author: JUSTICE COCCIA JUSTICE PINCHAM,

text:
    FLOYD JOHNSON, Plaintiff-Appellant, v. HILTON HOTEL CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—86—2604
    Opinion filed September 8, 1989.
    Rehearing denied December 5, 1989.
    PINCHAM, J., dissenting.
    Donald R. Brewer, of Dundee, for appellant.
    Brydges, Riseborough, Morris, Franke & Miller, of Chicago, for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff-appellant Floyd Johnson alleged in his unverified complaint that on March 2, 1983, he was injured while a patron of the Biloxi Hilton Hotel. Johnson stated that while arising from a chair located in the hotel lobby, his leg became entangled in an electrical lamp cord, which was located under the chair, causing him to trip and fall. In his effort to recoup money damages for his injuries, he brought this suit against the defendants, Hilton Hotel Corporation (Hilton Hotel), the Omicron Corporation, and the Biloxi Hilton Hotel. His complaint included three counts, each count dedicated to one of the three defendants. Johnson charged that each defendant individually owned, operated, and managed the hotel in question, and that the negligence of each was a proximate cause of his injuries.

The defendants Omicron and Biloxi Hilton thereafter filed special and limited appearances and motions seeking to quash service of summons for lack of personal jurisdiction. These motions were granted and Omicron and Biloxi Hilton were dismissed from the suit. Johnson has taken no appeal from those dismissals.

Hilton Hotel filed a motion to dismiss, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 619). The trial court granted Hilton Hotel’s motion and dismissed Johnson’s complaint on the ground that, as a matter of law, Hilton Hotel owed no duty to Johnson. It is from this order of dismissal that he appeals.

We affirm the trial court’s order, and in support thereof state our reasons below.

Hilton Hotel, in support of its motion to dismiss Johnson’s complaint, filed a copy of the licensing agreement relating to the Biloxi Hotel property in question, together with the affidavit of Lloyd S. Harwell, senior vice-president for Hilton Hotel and a senior vice-president for Hilton Inns, Inc. (Hilton Inns). It is noteworthy that this agreement was neither mentioned in Johnson’s complaint nor attached thereto.

Harwell attested to the fact that he was familiar with the license agreement between the Hilton Inns and the Biloxi Hotel Properties, and that under this agreement the Biloxi Hotel Properties had the full and exclusive right and duty to operate the franchise. He further averred that at no time did either the Hilton Hotel or the Hilton Inns undertake to supervise, maintain, or provide janitorial services or maintenance services at the Biloxi Hilton.

In addition to the affidavit of Harwell, Hilton Hotel submitted the affidavit of John Yemelos, general partner of the Biloxi Hotel Properties and president of Omicron, who attested to the fact that the Biloxi Hilton was owned by Biloxi Hotel Properties Partnership, and that the Biloxi Hilton was managed by Omicron.

In further support of its motion to dismiss, Hilton Hotel tendered its verified answers to plaintiff’s written interrogatories. These answers establish the following facts. Hilton Hotel did not review the Biloxi Hilton’s operations. Hilton Hotel did not inspect the Biloxi Hilton to see whether it met the standards and reputation of the Hilton Hotel system. Hilton Hotel had no maintenance or engineering service agreements with the Biloxi Hilton from August 1973 to the time the interrogatories were answered; nor did it furnish architectural, interior design, and decorating services to the Biloxi Hilton during that time period. Hilton Hotel did not receive license fees under the licensing agreement between Hilton Inns, as licensor, and the licensee, Yemco Management Corporation, dated August 20, 1973. Finally, Hilton Hotel did not have correspondence with the Biloxi Hilton.

Along with Harwell’s affidavit, Hilton Hotels submitted a copy of the license and franchise agreement, which controlled the rights and duties of the parties thereto and the properties in question. The agreement established, and the record reflects, the following. The licensor was Hilton Inns, Inc., as distinguished from the Hilton Hotel Corporation. The licensee was YEMCO Management Corporation. The licensor (Hilton Inns) was a subsidiary of Hilton Hotel, a Delaware corporation. Hilton Hotel authorized the licensor, Hilton Inns, to grant licenses to selected, first-class, independently owned or leased hotel and inn properties for operation and to use the name Hilton as provided. The licensor, Hilton Inns, had specific duties under article 3 of the license and franchise agreement, which included reviewing the hotel’s operations periodically; inspecting and having the right, from time to time, to inspect the hotel; defending the name “Hilton” against imitations or infringements by unauthorized hotels or inns; and at licensee’s request, furnishing architectural, interior design, and decoration services. The licensee, YEMCO Management Corporation, had certain specific duties under article 5 of the aforementioned agreement, which included, inter alia, operating, furnishing, maintaining, and equipping the hotel and related facilities in a first-class manner; identifying itself as the owner and operator of the hotel under license from licensor in the use of the name and service mark “Hilton” and the stylized “H” service mark and in licensee’s signs and advertising and promotional material; disclosing in all dealings with suppliers and persons, other than guests, that it was an independent entity, and that licensor had no liability for its debts, and to refrain from using the name “Hilton” or any name similar thereto in or as part of its corporate or firm name; and operating the hotel directly by licensee. Finally, it was agreed that the license would be governed by the law of the State of Illinois.

Johnson failed to file any affidavits in opposition to those submitted by Hilton Hotel. Rather, he elected to stand on his unverified complaint, along with certain documents produced during discovery.

Nonetheless, Johnson now seeks to support his argument in search of reversal by stating that this court should pierce the corporate veil separating Hilton Hotel from the Hilton Inns. Johnson argues that a piercing of the corporate veil, which he asserts is necessary to hold Hilton Hotel liable for the actions of its subsidiary Hilton Inns, includes certain factual determinations which are for the trier of fact; thus, a section 2 — 619 dismissal is inappropriate. Johnson has, however, waived any claim that Hilton Hotel’s liability can be predicated upon the theory of piercing the corporate veil, as he failed to raise this theory below in any form. Therefore, he cannot do so for the first time on appeal. See Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 404-05, 442 N.E.2d 338, 342.

