text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE CHANDLER, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—2667
    Opinion filed June 26, 1992.
    Rehearing denied July 14, 1992.

      Michael J. Pelletier and Leslie Wallin, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Sara Dillery Hynes, and Nicholas C. Giordano, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a bench trial, defendant Jesse Chandler was found guilty of two counts of armed violence and two counts of aggravated battery, and sentenced to two concurrent 12-year terms for armed violence. Defendant raises the following issues on appeal: (1) whether the trial court erred in allowing the admission of prior consistent statements; (2) whether the enhancement of aggravated battery to a Class X felony under the armed violence statute constituted a sentence unconstitutionally disproportionate to the offense charged; and (3) whether the trial court failed to consider the importance of a statutory mitigating factor.

The relevant facts are as follows. Carla Manning testified that on November 1, 1985, at around 3 a.m. she was asleep at the home she shared with her two children and her mother and father when she heard defendant ringing the doorbell. Carla testified that she had invited defendant over to her house at 6 p.m. the previous evening to take her and her kids trick-or-treating, but that she did not expect defendant to come over at 3 a.m. in the morning. Carla therefore refused to open the door and told defendant to leave. Defendant replied, “Bitch, you better open the door before I break it down.” When Carla again refused to open the door, defendant proceeded to kick the door down. After defendant knocked the door off the hinges, he proceeded up the stairs. Carla informed him that the police were on their way and defendant left. When the police arrived, Carla filled out a report. While Carla was filling out the report, her mother, Dorothy, received a phone call from defendant informing her that he was coming back to their house. Soon thereafter, defendant drove past the house. The officers pursued defendant’s car and when they caught up with his parked car two blocks away, they arrested him and charged him with damage to personal property.

On November 7, 1985, Carla and her mother went to court on the damage to personal property complaint. The case was continued to January 13, 1986.

On December 6, 1985, Carla was at her grandmother’s second-floor apartment. Also present at her grandmother’s house were her mother, Dorothy, Zela Manning, Phyllis Manning, Phyllis’ two children, Kimberly and Andrew, Andrew Hamilton, Greg Harrison, and some others. Defendant arrived at Carla’s grandmother’s house at around 4:30 p.m. Carla testified that her Aunt Phyllis knocked on the window and gestured for defendant to come up to the apartment. Defendant only stayed a few minutes and then returned at approximately 8 or 8:30 that evening. When defendant entered the apartment, he asked for Carla and Dorothy. After he was informed that they were in the bathroom, he jerked the door open and said, “What are you doing, smelling each other’s shit?” Carla testified that defendant told her that he wanted to talk to her, but she refused. Defendant said, “If you don’t talk I’ll whip your ass.” Dorothy testified that her niece Cassandra asked defendant, “Whose ass?” Defendant then hit Cassandra several times in the face. Cassandra’s boyfriend, Melvin, stepped in and he and defendant “engaged in hand-to-hand” combat. Dorothy testified that she was hit over the eye as she grabbed a child to get her out of the way. Carla testified that eventually everyone in the apartment tried to help Melvin get defendant away from Cassandra and out of the apartment. During the entire incident, defendant was yelling at Carla to talk to him or he would “jump her.” Carla testified that someone opened the door and they all “helped” defendant out of the apartment.

Carla testified that after defendant left, he threw a brick at the second-floor dining room window and broke it. Carla, Dorothy, Phyllis, Cassandra and Kimberly went outside. Dorothy and Carla testified that as they came out of the building, defendant came at them in his car at a high rate of speed. Defendant jumped out of his car with a gun in his hand, and began to approach Carla and Dorothy. As he approached, defendant yelled upstairs for the “m— f — --” who beat him to come down. Defendant began hitting Dorothy repeatedly in the head with the gun, knocking her unconscious. When Carla came to the aid of her mother, defendant began to hit her with the gun, briefly knocking her unconscious.

When Dorothy and Carla regained consciousness, defendant was still beating them. Carla and Dorothy testified that during the beating, defendant told them that they “should not have gone to Court against him.” Defendant then put his gun in Dorothy’s mouth and stated that “since you two are bitches, I will make sure you don’t go back again, where is your white judge now, I should kill you both now.” Gregg Arrington then picked up a brick and made a move toward defendant, but defendant threatened to shoot Dorothy, so Gregg dropped the brick. Isaac Love also tried to approach defendant, but ran when defendant took a swing at him.

Defendant left before the police arrived. The parties stipulated that Dorothy was admitted to Englewood Hospital suffering from an acute concussion, trauma to the skull, neck injuries, a spinal column injury, an injury to the left elbow requiring six stitches, multiple bruises to the abdomen, a broken nose, one broken and three loose teeth that required dentistry, and severe swelling/soft tissue damage to the left eye. Dorothy remained in the hospital for 12 days. Carla was treated and released from the hospital with a broken nose and contusions.

Defendant testified that when he went into the bathroom and saw Carla and Dorothy, and Carla refused to talk with him, they started arguing. Cassandra joined in the argument, then pulled out a paring knife from her pocket. Defendant pushed her away and she tripped and fell into the bedroom. Cassandra’s boyfriend Melvin then hit defendant and the two started tussling.

Defendant testified that he felt people kicking him in the back of his head and he heard things being thrown at him, but testified that most things did not hit him. Defendant testified that during the fight with Melvin, they crashed into the window, breaking it. Defendant then saw Dorothy come out of the kitchen with a knife. He could not leave the apartment since the door was locked with a key from the inside. When the door was finally opened, defendant ran out. Melvin then began fighting with defendant in the hallway. Defendant testified that Dorothy then tried to poke defendant with the knife in the hallway. Defendant hit Dorothy in the face and caused her to fall down the stairs. Defendant ran down the stairs, stepping on Dorothy to get outside.

Once outside, defendant testified that Dorothy and Melvin were still chasing him. Defendant’s brothers, David and Douglas, then drove up. The car stopped, and Douglas jumped out with a gun. Defendant testified that Melvin ran away but Dorothy came at him with a knife. Defendant hit her in the face. Carla went to help her mother and as defendant was entering his car, Carla picked up the knife and cut defendant on his arm. Defendant then grabbed Carla, twisted her arm, and hit her in the face causing her to fall. Defendant then drove away, leaving the two women lying in the street. Defendant testified that he showed police the injury to his arm, but they did not write it down in their report.

Defendant first contends on appeal that the trial court erred when it allowed the admission of prior consistent statements made by Dorothy and Carla. Defendant objected to the court’s ruling on this issue at trial, but failed to include this issue in his motion for a new trial. We nonetheless consider this issue in order to determine whether plain error exists. People v. Torres (1977), 53 Ill. App. 3d 171, 368 N.E.2d 361.

Generally, a witness who has been impeached by a prior out-of-court statement inconsistent with in-court testimony cannot introduce evidence of other prior statements consistent with his in-court testimony. (People v. DePoy (1968), 40 Ill. 2d 433, 240 N.E.2d 616.) A prior consistent statement may be admitted to rebut an inference that the testimony is a recent fabrication or an inference that the witness has a motive to testify falsely, but this exception applies only if the prior inconsistent statement was made before the time of the alleged fabrication or the motive to lie came into existence. People v. Deavers (1991), 220 Ill. App. 3d 1057, 580 N.E.2d 1367; People v. Wheeler (1989), 186 Ill. App. 3d 422, 542 N.E.2d 524.

Here, Officer Vellegas testified that on December 6, 1985, he responded to a call that there was a man with a gun at 724 West 59th Street. When he arrived at the scene of the disturbance, Carla and her mother, Dorothy, gave him an account of the events that had just occurred. On cross-examination, defense counsel elicited testimony from Officer Vellegas which implied that Dorothy and Carla’s story at trial was different from the one they told Officer Vellegas immediately after their encounter with defendant. In order to rebut this inference of recent fabrication, the State introduced the testimony of Detective Griffin, who stated that when he interviewed Carla and Dorothy after they arrived at the hospital on December 6, 1985, Carla and her mother gave him statements consistent with their statements at trial.

Because the victims’ consistent statements were made after the inconsistent ones, and the victims had the same motive to fabricate (to exculpate themselves and inculpate defendant) when making the prior consistent statements as they did at trial, it is our opinion that the prior consistent statements were not admissible. We nonetheless find that the admission of the prior consistent statements was harmless error, since Dorothy and Carla’s testimony was corroborated by other evidence, particularly the testimony of Andrew Hamilton and Phyllis Manning.

Defendant next contends that the Class X penalty for his conviction for armed violence is unconstitutionally disproportionate because it is more severe than the potential punishment for a more serious offense, voluntary manslaughter. What defendant contends is that if either of the victims had died, he would have been guilty of voluntary manslaughter, a Class 1 felony, punishable by a sentence of 4 to 15 years, but because his conduct did not result in death, he was found guilty of armed violence, which is a Class X felony, punishable by a sentence of 6 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 4, 1005 — 8—1(3).) His argument that his punishment is unconstitutionally disproportionate to his conduct rests on the assumption that if one of defendant’s victims had died, he would have been charged with manslaughter, rather than murder. We simply refuse to make that assumption. Therefore, we need not address whether the Class X penalty for defendant’s conviction for armed violence is unconstitutional.

