text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARMANDO BARRAZA, Defendant (Fred M. Morelli, Jr., Petitioner-Appellant).
    Second District
    No. 2—89—0277
    Opinion filed February 1, 1990.

      Fred M. Morelli, Jr., of Law Offices of Fred M. Morelli, Jr., of Aurora, pro se, and Vincent C. Argento, of Law Offices of Vincent C. Argento, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

The petitioner, attorney Fred M. Morelli, Jr., represented the defendant, Armando Barraza, at his trial conducted in absentia. After the defendant was convicted, the trial court disposed of the defendant’s bond, which had been forfeited, by allocating approximately one-third each to the petitioner’s attorney fees, the City of Aurora, and the County of Kane. The petitioner now appeals, claiming that he was entitled to have the full amount of his attorney fees paid from the defendant’s forfeited bond before any amount was allocated to the State. We reverse and remand for further proceedings.

The record reveals that the defendant was charged in connection with a drug-related offense and that he retained the petitioner to represent him. The defendant agreed to pay a fee of $15,000 for the petitioner’s services, and $2,000 was paid to the petitioner in advance. Sometime before the case went to trial, the defendant fled the jurisdiction, and his $20,000 bond deposit was forfeited (see Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7). The defendant was subsequently tried in absentia pursuant to section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1). At some point, the petitioner sought to withdraw from the case because of an alleged death threat against his life by the defendant. The petitioner did not, however, withdraw. The defendant was convicted, and the trial court imposed a sentence of 18 years’ imprisonment and a fine of $100,000. This “street value” fine was assessed against the defendant as provided in section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.1).

Before sentence was imposed, the petitioner filed a petition seeking to have his attorney fees paid out of the defendant’s forfeited bond deposit pursuant to section 115 — 4.1(a). The petition stated that the petitioner had spent 44 hours on the defendant’s behalf in court, and 70.7 hours on the defendant’s case while not in court. The petitioner asserted that his normal rates were $125 per hour while in court and $110 per hour for all other work. These requested fees, combined with costs incurred of $250.25, brought the petitioner’s total fee request to $13,527.50. The State also requested that the defendant’s drug fine be partially paid out of the forfeited bond money.

After imposing sentence on the still-absent defendant, the trial court heard argument regarding the disposition of the forfeited bond deposit. After listening to argument, the trial court stated:

“THE COURT: With reference to the attorney’s fees, I find that the defendant is — Mr. Morelli is entitled to a fee for representing the defendant. I have no real quarrel with the bill or the hours that were submitted. On the other hand, I think taking into consideration the amount of funds that are [sic] available, I don’t feel that it would be fair and equitable to all parties involved to just flat out pay that, even though Mr. Morelli may very well have earned that amount or may be entitled to that amount. I think it is discretionary with the court.”

The trial court then awarded the petitioner a fee of $7,500, from which was subtracted the $2,000 the defendant already had paid to the petitioner, plus $250 for expenses, for a total of $5,750. A further $2,000 (10% of the $20,000 bond) was allocated as the clerk’s fee. Also, $78 in felony costs was subtracted, leaving $12,172, which the trial court divided in equal shares between the Aurora Drug Fund and the general fund of Kane County. It is unclear whether the trial court disbursed these remaining funds in satisfaction of the judgment arising from the defendant’s drug fine (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1.2) or merely allocated the money to satisfy the judgment arising out of the statutory bond forfeiture provisions (Ill. Rev. Stat. 1987, ch. 38, par. 110-7(g)).

The petitioner now appeals from the trial court’s order allocating the defendant’s forfeited bond funds. Though the petitioner also filed a notice of appeal on behalf of the defendant regarding his conviction, that appeal is currently pending before the court (No. 2—89—0277) and is not relevant here.

On appeal, the petitioner argues that the trial court, having suggested that the petitioner was entitled to the full amount of his fee request, should have paid him the full amount out of the bond funds before allotting any amount to the State. The State argues that the fee awarded to the petitioner was reasonable and that it was within the discretion of the trial court to divide the bond money as it did. Neither party takes issue with the manner in which the forfeited bond deposit was distributed as between the two governmental units. At issue on appeal is whether section 115 — 4.1(a) of the Code permits a trial court to award attorney fees in an amount less than the fees actually and reasonably earned by the attorney when the bond money is sufficient to pay the full amount.

Section 110 — 7 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7) requires criminal defendants to deposit a sum equal to 10% of the amount of bail in order to insure attendance at trial. This provision allows for the forfeiture of the bond deposit if the defendant fails to comply with the provisions of his bail bond. When a defendant fails to appear before the court within 30 days of forfeiture, the trial court is empowered to enter judgment in favor of the State in the amount of bail plus costs. The defendant’s bond deposit is applied to the payment of costs and, if any amount remains, to the payment of the judgment. Ill. Rev. Stat. 1987, ch. 38, par. 110 — 7(g).

The legislature, however, “has made bond deposits the subject of more than one enactment.” (People v. Maya (1985), 105 Ill. 2d 281, 288.) Section 115 — 4.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1) provides a mechanism for the trial of defendants who attempt to evade trial by fleeing the jurisdiction. The statute also provides that, at the conclusion of the in absentia proceedings, the trial court “may order the clerk of the circuit court to pay counsel such sum as the court deems reasonable, from any bond monies which were posted by the defendant with the clerk, after the clerk has first deducted all court costs.” Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4.1(a).

The primary legislative intent in enacting section 115 — 4.1(a) was not to provide for payment of attorney fees, but to prevent criminal defendants from evading trial by absenting themselves from court proceedings. (People v. Rivera (1985), 134 Ill. App. 3d 927, 929.) In providing for the trial of absent defendants, however, the legislature endeavored to insure that such trials would be conducted with due regard for the defendant’s “procedural rights guaranteed by the United States Constitution, Constitution of the State of Illinois, statutes of the State of Illinois, and rules of court.” (Ill. Rev. Stat. 1987, ch. 40, par. 115 — 4.1(a).) Since a defendant would require effective representation to protect these rights in his absence, section 115 — 4.1(a) gives the trial court authority to award reasonable attorney fees from defendant’s bond deposit. (Maya, 105 Ill. 2d at 285-86.) Without such a provision, there would be little incentive for an attorney to represent, or to continue to represent, a client who has fled the jurisdiction.

The petitioner argues that the trial court determined that his original fee request of some $13,000 was reasonable and justified and that this, therefore, is the amount he should have been awarded. We do not believe that the trial court’s statement that it had “no real quarrel” with the petitioner’s fee request can be equated with a finding that the fees were “reasonable” under the terms of section 115— 4.1(a). It is also just as clear, however, that the amount awarded to the petitioner does not represent a simple determination of the reasonable amount of fees the petitioner actually earned. This amount was arrived at by the trial court in an attempt to be “fair and equitable to all parties involved” in determining the proper allocation of the limited amount of bond money. The trial court left no doubt that the amount of fees awarded to the petitioner was something less than what he reasonably earned in these proceedings. The question now is whether the trial court should have determined the amount of reasonable attorney fees due the petitioner, and paid them in full to the extent possible, before distributing funds to the State for the drug fine imposed on the defendant.

As we noted above, it is not clear whether the trial court allotted part of the bond-deposit money to the Aurora drug fund and the Kane County general fund to satisfy the judgment arising from the defendant’s drug fine or instead to satisfy the judgment arising from the forfeiture of the defendant’s bond. If the money was allocated to these entities in satisfaction of the judgment arising from the bond forfeiture, then the supreme court’s decision in People v. Maya (1985), 105 Ill. 2d 281, is directly controlling in this appeal. In that case, the supreme court held that, in such circumstances, the legislature intended the trial court “to first award in its discretion reasonable fees from a bond deposit and for the court thereafter to grant, under section 110 — 7(h), judgment for the State in the amount of the bond-deposit balance, if any, remaining.” (Emphasis added.) (Maya, 105 Ill. 2d at 287.) This means that the trial court should have first determined what constituted reasonable attorney fees for the petitioner and awarded him this amount out of the bond deposit; the entities designated by the State should then have received a distribution from “the bond deposit balance remaining.”

People v. Maya did not address the question of whether the attorney-fees provision of section 115 — 4.1(a) should be given priority over the payment of drug fines that may be incurred after a defendant is tried and convicted in absentia. The logic of Maya still applies to such a situation, though, because “[t]o hold that the court is required to first enter judgment in favor of the State in the amount of the bond deposit would, of course, exhaust the deposit and leave nothing to permit giving effect to the provisions of section 115 — 4.1(a).” (Maya, 105 Ill. 2d at 287.) Even if the trial court’s distribution of the bond deposit represents an attempt to allocate money toward the defendant’s drug fine, this function should have been served only after the payment of reasonable attorney fees to the petitioner.

