author: PRESIDING JUSTICE CERDA

text:
    BYONG K. CHOI, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 89—2177
    Opinion filed July 10, 1991.
    Rehearing denied August 26, 1991.

      Thomas J. Nathan, of Lane & Munday, of Chicago, for appellant.
    John W. Bell and Michael B. Gunzburg, both of Johnson, Cusack & Bell, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Byong K. Choi, brought this action against defendant Commonwealth Edison Company seeking recovery for injuries sustained when plaintiff fell on a concrete floor while working at a construction site. The trial court granted defendant’s motion for summary judgment. On appeal, plaintiff argues that the trial court erred in granting defendant’s motion for summary judgment because a genuine issue of material fact exists. In addition, he argues that the trial court erred by failing to recognize defendant’s duty to provide a safe work place for workmen engaged in construction work on its premises and by failing to extend that duty to include taking precautions against the accumulation of water inside the building.

On January 10, 1979, plaintiff Choi was employed by Universal Power Piping, Inc. (UPP), as a welder at the Dresden Nuclear Power Plant, which is owned by defendant Commonwealth Edison Company. UPP was a subcontractor hired by Commonwealth Edison to complete installation of a decontamination flushing system in the Reactor 1 building. Plaintiff was working on the third-floor turbine deck receiving pipes brought in from the outside by UPP employees. While stored outside, the pipes became encrusted with snow and ice. Once inside, the pipes were raised from the ground floor to the third-floor turbine deck area by an overhead crane, which was operated by a Commonwealth Edison employee. Then, the pipe was taken from the crane, placed on a cart, and moved through the interlock hatch to the reactor building by UPP employees, including plaintiff. Snow and ice melted from the frozen pipes, forming puddles of water on the deck wherever the pipes were transported. Plaintiff was working in this manner all day prior to the accident.

As plaintiff and a co-worker were carrying a pipe, approximately 20 feet long and 10 inches in diameter, plaintiff slipped on water that was on the concrete floor. He fell backward, hitting his back on a pipe, and a floor spacer fell across his mid-section, causing injuries.

Previously, the appellate court upheld the trial court’s summary judgment order for defendant regarding the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, pars. 60 through 69). (Choi v. Commonwealth Edison Co. (1984), 129 Ill. App. 3d 878.) In plaintiff’s second amended complaint, he alleged that defendant was guilty of several negligent acts in its supervision of the construction work. Defendant filed a motion for summary judgment, arguing that under Illinois law, it had no duty to take precautions against natural accumulations of snow, ice or water that were tracked into a building. Defendant noted that the UPP foreman’s deposition stated that he did not inform Edison of the condition because it was the duty of the contractor’s own employees to clean up after themselves. Defendant pointed out that the snow came from pipes that plaintiff and his co-workers had brought in and carried to the area.

In response to defendant’s motion for summary judgment, plaintiff argued that defendant owed him a duty to maintain a reasonably safe work place because it retained control over the construction work performed by UPP employees and could stop the work in progress for safety or other reasons. Plaintiff also argued that defendant breached that duty by failing to provide a reasonably safe workplace and by failing to stop work that was being performed in an unsafe manner. In addition, plaintiff contended that the melted snow and ice that caused the unsafe condition did not accumulate naturally, was not transported into the building by pedestrian traffic, and was caused by defendant’s refusal to allow the pipes to be brought into the building and cleaned off before being transported to the work area. Plaintiff notes that the deposition of Commonwealth Edison’s superintendent stated that Commonwealth Edison employees had the responsibility to clean snow and ice which came into the building, had the authority to stop work being performed in an unsafe manner, and regularly inspected the area.

Concluding that the facts were essentially undisputed, the trial court ordered summary judgment for defendant. The trial court stated that there was a common law duty of an occupier of land to exercise reasonable care for the safety of people lawfully on the premises, but that duty did not extend to a building owner being required to mop up water from an accumulation of snow, ice or water brought inside a building construction site. The trial court indicated that it would be an impossible burden placed on an owner of a building construction site to require following the independent contractor’s employees around, mopping up every drip of water brought in from the outside. The trial court further ruled that Commonwealth Edison did not create the dangerous condition, but merely failed to clean up a mess which is common whenever building materials from the outside of a building are moved into a building.

The trial court analogized this case to Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 173, which ruled that a landowner has no duty to clean up snow, ice or water that is tracked into a building from a natural accumulation on the outside. The trial court made no finding whether the accumulation inside the building was natural or unnatural, but did state that the water began as a natural accumulation of snow and ice on the pipes outside and was brought into the building the same way, as people tracking it on their feet. The trial court did not consider the expert’s affidavit and deposition because it was not factually based. The expert did not actually examine the premises, the court noted, but merely looked at photographs.

After the trial court denied plaintiff’s motion to reconsider, plaintiff appealed the summary judgment order. Plaintiff’s argument emphasizes that Commonwealth Edison owed him a duty to maintain a safe workplace even though he was employed by an independent contractor hired by Commonwealth Edison. He asserts that the duty included mopping up water that accumulated on the building’s floor when snow and ice from the pipes melted onto the floor, causing puddles of water. Plaintiff relies on cases holding that the landowner owes a duty to the employee of an independent contractor if the owner retains sufficient control over the contractor’s work. (Claudy v. City of Sycamore (1988), 170 Ill. App. 3d 990; see Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313; Tsourmas v. Dineff (1987), 161 Ill. App. 3d 897; Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App. 3d 625; Pasko v. Commonwealth Edison Co. (1973), 14 Ill. App. 3d 481.) These cases state that the duty owed is to maintain a reasonably safe workplace.

Even if the water began as a natural accumulation on the outside, plaintiff asserts, Commonwealth Edison’s intervening acts caused the water to be unnaturally accumulated on the inside of the building. In the alternative, plaintiff states, the condition was aggravated by Commonwealth Edison because it would not allow the pipes to be stored inside where the snow and ice could be safely removed after it melted. Furthermore, plaintiff argues, the pipes were brought in from the outside and loaded onto an overhead crane operated by a Commonwealth Edison employee. The overhead crane then took the pipes to the third floor of the building, where UPP employees transported the pipes through a tunnel into the reactor building. By the time the pipes reached the third floor, the snow and ice was melting, and water from the pipes was dripping on the floor. It is on that water that plaintiff fell and injured himself.

Defendant responds that the water was a natural accumulation tracked in from the outside by UPP employees, including plaintiff. It asserts that this situation should be treated the same as a natural accumulation tracked in from the outside by pedestrian traffic, thus creating no duty by the landowner.