Defendant’s last contention is that this cause must be remanded for resentencing because the trial court failed to consider the mitigating factor that defendant acted under a strong provocation. The trial court is not obligated to recite and assign a value to each fact presented in evidence at the sentencing hearing. (People v. Halstead (1987), 164 Ill. App. 3d 1, 517 N.E.2d 667.) Furthermore, where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication (other than the sentence imposed) to the contrary. People v. Baker (1983), 114 Ill. App. 3d 803, 448 N.E.2d 631.

As defendant points out, the trial court stated that “whether you were the instigator or the commencer of the argument and the physical confrontations in the apartment or whether somebody else was is not important.” However, when the remarks of the trial court are read in their entirety, it is clear that the trial court did in fact consider the mitigating evidence presented. The trial court found that “there was a hiatus between [defendant] leaving the apartment and the time that the ladies left the apartment and there was a confrontation on the street and as a result, [defendant] would have had time to calm down and to — if [defendant] thought somebody had done you wrong — to make a complaint to the police and have them arrested.” The trial court also noted that it considered all of the factors both in aggravation and mitigation, and we see no reason to believe otherwise. We therefore find no abuse of discretion on the part of the trial court in sentencing defendant.

Accordingly, for the reasons set forth above, defendant’s convictions for armed violence are affirmed.

Affirmed.

LORENZ and MURRAY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORLANDO DELGADO, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2356
    Opinion filed June 25, 1992.
    Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Margaret J. Faustmann, and Fabio Valentini, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendant Orlando Delgado was found guilty of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401) and sentenced to 20 years’ imprisonment. He raises two issues on appeal: whether the trial court erred in denying his motion to suppress, and whether it abused its discretion by denying defendant’s challenge of one juror for cause.

We affirm.

Background

At the suppression hearing, the State’s evidence established that about 4:15 a.m. on March 22, 1989, six officers and an informant arrived at an apartment at 2007 North Kedzie in Chicago. The informant was to purchase cocaine from defendant. Two officers observed the transaction from a stairwell about seven feet from the apartment. They observed defendant answer the door and ask the informant what he wanted. When the informant replied, “a quarter bag of coke,” defendant invited him into the apartment. Defendant left the door open. The informant handed defendant $20. Defendant walked to the kitchen table and took a large clear plastic bag which contained several small plastic bags containing white powder. He handed the informant one of the small bags. The informant exited the apartment and closed the door. The officers met with informant, examined the contents of the bag and suspected that it contained cocaine. Two of the officers knocked on the apartment door. Defendant opened the door “a crack.” When they announced their office, defendant tried to close the door. He then ran to the kitchen, picked up the large bag and tried to flee the apartment. As he did so he threw the bag. Defendant managed to escape, but he was arrested one hour later at 2120 North Hoyne, and gave that address as his residence. The officers knew prior to the date of the incident that defendant resided at that address.

In denying defendant’s motion to suppress, the court stated:

“From the observations of the Court, the Court believes that there are exigent circumstances to justify the entry made here based upon what the officer testified to. He did believe a crime had been committed in his presence, and he was therefore empowered to enter as he did.
The Court note [sic] there is a substantial question as to whether Mr. Delgado does have standing, in any event, to contest the actions of the officers inasmuch as he has given no direct evidence that this was a place that he had a lawful possessory interest, and the evidence is to the contrary, that he actually resided at some other location.
In any event, the motion to suppress evidence should be and is hereby denied.”

Opinion

On appeal, defendant contends that the officers should have obtained an anticipatory search warrant since the narcotics transaction had been prearranged. Alternatively, he argues that exigent circumstances did not exist to warrant the warrantless entry because the officers could have kept the premises under surveillance until a search warrant was obtained. The State responds that defendant lacked standing to challenge the warrantless entry. Alternatively, it contends that exigent circumstances existed to justify the warrantless entry.

Before addressing the merits of defendant’s claim, we must first determine whether defendant had standing to challenge the search and seizure. Defendant carried the burden of establishing that he held a reasonable expectation of privacy in the place searched or the property seized. (.People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.) Factors to be considered in determining whether a reasonable privacy expectation exists include whether defendant was legitimately present in the area searched; his possessory interest in the area or property seized; prior use of the area searched or property seized; ability to control or exclude others’ use of the property; and a subjective expectation of privacy. People v. Johnson, 114 Ill. 2d at 191-92.

Applying these factors to the present case, we find that defendant failed to demonstrate that he had a reasonable expectation of privacy in the apartment. Defendant reasons that his presence as the sole occupant of the apartment at the time of the search, his conduct in answering the door when the informant and the police knocked, and his conduct in allowing the informant to enter indicated his control of the apartment sufficient to establish a legitimate expectation of privacy. We disagree. It is noteworthy that at trial, when asked if he was at 2007 North Kedzie in the early morning of March 22, 1989, defendant replied, “I don’t go there. I don’t live there. I don’t go to that house either.” Defendant testified that his girl friend’s mother lived in the building. When asked if he had ever been there he responded, “I go and pick up my lady and the kid. I don’t go there. I don’t live there.” Defendant’s mere status as the sole occupant of the apartment at the time of the search is not sufficient to establish that he had a legitimate expectation of privacy in the apartment. The fact that he opened the door when the informant and the police knocked is not significant. Such conduct does not establish that defendant had control and dominion over the apartment to the exclusion of others, absent evidence that he had a key. While defendant may have been able to produce more evidence sufficient to establish standing, he did not do so. The record is incomplete on this issue. Defendant introduced no evidence concerning how long he had been in the apartment, whether he had a key, whether he kept any personal items there, or the nature of his presence at the time of the search. Absent evidence beyond his mere presence in the apartment and his conduct in opening the door, we find that the record is incomplete and that defendant has failed to satisfy his burden.

Moreover, the trial court’s finding that the warrantless entry was justified on the basis of exigent circumstances was not manifestly erroneous. Exigent circumstances exist when an officer reasonably believes that a felony has been committed in his presence demanding prompt police action. (People v. Eiehelberger (1982), 91 Ill. 2d 359, 369, 438 N.E.2d 140.) Here, two officers observed the informant’s purchase of cocaine from defendant. Therefore, the officers’ warrant-less entry into the apartment was proper.

We next consider whether the trial court abused its discretion when it denied defendant’s challenge of venireman Ronnie Jones for cause. The law provides that a venireman is incompetent to sit as a juror if he cannot be impartial, and a reviewing court may reverse a conviction where a juror expressed self-doubt concerning his ability to be impartial. (People v. Johnson (1991), 215 Ill. App. 3d 713, 725, 575 N.E.2d 1247.) Here, the record is clear that Jones expressed self-doubt about his ability to be impartial because of the fact that the offense involved a controlled substance and a close friend of his had died as the result of a drug overdose. Both the court and defense counsel repeatedly asked Jones if he could be impartial, despite his opposition to drugs. In nearly each instance he equivocated, responding, “I sometimes wonder if I could be impartial. I would like to be able to tell you I could, but personal feelings — ”; “I just don’t know”; “I believe I could”; and “I would try with my best decision that I could make from the evidence, but I can’t say how it mite [sic] effect [sic] me.” Those equivocal responses were remarkably similar to those of veniremen in People v. Johnson, 215 Ill. App. 3d 713, 575 N.E.2d 1247, People v. Harris (1990), 196 Ill. App. 3d 663, 554 N.E.2d 367, and People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020, all of which held that the court erred in denying a defendant’s challenge for cause. However, we are not persuaded that the trial court’s conduct in this case constituted reversible error.

Here, defendant used a peremptory challenge to prevent Jones from becoming a member of the jury. Moreover, defendant has failed to allege that he exhausted his peremptory challenges when he excused Jones, and that an objectionable juror was subsequently forced upon him after he exhausted his peremptory challenges. In Spies v. People (1887), 122 Ill. 1, 258, 12 N.E. 865, our supreme court held that it could not reverse a judgment for errors committed in the trial court in overruling challenges for cause to jurors, even though a defendant has exhausted his peremptory challenges, unless it is shown that an objectionable juror was forced upon him after he had exhausted his peremptory challenges. Subsequent cases have relied on Spies and found no reversible error, either on the theory of harmless error (.People v. Harris, 196 Ill. App. 3d at 677-78), or waiver (People v. Green (1990), 199 Ill. App. 3d 927, 929-31, 557 N.E.2d 939; People v. Washington, 104 Ill. App. 3d at 391-92). In each instance, the court reasoned that by failing to indicate that they were forced to accept an objectionable juror the defendants denied the trial court an opportunity to cure the alleged error by exercising its inherent power to grant the defense an extra peremptory challenge. (People v. Green, 199 Ill. App. 3d at 931; People v. Harris, 196 Ill. App. 3d at 678; People v. Washington, 104 Ill. App. 3d at 392.) Following that rationale, we adopt that line of cases and hold that defendant’s failure to indicate to the trial court that he was being forced to accept an objectionable juror because of the court’s refusal to excuse Jones for cause denied the court an opportunity to cure the error thereby failing to establish prejudice to defendant.