Another good reason for giving attorney fees priority over the payment of the defendant’s drug fine is found in the realization that, but for the ability to try the defendant in absentia, the drug fine resulting from the conviction would never have been imposed. The role of the defendant’s attorney in the in absentia proceedings is crucial to insure that they are conducted with due regard for the defendant’s rights. In fact, the presence of counsel for the defendant is essential to make such proceedings constitutional. (See People v. Davis (1968), 39 Ill. 2d 325, 329-31.) By enacting section 115 — 4.1(a), the legislature gave “the court discretion to award reasonable fees to insure that an accused’s right to the assistance of counsel is honored.” (Maya, 105 Ill. 2d at 288.) To give priority to the payment of the drug fine out of the forfeited bond deposit would effectively eliminate the incentive for trial attorneys to represent defendants in absentia; we do not believe the legislature intended such a result.

We also reject the State’s contention that we should evaluate this issue differently when the attorney involved is privately retained, rather than court appointed. As the supreme court stated in Maya:

“[TJhere is no reasonable ground to distinguish between appointed and privately retained counsel as the State urges us to do. It is generally known that often attorneys in making fee arrangements will look to the defendant’s bond deposit for full or partial compensation. Section 115 — 4.1(a) itself makes no distinction between retained or appointed counsel in authorizing the allowance of fees.” 105 Ill. 2d at 286.

Finally, although we have held that the trial court should have awarded the petitioner the reasonable amount of fees earned in representing the defendant, the trial court has not actually addressed the reasonableness of the fee schedule submitted on behalf of the petitioner. Therefore, we remand the cause to the trial court for a determination of what amount would constitute reasonable attorney fees for the petitioner’s efforts on behalf of the defendant. (See People v. Johnson (1981), 87 Ill. 2d 98, 105-06.) This amount should be awarded to the petitioner out of the forfeited bond deposit first. Any money remaining should be applied to payment of the defendant’s fine; the division of the proceeds from the fine between the various governmental entities involved in this cause should be made pursuant to the statutory provision for the allocation of drug-fine proceeds set out in section 5 — 9—1.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-9-1.2).

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS JUSTICE DUNN,

license: Public Domain

text:
    JOSEPH ZIEMBA, Plaintiff-Appellant, v. KEITH MIERZWA, Defendant-Appellee (James F. Bowles et al., Defendants).
    Second District
    No. 2—89—0425
    Opinion filed February 2,1990.

      DUNN, J., dissenting.
    Barry A. Pitler, Mark L. Spiegel, and Michael R. Booden, all of Pitler & Mandell, of Chicago, for appellant.

      Glen E. Amundsen and Dennis J. Cotter, both of Querrey & Harrow, Ltd., of Waukegan, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Joseph Ziemba, appeals the trial court’s order dismissing with prejudice count III of plaintiff’s first amended complaint for failure to state a cause of action against defendant, Keith Mierzwa, pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). On appeal, plaintiff contends that defendant, a landowner whose property abuts a public highway, owed a duty to plaintiff, a traveler on the public highway, to maintain defendant’s property in a reasonably safe condition or to warn plaintiff of hazards on defendant’s property. Plaintiff specifically alleges that defendant’s driveway was obscured and hidden by overgrown foliage and, as such, constituted a hazard to plaintiff; thus, plaintiff asserts that defendant had an affirmative duty to warn plaintiff of the driveway’s existence.

Defendant moved to dismiss plaintiff’s negligence claim against him on the basis that he did not owe a duty to plaintiff. A motion filed pursuant to section 2 — 615 admits all well-pleaded facts and attacks only the legal sufficiency of the complaint and should be granted only when it appears that no set of facts may be proved to sustain the plaintiff’s complaint. (First National Bank v. Brumleve & Dabbs (1989), 183 Ill. App. 3d 987, 992.) In determining the propriety of a trial court’s dismissal pursuant to section 2 — 615, the appellate court must view the pleadings and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmovant. (See Charles Hester Enterprises, Ine. v. Illinois Founders Insurance Co. (1986), 114 Ill. 2d 278, 286.) Thus, defendant is entitled to the dismissal of plaintiff’s complaint against him if plaintiff cannot prove any set of facts supporting his negligence claim.

In order to state a cause of action based on negligence, a plaintiff must allege sufficient facts to establish each of the necessary elements of negligence: plaintiff must allege the existence of a duty, a breach of that duty, and plaintiff’s injuries resulting from such breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525.) A threshhold consideration is whether a duty existed, as the existence of a duty is elemental to any recovery based on negligence. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 116.) Further, we have recently noted, “[i]t is not sufficient that the plaintiff’s complaint merely alleges that a duty exists; the plaintiff must state facts from which the law will raise a duty. *** The issue of whether there is a duty is broad in its implication, whereas the issue of whether there was negligence is confined to the particular case.” (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 82.) Duty may be characterized as one individual’s obligation to conform to a prescribed standard of conduct for the protection of another individual against an unreasonable risk of harm. (See Barnes v. Washington (1973), 56 Ill. 2d 22, 26.) Whether the facts presented in a particular situation establish a relationship between two individuals such that the law will impose a duty upon one for the other’s benefit is an issue of law to be determined by the court. (Kirk, 117 Ill. 2d at 525; Barnes, 56 Ill. 2d at 26.) If a plaintiff fails to establish the existence of a duty, he may not recover against a defendant as a matter of law. Swett, 169 Ill. App. 3d at 82.

Whether the law imposes a duty on one individual for the protection and benefit of another depends upon and requires judicial consideration of a number of factors including legal and social policies. (Thornburg v. Crystal Lake Park District (1988) 171 Ill. App. 3d 329, 333.) Our supreme court has stated:

“It is apparent that the concept of duty in negligence cases is very involved, complex and indeed nebulous. The term is so ill-defined and its boundaries so indistinct that one commentator has observed: ‘There is a duty if the court says there is a duty.’ And [the commentator] concluded that the court’s pronouncement often reflects the policy and social requirements of the time and community.” (Mieher v. Brown (1973), 54 Ill. 2d 539, 545, quoting Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 15 (1953).)

In determining whether a duty exists, the court must consider the foreseeability of the harm complained of, that is, whether it is foreseeable that a defendant’s conduct will result in harm to another; further, the court must consider the likelihood of the injury occurring, the magnitude of imposing the burden on a defendant to guard against such injury and the consequences of imposing this burden. (Kirk, 117 Ill. 2d at 526; see also Lance v. Senior (1967), 36 Ill. 2d 516, 518.) As we have previously observed, the determination of the existence of a duty is broad in its implication and reflects the aggregate of policy considerations which lead the court to declare that a particular plaintiff is entitled to protection. Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 662-63.

In the instant cause, plaintiff has alleged that he was riding a bicycle on Riverdale Road just north of its intersection with Oakleaf in the City of McHenry, Illinois, on September 5, 1985, when he was struck and injured by a dump truck exiting a driveway located on defendant’s property. Plaintiff alleges that defendant permitted vehicles to enter and exit his property at this driveway, which was unmarked and not visible to persons traveling on Riverdale Road. Plaintiff further alleges that defendant’s driveway was obscured by foliage which was growing on defendant’s property. Plaintiff concludes that defendant owed plaintiff a duty to use reasonable care in the conduct of activities on his property so as not to cause damage or injury to persons on the adjacent roadway and asserts that defendant was negligent by allowing vehicles to enter and exit his property without warning or notice to persons on the adjacent roadway when he knew or should have known that the driveway was obscured to persons traveling on the roadway. Defendant, relying upon a recent opinion of this court, Pyne v. Witmer (1987), 159 Ill. App. 3d 254, responds that he owes no duty to persons operating vehicles on the adjacent roadway with regard to the existence of foliage and a driveway on his property. The trial court accepted defendant’s assertions and granted defendant’s motion to dismiss count III of plaintiff’s first amended complaint with prejudice, based upon the court’s finding that plaintiff’s complaint was substantially insufficient and failed to state a cause of action as a matter of law. Plaintiff’s timely appeal ensued.

On appeal, plaintiff contends that defendant’s driveway, because it was hidden and not visible to travelers on the adjacent highway, posed an unreasonable risk of injury to such travelers, thus imposing a duty on defendant to remedy the situation by warning travelers of the unsafe condition. Plaintiff’s contention relies upon the landowner’s duty as stated in section 368 of the Restatement (Second) of Torts, which provides:

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.” (Restatement (Second) of Torts §368, at 268 (1965).)