Defendant relies on two types of cases: those concerning natural accumulations of snow, ice or water outdoors and those concerning snow, ice or water tracked into a building from the outside, whether tracked in by pedestrians’ shoes, coats or umbrellas. In Lohan (140 Ill. App. 3d at 172), the plaintiff slipped and fell on water that had been tracked from the outside into the common hallway of the defendants’ stores. The appellate court ruled that the owners did not have a duty to continuously remove the tracks left by customers who had walked through the natural accumulations of snow or water outside, tracking them inside. Even if the owner has knowledge that the accumulation caused a dangerous condition, the court stated, there is no duty if the accumulation is natural. Lohan, 140 Ill. App. 3d at 173. See also Handy v. Sears, Roebuck & Co. (1989), 182 Ill. App. 3d 969 (summary judgment in favor of defendant store affirmed where plaintiff slipped and fell on water located within store); Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040 (hospital had no duty to clean up natural accumulation of water tracked into hospital on pedestrians’ coats and umbrellas); Serritos v. Chicago Transit Authority (1987), 153 Ill. App. 3d 265 (city transit authority had no duty where plaintiff fell on snow and slush covered steps of bus owned and operated by defendant).

The purpose of summary judgment is to determine whether a triable issue of fact exists. (Haberer, 158 Ill. App. 3d at 316.) It may be granted if the pleadings, exhibits, affidavits, and depositions on file establish that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(c); Branson v. R & L Investment, Inc. (1990), 196 Ill. App. 3d 1088, 1090.) Although the plaintiff does not have to try his case, he must provide a factual basis which would arguably entitle him to judgment. (Handy, 182 Ill. App. 3d at 972.) The determination that summary judgment is appropriate will not be reversed absent an abuse of the trial court’s discretion such that the plaintiff’s right to fundamental justice is violated. Breeze v. Payne (1989), 181 Ill. App. 3d 720, 727.

Commonwealth Edison owed plaintiff the duty to maintain a reasonably safe workplace, but it did not extend to taking precautions against water tracked inside from a natural accumulation outside. Duty is determined by considering a number of factors: the foreseeability of harm (Breeze, 181 Ill. App. 3d at 727), the likelihood of the injury, the magnitude of the burden of guarding against it, the consequences of placing that burden on the defendant, public policy, and social considerations. Dealers Service & Supply Co. v. St. Louis National Stockyards Co. (1987), 155 Ill. App. 3d 1075, 1080.

In Illinois, a landowner owes no duty where a natural accumulation of snow, ice or water exists on the outside or is tracked into a building by pedestrian traffic. (Lohan, 140 Ill. App. 3d at 172.) However, a property owner does have a duty and may be liable where the injuries are a result of an unnatural or artificial accumulation, or a natural condition aggravated by the owner’s use of the area and creation of the condition. (Handy v. Sears, Roebuck & Co. (1989), 182 Ill. App. 3d 969, 971.) To establish a duty, the plaintiff must make an affirmative showing of an unnatural accumulation or an aggravation of a natural condition before recovery will be allowed. (McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 549.) Plaintiff made no such showing in this case.

Therefore, summary judgment for defendant was proper. The water in the nuclear power plant was a continuation of a natural accumulation. There was no evidence presented that Commonwealth Edison did anything to aggravate the condition. To require an owner of a construction site to follow workmen around and immediately clean up any melting snow or ice or water that had been brought in from the outside would be too high a burden.

Affirmed.

WHITE and GREIMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    FISTER/WARREN, Successor in Interest to Charles L. Fister and Associates, Inc., et al., Plaintiffs-Appellants and Counterdefendants-Appellees, v. BASINS, INC., et al., Defendants-Appellees and Counterplaintiffs-Appellants.
    First District (6th Division)
    Nos. 1 — 90—2260, 1 — 90—2882 cons.
    Opinion filed July 12, 1991.
    Rehearing denied August 30, 1991.

      Carrane, Newman & Freifeld, of Chicago (Jerome C. Brezinsky, of counsel), for appellants.
    Schiff, Hardin & Waite, of Chicago (Walter C. Greenough and Yvonne E. Mena, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiffs-appellants Charles Fister, Robert Warren and Fister/ Warren brought the action below, seeking, inter alia, a declaration that the noncompetition agreement between Fister/Warren and defendants-appellees Basins, Inc. (Basins) and Georgia Marble Company (Georgia Marble), was void and unenforceable. Defendants filed a counterclaim alleging that Fister/Warren had violated the covenant not to compete. Defendants sought damages for the alleged violation of the agreement and issuance of an injunction restraining Fister/Warren from further violation of the agreement.

Defendants brought a motion for summary judgment. The trial court granted the motion, holding that the noncompetition agreement was valid and enforceable and finding that Fister/Warren was liable on the counterclaim for violating the agreement. The court also issued an injunction restraining Fister/Warren from further violation of the covenant not to compete. Subsequently, Fister/Warren brought two motions to reconsider the trial court’s ruling on defendants’ motion for summary judgment. While the trial court denied the reconsideration motion(s) with respect to the validity and enforceability of the agreement, it reversed its ruling on the issue of Fister/Warren’s liability for violation of the agreement. An evidentiary hearing ensued, and the trial court then entered judgment in favor of Fister/Warren.

Fister/Warren argues on appeal, as it did below, that the covenant not to compete is void and unenforceable. Georgia Marble and Basins have also appealed the entry of judgment in favor of plaintiffs as to liability. We affirm the trial court’s ruling with respect to the validity and enforceability of the noncompetition agreement, but reverse the trial court’s entry of judgment in favor of Fister/Warren.

On March 10, 1969, Basins entered into a sales agency agreement with Charles L. Fister and Associates, the predecessor in interest to Fister/Warren. Charles Fister and Robert Warren, pursuant to the sales agency agreement, were responsible for marketing Basins’ stone products in the entire United States. By January of 1986, however, plaintiffs were only marketing Basins’ products in three States: Illinois, Wisconsin and Indiana. Plaintiffs, in January of 1986, owned approximately 35% of the ownership interest in Basins. The Addison family owned approximately 60% of the Basins stock, and several other individuals owned the remaining few shares of the Basins stock.

In January of 1986, Basins was sold to Georgia Marble, which had been in the stone products business since only 1984. At the time Georgia Marble purchased Basins, it operated in the southeast portion of this country, and its purchase of Basins allowed Georgia Marble to expand its market over the entire United States. The sale of Basins to Georgia Marble was effectuated via a stock purchase agreement through which Georgia Marble purchased all of the outstanding stock of Basins. All of the shareholders, including Fister/Warren and Fister and Warren individually, executed the agreement, and at the close of the sale Basins, Georgia Marble and Warren individually executed a noncompetition agreement. (Both defendants and plaintiffs assume and do not dispute that although only Warren signed the noncompetition agreement, Charles Fister and Fister/Warren are bound by its covenants.)

The terms of this agreement were that plaintiffs agreed, for a period of five years and as to the entire United States, not to

“[d]irectly or indirectly, either as an employee or a member of of [sic] a partnership, or as an employee, sponsor, promoter, stockholder, officer or director of a corporation or or [sic] other business entity, or otherwise, own, manage, operate, contract, be employed by, participate in, or be connected in any manner with the ownership, management, operation or control of any business, whether foreign or domestic, similar to or competing with the type of business conducted by the Company and the Products produced by the company, within the United States of America.”