In making this finding, we note defendant’s reliance on People v. Johnson (1991), 215 Ill. App. 3d 713, 575 N.E .2d 1247 (Johnson I) for the proposition that the fact that a defendant was improperly required to exercise a peremptory challenge in itself constitutes reversible error. In that case the State relied on People v. Johnson (1987), 162 Ill. App. 3d 952, 516 N.E.2d 343 (Johnson II), which concluded that there could be no claim of prejudice once a defendant removes a venireman from the panel by exercising a peremptory challenge. The court in Johnson I based its rejection of Johnson II on its failure to cite any authority for its conclusion. We are not persuaded by Johnson I because, unlike Johnson II, we have not held that a defendant is not prejudiced if he can exclude the challenged venireman by exercising a peremptory challenge. Rather, following the line of cases previously cited and discussed we recognize that prejudice may result. However, the fact that prejudice may result in such circumstances does not alone warrant a finding of reversible error. Rather, the defendant must establish that he was prejudiced by indicating that as a result of the trial court’s denial of his challenge for cause and his use of a peremptory challenge to reject the venireman, he was subsequently forced to accept an objectionable venireman because all of his peremptory challenges had been exhausted. This defendant has not done.

For the reasons stated above, the judgment of the circuit court is affirmed.

Judgment affirmed.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE JOHNSON

text:
    LITTLE CITY FOUNDATION, Plaintiff-Appellant, v. CAPSONIC GROUP, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—1314
    Opinion filed June 25, 1992.

      Daley & George, Ltd., of Chicago (John J. George and Dennis J. Aukstik, of counsel), for appellant.
    Winston & Strawn, of Chicago (Kimball R. Anderson and Lawrence R. Desideri, of counsel), for appellees.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Little City Foundation, appeals from an order of the circuit court of Cook County granting a motion for summary judgment by defendants, Capsonic Group, Inc. (Capsonic), and American Antenna Corporation (American). The sole issue on appeal is whether the trial court properly concluded that a valid inter vivos gift of stock was made.

We affirm.

Capsonic and American are corporations located in Elgin, Illinois. Both companies were founded by James Liautaud, chairman and majority shareholder. In 1964, Jeffrey Liautaud, James’ brother, acquired 7,250 of the over 150,000 outstanding shares of stock in Capsonic. He later received 89.9 of the 10,000 shares in American as a dividend on the Capsonic stock.

In June 1984, James informed all shareholders of Capsonic and American, including Jeffrey, that Capsonic would like to buy out all of its outside shareholders. Capsonic offered to pay Jeffrey over $330,000 for his shares in the corporations. Jeffrey found the offer unacceptable and refused to discuss the offer with James. This led to animosity between the brothers.

Jeffrey testified during his deposition that in November 1984 he decided it was more important for the “good of the family” that he dispose of his stock. Jeffrey stated that he was “moving away from material things” and “felt that those who owned things ended up being owned by them.” His goal was to devote full time to a religious endeavor he originated in which he sought to uncover a “naturalistic value system.” Jeffrey subsequently informed James that he had dedicated his life to God and that he was “setting up his life to own nothing.”

Jeffrey knew his brother wanted the Capsonic and American stock and called James’ office on November 29, 1984. Jeffrey learned from James’ secretary that James was out of town, but would be returning that morning on a flight into O’Hare Airport. Jeffrey went to the airport and physically delivered the fully endorsed stock to James in order to end the strife between them. The brothers sat down to talk, but they now disagree on the content of the conversation.

Jeffrey testified that he delivered the stock with the intention of selling it to James. He further testified that he wanted “to put the ball in [James’] court, and let [James] decide the price and terms.” Jeffrey also stated that the word “sell” was never used and that no sale terms were discussed at the airport. Jeffrey further testified that he and his wife filed Federal gift tax returns showing a gift to James of Jeffrey’s stock on November 29,1984.

James testified during his deposition that Jeffrey told him he had taken a vow of poverty and that he was giving the stock to him as a gift. James stated that initially he rejected the gift, but, at Jeffrey’s insistence, he accepted. After receiving the stock certificates, James gave the stock to Capsonic’s chief financial officer and told her to cancel the certificates.

During January 1985, James attempted to send Jeffrey a check for the value of stock as a gift to Jeffrey’s family on two separate occasions. Jeffrey returned the checks stating that James should treat the stock as a gift to the two corporations. James testified that because he had already personally accepted Jeffrey’s stock as a gift at the airport and had the shares cancelled, he had rejected Jeffrey’s new proposal that the gift be to the corporations.

In October 1985, James received a letter from Jeffrey’s attorney contending that James had refused to accept his brother’s gift of stock and requesting that he return the share certificates. Jeffrey testified that diming this time he formed a charitable foundation, the Infant Prague Foundation, for the purpose of accepting a donation of the stock. On October 30, 1985, Jeffrey sent a letter to James offering the stock to James personally since James already refused to accept the stock on behalf of the corporations. Jeffrey’s letter states, in pertinent part, as follows:

“My first choice is to give [the stock] to the corporation, because I was for all the shareholders and against a forced take out. My second choice is to give you the stock in the Christmas spirit.
If you were to accept my gift, for me it would be like the best Christmas present I have ever given. I am for you. I know how important it is for you to own your own companies completely yourself. I want that for you.
* * *
I have not yet transferred the stock to the foundation. I offer it to you as a gift.”

On November 6, 1985, James wrote Jeffrey a letter in which he stated, “your gift is accepted.” James testified that he intended to personally accept any and all rights and interest in the stock as a gift. Jeffrey testified that he understood the letter to mean that James was accepting the stock on behalf of the corporation since he signed the letter as chairman of Capsonic.

On December 7, 1985, Jeffrey transferred his purported right, title and interest in the stock to the Infant Prague Foundation, which he controlled. Six months later, the Foundation transferred its purported right, title and interest in the stock to plaintiff.

The court granted defendants’ motion for summary judgment, finding that there was no genuine issue of material fact as to whether Jeffrey made a valid gift to James in November 1985. This appeal followed.

Plaintiff contends the trial court erred in finding that no genuine issue of material fact exists as to whether Jeffrey made a valid gift to James in November of 1985 and that defendants’ motion should have been denied as a matter of law.

A motion for summary judgment should be granted only “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Hutchings v. Bauer (1991), 212 Ill. App. 3d 172, 177.) The evidence must be construed strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) “[Although the opponent of a summary judgment motion does not have to prove his case, he must present some facts that would arguably entitle him to judgment.” Lutz v. Goodlife Entertainment, Inc. (1990), 208 Ill. App. 3d 565, 568.

Next, we set forth the standard to determine whether a valid gift has been made. “A gift is a voluntary, gratuitous transfer of property by one to another where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee.” (In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 849.) In order to have a valid inter vivos gift, the donee must prove by clear and convincing evidence: (1) a present donative intent of the donor, (2) delivery of the gift to the donee, and (3) acceptance of the gift by the donee. (In re Estate of Stahl (1973), 13 Ill. App. 3d 680, 683, citing Richardson v. Richardson (1893), 148 Ill. 563, 569.) “ ‘Donative intent’ is intention on the part of the donor that there be a present and irrevocable transfer of title to the subject matter of the gift; delivery of the subject matter of the gift is the means whereby the donative intent of the donor is given effect.” (Hall v. Country Casualty Insurance Co. (1990), 204 Ill. App. 3d 765, 778, citing Gordon v. Gordon (1969), 113 Ill. App. 2d 191, 194.) “The question as to what constitutes a gift is one of law ***.” (Hall, 204 Ill. App. 3d at 778.) “Where, however, the pleadings, depositions, and other evidence before the court show that at trial a verdict would have to be directed, entry of summary judgment is proper.” Hall, 204 v. App. 3d at 778.

In the present case, we believe defendants proved by clear and convincing evidence that Jeffrey made a valid inter vivos gift to James in November 1985.

First, plaintiff contends that Jeffrey did not intend to make a gift when he delivered the stock certificates to James at O’Hare Airport in 1984. However, the issue at the hearing on the motion for summary judgment and on appeal is whether Jeffrey made a valid gift to James in November 1985. Plaintiff’s argument virtually ignores Jeffrey’s stated intent to make a gift to James when he offered the stock to him as a gift in his letter of October 30, 1985. We believe that the content of the letter clearly and unambiguously expresses Jeffrey’s donative intent to offer the stock to James as a gift. We therefore find that the trial court did not err in finding that there was no genuine issue of fact as to whether Jeffrey intended to make a gift of his interest in the stock to James.

Plaintiff does not contest adequate delivery of the stock. The undisputed evidence is that Jeffrey delivered his fully endorsed stock certificates to James in November 1984, and that the certificates were already in James’ possession when Jeffrey made his October 30, 1985, offer. Because James already had possession of the stock at the time of the gift, additional delivery at the time of the gift was unnecessary. See Barnes v. Banks (1906), 223 Ill. 352, 361.

Lastly, plaintiff contends that defendants failed to prove by clear and convincing evidence that James accepted Jeffrey’s offer. After receiving Jeffrey’s letter, James immediately responded by writing to Jeffrey and stating, “your gift is accepted.” In addition, James testified that he intended by his letter to personally accept as a gift any and all rights and interest in the stock. We believe this evidence clearly establishes that James accepted the stock in his personal capacity. We therefore affirm the trial court’s finding that James accepted the gift.

Plaintiff argues that since James signed the letter as chairman of the corporation there was an inference that he was accepting the stock on behalf of the corporation and not in his personal capacity. Plaintiff failed to raise this novel contention in the trial court and it is therefore waived on appeal. Boonstra v. City of Chicago (1991), 214 Ill. App. 3d 379, 385.

We affirm the trial court’s finding that no genuine issue of material fact exists as to whether Jeffrey made a valid gift to James in November of 1985, and that defendants’ motion for summary judgment was proper as a matter of law.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN SILVA, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2614
    Opinion filed June 23, 1992.