Johnson next argues that defendant Hilton Hotel’s contention that it lacked an ownership interest, and had no duty to control the premises on which the plaintiff was injured, is clearly a question of fact to be determined by a jury; therefore, section 2 — 619 dismissal is inappropriate. Johnson, nevertheless, failed to demand trial by jury. Hilton Hotel did demand trial by jury, but Johnson concedes in his reply brief that he could not prevent Hilton Hotel from trying the case without a jury, given his failure to demand one. Accordingly, on the record before us, Johnson is not entitled to a jury’s resolution on any of the issues in the case.

Be that as it may, it is settled that the Hilton Hotel’s motion to dismiss raises a question of law which was properly submitted to the trial judge for resolution. The trial judge was in the best position to determine whether there were any factual questions to be resolved. He considered the motion to dismiss, which was based on the argument that Hilton Hotel had no direct or indirect ownership interest in the subject premises, or any right to control, police, inspect, supervise, or maintain them. Thus, Hilton Hotels asserted, it owed no duty whatsoever to Johnson.

It is fundamental that whether Hilton Hotel owed Johnson a duty is a question of law; furthermore, it is proper to raise this question in a section 2 — 619 motion to dismiss. See Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 488 N.E.2d 623.

Johnson submits to us the case of Drummond v. Hilton Hotel Corp. (E.D. Pa. 1980), 501 F. Supp. 29, in support of his argument that, in our case, factual questions preclude dismissal. A close reading of Drummond leads us to conclude that it is inapposite. Drummond was a diversity case, in which Pennsylvania law was applied. The district court held that the defendant was not entitled to summary judgment, since there were material issues of fact concerning the existence of an agency relationship between the defendant and the subject premises’ record owner. In this case, as set forth above, Hilton Hotel was not a party to the licensing agreement between Hilton Inns, as licensor, and the YEMCO organization, as licensee.

More to the point, plaintiff in Drummond resisted defendant’s motion for summary judgment on the grounds of apparent agency. Johnson, in our case, raises that doctrine in support of his argument. We point out that he failed to plead apparent agency in his complaint, neglected to seek leave to amend to add this theory, and did not raise it below in any form. As a consequence, Johnson has waived any claim that Hilton Hotel’s alleged liability may be predicated upon the theory of apparent agency. Thus, like the piercing of the corporate veil theory, he cannot now raise apparent agency for the first time on appeal. See Miscevich, 110 Ill. App. 3d at 404-05, 442 N.E.2d at 342.

Finally, regarding the licensing agreement, we note that there is no reference therein to Hilton Hotel as the licensor. Rather, the instrument is clear that the licensor is Hilton Inns and the licensee is YEMCO Management. Plaintiff did not name Hilton Inns as a defendant, and he did not plead vicarious liability in any of its forms.

For all of the stated reasons, we affirm the circuit court. The record reveals that Hilton Hotel had no direct or indirect ownership interest in the subject premises and no right to control them. Consequently, it owed Johnson no duty.

Affirmed.

LORENZ, J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. This appeal is by plaintiff Floyd Johnson from the dismissal of his complaint against the defendant, Hilton Hotel Corporation (Hilton Corp.). The dismissal of defendant Hilton Corp. was based on Hilton Corp.’s assertion that it did not own, control, manage or operate the defendant Biloxi Hilton Hotel in which plaintiff Johnson was injured. Johnson accurately argues that Hilton Corp. wanted and exercised control over Biloxi Hilton but sought to avoid the attendant legal responsibilities and liabilities and that the trial court erred in granting defendant Hilton Corp.’s motion to dismiss.

Plaintiff Johnson’s complaint was based on negligence against Biloxi Hilton Hotel, the Hilton Corp. and Omicron Corporation, defendants. Count I of Johnson’s complaint alleged that defendant Hilton Corp. “owned, operated and managed” the defendant, Biloxi Hilton Hotel. Count II alleged that defendant Omicron Corporation “owned, operated and managed” the defendant Biloxi Hilton Hotel. (Emphasis added.) The Hilton Corp. was served with summons, and its attorney-filed an appearance and a jury demand. Thereafter defendant Hilton Corp. responded to Johnson’s complaint with a motion to dismiss, which incorporated the provisions of and had attached thereto the franchise agreement that was in effect between defendant Biloxi Hilton Hotel and defendant Hilton Hotel Corp. Hilton Corp.’s motion to dismiss alleged, inter alia:

“2. That on March 2, 1983, the Biloxi Hilton Properties was a separate and distinct corporation from the Hilton Hotel Corporation. Attached hereto and incorporated herein is a copy of the Hilton Licensing Agreement documentation reflecting the grant of a license and franchise to Biloxi Hotel Properties.
* * *
4. The Hilton Hotel Corporation has no direct or indirect ownership interest [sic] and therefore owes no duty to the plaintiff herein.
5. Furthermore, the defendant, Hilton Hotel Corporation had neither the right, duty nor in fact did it undertake to control, police, inspect, supervise or maintain the premises located at the Biloxi Hilton Hotel Properties. ” (Emphasis added.)

Specific provisions of the franchise agreement referred to in defendant Hilton Corp.’s motion to dismiss and on which I rely in this dissenting opinion are hereafter set forth. I likewise hereafter set forth the specific pertinent provisions of the affidavit of Lloyd S. Harwell, senior vice-president of defendant Hilton Corp. and Hilton Inns, which were also submitted in support of Hilton Corp.’s motion to dismiss.

While I agree with the majority that plaintiff cannot now claim, for the first time on appeal, that Hilton Corp. is liable under a piercing of the corporate veil theory, in that it is elementary that arguments and theories never raised in the trial court may not be raised for the first time on appeal (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 473 N.E.2d 588), I disagree with the majority and Hilton Corp.’s contention that Hilton Corp. lacked an ownership interest in and did not control or maintain the Biloxi Hilton Hotel premises in which plaintiff was injured. These were questions of fact properly determinable by a jury or by the trial judge as the trial fact finder. Therefore, in my judgment, the dismissal order under section 2 — 619 was improper.