The noncompetition agreement further prohibited plaintiffs from soliciting existing customers, from influencing existing employees to leave the company or from disclosing customer lists and confidential information.

Georgia Marble’s president, Albert Gay, testified that while Georgia Marble valued the assets of Basins at about $8 million, it paid an additional $4 million because it wanted to operate Basins as an ongoing entity. Gay further testified that Fister/Warren received over $4 million for its stock. Fister testified that Fister/Warren and its attorneys reviewed the noncompetition agreement and Fister/Warren considered the amount paid for the stock to be fair. Gay testified that the purchase of Basins by Georgia Marble would not have taken place had Fister/Warren not agreed to enter the noncompetition agreement. Plaintiffs were terminated as agents for Georgia Marble in October of 1986.

At the evidentiary hearing which ultimately ensued, both plaintiffs and a representative of Georgia Marble testified that it was the understanding of the parties to the stock purchase agreement that Fister/Warren would be precluded from selling stone products in competition with Georgia Marble. Plaintiffs did not think the agreement would be enforceable, however, and on August 1, 1988, Fister/Warren became the exclusive distributor for one of Georgia Marble’s and Basins’ competitors — Colorado Quarries, Incorporated (Colorado Quarries).

Plaintiffs filed suit against defendants in February of 1987. Counts I and III of the complaint sought a declaration by the court that the noncompetition agreement was invalid and unenforceable. In March of 1989, defendants filed an amended counterclaim, which in count II alleged that the plaintiffs had violated the noncompetition agreement by entering into the agreement with Colorado Quarries. Plaintiffs did not file any affirmative defenses to the counterclaim, nor did they argue any affirmative defense in responding to defendants’ motion for summary judgment.

Fister/Warren sought reconsideration of the trial court’s ruling, both with respect to the validity of the noncompetition agreement and as to Fister/Warren’s liability for violating the agreement. Fister/Warren’s first motion for reconsideration was denied on a technical ground. A second motion for reconsideration was brought, which was denied as to the validity of the noncompetition agreement, but was granted with respect to the violation thereof by plaintiffs. Key to the trial court’s granting of the motion on the second issue were two letters introduced by Fister/Warren, for the first time at the reconsideration stage of the litigation. These letters, dated in February and June of 1987, were from defendants’ attorney, and in sum stated that the “executives” of Georgia Marble did not understand the “noncompete agreement” to exclude plaintiffs from selling competing products, but only understood the agreement to mean that plaintiffs could not compete in the “quarrying business.”

While the terms of the noncompetition agreement are broad, the only competition with respect to sales defendants have sought to restrain plaintiffs from pursuing has been plaintiffs’ sale of competing white marble. Plaintiffs’ ability to sell other stone products has never been questioned.

The first issue we address is whether the covenant not to compete is void and unenforceable as a matter of law.

Although judgment was entered for Fister/Warren on the issue of its liability for violating the noncompetition agreement, Fister/Warren has nonetheless appealed the issue of whether the trial court erred in granting defendants summary judgment on the issue of whether the noncompetition agreement was valid. Preliminarily, the parties have disputed which law is to be applied in analyzing this issue. The stock purchase agreement provides that the law of Wyoming would apply. Defendants insist that the panel is bound to construe solely Wyoming law, while Fister/Warren argues that we should apply the law of Illinois.

As the court in Hartford v. Burns International Security Services, Inc. (1988), 172 Ill. App. 3d 184, 187, 526 N.E.2d 463, observed:

“Illinois has recognized the validity of an express choice of law provision contained in a contract. [Citations.] However, the law will be given effect subject to certain limitations: whether the choice of law provision contravenes Illinois public policy and whether there is some relationship between the chosen forum and the parties or the transaction. [Citation.] *** Nevertheless, conflict of law rules are resorted to only when a difference in the law would be determinative of the outcome of the litigation. [Citation.]”

In this case, Fister/Warren does not raise an issue with regards to the latter limitation — that there is no relationship between the parties or the transaction to Wyoming. Fister/Warren only argues that recognition of the parties’ choice of law provision would violate the public policy of Illinois. The public policy of a State must be sought in its constitution, legislative enactments and judicial decisions. (Roanoke Agency, Inc. v. Edgar (1984), 101 Ill. 2d 315, 327, 461 N.E.2d 1365.) Fister/Warren has cited to a number of Illinois judicial decisions which state general principles in Illinois to the effect that restrictive covenants are strictly scrutinized and must be reasonable restraints of trade to be enforceable. The very same policy considerations are expressed in the Wyoming law which defendants cite. (See Ridley v. Krout (1947), 63 Wyo. 252, 180 P.2d 124; Keller v. California Liquid Gas Corp. (D. Wyo. 1973), 363 F. Supp. 123.) Fister/Warren has not persuasively articulated why Illinois public policy is violated by the existence of the noncompetition agreement, as might be the result if Illinois, like some jurisdictions, did not enforce such restrictive covenants at all. We therefore refuse to dishonor the parties’ choice that Wyoming law apply to the issue.

Our holding that Wyoming law controls the resolution of the issue, however, does not render Illinois law on the subject irrelevant. Defendants contend that Wyoming law compels the result that the covenant not to compete which is at issue be held valid and enforceable. In so doing, defendants rely factually on not one Wyoming case, but place emphasis on decisional law of States other than Wyoming or Illinois. Thus, while we agree that Wyoming law is to be applied in analyzing this issue, given the paucity of Wyoming law on the subject, we look to other jurisdictions, including Illinois, to determine the validity and enforceability of the noncompetition agreement.

The evidence presented below established that the noncompetition agreement was bargained for and ancillary to the stock purchase agreement. That agreement provided that the noncompetition agreement was to follow. Uncontradicted testimony below indicated that Basins, which Georgia Marble purchased to continue operating, had operated on a national level. Georgia Marble was planning on expanding its market from a primarily southeastern United States area of operations. Defendants have cited a number of cases which have held that, upon the facts, five years was not an unreasonable term of duration for a noncompetition agreement entered into pursuant to the sale of a business. (See McCasland v. Prather (1978), 92 N.M. 192, 585 P.2d 336; Flower Haven, Inc. v. Palmer (Colo. 1972), 502 P.2d 424.) Fister/Warren has cited no authority establishing, and indeed has not argued, that the noncompetition agreement is unreasonable as to duration. Rather, Fister/Warren argues primarily that the geographical scope of the covenant not to compete is unreasonable.