As plaintiff correctly observes, section 368 has guided Illinois courts in their consideration of landowners’ duties toward travelers on adjacent highways in many previous cases. (See Battisfore v. Moraites (1989), 186 Ill. App. 3d 180, 188, citing Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213; Boylan v. Martindale (1982), 103 Ill. App. 3d 335; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721; West v. Faurbo (1978), 66 Ill. App. 3d 815; see also Kubala v. Dudlow (1958), 17 Ill. App. 2d 463; Lemings v. Collinsville School District No. 10 (1983), 118 Ill. App. 3d 363, 378 (Jones, J., specially concurring).) In all but the last case cited above, the appellate court considered and applied subsection (b) of section 368 in its review of factual situations in which the injured plaintiff left the roadway for a variety of reasons and sustained injuries after striking a pole, concrete abutment or other object on defendant’s land or placed by defendant off the roadway. The fact that the appellate court has been presented with few opportunities to consider and apply subsection (a) of section 368 in no way affects our deference and respect for this statement of the law. Furthermore, it is well established in Illinois that the owner or occupier of land abutting a public way has a nondelegable duty to passersby to maintain his property in a safe condition. (Donovan v. Raschke (1969), 106 Ill. App. 2d 366 (duty to keep sidewalk abutting on owner’s property free of conditions hazardous to persons lawfully on the street); Andronick v. Daniszewski (1932), 268 Ill. App. 543; Girdzus v. Van Etten (1918), 211 Ill. App. 524; Beninghoff v. Futterer (1913), 176 Ill. App. 579.) As the Andronick court observed:

“ ‘[T]he law imposes upon such occupier a very positive duty to those using the highway upon which the building abuts, to use the care requisite, according to the circumstances, to guard them against injury resulting from the condition of the premises, or from what is being done in or about the same, by the direction or permission, or for the convenience and benefit, of the occupier. In cases like the present, the exigence of such duty is not affected by the fact that the faulty conditions, from which resulted the damage complained of, were due to the negligence of an independent contractor in operating under the contract. This duty is peculiar to the situation, and is as just as it is severe. It places the responsibility for what happens on such premises on the occupier who is in control of the same, and protects those of the public who, in the use of the highway along such premises, lawfully come within dangers originating thereon. Of such dangers, the casual user of a sidewalk is generally unwarned, and the matters from which they arise are specially within the knowledge, or should be within the knowledge, of the occupier.’ ” Andronick, 268 Ill. App. at 549, quoting Jacob Doll & Sons, Inc. v. Ribetti (3d Cir. 1913), 203 F. 593, 595.

Although it is clear, as a general proposition, that a landowner whose property abuts a public way owes a duty of care concerning the condition of his property to persons traveling on the public way, we must determine whether the instant defendant owed a duty to the instant plaintiff under the facts presented by this appeal. Under the circumstances, we believe that defendant owed plaintiff the duty to warn of the existence of his driveway. We arrive at this determination based upon our conclusions that the foreseeability of a bicyclist colliding with a motorist suddenly exiting defendant’s hidden driveway is extremely high. Furthermore, the likelihood of injuries resulting from such a collision is also extremely high. The burden upon defendant to remedy this situation, obtaining and posting a sign warning of the existence of the driveway, is minimal. Furthermore, the consequences of requiring such warnings will not result in the chaos envisioned by defendant in his appellate brief (“every tree and shrubbery-laden neighborhood would become a sea of warning signs, flashing yellow lights and reflectors”) because not every tree and shrub requires such a warning. The trouble to which a landowner with a hidden driveway must go to post such a sign and the slight aesthetic impact of such signs on the neighborhood is insignificant when compared to the risk of serious injury to plaintiff and other bicyclists, pedestrians and motorists passing defendant’s property.

Further, we believe there is a policy against allowing private landowners to create and/or maintain hidden hazards along the roadway so as to transform the road into an obstacle path for persons lawfully using it. As Justice Jones noted in his special concurrence in Lemings, “[tjhese policy matters are expressed in section 368 of the Restatement (Second) of Torts, and accordingly there is no question that the defendant here was under a duty to this plaintiff as imposed by law.” Lemings, 118 Ill. App. 3d at 383 (Jones, J., specially concurring).

Although defendant strenuously denies that he owes any duty of any kind to plaintiff, the cases upon which he relies are clearly distinguishable both factually and legally from the instant cause. In Pyne v. Witmer (1987), 159 Ill. App. 3d 254, we held that a defendant landowner owed no duty to motorists to remove or trim hedges, a natural condition located on defendant’s property which interfered with motorists’ ability to see other motorists on the intersecting roadway, when the intersection itself was clearly visible and controlled by traffic signs. A similar factual situation was presented in Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, with similar results. Defendant also relies upon Abernathy v. Dynell Springs Co. (1989), 179 Ill. App. 3d 138, in which the appellate court found no duty on defendant landowner to remove a stone wall located approximately 13 feet from the curb. We further note that in Abernathy the plaintiff admitted he saw defendant exiting the driveway from a distance of approximately 100 feet. In each of these cases, the intersection where the collision took place was clearly visible to the plaintiff prior to the collision; the hedges, trees or stone walls upon which each plaintiff’s complaint relied in no way obstructed or interfered with the plaintiff’s view of the intersection, and this fact figures prominently in the holding of each of these cases. Pyne, Esworthy, and Abernathy are easily distinguishable from the facts presented in the instant matter, where the location of plaintiff’s collision, Riverdale Road’s intersection with defendant’s unmarked driveway, was not visible to plaintiff at any time. Thus, Pyne arid the other cases are clearly not controlling.

We reject defendant’s additional contentions regarding plaintiff’s duty to exercise care in the operation of his bicycle on a public highway, to travel at a reasonable speed and to sound a horn as a warning, all of which presuppose that plaintiff saw defendant’s driveway and the truck exiting it in advance of the collision, a fact not contained in the record on appeal. Furthermore, defendant’s duty is in no way obviated by any requirements the law may impose on plaintiff’s conduct.

In view of the foregoing, we conclude that count III of plaintiff’s first amended complaint sufficiently states a cause of action in negligence against defendant and was improperly dismissed. Accordingly, the judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

UNVERZAGT, P.J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully disagree with the majority’s conclusion that defendant had a duty to warn motorists, bicyclists, and pedestrians of the existence of his driveway, or to remove foliage blocking their view of the driveway. As a preliminary matter, while I share the majority’s respect for section 368 of the Restatement (Second) of Torts, it is not applicable to this case. By its own terms, section 368 subjects a landowner to liability if he or she creates or allows to remain thereon an excavation or other artificial condition so close to a highway that he or she “realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such conditions while traveling with reasonable care upon the highway.” (Emphasis added.) Restatement (Second) of Torts §368, at 268 (1965).

In light of the above language, it is not surprising that each Illinois case applying section 368 cited by the majority involved a situation in which the plaintiff accidentally came into contact with the complained-of condition on the defendant’s property, such as a utility pole (Boylan v. Martindale (1982), 103 Ill. App. 3d 335; Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721), cement pillars (Battisfore v. Moraites (1989), 186 Ill. App. 3d 180), a retention pond (Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213), a concrete block (West v. Faurbo (1978), 66 Ill. App. 3d 815), and concrete abutments (Kubala v. Dudlow (1958), 17 Ill. App. 2d 463). In the case at bar, plaintiff complains of the hidden driveway and the foliage which allegedly prevented him from seeing the driveway. Plaintiff did not come into contact with either of these conditions; he collided with a truck pulling out of the driveway. Section 368 is therefore inapplicable, and the majority’s reliance upon this provision is clearly misplaced.

Furthermore, in my opinion, the majority’s attempt to distinguish Pyne v. Witmer (1987), 159 Ill. App. 3d 254, is not persuasive. In Pyne, this court stated as follows:

“Based on the foregoing, we conclude, in the absence of a statutory directive to the contrary, that there is no duty in Illinois on a landowner to remove foliage on his property so that motorists approaching an intersection can see other intersecting motorists. Considering the burden such a duty would impose on private property owners, we leave the imposition of such duty to the legislature.” (Pyne, 159 Ill. App. 3d at 262.)

Similarly, in McLaughlin v. Alton R.R. (1935), 278 Ill. App. 551, the court concluded defendant had no duty to users of an adjoining road to clear its land of weeds and brush allegedly obstructing their view of an intersecting road. McLaughlin, 278 Ill. App. at 557.

The majority, in imposing a duty under the circumstances of this case, relies largely upon the danger of serious injury when vehicles pulling out of driveways are involved in collisions. The majority apparently feels that the danger under these circumstances is more serious than in Pyne because the intersection was visible in Pyne, although the hedges obstructed the motorist’s view of cars coming through the intersection. In the instant case, according to the allegations of the complaint, the foliage blocked plaintiff’s view of the driveway itself.

I believe, however, that the danger of collisions in intersections is a more serious danger because vehicles generally proceed through intersections at much greater speeds than vehicles pulling out of driveways. Therefore, I do not feel the factual distinctions between this case and Pyne justify the imposition of a duty upon defendant in this case, when no such duty was imposed in Pyne. The courts in Pyne and McLaughlin concluded that the duty to use due care to prevent accidents at intersections rests with the motorists passing through the intersections, not with adjoining landowners. Similarly, in the present case, the duty to use due care to prevent accidents should rest with the driver pulling out of the driveway, not with the owner of the land containing the driveway.