The affidavit of Hilton Corp.’s senior vice-president, Lloyd Harwell, submitted in support of Hilton Corp.’s motion to dismiss, stated:

“2. In my position as Senior Vice President, Hilton Inns, Inc., I am familiar with the license arrangements between Hilton Inns, Inc., a subsidiary of Hilton Hotels Corporation, and the Biloxi Hotel Properties;
3. [T]hat pursuant to the Licensing Agreement, the Biloxi Hotel Properties has the full and exclusive right and duty to operate the franchise;
4. [T]hat at no time has either Hilton Hotels Corporation or Hilton Inns, Inc., undertaken to supervise, maintain or provide janitorial services or maintenance services at the Biloxi Hilton Hotel Properties.” (Emphasis added.)

These assertions in the affidavit of Hilton Corp.’s senior vice-president Harwell, “that at no time has either Hilton Hotel Corporation or Hilton Inns, Inc., undertaken to supervise, maintain or provide janitorial services at the Biloxi Hilton Hotel properties,” are diametrically contradicted by the provisions of the franchise agreement between the Biloxi Hilton Hotel, the Hilton Corp. and Hilton Inns, hereinafter set forth. The franchise agreement on which Hilton Corp. relies in its motion to dismiss to establish that Hilton Corp. did not “operate, maintain or control” Biloxi Hilton Hotel not only contradicts, but indeed the franchise agreement affirmatively indicates that Hilton Corp. did “operate, maintain or control” the Biloxi Hilton Hotel, as plaintiff Johnson alleged in his complaint.

The franchise agreement initially provides that the Hilton System is a subsidiary of the defendant Hilton Hotel Corp. and that the Hilton System is the licensor in the franchise agreement. Defendant Biloxi Hilton Hotel is the licensee in the franchise agreement. According to the first paragraph of the franchise agreement, the defendant Hilton Corp. and its subsidiaries expressly manage and control “a system of Hilton *** hotels and inns.” It is provided in the franchise agreement:

“[Hjilton Hotel Corporation *** own, lease, operate and manage a system of Hilton *** hotels and inns ***.”

Second, the franchise agreement provides that the defendant Hilton Corp. controls the name and the name insignia of the defendant Biloxi Hilton Hotel, and clearly, intentionally and expressly so indicated such to the business and public world, for obvious business and publicity advantageous reasons to both defendants Hilton Corp. and Biloxi Hilton. Regarding Hilton Corp. controlling the Hilton name and the Hilton name insignia at the Biloxi Hilton, the franchise agreement provides:

“Licensee [Biloxi Hilton] hereby acknowledges Licensor’s [Hilton Corp.] and Hilton’s exclusive rights to and interest in the System and to its present and future distinguishing characteristics, and Licensor’s and Hilton’s exclusive rights to such characteristics. These characteristics include the names ‘Hilton Hotels,’ ***, ‘Hilton,’ *** and ‘Hilton Inn’ ***. Licensee hereby acknowledges that these *** characteristics have acquired a secondary meaning which indicates that the hotel [or] inn, *** is operated by or with approval of Hilton.” (Emphasis added.)

Thus the franchise agreement expressly admits that the Hilton Hotel name and insignia “indicate[ ]” that the Biloxi Hilton “is operated by” Hilton Corp. Additionally, the franchise agreement requires the Hilton Corp. to “defend the name ‘Hilton’ against imitation or infringements by unauthorized hotel[s] or inns.”

The franchise agreement also confers upon Hilton Corp. the right and duty to periodically review the defendant Biloxi Hilton’s operation procedure and to consult Biloxi Hilton on its operation procedures or problems. The franchise agreement states that the Hilton Corp. shall “[r]eview the [Biloxi] Hotel’s operations periodically during each operating year and consult with Licensee from time to time on operating problems concerning the [Biloxi] Hotel.”

Another ingredient of the Hilton Corp.’s control of the Biloxi Hotel expressed in the franchise agreement is Hilton Corp.’s obligation and authority to inspect the Biloxi Hilton Hotel to preserve the Hilton system’s standards. The franchise agreement provides that the Hilton Corp. shall “inspect and have the right, from time to time to inspect the [Biloxi] Hotel so as to maintain the high standards and reputation of the [Hilton] System.” (Emphasis added.)

The franchise agreement also requires the Hilton Corp. to set up and issue an identification, advertising, accounting and operating manual to and for the Biloxi Hilton Hotel’s guidance and performance. It is stated in the franchise agreement that the Hilton Corp. shall “issue *** an operating manual *** which shall set out Licensor’s [Hilton Corp.’s] services and the policies, practices and standards of the [Hilton] System for [Biloxi] hotel and motel operation, identification, advertising and accounting.”

Hilton Corp. was obligated under the franchise agreement to furnish Biloxi Hotel “maintenance and engineering services” at the Biloxi Hotel’s request.

The franchise agreement obligated Hilton Corp. at Biloxi Hotel’s request to “use its best efforts to obtain insurance for the [Hilton Corp.] Hotel.” Pursuant thereto, Hilton Corp. held insurance certificates in varying amounts up to $10 million on Biloxi Hotel properties and was the insured beneficiary in Biloxi Hotel properties insurance policies dating back to 1975 and up to the date of plaintiff’s injuries.

It is apparent from the foregoing provisions and requirements of the franchise agreement that Hilton Corp. had extensive control and maintenance over Biloxi Hilton Hotel’s operation which contradicted the contrary assertions of Hilton Corp.’s motion to dismiss and the affidavit of Hilton Corp.’s vice-president, Lloyd Farwell, submitted in support of Hilton’s dismissal motion. Certainly these aforementioned provisions of the franchise agreement merited plaintiff Johnson an opportunity to further establish by evidence at trial the extent and specifics of Hilton Corp.’s control over the operation, management and maintenance of Biloxi Hilton. Thus, the trial court erred in granting Hilton Corp.’s motion for summary judgment on its asserted but contradicted grounds that it had no control over the operation, management and maintenance of the Biloxi Hilton. Hilton Corp. had the benefit, power and pride of control but now seeks to avoid payment of the price therefor.