      Rita A. Fry, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and John F. O’Grady, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Just before midnight on January 17, 1984, in a tavern in Chicago, David Moyet was killed and Ruben Velazquez was shot twice. A jury found defendant Martin Silva guilty of Moyet’s murder and of the attempted murder and aggravated battery of Velazquez; he was sentenced to concurrent terms of imprisonment. In this appeal, defendant contends that he was denied a fair trial and urges us to reverse his convictions for the following reasons: (1) the State improperly bolstered its case by referring to statements of nontestifying witnesses; (2) the State preyed on the jury’s sympathies by its improper emphasis on Moyet’s survivors; (3) the State implied, without sufficient substantiation, that the crimes were gang-related; (4) the cumulative effect of these errors, even if harmless individually, prejudiced the jury; and (5) the court erroneously instructed the jury concerning attempted murder. For the reasons that follow, we affirm.

At trial, Moyet’s wife testified first as the “life and death” witness. Ruben Velazquez testified next for the State. He and his wife, the niece of David Moyet, resided in the same building that the Moyets occupied. At about 6:30 p.m. on January 17, 1984, Velazquez agreed to accompany Moyet to visit the latter’s cousin. The two men arrived at the cousin’s home at around 6:30 or 7 p.m., and each drank a can of beer. After an hour or so, Moyet offered to introduce Velazquez to some other friends; the two then went to a tavern, where in the course of an hour or two, Velazquez had another beer while Moyet bought a round for the house. They then went to a tavern at 1852 Blue Island in Chicago, where Moyet bought another round and Velazquez had another beer. Some time later, Moyet suggested they order food from a taco stand about 10 feet north of the tavern. Because the night was cold, the two men returned to the tavern after they ordered their food and waited just inside the door. During the 20 minutes they were there, three men entered, including defendant. Velazquez had never before seen any of the three men. Approximately 10 other people were in the tavern.

According to Velazquez, defendant “bumped into” Moyet and “called a gang name, Ambrose, you know.” Moyet and defendant “exchanged words,” and Moyet “started arguing because [defendant] pushed him.” Velazquez saw defendant put his right hand inside his pants at the waist. Thinking defendant was reaching for a gun, Velazquez punched him; defendant did not fall. Defendant drew a gun, pointed it at Moyet, and shot him. Defendant, who was 10 feet from Velazquez, then pointed the gun at him and fired; the bullet hit Velazquez’s shoulder near the collarbone. Velazquez picked up a bar stool to protect his face, and he felt another bullet hit his finger. Velazquez threw aside the bar stool after he noticed that defendant had wounded one of his own friends, who had tried to stop the shooting. Defendant and his companions then left.

Altogether, Velazquez heard more than five shots. He saw no one other than defendant with a gun. He heard someone tell the owner of the tavern to pull out his gun, but the man did not do so. After being shot, Moyet, who had gone to the rear of the tavern but returned to the front, was bleeding from the neck.

Chicago police officer Ronald Guin testified that he arrived at the tavern in response to a call and saw Moyet’s body lying on the floor, bleeding from the neck, about three or four feet from the entrance door. He saw “a trail of blood from the front of the tavern all the way to the back.” He recovered two spent bullets and seven bullet casings from various locations inside and outside the building; he also found a bullet hole in the rear wall of the tavern, which was approximately 60 or 70 feet from the entrance.

Two other Chicago police officers also testified. Detective Bedford Eveland conducted a lineup in June 1988, more than four years after the shooting, at which Velazquez identified defendant. On cross-examination, Eveland denied that defendant had been wearing glasses on the night of the lineup or that he had asked defendant to remove his glasses. Sergeant James Antonacci, who investigated the shooting, testified that after he reviewed reports by other police officers, he interviewed Velazquez, Marco Alverez, whom defendant later named as his companion on the night in question, and four other people. After these interviews, Antonacci prepared a stop order and then an arrest warrant for defendant. When the State repeatedly asked Antonacci to explain the connection between his investigation and his search for defendant, defense counsel objected and the court sustained the objections. Antonacci also commented that, just after the shooting, Velazquez told him that the three men had exited a yellow station wagon while he was outside the tavern and that his assailant had hazel eyes and a light complexion.

The stipulated testimony of the forensic pathologist, Dr. Joanne Richmond, was that Moyet died from a gunshot wound to the neck, at the area of the carotid artery. He was shot from the front, with no evidence of close-range firing.

After the State rested and the circuit court denied defendant’s motion for a directed verdict, defendant himself testified. On the night of the shooting, he and a friend, Marco Alverez, had gone to the tavern to purchase liquor; he had never been there before. Only 17 at the time, he nevertheless had been drinking beer with Marco and others earlier in the evening. Marco entered the building alone, and defendant noticed two men, one of whom was Velazquez, standing outside in front; the two men “started talking and pointing behind [Marco’s] back” and followed him inside. Defendant became suspicious and went inside to warn Marco about the two men. When defendant entered, Moyet was only four or five feet away, talking to the person behind the bar. Moyet turned and began cursing defendant. Defendant and Moyet argued for a few seconds, and then someone tapped defendant on the shoulder. Defendant turned, was struck by an unknown person, and fell. He then rose, dazed and scared, and ran out the door. As he was running, he heard two or three shots. He denied shooting, or even having, a gun; he saw no weapon in Moyet’s hands. The day after the shooting, he went to Mexico, where he lived with his family for four years. Defendant stated that he is five feet seven inches, has greenish-brown eyes, and always wears glasses. At the lineup, he said, the police removed his glasses.

After the jury returned guilty verdicts on murder, attempted murder, and aggravated battery, the court found that the aggravated battery conviction merged with the attempted murder conviction and sentenced defendant to 28 years for the murder and to a concurrent 18 years for the attempted murder.

I

Defendant’s first challenge to his convictions is that his sixth amendment right to confront witnesses was violated because the State improperly incorporated references to statements by nontestifying eyewitnesses to bolster Velazquez’s identification of defendant. This error, he claims, warrants reversal. Defendant faults especially the prosecutor’s questions to Antonacci about his investigation. These questions elicited testimony that after Antonacci read other officers’ reports from the night of the shooting, he interviewed a number of people, including Marco Alverez and Velazquez, and that within two days of these interviews, he began looking for defendant. Within a week of the shooting, Antonacci issued the stop order for defendant. A month later, he obtained an arrest warrant. In particular, defendant objects to the following line of questioning:

“Q: Now, the arrest warrant that you had issued, was that based upon information that you had gathered from your interviews—

[Defense attorney]: Objection.

Q: —with various persons and records you had read?

[Defense attorney]: Objection.

THE COURT: Sustained.

A: Yes

[Defense attorney]: Objection.

THE COURT: Sustained.

A: I am sorry, your Honor.

THE COURT: Sustained.

Q: [Assistant State’s Attorney]: What was that arrest warrant based upon?

[Defense attorney]: Objection

THE COURT: Sustained.

Q: [Assistant State’s Attorney]: Okay.

* * *

Q: Why were you in [defendant’s] neighborhood looking for him?

[Defense attorney]: Objection as to why.

THE COURT: Sustained.

Q: [Assistant State’s Attorney]: Well, sergeant, did you have any information, personal information, that caused you to be in the neighborhood looking for him?

A: Yes, sir.

[Defense attorney]: Objection.

THE COURT: Sustained.”

The State, claims defendant, impermissibly accentuated this point in its closing argument by connecting its explanation of circumstantial evidence with the following comments about Antonacci’s testimony:

“Sergeant Antonacci testified and *** told you what he did in conducting his investigation. That is important for you to know what he did. We’re not trying to hide anything from you. We’re trying to let you know that there were persons who were there at that bar. There was testimony, ladies and gentlemen, and you heard it from Officer Guin that there were ten people in that bar.
Sergeant Antonacci *** was following up on his responsibility and duty. He went out to interview those people and that is what he testified to. He put it together for you. We didn’t want to leave any gaps for you. He talked to those persons. He said, [‘]yes, I talked to Mr. Alverez. I talked to these various other people.[’]
Detectives Harrington and Peterson also had the name of this defendant ***.”

In combination, defendant asserts, the improper questioning and argument is capable of only one inference and thus had the natural effect of informing the jury that the nontestifying detectives and interview subjects identified defendant as the offender. Worse yet, maintains defendant, the close connection between the State’s mention of circumstantial evidence and Antonacci’s testimony told the jury that it should take such statements into account as circumstantial evidence. As such, the State’s conduct constitutes constitutional error, he claims, even if the hearsay was merely insinuated rather than actually spoken at trial. The State’s behavior here is particularly egregious, defendant insists, because Velazquez’s identification was “vague [and] generic,” and admission of hearsay identification testimony is reversible error when used to bolster a weak identification.

The State’s initial response is that defendant waived this issue by not objecting to the argument and not including it in his post-trial motion. Should this court choose to address the merits, however, the State continues, the challenged testimony was not hearsay because, as the prosecutor explained in a sidebar at trial, the testimony was being offered not for its truth but to inform the jury of Antonacci’s conduct during the investigation and his response to information. Moreover, only the fact of the interviews and Antonacci’s resultant action were elicited, not the content of the interviews. Ultimately, argues the State, the natural effect of the testimony at issue was to recount Antonacci’s investigatory steps rather than to tell the jury about out-of-court identifications. Even if a jury might have concluded from the challenged remarks that the nontestifying declarants were eyewitnesses who named defendant as the perpetrator, the State notes, only one of those interviewed (Marco Alverez) was later identified as an occurrence witness, so this is just one of a number of possible explanations for Antonacci’s conduct.