The majority believes “there is a policy against allowing private landowners to create and/or maintain hidden hazards along the roadway so as to transform the road into an obstacle path for persons lawfully using it.” (193 Ill. App. 3d at 668.) Under circumstances such as those present in this case, however, I believe that drivers who carelessly pull out of driveways create the hazards, not landowners who merely allow foliage to grow near their driveways. Since I believe the trial court correctly determined that defendant had no duty to warn plaintiff of the existence of his driveway or to remove the foliage allegedly obstructing plaintiff’s view of the driveway, I respectfully dissent from the majority’s conclusion to the contrary.


author: JUSTICE GEIGER

text:
    DENNIS PARKER, Plaintiff-Appellee, v. AMERICAN STATES INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 2—89—0397
    Opinion filed January 26,1990.

      Mark A. Pheanis and John C. Bartler, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellant.
    Anthony F. Mannina, of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, American States Insurance Company, appeals from the order of the trial court which granted the plaintiff’s, Dennis Parker’s, motion for summary judgment. On appeal, the defendant contends that the trial court erred in finding that defendant’s insurance policy provision authorizing a setoff of the plaintiff’s worker’s compensation benefits against underinsurance violates the underinsurance section of the Insurance Code (the Code) (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3)) and is, therefore, void as against public policy. We conclude that the statute does not prohibit the setoff, and we reverse the judgment and remand the cause.

The plaintiff brought the instant action for declaratory judgment seeking a determination of his rights pursuant to the underinsurance provision in the automobile liability policy issued to him by defendant. The policy provision requires that any amount payable for bodily injury under the policy’s underinsured motorist coverage be reduced by benefits paid or payable to an insured for such injury under any worker’s compensation or disability benefits law or any similar law. The circuit court granted plaintiff’s motion for summary judgment. The court found that section 143a — 2(3) of the Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3)) expressly limits any reduction in an insurer’s underinsurance liability to amounts the insured is able to recover under the applicable bodily injury insurance policies maintained on the underinsured motor vehicle. The court then held that this language prohibited any other reductions. Defendant’s timely appeal ensued.

Plaintiff’s complaint alleges that he was involved in an automobile collision with Stacey Hansen on October 12, 1985. Hansen had a $50,000 automobile liability policy with State Farm Insurance. At the time of the collision, plaintiff had automobile liability insurance with defendant with uninsured/underinsured motorist coverage in the amounts of $100,000 per person, $300,000 per accident. Plaintiff informed defendant that Hansen’s liability policy was inadequate to cover the damages he sustained and that he intended to make a claim on his underinsurance coverage. On June 23, 1988, Hansen’s insurer, State Farm, tendered plaintiff a check for $50,000 in settlement of his claims against Hansen.

Because plaintiff was within the scope of his employment at the time of the collision with Hansen, he received worker’s compensation benefits for his injuries. On August 9, 1988, the Industrial Commission approved defendant’s lump-sum settlement with his employer in the amount of $52,646.56. Pursuant to section 5(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)), the Universal Underwriters Insurance Company, the workers’ compensation insurer of plaintiff’s employer, arguably was entitled to be reimbursed with defendant’s $50,000 settlement paid by State Farm.

Plaintiff duly notified defendant of his settlements with State Farm and with Universal Underwriters. Defendant declined coverage pursuant to the underinsurance provision claiming that plaintiff had already received $102,646.56; thus, plaintiff had received benefits in excess of his underinsurance policy limit of $100,000.

The sole issue on appeal is whether the underinsurance provision, which provides for a reduction in underinsurance benefits for worker’s compensation or similar benefits paid or payable to the insured, is contrary to section 143a — 2(3) of the Code. We conclude that the statute neither prohibits nor authorizes such a reduction; we further conclude that such a reduction does not offend public policy.

The statute at issue provides in pertinent part:

“For the purpose of this Act the term ‘underinsured motor vehicle’ means a motor vehicle whose ownership, maintenance or use has resulted in bodily injury or death of the insured, as defined in the policy, and for which the sum of the limits of liability under all bodily injury liability insurance policies or under bonds or other security required to be maintained under Illinois law applicable to the driver or to the person or organization legally responsible for such vehicle and applicable to the vehicle, is less than the limits for underinsured coverage provided the insured as defined in the policy at the time of the accident. The limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3).

The underinsurance provision in the plaintiffs automobile liability policy issued by the plaintiff provides that underinsurance benefits payable by defendant for damages sustained by plaintiff “shall be reduced by: *** (2) all sums paid or payable because of the bodily injury under any workers’ compensation, disability benefits law or similar law.” The trial court found this policy language to be in violation of the intent of the statute set forth above. Specifically, the trial court stated:

“It is our opinion that the legal effect of [section 143a — 2(3)] is to require that insurers provide coverage in the amount stated in the policy, with credit given to reduce that coverage only for amounts actually recovered by their insured from ‘bodily injury insurance policies, bonds or other security maintained on the under-insured [sic] vehicle’. It does not authorize reduction of the coverage by virtue of workman’s [sic] compensation benefits, or indeed any other collateral resource which might be available to their insured.” (Emphasis added.)

If the trial court’s interpretation of the statute is correct, then defendant’s underinsurance policy provision providing for a reduction in benefits based on worker’s compensation or other benefits its insured may receive is inconsistent with the statute and must fall. (See Bertini v. State Farm Mutual Automobile Insurance Co. (1977), 48 Ill. App. 3d 851, 854.) However, we do not agree with the trial court’s interpretation.

As the appellate court has recently, observed, section 143a— 2(3) of the Code “does not enumerate all available credits which may be claimed by the insurer against its underinsured motorist liability. Instead, the statute sets forth the formula by which the insurer’s maximum liability for underinsured motorist coverage may be determined.” (Adolphson v. Country Mutual Insurance Co. (1989), 187 Ill. App. 3d 718, 721.) The Adolphson court noted that the term “limits,” in the context of the statute, sets a ceiling or maximum amount the insurer providing the underinsurance coverage must pay rather than a floor or minimum. The plain language of the statute does not prevent the insurer from reducing its liability by amounts paid pursuant to worker’s compensation or other disability or similar laws.

Using reasoning consistent with that used by the Adolphson court, the supreme court has held that the language in the ««insured motorist statute (Ill. Rev. Stat. 1987, ch. 73, par. 755a) neither prohibits nor specifically authorizes the reduction of ««insured motorist coverages by worker’s compensation benefits paid or payable to the insured. (See Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1.) This holding was affirmed in Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507.

In both Ullman and Stryker, the supreme court stated that, in the absence of a statutory provision to the contrary, a policy provision permitting an insurer to deduct worker’s compensation payments made to its insured from ««insured motorist coverage was not offensive to public policy. Ullman, 48 Ill. 2d at 7-8; Stryker, 74 Ill. 2d at 511-13.

In the interim between the supreme court’s decision in Ullman in 1970 and its decision in Stryker in 1978, the legislature reenacted the ««insured motorist statute “without any suggestion that Ullman did not correctly reflect the public policy of this State.” (Stryker, 74 Ill. 2d at 513.) As the trial court in the instant cause has correctly observed, the legislature’s reenactment of the uninsured motorist statute following the ruling in Ullman indicates the legislature’s intent that the new uninsured motorist statute have the same effect as contained in the supreme court’s ruling. See also Stryker, 74 Ill. 2d at 513.

We turn now to a consideration of the instant ««derinsured motorist statute, which the legislature enacted in 1980, following Stryker. In adding uninsured motorist provisions to the statute which provided for underinsured motorist coverage, the legislature acted with knowledge that the supreme court had authorized the deduction of worker’s compensation benefits from uninsured motorist liability payments. Nevertheless, it failed to include any explicit language prohibiting a similar deduction in the clearly related underinsured motorist liability payments.

The statutory language upon which the trial court and plaintiff focused, “[t]he limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle” (Ill. Rev. Stat. 1987, ch. 73, par. 755a — 2(3)), not only explicitly authorizes, but in fact mandates, a specific deduction from underinsured motorist benefits. The purpose of this deduction is clear: it prevents double recovery by the injured insured. Equally clear is the fact that this language is unnecessary in the uninsured motorist statute. The danger of double recovery simply does not exist where the injured insured is injured by an uninsured motorist. This, we believe, is the single significant difference in the uninsured and underinsured motorist statutes. Otherwise, the statutes mandating uninsured and underinsured coverage are cut from the same cloth and further similar public policies: to ensure that the injured insured is in no less fortunate position following a collision with an uninsured or underinsured motorist than had he been in a collision with an underinsured motorist. (See Price v. State Farm Mutual Automobile Insurance Co. (1983), 116 Ill. App. 3d 463, 468; Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 960.) For this reason, we conclude that the policy discussions in Ullman and Stryker have persuasive application here.