In so arguing, Fister/Warren relies heavily upon the case of McCook Window Co. v. Hardwood Door Corp. (1964), 52 Ill. App. 2d 278, 202 N.E.2d 36. There, the court held that a covenant not to compete was unreasonable because the restraints the covenant imposed were “greater than necessary for the protection of *** the purchaser of the stock.” (McCook, 52 Ill. App. 2d at 288.) McCook is distinguishable from the instant case in a number of respects. In McCook, there was no showing that the sold business had customers as far away as the area (150 miles) the covenant covered, or that the business of the purchaser would potentially expand to those areas. Here, on the other hand, while at the time of purchase the plaintiffs were only operating in three Midwestern States, the plaintiffs had previously operated in numerous States in different areas of the country. Basins had operated in the United States generally, and Georgia Marble intended to expand its operations to other areas of the country. In the instant case, then, as opposed to McCook, a showing has been made by defendants that the goodwill which is sought to be protected by such a noncompetition agreement in connection with the purchase of the business was in need or potentially in need of protection. Moreover, in McCook, the duration of the covenant was “indefinite.” (52 Ill. App. 2d at 288.) Thus, given the large scale of the business to be conducted, the several million dollars plaintiffs received for their shares, and the fact that in order for plaintiffs to prevail they must show a hardship to themselves that is “substantial” (O’Sullivan v. Conrad (1976), 44 Ill. App. 3d 752, 757, 358 N.E.2d 926), we hold that under the facts of this particular case the covenant was reasonable and hence is valid and enforceable.

While defendants in their cross-appeal have framed the issues of whether the trial court erred in “allowing the plaintiffs to change their defense theory after the close of evidence and in entering judgment in plaintiffs’ favor based on an unpled defense theory,” the dis-positive issue on appeal as we see it is whether it was error for the trial court to vacate the entry of judgment in favor of defendants based on Fister/Warren’s raising its affirmative defense for the first time in its motions for reconsideration.

As indicated, Fister/Warren did not bring the existence of the letters to the trial court’s attention until after summary judgment had been entered. The parties have not brought a case to our attention where the issue of the propriety of bringing affirmative matters to the court’s attention via a motion for reconsideration for the first time was discussed when the existence of the evidentiary matter supporting the affirmative matter was in the possession of the party seeking to assert it all along. The record is clear that the only reason that the letters were not brought to the court’s attention at an earlier stage of the litigation was due to negligence on the part of Fister/ Warren. In Fister/Warren’s motion for reconsideration, its attorney acknowledged that the letters had been in possession of Fister/Warren’s attorneys during the pendency of the motion for summary judgment, and the aspect of the case involving the letters was not discussed until after summary judgment was entered.

Defendants cite a number of cases where the courts have held that affirmative defenses not pleaded have been deemed waived, or where it was held that the trial court could not consider such defenses sua sponte. (See Spagat v. Schak (1985), 130 Ill. App. 3d 130, 473 N.E.2d 988; Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 389 N.E.2d 226; Terminal Freezers, Inc. v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App. 3d 981, 354 N.E.2d 904.) These cases, however, are not precisely on point, as they involve defenses raised sua sponte by the trial court or defenses raised at an earlier time in the proceeding. Fister/ Warren relies on cases which likewise are distinguishable, in that they involve instances where the affirmative defense was interposed before judgment. See Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 474 N.E.2d 1274; J. & R. Electric Co. v. Edward P. Allison Co. (1970), 125 Ill. App. 2d 123, 260 N.E.2d 755.

In resolving the issue before us, we find the following observations pertinent. “Presumptively, by the time of the hearing on the motion for summary judgment, the parties know everything to be known about the facts and the law of the case. The hearing on the motion is a significant, potentially dispositive stage of the proceeding. Entering this stage, the trial judge has a right and a need to know what the parties know.” (Loyola Academy v. S&S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 803, 556 N.E.2d 586.) “[T]he parties [at the summary judgment stage] have a responsibility before the hearing to make known to the trial judge the significant matters of which they are aware.” Hill v. Jones (1990), 198 Ill. App. 3d 854, 858, 556 N.E. 2d 613.

Fister/Warren argues in its reply brief that it should be allowed to raise its affirmative defense for the first time upon a motion for reconsideration because “there is no real distinction in determining whether an issue is before the court or formed by the record of the trial, between a motion for summary judgment or a motion for reconsideration.” To the contrary, we find the situations distinguishable. While courts have held that an affirmative defense may be raised for the first time at the summary judgment stage, this is because a motion for summary judgment may be filed at any time, even before an answer is filed. (See Metropolitan Sanitary District v. Anthony Pontarelli & Sons, Inc. (1972), 7 Ill. App. 3d 829, 288 N.E.2d 905; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) The same protections are inapplicable at the reconsideration stage, where the hearing on the motion for summary judgment has passed and judgment has been entered.

In considering this issue, our supreme court has held that “the submission of a new matter on such a motion after a motion for summary judgment has been granted lies in the discretion of the trial court [citation], but it should not be allowed in the absence of a reasonable explanation of why it was not available at the time of the original hearing [citations]. In the absence of any such valid explanation, there was no reason to change the ruling.” (Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E .2d 649.) In our view, no reasonable explanation has been given as to why the letters were not set forth in the response to defendants’ motion for summary judgment. Thus, as the reconsideration motion did not effectuate the proper purposes of such a motion, it was error for the trial court to grant the motion.

Moreover, though Fister/Warren did not move to amend its answer, even if it had, amendment would not have been proper. “Amendments during or on the eve of trial should not ordinarily be permitted if such amendments concern matters which the pleader knew at the time the original pleading was filed and for which the pleader offers no good reason for not having pleaded the matter in the original pleading.” First National Bank & Trust Co. v. Sousanes (1978), 66 Ill. App. 3d 394, 396, 384 N.E.2d 30.

Fister/Warren’s remaining argument as to why we should affirm the vacature of summary judgment by the court boils down to the argument that we should do what is fair given the “equities” of the case. Such an argument, in the absence of other persuasive authority to support it, is insufficient to sway us, given the significant, potentially dispositive nature of the summary judgment proceeding and the lack of justification on the part of Fister/Warren in not raising the defense and the letters at an appropriate stage of the proceedings.

Accordingly, we reverse the order of the trial court entering judgment in favor of Fister/Warren.

Reversed.

EGAN and LaPORTA, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN TRICE et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1 — 87—2086, 1—87—2134 cons.
    Opinion filed January 14, 1991.
    Rehearing denied September 9, 1991.

      Michael J. Pelletier, Martin Carlson, Richard C. Bollow, and J. Cunyon Gordon, all of State Appellate Defender’s Office, of Chicago, for appellant Calvin Trice.
    Samuel J. Cahnman and Richard F. Faust, both of Chicago, for appellant Sylvester Henderson.
    Jack O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, William D. Carroll, Renee Goldfarb, and Walter P. Hehner, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendants Calvin Trice and Sylvester Henderson were jointly indicted on the charges of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9— 1(a)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2(a)), arson (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1), and concealment of a homicidal death (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3.1). In a dual-jury proceeding, one jury found Trice guilty of murder, armed robbery and concealment of a homicidal death, and a separate jury found Henderson guilty of murder and armed robbery. The circuit court sentenced Trice to confinement for the remainder of his natural life for murder,, and 30 years and 5 years, respectively, for armed robbery and concealment of a homicidal death. The court sentenced Henderson to concurrent terms of natural life for murder and 30 years for armed robbery.