Defendant replies that the issue is reviewable even though not perfectly preserved because he objected at trial to this line of questioning or, alternatively, that this court may review it as plain error. Defendant contends that other possible interpretations of the questions are beside the point because of the number of improper questions and the prosecutor’s suggested interpretation during closing argument.

We agree with defendant that the right to confront accusing witnesses is so fundamental that its alleged violation would fall within the embrace of the plain error doctrine, making it reviewable under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). As the State suggests, however, no violation occurred here because the testimony the State sought to elicit is not hearsay.

“When a police officer testifies as to the fact that he had a conversation with an individual and that he subsequently acted thereon, without revealing the substance of the conversation, that testimony does not amount to hearsay. [Citations.] This type of testimony is based on the officer’s personal knowledge and is competent to show his investigatory procedure. [Citation.] Where such testimony is confined strictly to the officer’s physical activities, the bare occurrence of the conversation and the testimony is subject to cross-examination, this evidence is not within the legal definition of hearsay.” (People v. Wilson (1988), 168 Ill. App. 3d 847, 850, 523 N.E.2d 43, 45, appeal denied (1988), 122 Ill. 2d 592, 530 N.E.2d 262.)

As the Illinois Supreme Court stated in People v. Henderson (1990), 142 Ill. 2d 258, 304, 568 N.E.2d 1234, 1256, cert. denied (1991), _ U.S__, 116 L. Ed. 2d 189,112 S. Ct. 233:

“[Testimony recounting the steps taken in a police investigation is admissible and does not violate the sixth amendment, even if a jury would conclude that the police began looking for a defendant as a result of what nontestifying witnesses told them, as long as the testimony does not gratuitously reveal the substance of their statements and so inform the jury that they told the police that the defendant was responsible for the crime.”

Henderson teaches that mere insinuation that out-of-court declarants have identified a defendant as a perpetrator does not trigger sixth amendment protection — the content itself of such declarations must be revealed, directly or indirectly, before the right to confront witnesses is implicated. Here, as in Henderson, there was nothing for defendant to cross-examine because defense counsel’s timely objections, which the circuit court sustained, prevented the jury from hearing the content of the conversations. Thus, ironically, defense counsel’s vigorous representation prevented the occurrence of a constitutional violation. Too, even if one natural effect of the questioning and argument was to allow the jury to infer that those interviewed had named defendant as the shooter, this was not the sole possible inference; instead, because the content of the interviews was not revealed and because only one of the interview subjects later was named, by defendant, as an eyewitness, the jury could have concluded that the interviews had established a connection between defendant and the crimes in some other way. (People v. Holman (1984), 103 Ill. 2d 133, 148-49, 469 N.E.2d 119, 126-27, cert. denied (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 2044.) Under these circumstances, we must reject defendant’s claim that he was deprived of his right to confront witnesses against him. Even if we were persuaded otherwise, as demonstrated below, application of the plain error doctrine would not warrant reversal because the error would have made no difference in the outcome of the trial.

II

During direct examination of Moyet’s wife, the prosecutor asked her the ages of her children at the time of the trial. When the prosecutor asked their ages at the time of the shooting, the defense objected on relevance grounds, but the court overruled the objection. Mrs. Moyet then said the children had been and in January 1984. The State also elicited her testimony describing pictures of Moyet, including one taken with one of his children. The court later refused to admit the picture into evidence, however, commenting: “You can’t just parade that in front of the jury.” The prosecutor also made passing mention of Moyet’s children during opening statement and closing argument; defendant objected to neither reference.

Defendant contends that the State improperly emphasized the plight of Moyet’s survivors, a wife and two young children. He particularly objects to the above testimony because such information is irrelevant to the charge of murder, and when it is coupled with family pictures, the State’s intent was plainly to “paint an excessively sympathetic picture of [Moyet].” Thus, defendant contends, in a case such as this, in which the verdict turned on the complaining witness’ credibility as opposed to that of defendant, error in the admission of such irrelevant, inflammatory evidence warrants a new trial.

The State again responds that defendant waived this issue by not objecting at trial to each of the statements he now challenges. On the merits, the State argues that the remarks are too minimal to have affected defendant’s trial result. Defendant responds, as above, that this court has the power to review this issue despite his not having preserved it.

Even if we determine that defendant did not waive this issue, a review on the merits would offer him little help. To be sure, evidence or comment about a victim’s family has no bearing on guilt or innocence. To be deemed reversible error, however, such remarks must result in substantial prejudice to a defendant. (People v. Sanders (1988), 168 Ill. App. 3d 295, 300, 522 N.E.2d 715, 720, appeal denied (1988), 122 Ill. 2d 589, 530 N.E.2d 259.) In this context, the question is whether the family information was made to appear material or was used to inflame the jury. People v. Barrow (1989), 133 Ill. 2d 226, 274-75, 549 N.E.2d 240, 260, cert.0 denied (1990), 497 U.S. 1011, 111 L. Ed. 2d 767, 110 S. Ct. 3257.

At trial, Moyet’s survivors were mentioned four times: in the State’s opening statement, the prosecutor noted that Moyet “had two little children, ages three and four”; the prosecutor inquired about the length of the Moyets’ marriage and asked the ages of the children in 1984 and in 1988; a picture with Moyet, his wife, and one of his children was described; and at closing, the prosecutor mentioned that Moyet and Velazquez “had families. They had children.” These remarks are not “melodramatic” or “significantly inflammatory,” nor did the State dwell in its closing argument on the images of a young widow with two innocent, fatherless children. Moreover, the circuit court, as noted above, refused to admit into evidence the picture of Moyet with one of his children upon defense counsel’s objection to it as too sympathetic. Because the references to Moyet’s family were “sufficiently brief and curtailed so as not to constitute a passionate appeal to the jurors’ sympathies,” we cannot agree with defendant that the comments so prejudiced him that he did not receive a fair trial. People v. Bass (1991), 220 Ill. App. 3d 230, 252, 580 N.E.2d 1274, 1289; People v. Easley (1992), 148 Ill. 2d 281, 333-35; compare People v. Spika (1992), 229 Ill. App. 3d 189, 198 (information about victim was innocuous, making error, if any, harmless), with People v. Logan (1991), 224 Ill. App. 3d 735, 739-43, 586 N.E.2d 679, 682-85 (testimony and argument about victim’s family, if made to appear material to culpability, constitute reversible error).

III

Defendant next contends that he was denied a fair trial because the State made the “prejudicially improper and unfounded” insinuation, by its questions as well as in its opening statement and closing argument, that defendant was a gang member and that the crimes were gang-related. He argues that prejudice against street gangs is so strong that evidence of gang membership or activity may not be introduced absent a demonstrable connection between a defendant’s gang membership and the crime at issue. Although the prosecutor observed in opening remarks that just before firing, defendant “shouted out a gang slogan, Ambrose love,” defendant claims that the State never presented competent evidence that “Ambrose” was a gang slogan, that defendant was a gang member, that the shooting was gang-related, or that the shooter shouted “Ambrose love” as opposed to just “Ambrose.” Instead, defendant argues, Velazquez made only a passing reference to the word during his direct testimony when he said that defendant had “called a gang name, Ambrose, you know,” and merely replied “yeah, yeah, correct” when the prosecutor prompted him on redirect examination, as part of a leading question incorporating other facts, to agree that defendant had shouted “Ambrose love” just before he began shooting. Defendant also criticizes the State’s references to gangs in the State’s closing argument:

“Here is this defendant. He goes in there. He had been drinking. He has got a gun. He is boisterous, bumps into somebody, Ambrose Love. I mean is it something unusual? It is something that we in our own experience know about day in and day out. We know about gang activities. We know about gang slogans.”

Defense counsel objected and the court sustained the objection. A few moments later, however, the prosecutor revisited this theme:

“[Velazquez] is a person who is relatively street wise. He lives on Chicago Avenue here in Chicago. He knows what is going on in the street. When he saw this defendant after hearing him say Ambrose Love, what do you think went into his mind[?] I will let you decide what went into his mind. Who does he think this person was?”

To rid the convictions of the alleged taint brought about by unsubstantiated gang references, defendant urges us to reverse his convictions and to remand for a new trial.

The State counters that defendant once again waived the issue by not objecting to Velazquez’s testimony during trial and, in any event, evidence of gang-related activity may be admitted if otherwise relevant and admissible, especially to provide a motive for behavior as otherwise inexplicable as the crimes here. The State asserts that Velazquez’s testimony establishes that defendant himself cried out “Ambrose love,” and that further testimony at trial established that “Ambrose” is the name of a street gang. As for the prosecutor’s remarks at closing, the State insists that they were based on the relevant and admissible evidence that defendant yelled a gang slogan before drawing his gun.

In reply, defendant distinguishes People v. Calderon (1981), 98 Ill. App. 3d 657, 424 N.E.2d 671, in which “King love” was yelled out before a street fight, because (1) the State presented no proof here that defendant was a gang member; (2) the only evidence that “Ambrose” is a gang name came from Velazquez; and (3) the State, not defendant, raised the specter of a gang connection here. Defendant draws analogies to People v. Smith (1990), 141 Ill. 2d 40, 565 N.E.2d 900, in which the Illinois Supreme Court reversed a conviction because the State had raised the issue of gang activity, not to illuminate the jury as to contested facts, but rather to arouse the jury’s prejudices.