We conclude that the underinsured motorist coverage statute does not preclude an insurer from deducting worker’s compensation benefits from amounts it must pay its insured. This conclusion is based upon the policy discussions in Ullman and Stryker. It is also based upon the complete absence of any statutory indication to the contrary and upon the reasoning in Adolphson. In view of this conclusion, and in view of the instant policy’s unambiguous provision for deducting worker’s compensation benefits from underinsured motorist benefits, we reverse the judgment of the trial court which granted summary judgment to plaintiff. We remand the cause for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN L. WARD, Defendant-Appellant.
    Second District
    No. 2—88—1272
    Opinion filed January 25,1990.
    Rehearing denied March 6,1990.
    Douglas R. Roberts, of Law Offices of Douglas R. Roberts, of Waukegan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Nathan L. Ward, was indicted in the circuit court of Lake County on four counts of aggravated battery (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(b)(1)) and six counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) predicated on aggravated battery. The four aggravated battery counts were nol-prossed prior to trial. Following a jury trial, defendant was found guilty of six counts of armed violence and was sentenced to concurrent terms of imprisonment of 21 years on each count.

The only issue presented by defendant on appeal is whether the trial court erred in barring him from bringing an individual physically before the jury and certain witnesses for the purpose of comparing that individual’s appearance with his own.

Evidence adduced at trial establishes the following facts. On March 2, 1988, at approximately 9:15 p.m., following a basketball game at Waukegan East High School, an individual fired several shots from a handgun into a crowd assembled in the parking lot. Four persons were struck by bullets. Steven Gonyo, an officer with the Waukegan police department, was on duty at the scene at the time of the incident. As he was approaching a crowd of 125 to 150 persons in the school parking lot, he heard shots from the area of the crowd. Gonyo took cover behind a parked car. Gonyo testified that after the third shot, he peered over the car and saw the crowd in the parking lot moving away from an individual standing in a crouched stance, holding a pistol in his right hand and waving it back and forth. Gonyo was about 70 yards from the individual, whom he described as a black male of medium stature, 5 feet 10 inches to 5 feet 11 inches tall, with short black hair combed straight back. According to Gonyo, the individual was wearing a dark leather jacket with gray, speckles on the sleeves and jeans. The area was well lit.

The individual and three or four other persons standing near him ran from the parking lot, and Gonyo followed them. He lost sight of the group at some point but later sighted the same group with the individual he had seen fire the gun. Gonyo chased the individual, who was apprehended near the corner of Clark and Besley Streets by Maurice Rodriguez, a Waukegan East High School security guard, who had been in the parking lot when the shots were fired. Rodriguez arrived at Clark and Besley in a car driven by Lawrence TenPas, a Waukegan East High School teacher. The individual apprehended was defendant, whom Officer Gonyo identified in court as the same person he described as holding a pistol, whom he chased, and whom he apprehended and handcuffed.

Anthony Davis, who was struck in the arm by a bullet, identified defendant in court as the person who fired shots in the parking lot. Davis testified that he was about 15 feet from defendant when he began shooting. According to Davis, defendant was wearing a black jacket, blue jeans and a green shirt. When interviewed by police following the shooting, Davis stated that he could not identify the person who shot him. Davis testified, however, that he lied to police because he was scared. He did not know at the time the name of the person who shot him but had seen him around school. On cross-examination, Davis stated that he got the idea that defendant had shot him when talking to prosecutors and that people around school were saying defendant was responsible for the shooting. According to Davis, Gene Gwinn told him defendant’s name.

Ernest Gwinn received a bullet wound to his finger. He testified that he did not see who shot him, although he had seen defendant in the parking lot after the game and heard someone say he had a gun.

Two other witnesses to the shooting, Michael Davidson and Nigel Patrick, both high school students, identified defendant as the person they saw fire a gun into the crowd in the parking lot. Davidson and Patrick knew defendant by name and observed him from about 30 feet at the time of the shooting.

Lanny Smith saw a person shooting a gun. While he could not identify who it was because the lighting caused a shade over his face, he did identify the leather jacket with gray sleeves worn by defendant that night and the Nike hat found near where defendant was chased and apprehended as being worn by the person with the gun.

Lawrence TenPas saw a person come out from the crowd and fire a gun several times. The person wore a leather jacket which he later identified in court. This was the leather jacket worn by defendant at the time of his arrest. He chased the person who was subsequently apprehended.

A bullet was recovered from the jacket of Valerie Coburn, who was shot in the arm. It was determined that the bullet was fired from a Smith and Wesson .38 caliber revolver discovered at 308 Powell Street, near where defendant was apprehended. A Nike hat was also found in the area where defendant was chased by Officer Gonyo.

The defense presented the testimony of Aubrey O’Bryant and Otis Bledsoe, who testified that they had been with defendant prior to the basketball game. According to their testimony, the three had been at O’Bryant’s house drinking beer prior to going to the game. O’Bryant testified that he did not see defendant with a gun at any time, nor did he find a gun when he took defendant’s coat while at the house. After leaving for the game, they stopped first at defendant’s house so defendant could get some money. O’Bryant was not with defendant later when the game was over. He heard shots fired after the game but did not see who did the shooting. Bledsoe said he saw defendant after the game in the parking lot. Defendant did not fire the shots, but someone else did whom he could not identify.

Defendant testified that he did not have any weapon with him when he went to the basketball game. When he, O’Bryant, and Bledsoe arrived at the game, defendant observed Lorenzo Brooks standing outside on the stairs. O’Bryant, Bledsoe, and he separated once inside the gymnasium. After the game, defendant eventually joined a group of people in the parking lot while waiting for O’Bryant and Bledsoe. According to defendant, Lorenzo Brooks joined the group. Thereafter, a group of people from Waukegan began to form and approached defendant’s group. At that point, according to defendant, Brooks fired a pistol at the other group. Defendant was no more than five feet from Brooks when Brooks began shooting. Brooks was dressed in dark clothing. Defendant ran from the parking lot. Brooks also ran' and passed defendant.

Defendant met up with a group of people, including Brooks, at the corner of Clark and Victory. A car approached" and someone in the car said, “[tjhere he is.” Defendant proceeded to run and, after being chased by a police officer, was tackled by an individual who had driven up in the car defendant had seen at Clark and Victory.

Defendant subpoenaed Lorenzo Brooks, who was in custody in the Lake County jail apparently for reasons unrelated to the incident on March 2, 1988. During a hearing on motions in limine just before trial began, Lorenzo Brooks’ attorney stated that Brooks would be invoking his right against self-incrimination. Defendant’s attorney indicated that he intended to bring Brooks into the courtroom for the purpose of having him identified by defense witnesses as the person who committed the shooting and would not call him to testify. Both Brooks’ attorney and the State contended that this would violate Brooks’ right against self-incrimination. The State additionally contended that an individual cannot be subpoenaed merely for his presence, if he is not to be called to testify. The trial judge ruled that defendant would only be able to admit a photograph of Brooks into evidence and ordered the State to provide a photograph. The State provided a photograph of Brooks’ face and facial profile which was shown to certain defense witnesses and admitted into evidence.

Defendant contends that it was error to prohibit him from bringing Lorenzo Brooks before the jury and witnesses in support of the theory that defendant was mistaken for Brooks, the actual perpetrator of the offense. He argues that he has a right to show that someone else committed the offense and that the person of Brooks could properly be used as evidence.

The State initially appears to argue that the trial court ruled correctly because compelling Brooks to appear before the jury for the purpose of being identified or compared with defendant would violate Brooks’ privilege against self-incrimination. In Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, the United States Supreme Court held that “the privilege protects an accused only from being compelled to testify against himself, or other-wise provide the State with evidence of a testimonial or communicative nature.” (384 U.S. at 761, 16 L. Ed. 2d at 914, 86 S. Ct. at 1830; see People v. Moore (1969), 43 Ill. 2d 102, 107, 251 N.E.2d 181.) Brooks’ mere appearance before the jury would not have involved testimonial or communicative evidence. “[T]he compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination.” (United States v. Dionisio (1973), 410 U.S. 1, 5-6, 35 L. Ed. 2d 67, 74, 93 S. Ct. 764, 767.) Compelling Brooks to appear before the jury would not violate his fifth amendment rights.

The State also responds that because the jurors heard testimony from both sides and saw photographs of both defendant and Brooks, the physical presence of Lorenzo Brooks was neither relevant nor necessary.

