), the court may award reasonable attorney fees to the prevailing party. However, the plaintiffs are not entitled to an award of attorney fees for the implied warranty of habitability. Accordingly, we vacate the attorney fees awarded and remand this cause for further proceedings consistent with Kleidon and also for the court to make an apportionment of the attorney fees between those which relate to the consumer fraud count and those which relate to the implied-warranty-of-habitability count.

The judgment of the circuit court of McDonough County pertaining to both the award of attorney fees and the liability of Carol Beck is reversed. The cause is remanded for further proceedings consistent with Kleidon. The remainder of the court’s judgment is affirmed.

Affirmed in part; reversed in part and remanded with directions.

GORMAN and STOUDER, JJ., concur.