Prior to trial, defendants moved to suppress custodial statements made to the police and other evidence that they claimed was obtained incident to an illegal arrest. The trial court denied the motions, finding that the police had probable cause to arrest. The court made no ruling on Trice’s motion in limine to preclude the State from introducing into evidence the contents of a 911 telephone call.

On appeal, both defendants assert that: (1) they were arrested without probable cause; and (2) the trial court erred when it allowed the juries to hear the contents of an inculpatory anonymous 911 telephone call made by a purported eyewitness to the homicide. In addition, Trice raises the issues whether: (1) the trial court erred when it refused to allow him to use an exculpatory letter to impeach one of the State’s key witnesses; (2) the trial court erred when it allowed the testimony of a State witness who had been unavailable to the defense until the day of the witness’ testimony; and (3) the court erred when it permitted the defendants to be tried simultaneously in a dual-jury proceeding. The issues presented for review on behalf of Henderson are: (1) whether the trial court improperly considered a “victim impact statement” during Henderson’s sentencing hearing; and (2) whether Henderson’s sentences of natural life for murder and 30 years for armed robbery are excessive.

As a result of the dual-jury proceeding, the two juries heard testimony jointly and separately. Officer Peterson, a Chicago police officer, testified on behalf of the State. On February 1, 1986, he was called to the scene of a fire in the alley at 69th and Peoria Streets at about 10 p.m. When he arrived, firemen were extinguishing the fire on a late model van in which he saw the charred remains of a body that was later identified as police officer Schaeffer. Dr. Kalelkar, a medical examiner, testified that the victim had sustained two gunshot wounds, one to the chest and one to the head, which had been fatal, and that the victim was dead before he was burned.

The State’s key testimony was elicited from Angelia Lathan, the girlfriend of Trice. On January 31, 1986, at about 6 p.m. she left the home of a friend, Glenda, to look for Trice when she was approached near 70th and Peoria by a white male “wanting to buy some reefer.” When Trice and Henderson approached, she inquired if Trice had any marijuana, and Henderson replied that he did and told her to tell the man to pull his van into the alley. When the man stepped out of the van, Henderson told him “he had to have it all,” but the man replied “it’s not like that” and reached into his jacket. At this point, Henderson pulled out a gun and shot the man. Then, Trice shot the man again, which caused him to fall backward into the van. Although Henderson suggested that they “take out” Angelia to prevent her from “tricking” to the authorities, Trice convinced him that Angelia would not tell on them. During cross-examination, when Trice’s counsel attempted to impeach Angelia’s credibility with a letter she had written to him during her sequestration in Mississippi, the State objected on the ground that the letter had not been provided to them during discovery. The court disallowed use of the letter.

Detective Craig Cegielski also testified. On Monday, February 3, 1986, at about 9:30 a.m., he and his partner listened several times to a recorded tape that an anonymous caller had telephoned in on the 911 number on February 2, 1986, purporting to have information “about the murder at 69th and Peoria.” The call was traced to a pay telephone a few miles from the scene of the crime. After listening to the tape, Cegielski conducted an investigation which turned up three suspects: Calvin Trice, Angelia Lathan and Sylvester Henderson, who were subsequently brought to the station and questioned.

Defendants objected to the detective’s testimony concerning the 911 tape. The trial court ruled that the contents of the 911 tape were admissible as to Henderson since his counsel’s questions to Angelia suggested that she tailored her testimony to the 911 tape. The court initially commented that admission of the tape as to Trice was “close”; however, in reliance on several appellate court decisions and the fact that the jury was “left with the impression that the investigation fell out of thin air,” the judge reversed his earlier ruling and allowed admission of the 911 tape in evidence to “show the continuity of the police action.” In addition, Elwin “Whorl” Ward testified on behalf of the State and stated that Trice had made certain admissions to him about his (Trice’s) involvement in a robbery and murder.

Trice testified that on January 31, 1986, he spent the afternoon at his mother’s house, except for a brief trip to the cleaners; most of the early part of the evening from about 6 p.m. until 9 p.m. at a friend’s house, playing cards; and the remainder of the evening, he went to the Surf Lounge, left for Chris’ party at 68th and Aberdeen and returned to the lounge where he remained until it closed around 2 a.m. on Saturday, February 1, 1986. Trice presented witnesses who corroborated his version of what occurred and contradicted Angelia’s testimony as to her whereabouts on the days in question. Henderson presented alibi witnesses who placed him at his home the entire evening of January 31, 1986. He also testified on his own behalf and stated that the statements he made were false and elicited as a result of coercion by the arresting officers.

We first address whether the trial court correctly found that probable cause existed for defendants’ arrests. Defendants maintain that there was no probable cause for arrest because the independent corroboration of the information given by the anonymous caller was insufficient and had too few details to be reliable. They urge that the trial court misapplied the probable cause determination as set forth by the United States Supreme Court, and thus erred in denying their motion to suppress the evidence obtained as a result of the illegal arrest.

The State initially responds that with respect to Henderson, this issue is waived on appeal because of his failure to specify in the written post-trial motion the reason he believed he had been arrested ■without probable cause. Alternatively, and with respect to Trice, the State asserts that the police provided sufficient independent corroboration of the anonymous 911 telephone caller’s information to establish probable cause for defendants’ warrantless arrests.

This court will not set aside a trial court’s disposition of a motion to suppress unless such decision is manifestly erroneous. (People v. Evans (1988), 125 Ill. 2d 50, 78, 530 N.E.2d 1360; People v. Stewart (1984), 105 Ill. 2d 22, 41, 473 N.E.2d 840; People v. Holmes (1989), 198 Ill. App. 3d 766, 556 N.E.2d 539.) Neither will a trial court’s ruling that there was probable cause to arrest be disturbed by a reviewing court unless it is manifestly erroneous. Evans, 125 Ill. 2d at 71.

A court of review must determine whether the trial court had a substantial basis for concluding that probable cause existed. (Illinois v. Gates (1983), 462 U.S. 213, 238-39, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332; People v. Tisler (1984), 103 Ill. 2d 226, 248, 469 N.E.2d 147.) Our courts have repeatedly found that probable cause exists where the facts and circumstances known to the police are sufficient to warrant the belief of a reasonable and prudent person that an offense has been committed and that the person arrested has committed the offense. Ill. Rev. Stat. 1987, ch. 38, pars. 107 — 2(l)(a), (l)(c); People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475; People v. Lippert (1982), 89 Ill. 2d 171, 178, 432 N.E.2d 605; People v. Lekas (1987), 155 Ill. App. 3d 391, 410, 508 N.E.2d 221.