We have found no case law in Illinois addressing the issue of compelling a person to appear at trial in a criminal case for the purpose of displaying the -witness before the jury and witnesses to show similarity between the witness and the defendant to support a defense of mistaken identity. However, a similar issue was considered in an opinion of a New York trial court in People v. Diaz (1981), Ill Misc. 2d 1083, 445 N.Y.S.2d 888. In that case, the defendant, charged with murder, asserted during trial that another individual, Miguel E., had committed the offense. The defendant asserted that Miguel E. more closely fit the description of the perpetrator given to police by eyewitnesses. Miguel E. refused to testify, invoking his fifth amendment right against self-incrimination. However, the prosecution sought to introduce Miguel E. so that the jury could consider whether he resembled the description of the perpetrator.

The court noted the dearth of authority on the issue, but stated that “[i]n researching this issue, it becomes apparent that the traditional law of real or demonstrative evidence is applicable.” (111 Misc. 2d at_, 445 N.Y.S.2d at 889.) The court further stated that “the practice of introducing a person into evidence for the purpose of permitting the jury to see for itself whether he more closely resembles the perpetrator than does the accused, follows traditionally accepted procedure governed by the law of ‘real evidence.’ ” (111 Misc. 2d at _, 445 N.Y.S.2d at 891.) Accordingly, the trial court permitted the prosecution to introduce a person as an exhibit as evidence relative to the issue of identification.

We agree with the reasoning in Diaz and hold that introduction of a person as evidence relative to identification in a criminal case is governed by the principles generally applicable to the admission of evidence. The propriety of admitting evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse of that discretion. (People v. Bowel (1986), 111 Ill. 2d 58, 68, 488 N.E.2d 995.) “ ‘The basic principle that animates our law of evidence is that what is relevant is admissible.’ ” (People v. Monroe (1977), 66 Ill. 2d 317, 321, 362 N.E.2d 295, quoting People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 293, 139 N.E.2d 780.) Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (Monroe, 66 Ill. 2d at 322, 362 N.E.2d at 297; see also People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355.) Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable. People v. Free (1983), 94 Ill. 2d 378, 413, 447 N.E.2d 218.

Clearly, the identity of the perpetrator of the offenses at issue is relevant. Nevertheless, defendant here must establish that the person of Lorenzo Brooks is relevant so that displaying him before the jury and the witnesses would tend to make it more probable or less probable that defendant was the perpetrator than it would be without the evidence. We recognize that under some circumstances the person sought to be introduced will not be shown to be sufficiently connected with the incident or similar to a defendant in appearance as to render him relevant to the issue of a defendant’s identification. In this regard, we believe defendant under the circumstances here should have made a threshold showing outside the presence of the jury that Brooks would be identified by a witness as the person who fired the shots and that there was in fact a substantial similarity in appearance at the time of the incident in question between defendant and Brooks. While defendant satisfied the first requirement by representing to the court prior to trial that a witness would identify Brooks as firing the shots, as defendant subsequently testified at trial, the second part pertaining to a showing of similarity of appearance was not squarely addressed by defendant or by the trial court. The record does not show that Brooks was brought before the court for this determination. The party offering evidence must establish its relevancy. Nevertheless, the trial court, while denying the use of the person of Brooks as an exhibit, did allow a photograph of Brooks to be allowed into evidence. Comparison of the photograph of Brooks and photographs of defendant allowed into evidence, however, fails to establish similarity of appearance except that both are young, black males. Under these circumstances, we find no abuse of discretion in not allowing defendant to display Brooks to the witnesses and to the jury.

Even were we to find an abuse of discretion in the barring of this evidence, we would find this error to be harmless beyond a reasonable doubt. (See People v. Young (1989), 128 Ill. 2d 1, 42, 538 N.E.2d 453.) There was substantial evidence of defendant’s guilt through the positive identification of him by several witnesses and by other persons who identified him through the clothing he wore. (People v. Broadnax (1988), 177 Ill. App. 3d 818, 834-35, 532 N.E.2d 936.) Moreover, he was allowed to enter into evidence and use before the witnesses and the jury a photograph of Brooks which arguably supported his defense that Brooks committed the offenses. In light of the overwhelming evidence of defendant’s guilt, the exclusion of this evidence was harmless error. See People v. Shannon (1986), 149 Ill. App. 3d 525, 531, 501 N.E.2d 166.

While not raised by defendant, we find from the record that, with respect to Anthony Davis and Valerie Coburn, defendant was charged and convicted of two counts of armed violence against each victim under separate theories of the predicate offense encompassed in section 12 — 4(a) (causing great bodily harm) and section 12 — 4(b)(8) (person battered is on public property) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4(a), (b)(8)). Accordingly, with respect to the shooting of Davis and Coburn, in each case multiple convictions arose from a single act, and we vacate the convictions of armed violence on counts I and II of the indictment. People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838.

The judgment of the circuit court of Lake County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

McLaren and WOODWARD, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS C. KOKORALEIS, Defendant- Appellant.
    Second District
    No. 2—88—0081
    Opinion filed January 25,1990.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel); for the People.
   JUSTICE DUNN

delivered the opinion of the court:

In November 1982, the defendant, Thomas C. Kokoraleis, was interrogated by the police regarding the unsolved abductions and murders of several young women, and he eventually gave inculpatory statements regarding the murders of Lorraine Borowski, Linda Sutton, Sui Mak and Carole Pappas. After this court reversed his original convictions of the murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(1)) and rape (Ill. Rev. Stat. 1981, ch. 38, par. 11—1(a)) of Borowski (People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 501 N.E.2d 207, appeal denied (1987), 114 Ill. 2d 553, 508 N.E.2d 733), the defendant entered into an agreement with the State by which he pleaded guilty to the Borowski murder in return for a sentence of 70 years’ incarceration and the State’s agreement to nol-pros a subsequent indictment in the Sutton case. The plea agreement did not encompass the Pappas murder. Shortly thereafter, the defendant filed a motion with the circuit court seeking to withdraw his guilty plea. The basis of the motion was the discovery, some three weeks after the entry of the plea agreement, of the body of Carole Pappas; the State conceded that this finding proved that the defendant was not involved with Pappas’ accidental death. The defendant claimed that, because his confession regarding the Pappas murder was false, then the veracity of his other inculpatory statements was called into question. The trial court denied the defendant’s motion to withdraw his guilty plea, and the defendant now appeals from the order denying his motion. At issue on appeal is whether the discovery of Pappas’ body provides sufficient grounds to allow the defendant to withdraw a voluntarily made guilty plea. We affirm the judgment of the trial court.

The same trial court judge who accepted the defendant’s guilty plea also denied his motion to withdraw it, and he had also presided over the defendant’s first trial. In ruling on the defendant’s motion, the trial court heard arguments that touched on the entire history of the defendant’s prosecution, and it appears that the trial court properly endeavored to evaluate the defendant’s motion in the context of the earlier proceedings. (See People v. Nyberg (1976), 64 Ill. 2d 210, 214-15, 356 N.E.2d 80, 82.) Thus, to properly review the trial court’s determination, we must first recount a portion of what has already transpired with regard to the prosecution of this defendant.

In the fall of 1982, various law enforcement agencies in northern Illinois were investigating the abductions and murders of several women whose bodies, when discovered, evidenced severe breast mutilations. Among the victims of these murders were Linda Sutton, who was killed in 1981, and Lorraine Borowski, who had been missing since May 1982. Borowski’s body was discovered on October 10, 1982. By November 1982, three suspects had been arrested and charged in connection with a number of the murders. The suspects were Robin Gecht (Gecht), Edward Spreitzer (Spreitzer), and Andrew Kokoraleis (Andy), the defendant’s brother.

On the afternoon of November 10, 1982, Detectives John Sam and Warren Wilkosz of the Du Page County sheriff’s office went to the Villa Park neighborhood where the father of the two Kokoraleis brothers lived. Sam was investigating the Borowski killing, and Wilkosz was investigating the Sutton murder. The two went to the neighborhood to investigate the case against Andy; the defendant was not a suspect. At about 2 p.m., the defendant approached the two officers and asked to talk with them about his brother Andy. The three then proceeded to the Villa Park police station. They arrived at 2:30 to 2:45 p.m., and the two officers questioned the defendant. Though he did not implicate himself in any of the murders, the police officers asked the defendant to submit to a polygraph examination. The defendant agreed, and arrangements were made for an examination to take place at the Elmhurst police station at 5 p.m. The defendant waited at the Villa Park police station until he was taken to Elmhurst, but he was not subjected to further questioning from 3:15 until 5:15 p.m.

Commander John Millner of the Elmhurst police department conducted a polygraph examination of the defendant which lasted approximately IV2 to 2 hours. Detectives Sam and Wilkosz were not present during the examination. During this interview, the defendant stated that he was not involved in any murders. Commander Millner told the defendant that he was not being truthful and suggested that perhaps the defendant had only witnessed the murders. The defendant then admitted that he was present when some of the killings took place. Commander Millner then ended the interview, and he approached Detectives Sam and Wilkosz to suggest that they continue to interrogate the defendant based on his admission of involvement in the murders.