In an analogous case, Drummond v. Hilton Hotel Corp. (E.D. Pa. 1980), 501 F. Supp. 29, plaintiff was injured as a result of a fall in the Hilton Inn. Plaintiff filed a complaint against Hilton Corp. to recover damages for the injury. In response, Hilton Corp. moved for summary judgment and alleged, as in the instant case, that at no time did it maintain, own, control, or operate the hotel premises in which plaintiff was injured, that the owner of the hotel was the Creative Development Co. (Creative), a wholly owned subsidiary of the Gebco Investment Corporation. In Drummond, as in the instant case, a franchise agreement existed between Hilton Corp. and Creative. Plaintiff Drummond resisted Hilton Corp.’s summary judgment motion, asserting, as does plaintiff Johnson herein, that Hilton Corp. held itself out in such a manner as to lead the general public, including hotel guests, to believe that in the public and hotel guests relations with Hilton Inns they were dealing with Hilton Corp. or a servant or employee of Hilton Corp. In Drummond, the United States District Court denied Hilton Corp.’s motion for summary judgment and held “that whether Hilton [Corp.] held itself out to the public as the owner or operator of the Hilton Inn is a proper issue of fact for determination bu a jury.” (Emphasis added.) 501 E Supp. at 32.

Similarly, in the case at bar, the issue of whether Hilton Corp. held itself out to the public as the owner or operator or had control of the Biloxi Hilton Hotel were issues of fact for determination by a jury or the trial judge as the trial fact finder. The determination of these issues may be initially discerned from various sections and subsections of the franchise agreement between Biloxi Hilton Hotel and the Hilton Corp. The franchise agreement, as previously set forth, specifically states “Hilton Hotel Corporation *** own, lease, operate and manage, a system of Hilton *** hotel[s] and inns,” that Hilton Corp. has “exclusive rights to and interest in” the Biloxi Hilton Hotel and to such characteristics of the Hilton Corp. as the names “Hilton Hotels” and “Hilton,” that “these characteristics have acquired a secondary meaning which indicates that the hotel *** is operated by or with approval of Hilton” and describes certain responsibilities of Hilton Corp. as licensor. These duties and rights in the franchise agreement state that Hilton Corp. has “the right *** to inspect the [Biloxi Hilton] Hotel so as to maintain the high standards and reputation of the [Hilton] system” and at Biloxi Hilton’s request “use its [Hilton Corp.’s] best efforts to obtain insurance for [Biloxi Hilton] Hotel.” In fact, as indicated by the record before us and as previously mentioned, Hilton Corp. did obtain insurance for Biloxi Hilton Hotel properties and is the certificate holder of the insurance policies as well as named as an additional insured. However, Hilton Corp. in its motion to dismiss conversely maintained that it did not have “the right *** to *** inspect *** the premises located at the Biloxi Hilton Hotel properties.” Thus, there were presented material and genuine disputed questions of fact.

Whether Hilton Corp. had an interest in, controlled, managed or maintained the premises of the Biloxi Hilton Hotel were material questions of fact for determination at trial. Plaintiff Johnson was entitled to his day in court on this factual controversy. This factual controversy of Hilton Corp.’s control over Biloxi Hilton should not have been summarily determined as a matter of law by the trial court. The trial court’s allowance of defendant Hilton Corp.’s section 2 — 619 motion to dismiss was therefore clearly erroneous. The summary judgment dismissal order should be reversed and the cause should be remanded to the trial court for further proceedings. Accordingly, I dissent.

      The motion apparently intended to allege “in the Biloxi Hilton Properties.”


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE CURTIS et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—86—2619
    Opinion filed September 28, 1989.
    Appellant Rickey Jennings, rehearing denied October 27, 1989.
    Appellant Dwayne Curtis, rehearing denied November 30, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant Dwayne Curtis.
    Michael J. Pelletier and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellant Rickey Jennings.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Joseph G. Laspisa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial, defendants, Dwayne Curtis and Rickey Jennings, were found guilty of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4, 9 — 1), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2), three counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 4(a)), and conspiracy (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 2). Defendants were sentenced to 50 years for attempted murder, 50 years for armed violence, 10 years for three counts of aggravated battery, and seven years for conspiracy to commit murder. The sentences were to be served concurrently. The following issues are raised on appeal: (1) whether defendants’ joint trial was fair when their confessions, which were introduced at trial, implicated each other; (2) whether defendants were denied a fair trial by the testimony of the assistant State’s Attorney of the approved charges against Jennings and the judge-issued warrant for Jennings’ arrest; (3) whether defendants’ conduct was exceptionally brutal and heinous to justify extended-term sentences; and (4) whether defendants’ convictions for armed violence and aggravated battery should be vacated and remanded for resentencing.

We affirm in part and vacate in part and modify in part.

On October 16, 1984, at approximately 12:13 a.m., in Harvey, Illinois, Officer Denny LaBauex received a telephone call from a person identifying himself as “Mr. Jones.” He told LaBauex that he saw a suspicious person lurking around his car and requested that a police unit be sent to his home at 154 West 155th Place. Officers Lawrence Patterson and Arthur Williams, assigned to separate squad cars, were both dispatched to the location. Patterson arrived first. Using his spotlight to illuminate the area, Patterson saw a red car parked in the driveway, unoccupied. He did not see anyone in the immediate area. He then proceeded to drive down 155th Street. Having seen no one in the vicinity, he returned to 154 West 155th Place. He exited the car, carrying his flashlight. As he walked down the middle of the driveway, he was struck in his right side by a bullet. Patterson fell to the ground and took cover behind a nearby tree. He was unable to see who fired the shot.

Officer Williams arrived at the scene shortly thereafter. He had heard the shot as he was approaching the area. Williams found Patterson on the ground with a bullet wound. They both crawled to Williams’ squad car where he, by radio, requested assistance. Additional units arrived, but the police were unable to find Officer Patterson’s assailant.