The information relied upon to establish probable cause to arrest must be supported by some indicia of reliability. (People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998.) The Supreme Court adopted a two-prong test with which the probable cause information must comply: (1) the basis of the informant’s knowledge and (2) the credibility or reliability of the informant. (Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509; see also Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.) However, in Gates, the Court abandoned the strict Aguilar-Spinelli test and adopted a totality of circumstances approach, finding that the existence of probable cause is to be governed by common sense and practical considerations. (See also Tisler, 103 Ill. 2d at 236, 245.) In Gates, the Supreme Court emphasized the need for independent police investigation that corroborates the details of an informant’s story as “other sources of information reduced the chances of a reckless or prevaricating tale.” Gates, 462 U.S. at 244-45, 76 L. Ed. 2d at 552-53, 103 S. Ct. at 2334-35.

In the case at bar, Detective Cegielski had probable cause to arrest defendants based upon information received in the 911 telephone call where the informant identified herself as an eyewitness and identified defendants and Angelia by name and physical description, described the occurrences at the scene of the crime which included the murder and fire, and the nature of the wounds sustained by the victim. The court stated that the informant’s desire for anonymity was based on her fear of being harmed for cooperating with the police rather than a lack of credibility or reliability. In addition, nearly every aspect of the information supplied by the anonymous caller was corroborated by the police. Detective Cegielski’s own investigation revealed the names, nicknames and addresses of the three persons described in the call, their relationship to each other, a description of the automobile owned by Trice and the car’s license plate number. Moreover, the record demonstrates that when the police went to Trice’s home and were told he was not there, they observed his automobile parked across the street from the house. The officers then “staked out” the house. Approximately 15 minutes later Trice and Angelia came out of the house and entered Trice’s auto. The police followed the car a few minutes and then pulled them over. Trice and Angelia identified themselves, and when asked if his nickname was “Beast Monster,” Trice replied that it was “Beast Man,” the same name given by the anonymous caller. Thus, the 911 call, where the caller specified that she witnessed the murder from her back porch, in conjunction with the police investigation which corroborated the details given in the call, and the conduct of Trice and Angelia, who exited a house where Trice was said to be unavailable only minutes before, and entered a car with out-of-State license plates, which may have suggested an attempt to flee, sufficiently furnished probable cause to believe that a warrantless arrest was necessary.

Accordingly, in applying the totality of circumstances test of Gates to these facts, we find that the trial court properly denied defendants’ motions to quash arrest and suppress the evidence.

Defendants next contend that the trial court erred by allowing in evidence inadmissible hearsay when it permitted the juries to hear the contents of the 911 telephone call recording. Initially, the State again responds that Henderson has waived this issue for purposes of appeal as he failed to present it in his written post-trial motion. In the alternative, the State urges that admission of the 911 tape was proper for the limited purpose of demonstrating to the jury the reasons the police acted in the manner they did during the course of the investigation.

First, in addressing the question of the waiver rule, we note that it is not a complete bar to appellate review; rather, the waiver rule serves as a rule of administrative convenience. Pursuant to Supreme Court Rule 615(a), a reviewing court may in the interest of justice take notice of all issues which appear to be plain error or defects affecting substantial rights. (See 107 Ill. 2d R. 615(a); People v. Britz (1988), 123 Ill. 2d 446, 486, 528 N.E.2d 703.) Our courts have determined that admission of hearsay evidence may constitute plain error and, thus, be considered under the plain error rule. (See People v. Gischer (1977), 51 Ill. App. 3d 847, 366 N.E.2d 521.) Here, the record neither reflects that defendants were denied a fair trial nor that the evidence is closely balanced. Accordingly, we need not invoke the plain error doctrine.

If we were to consider the merits of defendants’ contentions, we would conclude that introduction of the evidence of the anonymous call was not plain error requiring reversal of defendants’ convictions. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223; People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738), and generally is not admissible in evidence. (Fed. R. Evid. 801.) However, a hearsay statement is permissible in certain situations where it is not offered to prove the truth of the matter asserted. For instance, the statement is allowed where it is offered for the limited purpose of showing the course of a police investigation. (People v. Loggins (1985), 134 Ill. App. 3d 684, 480 N.E.2d 1293.) In Loggins, this court found the admissibility of a statement proper where it was used to demonstrate the continuity of police investigations. See also People v. Billingsley (1989), 184 Ill. App. 3d 142, 539 N.E.2d 1302; People v. Green (1985), 136 Ill. App. 3d 361, 483 N.E.2d 606; People v. Matthews (1985), 137 Ill. App. 3d 870, 485 N.E.2d 403.

Admissibility of evidence is within the sound discretion of the trial court, and its ruling will not be reversed unless there has been an abuse of that discretion. (People v. Ward (1984), 101 Ill. 2d 443, 463 N.E.2d 696.) In the present case, Detective Cegielski testified that while investigating the instant murder, he listened to a tape recording of a 911 call and then researched information on several individuals: Henderson, Trice and Angelia.

Additionally, the record reflects that Henderson’s counsel repeatedly queried Angelia during cross-examination as to whether she fabricated a story to match the one given by the 911 caller in order to receive a better “deal.” Following the testimony of the several witnesses, the trial court noted that the jury was “left with the impression that this investigation fell out of thin air,” and thus allowed the juries to hear the tape so that they would understand why the police focused their investigation on defendants and Angelia.

With respect to Henderson alone, we believe that the trial court properly admitted the tape to rebut the implication that Angelia tailored her testimony to the 911 call. Where, as here, a defendant invites the admission of evidence, he cannot complain. (People v. Jones (1987), 161 Ill. App. 3d 688, 515 N.E.2d 166.) With respect to both defendants, we hold that the trial court did not abuse its discretion in allowing the 911 tape to be heard by the juries where its purpose was to demonstrate and explain the continuity of police conduct in that Detective Cegielski testified that the 911 tape prompted him to proceed with his investigation.

Moreover, the record reflects that both before and after the juries heard the tape, the trial court specifically instructed them that they were to consider the 911 tape for the limited purpose of understanding how the defendants came into the custody of the police. During the respective jury instructions, the court stated: In arguing that the tape’s prejudicial effect outweighs its probative value, defendants urge us to reverse their convictions. However, defendants’ claim of prejudice is equally without merit. On this record, if we were to find admission of the tape error, admission of hearsay evidence, although error, is harmless beyond a reasonable doubt where there is overwhelming evidence of guilt (People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125), or, as otherwise stated, where there is no reasonable possibility that the jury’s verdict would have been different had the tape been excluded. (See People v. Griggs (1982), 104 Ill. App. 3d 527, 432 N.E.2d 1176.) Angelia testified that she saw Henderson and Trice shoot the deceased. Defendants admitted their participation in the crimes to several law enforcement personnel, and another witness, Elwin Ward, stated that Trice told him on two different occasions that he had robbed and murdered someone on January 31, 1986. While the testimony of defendants and their witnesses denied and contradicted that of the State’s witnesses, it is clear that the juries chose to believe the State’s witnesses, as opposed to defendants’.