At approximately 6:45 p.m., Detectives Sam and Wilkosz again began to question the defendant. At one point, Wilkosz confronted the defendant with a document purported to be Spreitzer’s confession. He told the defendant that Spreitzer’s confession implicated him in the murder, but Wilkosz knew that this was not, in fact, true. At this point, the defendant began to tell the detectives that he witnessed the Borowski and Sutton killings. At 8:42 p.m. the officers began to tape-record the defendant’s statement regarding his involvement in the murders. This taping continued, intermittently, until about midnight.

In his taped statement, the defendant said that he was riding in an automobile with his brother Andy and Spreitzer when they abducted a young woman from an area near a shopping mall. The defendant identified a photograph of Borowski as the woman abducted. The defendant stated that Borowski was taken to a motel room where Spreitzer and Andy removed her clothes and forced her to engage in sexual intercourse. Andy then placed piano wire around the victim’s breast and squeezed until the breast was removed, and Andy and Spreitzer then had intercourse with the wound in the victim’s chest. Spreitzer then struck the victim in the chest with an axe and killed her. The body was then redressed, taken to a local cemetery, and left there. According to the defendant, he was present when these events took place, but he did not participate in them.

Also on the night of November 10, the defendant gave an inculpatory statement regarding the abduction and murder of Linda Sutton. The defendant at this time maintained that he had been present for only two murders. The defendant here has stipulated, however, that on November 10 he also gave a statement inculpating him in the murder of Sui Mak.

The next day, on November 11, police authorities again subjected the defendant to questioning. At 7:30 p.m., the defendant gave a statement to Detective Thomas Vosburgh of the Du Page County sheriff’s office and Detective Grady Clark of the Wheaton police department. A court reporter transcribed the statement. The defendant identified a photograph of Carole Pappas, a woman who had been missing for two months, as the woman whom he, Andy, Spreitzer and Gecht had abducted from a shopping mall some months earlier. Pap-pas was last seen on September 11, 1982, in the Marshall Field store at the Stratford Square shopping mall in Bloomingdale, Illinois.

The defendant stated that the incident took place in a shopping mall he could not identify but he did recall that the mall contained a Marshall Field store. According to the defendant, Pappas, who was either entering or exiting her car in the parking lot in front of the Marshall Field store, was forced by Spreitzer and Andy into a van driven by Gecht. Spreitzer then entered Pappas’ car, and the two vehicles proceeded to an area of farmland about 30 to 45 minutes removed from the mall. The defendant stated that he watched from the van as the other men took the woman into the field, tore off her clothes, and forced her to engage in sexual intercourse. The defendant claimed that Pappas was then bound and gagged, after which Gecht removed her left breast with a piano wire; the three then had intercourse with the wound in the chest. Before returning to the van, the defendant said, Gecht strangled Pappas to death. The four men then left the area in the van; the defendant was unsure whether the other three returned to the field later to take Pappas’ car. In his statement, the defendant noted that he had been involved in two other similar incidents.

On November 12, 1982, the defendant gave another statement to Detective Vosburgh regarding Pappas’ purported murder. The record also reveals that the defendant spoke to Richard Bueke of the Cook County State’s Attorney’s office later that same day. In his statement to Bueke, the defendant said that he had been present at only two killings.

The State subsequently indicted the defendant for the murder and rape of Lorraine Borowski. His pretrial motion to suppress his statements, which he alleged were given involuntarily, was denied, and a portion of the defendant’s statements was introduced into evidence at his jury trial. Among the witnesses the State presented at trial was Frank Orlosky, a physical anthropologist, who testified that Borowski’s body, which was badly decomposed when discovered, evidenced signs of trauma inflicted by a small circular object like an ice pick. The skin around the area of the victim’s left breast was no longer present. Orlosky found no signs of trauma in the area of the left breast, but he acknowledged that a clean cut in that area would leave no such signs. Some testimony regarding the Sutton murder was also presented at trial; no aspect of the Pappas disappearance was made a part of the trial proceedings.

The defendant did not testify at trial, but he did present a number of witnesses on his behalf. Several witnesses were presented to show that no area motels reported finding blood or similar signs of great violence on their premises in the time since the victim had been missing. Also testifying for the defendant was Dr. Albert H. Stipes, a psychiatrist who examined the defendant after his arrest. Dr. Stipes characterized the defendant’s intelligence level as bordering just above mental retardation, and he stated that the defendant tended to be intimidated by figures of authority. Dr. Stipes also testified that the defendant was prone to making poor judgments that did not account for long-term consequences, and he also was of the opinion that the defendant tended to answer questions in a manner that would please the person asking the questions.

After deliberating, the jury returned verdicts of guilty on both the murder charge and the rape charge. On appeal, however, this court reversed the defendant’s rape conviction because the State failed to establish the corpus delicti of that crime. (Kokoraleis, 149 Ill. App. 3d at 1026-30, 501 N.E.2d at 224-27.) Regarding the defendant’s murder conviction, the court held that the defendant’s statements used at trial were voluntarily given. The defendant’s murder conviction was reversed, however, because of the trial court’s failure to allow into evidence the statements of Andy and Spreitzer, which did not indicate that the defendant was ever present when Borowski was abducted and killed. The cause was then remanded for a new trial on the murder charge. Kokoraleis, 149 Ill. App. 3d at 1017-26, 501 N.E.2d at 218-24.

Subsequent to the defendant’s trial in the Borowski case, but before his convictions were reversed on appeal, the State indicted the defendant for the murder of Linda Sutton. The State made known its intention to seek the death penalty for that offense. In July 1987, after a series of negotiations between defense counsel and the office of the Du Page County State’s Attorney, the defendant entered into a plea agreement by which he would plead guilty to the murder of Borowski; in return, the State agreed to nol-pros the indictment in the Sutton case and to seek a sentence of 70 years’ incarceration. The plea agreement did not in any way relate to the disappearance of Carole Pappas or to the defendant’s possible prosecution for that incident.

Pursuant to Supreme Court Rule 402 (107 Ill. 2d R. 402), a hearing was held on July 16, 1987, before Judge John J. Nelligan, the same judge who had presided over the defendant’s earlier trial. At the hearing, the trial court was advised of the factual basis for the defendant’s plea. The defendant stipulated that, if the cause went to trial, the State would present evidence to show that Borowski had disappeared; that her body was found on October 10, 1982, with her left breast removed; that the defendant admitted to police officers that he and his cohorts had abducted Borowski, removed her left breast with piano wire, and killed her; and that the defendant was part of a cult that would rape and kill women and cut off their breasts.

The trial court advised the defendant that it would accede to the agreed-upon 70-year sentence. The trial court also thoroughly admonished the defendant regarding his right to proceed to trial on the charges against him and regarding all concomitant trial rights, and the defendant acknowledged that he waived such rights. The trial court found that the defendant waived his rights knowingly and voluntarily, and it further found the existence of a factual basis for the plea. The court accepted the defendant’s plea of guilty and imposed the agreed-upon sentence.

The parties here have stipulated that in August 1987, the body of Carole Pappas was discovered in her car, which had been submerged in a retention pond in Wheaton, Illinois. The Du Page County coroner ruled that the cause of Pappas’ death was accidental drowning, and the pathologist noted no signs of physical trauma on her body. Pap-pas’ body was found fully clothed, and no garments showed signs of ripping or tearing. The State here concedes that this discovery indicates that the defendant was not in any way involved in Pappas’ accidental death.

Based on this discovery, the defendant filed a motion pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) seeking to withdraw his plea of guilty to the murder of Lorraine Borowski and to vacate the judgment entered thereon. The motion was filed within 30 days of the entry of the defendant’s guilty plea. The basis of the motion was the defendant’s contention that the discovery of Pappas’ body in a condition totally inconsistent with the defendant’s account of her murder proved that the defendant’s November 11, 1982, statements regarding the Pappas abduction were completely false and were fabricated by the defendant. This, the defendant asserted, provided good reason to suspect that the defendant’s other inculpatory statements regarding the Borowski and Sutton murders were also fabrications. The defendant claimed that this new evidence cast doubt on the court’s original determination that the statements the defendant gave to the police were elicited voluntarily, and so the defendant should be allowed to withdraw his guilty plea.

A hearing on the defendant’s motion was held on January 15, 1988, again before Judge Nelligan. At the hearing, defense counsel contended that the defendant’s inculpatory statements were fabricated by the defendant and were based upon certain information which had been suggested to him by the police. The nearly retarded defendant, it was argued, was confused and intimidated by persistent police questioning; in order to appease his questioners, he falsely told them that he was a witness to the crimes without knowing how such an admission would affect his own culpability. In support of this “police coaching” scenario, defense counsel noted that the parts of the defendant’s statements which were consistent with independent evidence of the Borowski murder were, in fact, already known to the police officers who interrogated the defendant from November 10 through 12, 1982. Though he apparently conceded that his guilty plea was entered voluntarily, the defendant contended that the new evidence warranted reconsideration of the issue of whether his earlier statements were given freely and voluntarily.