Patterson was treated at Ingalls Hospital. Approximately 50 to 100 pellet wounds were embedded in his right arm and the right side of his chest. Based upon the medical testimony of Dr. Massoud Nourbash, who treated Patterson’s injuries, the pellets were not surgically removed since such removal would cause additional injury to his muscles and tissues.

At approximately 1:18 a.m., an evidence technician arrived at the scene to investigate the incident. A shotgun wadding was recovered from the edge of the driveway. The wadding was determined to be from a 20-gauge shotgun. Later that same day, Inspector Joseph Linkus of the Harvey police department made a cassette copy of the police emergency tape recordings, which contained the call received from Jones. Detective Edward Brooks, assigned to investigate the incident, took the tape and portable tape player into the area where the incident occurred and requested numerous individuals to listen to the recording for purposes of voice identification. On October 20, 1984, after six individuals had identified the voice on the recording, Brooks began looking for two suspects; one named Rickey Jennings and one known only as “Blow Head.”

On December 15, 1984, Detective Brooks again spoke with several persons in the same area and was informed that the person known as Blow Head was also known as Curtis, his surname. While having a conversation with Officer Steven Porter, Brooks learned that Blow Head and Dwayne Curtis were one and the same person and that he resided across the street from Officer Porter. Brooks requested Porter to ask Curtis, should he see him, to come to the police station for questioning concerning the incident.

On January 10, 1985, Porter and his partner observed Curtis in the vicinity of 160th and Paulina. They approached him and asked him to accompany them to the police station for questioning concerning the shooting of an officer. Curtis agreed. While the facts surrounding the questioning are contested, it is undisputed that Detective Brooks did interview Curtis on January 10. After Curtis was informed of his Miranda rights, he gave a written confession. In his own handwriting, Curtis stated that on the day in question he, Jennings, and Eugene Neal were drinking at the home of Jennings, 152 West 155th Place. They decided to shoot a police officer. They went into the basement of Jennings’ house and obtained two shotguns; Curtis took the 20-gauge shotgun and Jennings took the 16-gauge shotgun. Jennings made the prank call to the police department that someone was trying to steal his car at 154 West 155th Place. All three went to the address and hid alongside the house until an officer arrived. Jennings fired the shotgun, and they all ran back to Jennings’ house.

On the following day, Detective Brooks interviewed Curtis again. After being given his Miranda rights, Curtis gave a second written statement. In this second statement, Curtis admitted that he was the one who shot the officer. The rest of the statement remained the same.

Subsequently, Brooks contacted the felony review section of the State’s Attorney’s office. Assistant State’s Attorney Richard Cosentino came to the police station and was given a copy of Curtis’ second statement. Curtis was again given his Miranda warnings before making an oral statement to Cosentino. Cosentino asked Curtis if he would reduce his oral statement to writing. Curtis agreed. Cosentino drafted the statement and gave a copy to Curtis for correction of any inaccuracies. Curtis signed the statement without making any corrections. This statement was essentially the same as the second statement.

At approximately 9 p.m. on the same day, January 11, at the request of Cosentino, Curtis agreed to give a court-reported statement. This statement was also essentially the same as the previous two. In this statement Curtis stated that they had decided to shoot a policeman because the Harvey police department had been “hassling” them. Cosentino asked Curtis had he been forced, abused, or threatened to give the statements. He responded in the negative. Cosentino testified that he did not see any evidence of injury to Curtis. Thereafter, an arrest warrant was prepared and signed by a judge, authorizing the arrest of Jennings.

On April 17, 1985, Detective Brooks observed Jennings in the area of 157th and Lincoln Highway, in Harvey. He approached Jennings, identified himself as a police officer, and asked him his name. Jennings gave a fictitious name; however, because he fit the description of one of the persons involved in the shooting, he was taken to the police station. He admitted, en route to the station, that he was, in fact, Rickey Jennings.

At the police station Jennings was informed of his Miranda rights. He then gave an oral statement to Assistant State’s Attorney David Baitman. Jennings agreed to allow Baitman to reduce the statement to writing. After having the opportunity to review the statement for accuracy, Jennings signed it. His statement contained essentially the same information as the statements given by Curtis. He admitted burying the shotguns in a field behind his house. Jennings also stated that Curtis shot the police officer. The People rested their case.

Jennings neither testified nor presented any witnesses at trial. Curtis testified in his own behalf. He admitted being at Jennings’ house with Neal on the night in question; however, he denied that anyone left the house to shoot a police officer. He further alleged that Detective Brooks and other policemen used threats of force and actually repeatedly beat him to make him confess. On cross-examination he admitted that he did not inform the assistant State’s Attorney of the beatings. The attorney for Neal saw Curtis in a cell through a window. He saw no evidence that he had been mistreated. Both the court reporter who transcribed Curtis’ fourth written statement and the medical technician who examines incoming inmates testified that Curtis did not appear physically or mentally abused. Brooks testified that he did not threaten, force, or beat Curtis in order to elicit a confession.

After hearing all of the evidence, the jury found both defendants guilty. The court found the extended-term sentence provision applicable based on a finding that the offenses were exceptionally brutal and heinous behavior indicative of wanton cruelty. Accordingly, the court sentenced them each to 50 years for attempted murder, 50 years for armed violence, 10 years for three counts of aggravated battery, and seven years for conspiracy to commit murder. All sentences were to be served concurrently. This appeal followed.

Defendants contend that they were denied a fair trial. Relying on Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, and Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, Curtis argues that his sixth amendment right to confrontation was denied when the statement given by his nontestifying codefendant (Jennings) was admitted into evidence which implicated him in the crime. Therefore, Curtis claims that his trial should have been severed. Jennings argues that the introduction into evidence of the four statements of his codefendant (Curtis) which implicated him in the offense denied him a fair trial.