“You have heard a 911 tape. The substance of this tape is not evidence as to the guilt or innocence of Calvin Trice (Sylvester Henderson). It may only be considered for determining the reason why Calvin Trice (Sylvester Henderson) was arrested and questioned.”

DEFENDANT TRICE

We now address the issues raised by defendant Trice. Trice first contends that the trial court erred when it refused to allow his defense counsel to impeach the credibility of State witness Angelia Lathan, with a letter dated March 7, 1986, in which she wrote to Trice and recanted her custodial statements and grand jury testimony. The State contends that the trial court properly excluded the letter because defense counsel’s failure to disclose it to the prosecution was a blatant disregard for the discovery rules. Alternatively, the State asserts that any error in excluding the letter was harmless error as it was merely cumulative of the impeachment evidence presented at trial. We agree with the State’s position. The goals of pretrial discovery in a criminal trial are to promote the search for truth and to eliminate surprise as a trial tactic. (People v. Boclair (1987), 119 Ill. 2d 368, 373, 519 N.E.2d 437.) The same underlying goals are served both by discovery against the prosecution and by discovery against the defense. (Boclair, 119 Ill. 2d 368.) Pursuant to Supreme Court Rule 413:

“(d) Defenses. Subject to constitutional limitations and within a reasonable time after the filing of a written motion by the State, defense counsel shall inform the State of any defenses which he intends to make at a hearing or trial and shall furnish the State with the following material and information within his possession or control:
* * *
(ii) any books, papers, documents, photographs, or tangible objects he intends to use as evidence or for impeachment at a hearing or trial.” 107 Ill. 2d R. 413(d)(ii).

In the present case, when Trice’s defense counsel questioned Angelia on cross-examination, he asked her about a letter she wrote to defendant in March of 1986 while she was in Mississippi. The State objected to the use of the letter because defense counsel had never disclosed it during discovery. When questioned by the court, defense counsel replied that he got the letter “a couple of months” ago. When the court called a recess and removed the jury, the following discussion ensued between the court and defense counsel:

“THE COURT: All right, Mr. Rhodes [defense attorney], why didn’t you show them that letter?
MR. RHODES [Trice’s Defense attorney]: I didn’t think I was required to.
THE COURT: All right. You know we had a discussion on this. I told you two months ago, any written statements, matters which relate to impeachment, it is as clear as a [sic] bell that matters relating to impeachment were subject to discovery rules. You knew that full well.”

Although the State requested that the letter be excluded as evidence, the court did not rule and recessed for the weekend. When the court reconvened on Monday, it asked defense counsel for an explanation as to why the letter was not disclosed. Counsel cited several cases and urged that where a defendant has withheld evidence that is not covered by Rule 413, where the State has not requested the withheld information, and where the trial court has not ordered disclosure of that same material, then there has been no violation of Rule 413. The trial court found that defense counsel had violated the rules of discovery and subsequently prohibited Trice’s use of the letter in any manner.

Pursuant to Supreme Court Rule 415, failure to comply with the rules of discovery may subject a party to sanctions, which includes the harsh penalty of exclusion of the undisclosed evidence. (107 Ill. 2d R. 415(g)(i).) It is well settled that it is within the sound discretion of the trial court to fashion a sanction and its ruling will not be disturbed on appeal unless there has been an abuse of discretion. (Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646; People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255.) In Weaver, the Illinois Supreme Court reiterated that the judgment of the trial judge is given great weight and that each case must be decided on its own facts. (Weaver, 92 Ill. 2d at 559, 560.) The proper determination to be made by this court on review is whether prejudice flows from failure to disclose the evidence. In the instant matter, as defense counsel knew of the existence of the letter and had it in his possession for months before the trial, we find no error in the trial court’s ruling that exclusion of the letter was warranted. The court merely prohibited defense counsel from cross-examining Angelia on the one letter he flagrantly failed to disclose, instead of prohibiting cross-examination altogether. Moreover, the court allowed counsel to impeach Angelia regarding her other exculpatory correspondence to defendant. Applying the applicable factors to the present matter, we conclude that the trial court did not abuse its discretion.

Trice next urges that the trial court erred when it allowed the testimony of State witness Elwin Ward, who had been unavailable to the defense until the day of his testimony. The State responds that it complied with discovery when it disclosed the last known address for this witness and that it had no knowledge of any other address. Our review of the record reflects that the State complied with discovery inasmuch as it made available to the defense the names and addresses of potential witnesses. On the day Ward testified, the following colloquy ensued between the court and defense counsel:

“MR. RHODES [Defense attorney]: My next motion is a motion *** to preclude the State from calling a witness who is listed on their answer to discovery, which they gave me, an address which I attempted numerous times to contact this witness at this address. The witness was not at this address.
Now today, the State brings in the -witness and tells me they want to hurry and put the witness on so they can get him back to the hotel.
* * *
THE COURT: The witness will be available to you prior to the time.
MR. STOCK [Assistant State’s Attorney]: He already talked to him. He already talked to him.
THE COURT: Did you ask him if he wanted to talk to you privately?
MR. RHODES: I asked him today that.
THE COURT: What did he say?
MR. RHODES: Today, he said, no, he didn’t want to talk with me.
THE COURT: Problem solved.
MR. RHODES: I’m moving to exclude the State from calling this witness.
THE COURT: I know one thing. I know you had a chance to talk to this witness, and the witness says he doesn’t want to talk to you. That’s the matter that is at hand.
* * *
The motion is heard and denied.”

The State has a duty to disclose all witnesses or potential witnesses to the defense (People v. Hanna (1983), 120 Ill. App. 3d 602, 457 N.E.2d 1352), and where the defendant has been surprised or prejudiced by the State’s violation of discovery, this court has found that the trial court abused its discretion in allowing such testimony. People v. Shiflet (1984), 125 Ill. App. 3d 161, 180, 465 N.E.2d 942.

In the present case, although the record shows that Ward testified that he was advised by the police to leave town, he also stated that he returned periodically. Trice argues that he was unable to contact Ward after numerous attempts because of the State’s failure to advise him of the correct address. However, the record demonstrates that the State disclosed Ward’s name as a potential witness and listed his last known address. Further, Ward testified that he left the city because he was threatened by Trice’s relatives and that he had not talked with either the police or the prosecution until approximately a week before trial. Moreover, the record discloses that defense counsel had an opportunity to speak with Ward prior to his testimony; however, Ward refused to talk to him, and thus, it cannot be said that defendant was prejudiced or surprised in any way. Therefore, based on this record, we conclude that the court properly determined that Trice failed to prove that the State did not list the witness’ last known address or that it acted in bad faith. Accordingly, we conclude that there was no abuse of discretion in the trial court’s ruling that the State properly complied with the discovery rules and find no error with its decision to allow the testimony of the State’s witness.