The rule on admission of evidence of gang membership is well settled:

“[Ejvidence indicating the defendant was a member of a gang or was involved in gang-related activity is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act. [Citations.] Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.” Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.

See also People v. Gonzalez (1991), 142 Ill. 2d 481, 489, 568 N.E.2d 864, 867 (“[G]ang-related evidence will not necessarily be excluded if it is otherwise relevant and admissible”); People v. Williams (1992), 228 Ill. App. 3d 981, 989-90 (gang-related evidence admissible to demonstrate motive); People v. Mendez (1991), 221 Ill. App. 3d 868, 875, 582 N.E.2d 1265, 1270-71, appeal denied (1992), 143 Ill. 2d 644, 587 N.E.2d 1021.

In Smith, the court found that no evidence supported the State’s theory that the crime was gang-related, so the only purpose in admitting evidence of a gang connection was an impermissible one — to inflame the jury’s passion or arouse its prejudice against the defendant. Here, unlike Smith, there was evidence that the crimes were gang-related because Velazquez testified that “Ambrose” was indeed the name of a gang and that defendant had shouted “Ambrose love” just before shooting Moyet. Defendant did not object to Velazquez’s testimony that defendant said the word “Ambrose” or the phrase “Ambrose love,” nor did defendant contest Velazquez’s characterization of the word, either by questioning Velazquez on cross-examination or by offering evidence that the word had another meaning. Accordingly, we cannot say that the evidence was incompetent or inadequate. Defendant also did not deny during his own testimony that he had said the word or the phrase, evidence that the jury could have weighed against Velazquez’s testimony. In addition, defendant neglected to ask for a cautionary instruction limiting the jury’s consideration of this piece of evidence.

In sum, we cannot say that the implication, that one who shouts a gang name is a gang member who is acting out of gang-related concerns, was unfounded. Although we agree with defendant that evidence of gang activity may be introduced only if it is somehow connected to the crime at issue (People v. Hairston (1970), 46 Ill. 2d 348, 372, 263 N.E.2d 840, 854, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658), defendant himself made the requisite connection by speaking the words during the incident. As a result, because the uncontradicted evidence was that defendant, prior to the shooting, spoke a phrase that was identified as a gang slogan, the prosecutor committed no error in highlighting it in both opening and closing remarks. Even if it were error, such error would not be reversible in light of the evidence against defendant. People v. Easley, 148 Ill. 2d at 329-30.

IV

Defendant argues that because this case was, in his opinion, a swearing contest between himself and Velazquez, the cumulative impact of the errors alleged above, even if not reversible individually, denied him a fair trial when combined with the State’s characterization of the defense during closing argument as one “of desperation and distortion” that was only “a shiny silver dollar” compared to the State’s more valuable “crumpled $500 bill.” He also objects to the State’s criticism of the defense’s closing argument as a mandate to the jury to “think like children,” “forget about the evidence and the law,” and accept an invitation to concentrate only on “naked speculation.” Defendant notes that courts have repeatedly condemned such attempts by the State to characterize a defense as a fraud or an attempt to “confuse, fool, mislead, or otherwise trick the jury.” Because, the testimony of the sole testifying occurrence witness out of 10 people in the bar, Velazquez, was so “weak, contradictory, and inconsistent with much of the physical evidence,” he claims, the totality of the errors affected the verdict, warranting a new trial.

The State argues first that defendant waived his opportunity to appeal this point by not challenging the remarks at trial or in his post-trial motion. It also disagrees that this was a close case, characterizing the evidence against defendant as overwhelming. It observes that errors are reversible only if the verdict would have been different in their absence. Noting that closing arguments may address facts directly proved or fairly and reasonably inferred therefrom, the State asserts that it stayed within the bounds. It distinguishes the cases defendant cites, characterizing them as extreme examples of prosecutorial misbehavior against which the comments here “pale in comparison.” The State also emphasizes that the prosecutor referred only to defendant, not his counsel.

As the Illinois Supreme Court observed in People v. Emerson (1983), 97 Ill. 2d 487, 502, 455 N.E.2d 41, 47, quoting Duffy v. Cortesi (1954), 2 Ill. 2d 511, 517, “[w]here guilt or innocence depends entirely on the credibility of an accuser and the defendant, no error should be permitted to intervene. ‘Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial.’ ” Here, however, the jury heard an impressive quantum of evidence of defendant’s guilt: after over four years, Velazquez was able to pick defendant out of a lineup with no apparent difficulty; he gave a moment-by-moment account of the incident itself as well as of the events that led up to it; and his description of his assailant at the time of the incident was consistent with defendant’s appearance in 1984. Moreover, defendant’s own version of the incident substantially corroborated the version given by Velazquez; the only significant difference was defendant’s role as the shooter, a fact not likely to be misrepresented by Velazquez. Accordingly, we hold that, on this record, there is no ground for reversal because even eliminating the accumulation of the errors alleged, including the prosecutor’s disparaging remarks during closing argument, would not have led the jury to a different result. People v. Williams (1992), 228 Ill. App. 3d 981, 1013-14.

V

In the State’s closing argument, the prosecutor described attempted murder as “when [a person] with intent to commit the offense of attempt [sic], does any act which could be a substantial step towards the commission of the offense of murder.” Shortly thereafter, the court gave the jury the following instructions:

“A person commits the offense of attempt when he with the intent to commit the offense of murder does any act which constitutes a substantial step towards the commission of the offense of murder.
The offense attempted need not be committed.
To sustain the charge of attempt, the State must prove the following propositions.
First, that the defendant performed an act which constituted a substantial step for the commission of the offense of murder; and
Second, that the defendant did so with the intent to commit the offense of murder.
¡it * *
A person commits the offense of murder when he kills an individual if in performing the acts which caused the death, he intended to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual, or he knew that his acts created a strong probability of death or great bodily arm [sic] to that individual.”

Defendant contends that these jury instructions did not make sufficiently clear that a specific intent to kill “is the pivotal element of the offense” and that an intent to cause mere great bodily harm is not enough to form a basis for conviction. He asserts that an almost identical instruction was held to be reversible error in People v. Nuno (1990), 206 Ill. App. 3d 160, 563 N.E.2d 1165, and People v. Kraft (1985), 133 Ill. App. 3d 294, 298, 478 N.E.2d 1154. Even though defendant did not object to the instructions at trial, he argues, the waiver rule is inapplicable because specific intent is an essential element of the crime at issue and thus cannot be waived.

The State first argues that the waiver rule applies because defendant made no contemporaneous objection to the instructions. The State adds that any error was harmless because the circumstances here make defendant’s intent to kill Velazquez unquestionable. Finally, the State argues, because vacatur of the conviction for attempted murder would have no effect on defendant’s overall prison term, this court need not consider the issue.

Because the alleged error in the instruction addresses an essential element of the offense, which could have affected defendant’s substantial rights, we review it even though defendant proffered no objection at trial. 134 Ill. 2d R. 615(a).

In People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963, the court warned that

“a trial court instructing a jury on the crime of attempted murder must make it clear that specific intent to kill is the pivotal element of the offense, and that intent to do bodily harm, or knowledge that the consequences of defendant’s act may result in death or great bodily harm, is not enough.” (157 Ill. App. 3d at 903, 510 N.E .2d at 966.)

Under Gentry, courts must communicate to a jury the unambiguous message that an intent to cause any result other than death will not suffice for conviction for attempted murder. Here, the court instructed the jury that to convict defendant of attempted murder, it had to find that defendant had acted with an intent to commit murder; it then defined murder as, among other things, killing another with the intent to inflict (or knowledge of the likelihood of) great bodily harm. From this combination of instructions, the circuit court did not make it sufficiently plain to the jury that specific intent to kill was a prerequisite to a verdict of guilty on this charge. Thus, giving this instruction was error.

The error, however, was harmless. Unlike Nuno, there is no indication that the jury here was confused by the interface between the instructions. In addition, by firing a gun at Velazquez from a distance of only 10 feet, defendant conveyed an unmistakable intent to kill him. (People v. Wilson (1991), 224 Ill. App. 3d 364, 367, 586 N.E.2d 547, 549; People v. Mendez (1991), 221 Ill. App. 3d 868, 876-77, 582 N.E.2d 1265, 1271.) Moreover, defendant never disputed that the requisite intent existed, contending only that he was not the perpetrator. Thus, because a proper instruction on attempted murder would have made no difference in the outcome of defendant’s trial, we find no resultant prejudice. People v. Solis (1991), 216 Ill. App. 3d 11, 20, 576 N.E.2d 120, 125, quoting People v. Bryant (1984), 123 Ill. App. 3d 266, 274, 462 N.E.2d 780, 786 (if intent to kill is evident from the circumstances, erroneous intent instruction does not warrant reversal).

For all the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.

      Antonacci also said that he spoke with someone at defendant’s address who said his name was Raul Silva. In a sidebar, defense counsel objected to admission of Raul’s statement that he was defendant’s brother, denying that it was so. The court sustained the objection, but Antonacci mentioned it in response to the State’s question whether Raul responded to a request for his name.

      We must stress that we hold only that the State’s thwarted effort to bring out this testimony is not a ground for reversal in this case. We emphatically do not condone the prosecutor’s behavior — indeed, we find reprehensible the State’s repeated efforts to elicit evidence that the circuit court so plainly had ruled inadmissible by sustaining objection after objection.


author: JUSTICE MURRAY

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Appellee and Cross-Appellant, v. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER, Defendant-Appellant and Cross-Appellee.
    First District (5th Division)
    No. 1—91—2119
    Opinion filed June 26, 1992.