In Bruton, the Court held that a defendant is deprived of his rights under the confrontation clause of the sixth amendment when his codefendant’s incriminating confession is admitted into evidence at their joint trial, despite jury instructions that the confession is admissible only against the codefendant. (Bruton, 391 U.S. at 132, 20 L. Ed. 2d at 483, 88 S. Ct. at 1625-26.) In the plurality decision of Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132, the Court found that the confrontation clause was not violated if both defendants confessed, the confessions interlocked as to material facts, thereby reducing the prejudicial effect, and the jury was properly instructed. However, in Lee, the Court held that a codefendant’s confession is not necessarily reliable merely because some facts interlock with defendant’s statement. Finally, in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, the Court overruled the plurality decision in Parker. Consistent with Lee, the Court found that the interlocking nature of confessions is not relevant in determining whether jury instructions can or will be obeyed. (Cruz, 481 U.S. at 193, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718-19.) The Court stated:

“Quite obviously what the ‘interlocking’ nature of the codefendant’s confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant’s own confession it is more likely to be true. Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant. [Citation]. (Emphasis in original.) (Cruz, 481 U.S. at 192-93, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718-19.)

Accordingly, the Court held that a “defendant’s confession may be considered at trial in assessing whether his codefendant’s statements are supported by sufficient ‘indicia of reliability’ to be directly admissible against him *** despite the lack of opportunity for cross-examination.” Cruz, 481 U.S. at 193-94, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.

We find very few discrepancies between the statements of Curtis and Jennings. The only readily apparent inconsistency is where Curtis, in his first statement, denied shooting the police officer. However, after Detective Brooks informed him that his statement was inconsistent with the information he had obtained in his investigation, Curtis admitted using a 20-gauge shotgun to shoot the officer. The three subsequent statements made by Curtis all reiterated that he had a 20-gauge shotgun and that he was the one who shot the officer.

The confessions not only stated that Curtis shot the police officer, but they substantiated each other in essentially all respects to rebut the presumption of unreliability of a codefendant’s confession. Each statement noted that Curtis, Jennings, and Neal were at Jennings’ house on the night in question; they all agreed to shoot a police officer; Jennings placed the prank call to the police station in order to lure a police officer to the area; Jennings went into his basement and obtained two shotguns, one a 16-gauge and the other a 20-gauge; Curtis took the 20-gauge shotgun and Jennings took the other; Curtis and Jennings hid alongside the house at 154 West 155th Place, the address to which Patterson was dispatched; Neal was the look-out person; when Patterson arrived Curtis shot him, and they all ran back to Jennings’ house; Jennings, thereafter, hid the weapons.

We find that Curtis’ sixth amendment rights were not violated. Jennings’ statement implicating Curtis was supported by sufficient indicia of reliability to be directly admissible against Curtis, despite the fact that he did not have an opportunity to cross-examine Jennings. We also find the same sufficient indicia of reliability present in the four statements given by Curtis implicating Jennings in the offense. Generally, defendants jointly indicted are jointly tried unless prejudice to one defendant mandates severance. (People v. Daugherty (1984), 102 Ill. 2d 533, 541-42.) In ruling on a motion for severance, the court must determine the likelihood of prejudice at trial, and absent an abuse of discretion, the trial court’s decision will not be reversed. (Daugherty, 102 Ill. 2d at 541.) We find no such abuse in the present case.

In addition to analysis under the sixth amendment, we must also examine the admissibility of Curtis’ confession against Jennings under Illinois evidentiary law. In Lee v. Illinois (1986), 476 U.S. 530, 539, 90 L. Ed. 2d 514, 525, 106 S. Ct. 2056, 2061, the Court recognized that the sixth amendment analysis is distinct from an analysis under applicable State law with reference to the admissibility of codefendant’s confessions. The law is well settled in Illinois that codefendant’s statements which incriminate the defendant are incompetent evidence against the defendant, unless an exception to the hearsay rule is applicable. People v. Duncan (1988), 124 Ill. 2d 400, 413-14.

Jennings argues that the four statements of Curtis put into evidence implicating him in the offense constituted inadmissible hearsay evidence, therefore denying him a fair trial. In People v. Spicer (1979), 79 Ill. 2d 173, defendants Edward Spicer and James Phillips were jointly indicted. While in police custody, Phillips gave an unsworn signed statement implicating Spicer in the offenses charged. Phillips testified as a State witness in Spicer’s trial. Phillips acknowledged that he had signed the statement and that he had told the truth. Spicer’s attorney objected to the admission of the statement, but he did not cross-examine Phillips. The court held that the statements made by a witness out of court and out of the presence of a jury are “incompetent” hearsay. (Spicer, 79 Ill. 2d at 180.) Nevertheless, the court found that admitting Phillip’s statement was not reversible error, since the other evidence in the record established his guilt beyond a reasonable doubt. Spicer, 79 Ill. 2d at 182-83.

We find that the admission of Curtis’ statements was harmless error. The other evidence in the record was sufficient to establish Jennings’ guilt beyond a reasonable doubt. Although Jennings did not testify, his statement where he admitted participating in the offense was put into evidence. As mentioned above, his statement was essentially the same as those statements provided by Curtis. Jennings’ claim that he was forced to make and sign the statement is not an issue here on appeal. Thus, we find that both defendants were granted a fair trial.

Defendants’ next contention is that they were denied a fair trial by the testimony of the assistant State’s Attorney concerning the approved charges against Jennings and a judge-issued warrant for his arrest. Over defendants’ objections, Detective Brooks testified that subsequent to Curtis’ fourth statement he proceeded to procure a search warrant for Jennings. He explained that all felony charges require approval from the office of the State’s Attorney before a warrant can be issued. Therefore, he prepared an affidavit for an arrest warrant for Jennings, which was approved. He further testified that a judge issued the warrant for Jennings’ arrest. Defendants claim this testimony places a judicial imprimatur of guilt on them in the presence of the jury and, thus, is prejudicial.

Defendants rely on People v. Turner (1984), 127 Ill. App. 3d 784, and People v. Blissitt (1973), 12 Ill. App. 3d 551, to support their contention. In each case an assistant State’s Attorney testified that, based upon the information he had obtained, he recommended that charges be brought against the defendant. Each case held that it was improper and prejudicial error for a prosecutor to offer to the jury his belief that the defendant would not have been charged unless he was guilty.