The State, on the other hand, contended that the new evidence regarding Pappas was not relevant to the plea agreement into which the defendant had voluntarily entered. The State argued that the plea agreement concerned only the Borowski and Sutton murders, not the Pappas disappearance, and that the defendant’s statements regarding Pappas, even if false, did not impinge upon the accuracy of the statements regarding Borowski and Sutton given a full day earlier. The trial court denied the defendant’s motion to withdraw his plea, finding that the new information regarding Pappas was collateral to the plea agreement which precipitated the guilty plea. The defendant then timely appealed from the trial court’s denial of his motion.

On appeal, the defendant again argues that the information regarding Pappas, discovered after he had entered into the plea agreement, calls into question the voluntariness of his earlier statements to the police. Noting that he faced possible life imprisonment for the Borowski killing and a sentence of death for the Sutton murder and that he knew his inculpatory statements would be used against him in such proceedings, the defendant contends that the trial court should have allowed him to withdraw his guilty plea because of the light the newly-discovered information regarding Pappas shed on his earlier statements. The State maintains that the trial court correctly found that the Pappas information was collateral and not sufficient to permit the defendant to withdraw his voluntary plea of guilty to the Borowski murder.

The general principles governing the withdrawal of guilty pleas are well established. It is axiomatic that a defendant has no absolute right to withdraw a guilty plea. (People v. Smithey (1983), 120 Ill. App. 3d 26, 31, 458 N.E.2d 87, 91.) The decision whether to allow a defendant to withdraw a guilty plea is within the sound discretion of the trial court; generally, such a motion is allowed if it appears that the plea resulted from a misapprehension of law or fact or as a result of a misrepresentation by counsel, the State’s Attorney, or someone else in authority. (People v. Paul (1981), 93 Ill. App. 3d 302, 311, 417 N.E.2d 251, 258.) Misapprehension of fact or law goes to the question of whether the plea was voluntarily and intelligently made. (People v. Kraus (1984), 122 Ill. App. 3d 882, 888, 461 N.E.2d 1036, 1041.) A motion to withdraw a guilty plea may also be allowed where the defendant has a defense worthy of consideration, or where there is doubt of the guilt of the accused, and justice would be better served by submitting the cause to a trial. (People v. Martin (1978), 58 Ill. App. 3d 633, 637-38, 374 N.E.2d 1012, 1015.) The defendant bears the burden of demonstrating sufficient grounds to allow withdrawal of the plea. (People v. Nichols (1981), 96 Ill. App. 3d 354, 356, 420 N.E.2d 1166, 1168.) Unless the circumstances of the defendant’s plea fall into one of these categories, a trial court’s denial of a motion to withdraw a guilty plea ordinarily will not be disturbed. People v. Jameson (1944), 387 Ill. 367, 374-75, 56 N.E.2d 790, 793.

In this appeal, we believe the defendant’s arguments pertaining to “misapprehension” of fact or law represent unwarranted contortions of the facts in an attempt to avail the defendant of legal theories which do not properly apply here. First, it cannot be said that the State was responsible for the defendant’s lack of knowledge regarding the ultimate fate of Pappas. Any “misapprehension” in this regard was not induced by the State or the trial court, and as such it cannot serve as the pretext to permit the defendant to withdraw his guilty plea. (People v. Smithey (1983), 120 Ill. App. 3d 26, 33, 458 N.E.2d 87, 93.) Second, the soundness of defense counsel’s advice regarding the plea agreement simply cannot be measured by facts unknown to all parties at the time the agreement was entered into. The inquiry must focus “not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” (McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449.) The only deficiency the defendant now ascribes to his trial counsel was the inability to foresee the ultimate discovery of Pappas’ body; clearly, this is insufficient to constitute incompetent advice by the defendant’s trial counsel.

What remains to be considered is whether the trial court should have allowed the defendant to withdraw his guilty plea because he has a defense worthy of consideration or because there is doubt of his guilt. (See People v. Martin (1978), 58 Ill. App. 3d 633, 637-38, 374 N.E.2d 1012, 1015.) We note that the defendant wishes to vacate his guilty plea so that he might be allowed to advance essentially the same defense put forth at his first trial, namely, that his inculpatory statements were fabricated as a result of police coaching.

At his first trial, counsel for the defendant advanced this defense by showing that the defendant’s intelligence bordered on mental retardation, and an expert witness testified that the defendant was prone to giving questioners the answers he believed they wanted to hear. The defendant also made note of the fact that it was a police officer who first suggested that' the defendant might have only witnessed the killings. Moreover, the defendant’s inculpatory statements came only after a police officer falsely told him that Spreitzer’s confession implicated him in the crimes. Defense counsel also made note of the frequent internal inconsistencies in the defendant’s statements. Finally, defense counsel highlighted two inconsistencies between the defendant’s statements and the physical evidence: the defendant said Borowski was killed with an axe, but the physical anthropologist testified that the only signs of trauma on the victim were inflicted by an instrument like an ice pick; and, although the defendant described Borowski’s violent murder occurring in an area motel room, no motel reported finding large amounts of blood or other indicia of such an occurrence.

Additionally, if the defendant could proceed to trial he would be permitted to introduce into evidence the statements of his brother Andy and Spreitzer, which did not implicate him in the Borowski killing. (See Kokoraleis, 149 Ill. App. 3d at 1017-26, 501 N.E.2d at 218-24.) We do not doubt that this strategy would constitute a colorable, if not necessarily successful, defense which could be presented at a trial. Yet it must be remembered that, when he entered into the plea agreement, the defendant was well aware that such a defense could have been put forth at trial. Instead of proceeding to trial, however, the defendant opted to forego presenting such a defense in favor of the agreed-upon plea. Of course, what the defendant did not know then was that the body of Carole Pappas soon would be discovered. The question now is whether this new discovery is sufficient to allow the defendant to reconsider his earlier decision, voluntarily made, that he did not wish to proceed to trial on the charges against him.

The defendant argues that the Pappas discovery presents him with the first and only physical evidence proving that at least one of his statements to the police was a complete fabrication. This, the defendant suggests, is sufficient to allow him to now choose to proceed to a trial on the charges against him.

As the State correctly notes, the fact that the defendant’s statement regarding Pappas’ murder turned out to be incorrect does not mean that it was a fabrication. This defendant has implicated himself in some four killings; it is possible that the defendant truthfully told the police about the actual abduction and murder of a woman, but incorrectly identified her as Carole Pappas. Thus, while the discovery of Pappas’ body shows that the defendant’s statement regarding her disappearance was inaccurate, it does not prove that the statement was a fabrication.

Moreover, even if we assume that the defendant did fabricate the story regarding Pappas, this does not necessarily impugn the reliability of the defendant’s initial statements to the police. The statement regarding Pappas was given a full day later than the statements regarding Borowski and Sutton, which were the defendant’s first inculpatory statements to the police. It is important to remember that the plea agreement was based entirely upon the Borowski and Sutton murders. The defendant asks us to speculate that, because he was allegedly lying to the police on November 11, then he must have been lying on November 10. While such speculation is plausible, we might just as easily speculate that the defendant, after he made known his involvement in the Borowski and Sutton murders, began to fabricate statements in an attempt to win more favorable treatment from the authorities in return for his cooperation.

Furthermore, the defendant’s own “police coaching” scenario could support an inference that his statements regarding Pappas were fabricated, while those regarding Borowski and Sutton were not. The statement pertaining to Pappas was given to different officers than those who originally questioned the defendant about Borowski and Sutton. That the Pappas statement was ultimately proved inaccurate only weakly supports the notion that the statement was the result of police coaching; it is an even greater leap to claim that such coaching permeated all of the defendant’s statements to a variety of different police officers. We note that the day after he implicated himself in the Pappas disappearance the defendant reverted to his original claim that he had witnessed only two murders.

We cannot conclude that the trial court abused its discretion by determining that the new information pertaining to Pappas was collateral to the defendant’s plea agreement and insufficient to warrant withdrawal of his guilty plea. A defendant seeking to withdraw a guilty plea has the burden of demonstrating to the trial court that withdrawal is necessary to correct a manifest injustice based on the facts of the case. (People v. Bovinett (1979), 73 Ill. App. 3d 833, 835, 392 N.E.2d 428, 429-30.) Here, the trial judge who had thorough knowledge of the defendant’s case determined that denial of the motion to withdraw the plea was not necessary to correct any manifest injustice. Under these facts, we cannot say that such a determination was an abuse of the discretion properly vested in the trial court, and we therefore affirm the order denying the defendant’s motion to withdraw his plea.

Judgment affirmed.

McLAREN and REINHARD, JJ., concur.