      George F. Galland, Jr., of Davis, Miner, Barnhill & Galland, P.C., of Chicago, for appellant.
    Tressler, Soderstrom, Maloney & Priess, of Chicago (Francis A. Spina, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This appeal stems from a declaratory judgment action brought by Hartford Accident and Indemnity Company (Hartford) against Rush-Presbyterian-St. Luke’s Medical Center (Rush). Hartford, both the primary and excess coverage insurer, sought a determination as to its obligation to indemnify Rush in the event that Rush was held liable in a medical malpractice action filed against it. The trial court held that Hartford was relieved of its duty to indemnify Rush under both policies due to Rush’s failure to give Hartford timely notice of the malpractice suit. Rush appeals this ruling only as to the excess coverage and Hartford cross-appeals the trial court’s refusal to grant prejudgment interest. For reasons that follow, we reverse the trial court’s judgment in favor of Hartford on the excess policy and remand so that judgment may be entered in favor of Rush on the excess policy.

Background

On November 20, 1976, Garanda Eiland was admitted to Rush and subsequently gave birth to a daughter, Vemetta. It wasn’t until August 1984, however, that Vemetta Eiland, by her mother, filed a complaint against Rush (herein referred to as the Eiland case), alleging that Rush, through its agents, servants and employees, was negligent in monitoring Garanda’s labor and delivering Vemetta, causing Vemetta to sustain brain damage, shock to her bodily systems, and acute pain and suffering. As to damages, the complaint stated only that it was seeking damages in excess of the $15,000 minimum jurisdictional amount.

At the time the alleged malpractice took place, i.e., November 1976, Rush was insured by Hartford for both primary and excess liability coverage. The primary insurance policy provided coverage up to $1 million per occurrence and required immediate notice of any claim made or suit filed. The excess insurance policy provided coverage in excess of the $1 million primary policy up to $8 million per occurrence. The notice requirement under the excess policy reads as follows:

“Whenever it appears that an occurrence is likely to involve indemnity under this policy, written notice shall be given to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the occurrence, the names and addresses of the injured and of available witnesses.” (Emphasis in original.)

Despite the fact that Rush was required to give immediate notice to Hartford under the primary policy, Rush’s general counsel failed to notify Hartford upon being served with summons and complaint in the Eiland case. Instead, Rush’s general counsel referred the case to the private law firm of Lord, Bissell & Brook (Lord, Bissell). Harold Jacobson (Jacobson), a partner at Lord, Bissell, filed an appearance on behalf of Rush and copies of Eiland’s medical records were sent to Lord, Bissell shortly thereafter. An investigation of the matter commenced immediately.

It should be noted that, upon review of the medical records, some discrepancies were observed in the complaint. Specifically, the complaint alleged that Rush was negligent in that it allowed Vernetta to be born by spontaneous vaginal delivery whereas the medical records indicated that an emergency Caesarian section had been performed. Also, one of the doctors named in the complaint apparently had no involvement in Vemetta’s delivery. Accordingly, there was at least some basis for Rush to question its liability.

Additionally, although Lord, Bissell undertook the defense of the case and immediately sought discovery of information concerning the alleged malpractice, Eiland’s attorney apparently delayed in providing discovery. Consequently, Rush argues, it was without information concerning the seriousness of the damages that Vernetta suffered, other than the allegations made in the complaint, and could not accurately evaluate the case or assess its liability potential.

In September 1985 Eiland’s counsel filed a form-type pretrial memorandum with the trial court in which a $10 million settlement demand was made. Rush contends, however, that this memorandum was vague and lacked sufficient detail to add much to its knowledge of the case and, thus, did not assist it in assessing its liability potential. Answers to interrogatories, filed by plaintiff in January 1986, were also deemed to be of little help in evaluating the case. In fact, Rush indicates that an accurate evaluation of the Eiland case and Rush’s damage exposure potential was not made until much later, after March 1986, when a physician who had attended Vernetta’s birth had been interviewed and other data concerning the extent of Vernetta’s injuries had been obtained. Upon receipt of this information, a 12-page letter was composed on May 16, 1986. This constituted the first “formal” evaluation of the case and at this time Jacobson opined that Rush’s liability exposure could exceed $1 million.

In April 1986, just prior to the written evaluation but nearly 20 months after the complaint had been filed, Rush discovered its oversight and notified Hartford of the Eiland suit with respect to both layers of coverage. Upon being notified of the Eiland suit, Hartford responded, reserving its rights under both policies. It also undertook its own evaluation of the case. A claims agent was assigned to review the materials and assess Rush’s liability potential.

For some reason Hartford’s claims agent was not aware of the May 1986 written evaluation of the Eiland case composed by Lord, Bissell. Therefore, the initial evaluation which was completed by the claims agent in July 1986 noted that more information was needed about the plaintiff’s damages to make a proper assessment. Consequently, the reserve set by Hartford of $50,000/35,000 was deemed adequate at that time. After considering the pertinent information, Hartford set a new reserve in August 1986 of $1 million, with a $750,000 reserve on the excess policy.

In December 1986, while the Eiland case was progressing toward trial, Hartford filed a declaratory action, seeking a determination that it was not obligated, under either the primary or the excess policy, to indemnify Rush with regard to the Eiland suit based upon Rush’s failure to timely notify it of the claim. In January 1987, after trial in the Eiland case had begun, a $6 million settlement was reached. Pursuant to a nonwaiver agreement with Rush, Hartford funded the settlement, paying $1 million under the primary policy and $5 million under the excess policy. Hartford then amended its declaratory action to seek reimbursement of the entire $6 million amount from Rush. Hartford moved for summary judgment in its favor with regard to both the primary and excess policies. Rush, however, sought summary judgment in its favor with regard to the excess policy. The trial court ruled in favor of Hartford under both policies, but declined to grant Hartford prejudgment interest. Rush appeals the decision with respect to the excess policy and Hartford appeals the trial court’s decision concerning prejudgment interest.

Opinion

Summary judgment is properly granted only when the pleadings, depositions and admissions, together with any affidavits on file, show that there is no genuine issue of material fact and it is clear that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c); Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 41, 572 N.E.2d 1258.) Summary-judgment should not be granted where there is a dispute as to material facts or, where the facts are undisputed, reasonable minds might draw different inferences from the facts. Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 498 N.E.2d 867.

In this case we are asked to review the trial court’s grant of summary judgment in favor of Hartford on the excess policy. The trial court determined that Hartford’s indemnification of Rush under the excess policy was contingent upon Rush’s compliance with the relevant notice provision. The notice provision indicated that Rush was required to give notice “as soon as practicable,” “whenever it appeared] that an occurrence [was] likely to involve indemnity under the policy.” Thus the trial court found that Rush was required to notify Hartford under the excess policy when it appeared likely that (1) Rush would be held liable and (2) liability would exceed $1 million.

However, the trial court also held that such contingencies would never appear likely to an insured who closed its eyes to the facts and circumstances before it. Consequently, the trial court determined that Rush’s actions were to be measured by an objective standard of reasonableness and that Rush, being a “sophisticated” insured, should have known immediately upon being served with the Eiland complaint that its liability could exceed $1 million. Therefore, a 20-month delay in notifying Hartford was unreasonable and, as a matter of law, fatal to Rush’s claim for indemnification.

Although both parties contend that the material facts on this issue are not in dispute so that summary judgment was proper (see Atlanta International Insurance Co. v. Checker Taxi Co. (1991), 214 Ill. App. 3d 440, 574 N.E.2d 22; Grasso v. Mid-Century Insurance Co. (1989), 181 Ill. App. 3d 286, 536 N.E.2d 977 (where the facts are undisputed, whether notice was given within a reasonable time is a question of law for the court to decide)), it is the trial court’s resolution of the matter upon which the parties disagree.

Hartford contends that summary judgment in its favor was appropriate since, under the attendant circumstances, Rush did not comply with the notice condition contained within the excess coverage policy, i.e., that Rush did not notify Hartford of the Eiland case within a reasonable length of time. Notwithstanding a lack of prejudice due to the delayed notice, Hartford argues that its obligation to indemnify Rush under the excess policy was negated by Rush’s failure to comply with the notice provision and that this court should uphold the trial court’s decision on appeal.

Rush, on the other hand, contends that this court should reverse the trial court and grant it summary judgment in its favor because, whether measured subjectively or objectively, it complied with the notice provision contained within the excess coverage policy with Hartford. In the alternative, Rush argues that the grant of summary judgment to Hartford should be reversed even if notice is deemed to be untimely because Hartford was not prejudiced by the timing of the notice.

This court finds that summary judgment was improperly granted to Hartford and, instead, should have been granted to Rush. Therefore, for reasons that follow, we reverse the trial court’s grant of summary judgment in favor of Hartford and enter judgment in favor of Rush.

There are three Illinois cases which are cited to by the parties and which provide guidance in the resolution of the issue here. The cases are Brownlee v. Western Chain Co. (1979), 74 Ill. App. 3d 804, 393 N.E.2d 515, Sisters of Divine Providence v. Interstate Fire & Casualty Co. (1983), 117 Ill. App. 3d 158, 453 N.E.2d 36, and Atlanta International Insurance Co. v. Checker Taxi Co. (1991), 214 Ill. App. 3d 440, 574 N.E.2d 22. Each of these cases involved the interpretation of a notice provision in an excess insurance policy and required a determination of whether the insured had complied with the provision.