Unlike Turner and Blissitt, in the instant case, it was not an assistant State’s Attorney testifying, but a member of the police department. As stated earlier, Detective Brooks had no authority to place charges against Jennings. Moreover, Detective Brooks was not testifying as to his personal opinion concerning Jennings’ guilt or innocence, as were the circumstances in Turner and Blissitt. He was merely testifying to the procedures required to obtain an arrest warrant. Even the prosecutor’s remarks are not reversible error unless defendant is substantially prejudiced thereby. (Turner, 127 Ill. App. 3d at 792.) The defendants do not provide nor do we find any evidence of prejudice to them. Hence, Detective Brooks’ testimony did not deny defendants a fair trial.

Defendants next contend that the trial court erred in sentencing them to extended-term sentences, pursuant to section 5 — 8—2 of the Uniform Code of Corrections (hereinafter the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2). They argue that their conduct was not exceptionally brutal and heinous so as to justify extended-term sentences.

The statutory extended-term provision relevant in this case authorizes the trial court to impose an extended-term sentence if the defendant has been convicted of a felony “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3.2(b)(2).) The sentence for a defendant convicted of either attempted murder or armed violence, both felonies, is 30 to 60 years if certain aggravating factors exist. One such aggravating factor is behavior that is exceptionally brutal or heinous indicative of wanton cruelty. Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—2(a), 1005 — 5—3.2(b)(2).

Exceptionally brutal or heinous behavior indicative of wanton cruelty does not require the application of torture or unnecessary pain inflicted upon the victim. (People v. La Pointe (1981), 88 Ill. 2d 482, 501.) The following factors have been demonstrative of such behavior: “defendant’s premeditated, senseless act in shooting the victim ***; the absence of any immediate provocation by the *** victim; *** defendant’s shooting of the victim with a shotgun at close range which obviously would result in death or grave and permanent injury to the victim.” (People v. McGee (1984), 121 Ill. App. 3d 1086, 1091.) Accordingly, the following law is clear in Illinois:

“[T]he trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed must be based upon the particular circumstances of each individual case. [Citation.] Such judgment depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age.” (People v. Perruquet (1977), 68 Ill. 2d 149, 154.)

Thus, the trial court’s sentence is granted great deference and weight, and absent an abuse of discretion, its sentence shall not be altered on review. Perruquet, 68 Ill. 2d at 154.

Here, defendants exemplified exceptionally brutal or heinous behavior indicative of wanton cruelty. Without any logical reason, defendants decided to shoot a police officer. Upon this decision they conspiringly set out to go forth with their plan. A police officer was lured to the area by a prank call placed by Jennings. Jennings supplied the weapons. They hid and waited for a policeman to arrive. Once the policeman arrived, Curtis shot him without regard to the possible fatality of his shot. Clearly, the senselessness, the premeditation, the possible fatality of such an act of violence evidence to this court exceptionally heinous behavior indicative of wanton cruelty.

Finally, the State concedes that it was error to impose extended-term sentences for armed violence and for aggravated battery when extended-term sentences were also imposed for attempted murder. Rather than remand this case for resentencing, we will vacate defendants’ extended-term sentences and convictions for armed violence (see People v. Payne (1983), 98 Ill. 2d 45) and vacate their extended-term sentences for aggravated battery and modify the sentences to five years (see People v. Jordan (1984), 103 Ill. 2d 192). We find no need to remand this cause for resentencing on the remaining convictions.

Accordingly, defendants’ 50-year extended-term sentences for attempted murder and their seven-year sentences for conspiracy to commit murder are affirmed; the convictions and extended-term sentences for armed violence are vacated; and the 10-year extended-term sentences for aggravated battery are vacated and the sentences are modified to five years. As part of our judgment, we grant the State’s request that defendants be assessed $75 as costs and fees for this appeal, pursuant to People v. Agnew (1985), 105 Ill. 2d 275, and People v. Nicholls (1978), 71 Ill. 2d 166.

Affirmed in part and vacated in part and modified in part.

LINN and McMORROW, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    VINCENT NALLY et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—2659
    Opinion filed October 19, 1989.

      James P. Nally, of Rallo & Tepper, of Chicago, for appellants.
    Raymond R. Pesavento, of Bullaro & Carton, Chartered, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Vincent and Roseann Nally, sued to recover damages for injuries sustained when Vincent Nally suffered hearing loss from exposure to ground aircraft noise at O’Hare International Airport. The defendants filed a section 2 — 615 motion to dismiss the complaint on the grounds that no duty existed because the danger posed by the noise was open and obvious. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) The trial court granted the defendants’ motion to dismiss, and the plaintiffs have appealed. They contend on appeal that the trial court erred in dismissing their complaint for failure to state a cause of action and in denying their motion to file an amended complaint.

The complaint alleged that Vincent Nally was a telephone repairman assigned to repair telephones in and around terminals, runways and other areas of O’Hare airport. His duties required that he travel to and from various parts of the airport, “including across and through and on airport runways and taxi strips.” The defendants issued Nally a pass to travel in these otherwise restricted areas and were aware of his presence in those areas. Several aircraft also traveled on the runways and taxi strips, frequently generating excessive and dangerous levels of noise.

On February 13, 1985, Nally was in his repair truck “on or near the main airplane taxi strip” in transit to an assignment on airport premises. At that time, a large jet aircraft passed down the main airplane taxi strip “revving its engines and thereby creating a dangerous and excessive level of noise.” The noise caused Nally to experience a sudden popping sensation in his ears with a subsequent loss in hearing capacity.

The complaint contained five counts. Count I sounded in negligence and alleged that the defendants breached the duty of care owed to Nally by failing to warn him of the excessive noise levels, by failing to prevent him from entering dangerous areas and by issuing him a pass to travel in areas restricted because of the dangerous levels of noise. Count II alleged willful and wanton misconduct, count III alleged breach of a statutory duty to maintain the airport in a reasonably safe condition and count IV alleged strict liability based on ultra-hazardous activity. Count V alleged loss of consortium by Vincent Nally’s wife Roseann Nally.