Finally, Trice asserts that the trial court erred when it permitted defendants to be tried simultaneously before two separate juries. Trice has cited no authority to support his proposition; rather, he urges impropriety because the legislature has not sanctioned or authorized a dual-jury proceeding. He also postulates that in light of the purposes and rationale underpinning Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, which sets forth factors for determining when severance is required, such purposes and rationale are thwarted when a trial court orders severance but conducts a dual trial. Trice urges that he was prejudiced because he and Henderson sat at the same table, were often referred to as codefendants, and confusion and prejudice inured to him during Henderson’s cross-examination of some of the State’s witnesses.

Based on our supreme court’s holding in People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148, the Illinois courts have sanctioned the joint jury trial procedure. Defendant Ruiz moved to sever his trial from that of his codefendant, Caballero, because Caballero had made certain statements which incriminated Ruiz. The trial court granted the motion but ordered that the case be tried simultaneously before two juries. On review, the Illinois Supreme Court held that because the record failed to reveal any incidents of impropriety, the trial court did not abuse its discretion in employing the two-jury trial procedure. In People v. Church (1981), 102 Ill. App. 3d 155, 429 N.E.2d 577, under facts very similar to the instant matter, the appellate court upheld the trial court’s use of a dual-jury trial where defendant Church was implicated by his codefendant in a pretrial statement, where each jury heard evidence relevant only to its particular defendant, and where Church could not point to any instance of prejudice. Here, we find no merit in Trice’s contentions that allowing the defendants to sit together at trial and allowing the juries to hear overlapping evidence denied him a fair trial. The defendants were linked as coparticipants from the outset. Neither does our review of the record substantiate Trice’s claim that there was evidence before his jury that Henderson had incriminated him. Similar to the Ruiz case, the record here discloses that both defendants were given an opportunity to present a defense, the trial court properly instructed the jurors concerning the dual-jury process, and that most of the evidence offered at trial was admissible against both defendants. Trice has failed to indicate “a single incident of confusion or impropriety.” (Ruiz, 94 Ill. 2d at 260.) Accordingly, we find that the trial court did not abuse its discretion in conducting the dual-jury proceeding.

DEFENDANT HENDERSON

In this portion of the opinion, we consider Henderson’s contentions that the trial court improperly considered a “victim impact statement” written by Geneva Schaeffer, the deceased’s wife, during his sentencing hearing, and that the resulting sentences imposed by the court are excessive in light of his criminal record.

Section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1987, ch. 38, par. 1406) grants to victims of violent crimes the right to be present at sentencing and to address the court in regard to the impact of the crime upon the victim. The United States Supreme Court and our supreme court have recently addressed the admission of victim impact statements. (Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529; People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196.) In Booth, where a very lengthy and emotional victim impact statement was read to the jury at a death penalty sentencing hearing, the Court found that use of the statement was error because the emotional effect of the crime on the victim’s family would divert the jury’s attention from considering the circumstances of the crime and the character of the defendant. The Court further opined that, “Our disapproval of victim impact statements at the sentencing phase of a capital case does not mean, however, that this type of information will never be relevant in any context. Similar types of information may well be admissible because they relate directly to the circumstances of the crime. Facts about the victim and family also may be relevant in a non-capital criminal trial. Moreover, there may be times that the victim’s personal characteristics are relevant to rebut an argument offered by the defendant.” Booth, 482 U.S. at 507 n.10, 96 L. Ed. 2d at 451 n.10, 107 S. Ct. at 2535 n.10.

In Illinois, our supreme court, prior to Booth, had determined that introduction of a victim impact statement at a defendant’s death-penalty hearing was error. (People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.) However, three years later, the supreme court held that such reasoning should not be extended to noncapital cases. (Turner, 128 Ill. 2d at 578.) Like the Hines court (People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362), “[h]ere, the impact evidence was presented to the court at sentencing, where the imposition of the death penalty was not in issue.” (Hines, 165 Ill. App. 3d at 302-03.) Accordingly, based upon the holdings in Booth, Turner, and Hines, we conclude that use of the victim impact statement here was proper. The record is devoid of any indication that the trial court particularly considered the victim impact letter when sentencing Henderson. Rather, the record discloses that the court considered the aggravating factors, in particular the brutal nature of the offenses, and the mitigating factors, the “absence of any significant record.”

Finally, we consider Henderson’s argument that the sentences entered by the trial court are excessive. It is well established that the sentence imposed by the trial judge is entitled to great weight and deference and may not be altered by a reviewing court absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Although we have the discretionary power to reduce an excessive sentence pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), the trial judge is in a superior position to consider and determine the punishment to be imposed rather than a court of review (Perruquet, 68 Ill. 2d at 154), and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently had we been charged with the task of sentencing. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Pursuant to section 5 — 8—1 of the Unified Code of Corrections, a trial court may sentence the defendant to a term of natural life imprisonment, if the court finds, inter alia, that the murder was accompanied by exceptionally brutal or heinous behavior or that any of the aggravating factors listed in subsection (b) of section 9 — 1 of the Criminal Code of 1961 are present. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—1(a)(1), (b).) In the case at bar, the trial court specifically found that, but for his lack of criminal history, defendant would be eligible to be sentenced to death pursuant to section 9 — 1 of the Criminal Code of 1961. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) However, because the section 9 — 1(b)(6) factors still existed, defendant was eligible for natural life imprisonment, and contrary to defendant’s contention, the court did not necessarily have to reach a finding of exceptionally heinous or brutal behavior. The court stated, however, that the act was “done so easily and so remorselessly and without *** extensive planning,” rather, it “was just a casual event in which they engaged without apparent great meaning to them. [Defendant] thought nothing of taking his life after [he and Trice] were prepared to take his money.” Thus, we agree with the State’s argument that the trial court was well aware of defendant’s lack of compassion and disregard for human life.

We have reviewed the record and find that the trial court considered evidence presented in support of factors in aggravation, i.e., the victim impact statement, the brutal nature of the crimes, and mitigating factors, i.e., the lack of criminal history, and balanced this evidence against the nature of the offense and the court’s “strong obligation” to consider deterrence. Neither did the court believe that defendant was of such “moral fiber” that he would not kill again at the first opportunity. As a presumption exists that the trial court considered only reliable and competent evidence when it sentenced the defendant (People v. Hall (1986), 114 Ill. 2d 376, 419, 499 N.E.2d 1335), we here conclude that the trial court followed the statutory mandate in sentencing Henderson. Moreover, with respect to the sentence for armed robbery, which is a Class X felony, a sentence of not less than six years and not more than 30 years’ imprisonment will be imposed. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(3).) Consequently, we find that as the trial court was within the statutory mandate for the sentence for armed robbery, in addition to those factors already noted, there was no abuse of discretion for imposition of the sentence of 30 years against Henderson.

Accordingly, there being no abuse of discretion, and given the extreme aggravation and the relative degree of mitigation, this court need not invoke its statutory power to reduce the sentences imposed on Henderson by the trial court.

For the foregoing reasons, we affirm the convictions of both defendants and the sentences imposed.

Judgments affirmed.

CAMPBELL and O’CONNOR, JJ., concur.