In Brownlee the court quoted with favor the decision in Greyhound Corp. v. Excess Insurance Co. (5th Cir. 1956), 233 F.2d 630, which stated that because an excess insurer usually does not undertake the defense of the insured, the excess carrier does not typically require notice unless it appears likely that the claim will involve the excess. Consequently, such notice provisions contemplate the exercise of some judgment on the part of the insured in evaluating the case. (Brownlee, 74 Ill. App. 3d at 810.) The Greyhound court held that, based upon the wording of the notice provision in that case, a duty of notice was imposed upon the insured at the time that the insured should have anticipated, through the exercise of due diligence and the pursuit of information concerning the claim and the amount of damages, that the excess would be implicated. Nevertheless, the Brownlee court held that the notice provision in its case did not impose a duty of due diligence to inquire into the seriousness of the case. The Brownlee court noted that conditions inserted into insurance policies are to be construed most favorably to the insured. Therefore it held that the notice provision, which stated “[wjhenever the insured has information from which the Insured may reasonably conclude that an occurrence *** is likely to involve this policy” referred to the insured’s actual knowledge of information which “raise the spector of excess liability.” (Emphasis in original.) Brownlee, 74 Ill. App. 3d at 811-12.

In Sisters, the notice provision was nearly identical to the one in Brownlee, requiring notice “[wjhenever the insured has information from which the insured may reasonably conclude that an occurrence *** is likely to involve this policy.” (Sisters, 117 Ill. App. 3d at 159.) The court in Sisters, however, reversed summary judgment in favor of the insured, finding that because the insured had actual knowledge that the claim could involve the excess in 1977, but delayed notifying the excess carrier until 1980, more than three years later and only one month before trial began, the insured breached the insurance policy.

Finally, in Atlanta the reviewing court reversed a grant of summary judgment in favor of the excess insurer. The notice provision in this case required the insured to notify the insurer “immediately” of “any accident or occurrence which appears likely to result in liability under this policy.” (Atlanta, 214 Ill. App. 3d at 442.) The Atlanta court reiterated the propositions that (1) excess insurers do not undertake the defense of the case and therefore do not require notice until it appears likely that the excess policy will be implicated and that (2) the notice provisions in excess policies contemplate the exercise of some judgment on the part of the insured in evaluating the case. Consequently, the Atlanta court held that the issue was “[a]t what point should Checker [the insured] reasonably have known that excess insurance coverage would be implicated?” (Atlanta, 214 Ill. App. 3d at 444.) The court resolved this question by finding that, despite a two-year “delay” in providing notice of the claim, notice was reasonably given after a settlement demand made during pretrial conference implicated the excess policy and the parties found they were unable to negotiate a settlement within the limits of the primary coverage. The Atlanta court held that, unlike the situation in primary coverage, the duty to give notice to an excess insurer does not ripen until the insured reasonably believes it likely that a claim under the excess insurance policy may be made. (Atlanta, 214 Ill. App. 3d at 446.) The lack of prejudice suffered by the excess insurers due to the delay was also considered.

After viewing all three of these cases, we must conclude that the trial court erred in determining that Rush breached the excess insurance policy. The issue here is not whether Rush would have been wiser to have notified Hartford of the claim earlier, as the trial court seemed to hold. Obviously, had Rush notified Hartford immediately, as required by the primary insurance policy, all levels of insurance would have been put on notice and this matter would not be on appeal.

The real issue is whether Rush complied with the letter of the notice provision, construed against the insurer and in favor of the insured, and whether Rush should be required to lose its excess insurance coverage and Hartford be excused from indemnifying Rush simply because Rush did not evaluate its liability sooner, even though no prejudice resulted to Hartford.

In light of the cases cited above, we find that when the timeliness of the notice is challenged by an excess insurer and a court is asked to consider whether an insured has complied with the notice provision in an excess insurance policy which leaves the timing of the notice up to the discretion of the insured, the court must determine whether the insured abused the discretion granted it by the insurer, i.e., whether the insured acted unreasonably under the circumstances. The insured must show that notice was given when it concluded that the excess insurance policy was implicated and, if the facts are not in dispute, whether the insured acted unreasonably by withholding notice to the insurer up to that point, is a question of law for the court to determine. Furthermore, part of the equation in determining the reasonableness of the insured’s actions is whether the insurer has been prejudiced by the timing of the notice. Surely, the more prejudice that an insurer can show, the more likely it is that the insured’s failure to notify the insurer is unreasonable.

Applying these considerations to the present case, we find that Rush was not obligated to give notice to its excess coverage insurer until Rush reasonably determined that the probability existed that its liability would exceed $1 million and the excess coverage policy would be implicated. Rush asserted that it wasn’t able to reach such a conclusion until about March 1986 when it obtained the deposition of an attending doctor and information concerning the plaintiff’s damages. Shortly thereafter, in April 1986, it notified Hartford of the claim.

The reasonableness of Rush’s actions must be weighed by this court. In doing so this court considers the fact that, despite Rush’s knowledge of the complaint which indicated that the plaintiff suffered brain damage and despite plaintiff’s pretrial memorandum which proffered a settlement demand of $10 million, the able counsel evaluating the case for Rush indicated that he lacked sufficient information from which he could determine whether Rush’s liability would exceed $1 million and whether the settlement demand was merely posturing on the part of the plaintiff’s attorney.

We realize that, according to the recent case of Atlanta International Insurance Co. v. Yellow Cab Co. (7th Cir. 1992), No. 91 — 1610 (filed May 5, 1992), there would appear to be no need to consider whether Rush had sufficient information beyond the settlement demand. In Yellow Cab the insured (Yellow Cab) did not notify the excess insurance carrier (Atlanta) about a lawsuit filed against it until after the suit went to trial and a verdict which penetrated the excess layer of insurance coverage was entered. The district court in Yellow Cab held that Yellow Cab breached the notice provision which required the insured to “immediately advise the Company of any accident or occurrence which appears likely to result in liability under this policy and of any subsequent developments likely to affect the Company’s liability hereunder.” The district court found that the complaint filed against Yellow Cab, which contained an ad damnum which implicated the excess coverage, was a “subsequent development” likely to affect Atlanta’s liability, so that Yellow Cab should have given Atlanta notice at the time the lawsuit was filed. (Atlanta International Insur anee Co. v. Yellow Cab Co. (January 16, 1991), No. 90 — C—1542.) Because Atlanta was also prejudiced by the delay in notice (a settlement offer for an amount under the limit of the primary insurance coverage was rejected before Atlanta was ever notified of the claim), the court found that Yellow Cab’s failure to give Atlanta notice until after trial precluded Yellow Cab from recovering under the excess policy.

The Seventh Circuit Court of Appeals affirmed the district court but, reviewing the decision de novo, made a different interpretation of the situation. It found that Yellow Cab’s receipt of the complaint containing an ad damnum which exceeded the primary coverage and penetrated the excess coverage sufficiently informed Yellow Cab that Atlanta’s excess policy might be implicated, so that notice should have been given to Atlanta under the “appears likely” notification provision.

Although this conclusion would provide a “bright line” solution to the dilemma of determining when notice should be given, we disagree with the conclusion of the Seventh Circuit Court of Appeals and do not believe its interpretation of the notice provision conforms to Illinois law. Under the Seventh Circuit’s decision, Rush would have been required to give Hartford notice at the time that the $10 million settlement demand was made, regardless of whether Rush had sufficient additional information to make an informed decision about the reasonableness of the settlement demand. However, this is not what the notice provision, construed in favor of the insured and against the insurer, required.

We note that the insurer could have easily included language in the notice provision which required notice whenever the excess coverage was implicated. However, it did not do this. For this reason we do not believe that we should read into the provision this requirement. The “appears likely” notice provisions grant the insured greater discretion in deciding whether liability under the policy is likely, not just possible. Therefore, we believe that some consideration must be given to the insured’s investigation and evaluation of the case and the reasonableness of the insured’s actions within this context.

Consequently, in the case at bar, we consider the fact that the time between the date the claim was filed and the date that notice was given to Hartford was spent by Rush, and the counsel assigned to represent it, gathering information to aid in the assessment of the case and that Rush did not sit idly by, allowing the case to languish. We also find it to be important that Hartford’s interests were protected by the actions taken by Rush, that trial did not take place for several months after Hartford was given notice, and that Hartford had more than ample time to make its own investigation of the case after notice was given.

In light of these circumstances and the lack of prejudice to Hartford, we find that Hartford should not be excused from making payment under the excess insurance policy. As in Atlanta, we do not believe the insurer, who granted the insured the right to exercise discretion in deciding when notice should be given, should be allowed to escape liability because, with hindsight, it can state that notice could have been given sooner.

Because of our decision regarding the timeliness of Rush’s notice, we need not consider Hartford’s cross-appeal of the trial court’s refusal to grant prejudgment interest.

The judgment of the trial court is reversed and the cause remanded so that summary judgment may be entered in favor of Rush on the excess policy.

Reversed and remanded.

McNULTY, P.J., and LORENZ, J., concur.

      Perhaps the explanation for Rush’s failure to give Hartford prompt notice of the Eiland case is that after 1977 Rush no longer purchased primary liability coverage from Hartford or any other insurance company. Instead, Rush self-insured its own primary coverage.