The defendants filed a section 2 — 615 motion to dismiss the complaint on the basis that no duty existed because the danger posed by ground aircraft engine noise was open and obvious. Following a hearing on the motion, the trial court dismissed the complaint. The plaintiffs subsequently filed a motion to reconsider, or in the alternative, to vacate the dismissal order with leave to file an amended complaint. The amended complaint attached to the motion cited the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 301 et seq.) and contained additional allegations that the defendants did not provide Nally with equipment sufficient to guard against excessive noise levels and failed to give notice of the conditions to persons entering the restricted areas. The amended complaint further alleged that Nally had no knowledge that a jet aircraft would be revving its engines and creating a dangerous and excessive level of noise in the area where he was located at the time of the occurrence and that he would not have entered that area had he known of the excessive and dangerous levels of noise. The trial court denied the plaintiffs’ motion for leave to file the amended complaint.

The plaintiffs first contend that the trial court erred in dismissing the complaint on the grounds that no duty existed because the danger posed by ground aircraft engine noise was open and obvious. The plaintiffs make two arguments in support of this contention. First, they maintain that the question of whether the danger was so obvious that the defendants could have reasonably expected Vincent Nally to discover and appreciate it was a question of fact which should not have been determined on a motion to dismiss. Second, they argue that even if the danger was open and obvious, the defendants should have anticipated that Nally acting as a reasonable person would have proceeded to encounter it despite the obviousness of the danger.

In support of the first argument, the plaintiffs cite Steinhauer v. Arnie Bauer Cadillac Co. (1988), 172 Ill. App. 3d 314, 526 N.E.2d 577. In Steinhauer, the plaintiff was directed to seat herself in a chair located near a half wall in the defendant’s sales office. As she did so, she struck her head on a ledge which protruded from the top of the wall. The trial court granted summary judgment in favor of the defendant on the grounds that the danger posed by the ledge was obvious. The appellate court reversed, holding that the determination of whether the ledge was so obvious that the defendant could reasonably expect the plaintiff to discover it and realize its danger was a question of fact and that summary judgment was therefore inappropriate.

We agree with the proposition stated in Steinhauer that the degree of care exercised by the plaintiff and the obviousness of the danger are ordinarily questions of fact. However, such questions of fact may be decided as a matter of law where reasonable men of fair understanding could not disagree as to the conclusions resulting from the facts. Morrison v. Forest Preserve District (1987), 155 Ill. App. 3d 687, 689, 508 N.E.2d 312.

The case at bar is clearly distinguishable from the fact situation presented in Steinhauer. In reaching its determination that the obviousness of the danger was a question of fact, the Steinhauer court noted that “the plaintiff cannot be charged with having entered the defendant’s property to conduct an activity which by its nature would have put her on notice of a potential danger. She was merely performing a common act at the invitation of [the] defendant when she was injured.” (Steinhauer, 172 Ill. App. 3d at 318, 526 N.E.2d at 579.) In contrast, the plaintiffs here alleged that Vincent Nally’s job required him to drive a truck across the runways at O’Hare airport. Given the open and obvious nature of the noise emitted by large jet aircraft and the potentially dangerous setting in which Nally worked, we believe that as a matter of law the plaintiff in the exercise of due care would have been able to discover and appreciate the danger. Thus, no duty existed. Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942.

The plaintiffs’ second argument, that a duty existed despite the obviousness of the danger, is based upon section 343A of the Restatement (Second) of Torts, which states as follows:

“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Restatement (Second) of Torts §343A(1), at 218 (1965).)

Section 343A of the Restatement thus recognizes that there are certain circumstances where, despite the obviousness of the danger, a possessor of land should anticipate harm to an invitee and warn or protect the invitee from the danger. The comments to the Restatement give two examples of such a situation: (1) where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it; or (2) where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. Restatement (Second) of Torts §343A, comment / at 220 (1965); Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 874, 423 N.E.2d 942.

The second situation is illustrated in the Restatement as follows:

“A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.” Restatement (Second) of Torts §343A, comment/, at 221 (1965).

Section 343A has been adopted in Illinois (see Shaffer v. Mays (1986), 140 Ill. App. 3d 779, 489 N.E.2d 35) and was relied upon in a Federal case cited by the plaintiffs, Jakubiec v. Cities Service Co. (7th Cir. 1988), 844 F.2d 470. In Jakubiec, the plaintiff truck driver was injured when he slipped off of a loading platform covered with ice and snow while attempting to fuel his truck. The reviewing court reversed a summary judgment in favor of the defendants, holding that although the slippery condition of the platform was obvious, it could not be said as a matter of law that the plaintiff acted unreasonably in encountering the danger since his only other choice was to forgo his assigned duties. (Jakubiec, 844 F.2d at 472.) Analogizing to the situation in Jakubiec, the plaintiffs here argue that the defendants should have anticipated that Vincent Nálly would choose to encounter the dangerous noise levels because he was required to travel in the restricted areas as part of his job.

The specific risk taken by Nally was driving along the main taxi strip at O’Hare airport at the same time and in close proximity to a large jet plane. No distraction is alleged which would have made Nally forget or fail to realize the danger posed by excessive noise levels on the airfield. The question then becomes whether the defendants should have anticipated that Nally would encounter the obvious danger, because to a reasonable man in his position, the advantages of doing so would outweigh the apparent risk. This is where we believe the instant cause becomes distinguishable from Jakubiec and the above-quoted illustration found in the Restatement. The very enormity of the risk posed by engine noise from large jet aircraft differentiates the risk here from the risk posed by a snow-covered platform or a waxed staircase. While a landowner might be expected to anticipate that a reasonable person would encounter the risk of walking on a slippery platform or staircase in order to do his job, we do not believe that the defendants here could anticipate that Nally would proceed to encounter a risk of this magnitude without taking some precautions to safeguard his hearing. Thus, we conclude that the defendants had no duty to warn Nally of the obvious danger or to take steps to protect him from it.

The plaintiffs next contend that the trial court erred in denying their motion for leave to file an amended complaint. The amended complaint cited the Premises Liability Act and contained allegations that the defendants did not provide Nally with equipment sufficient to guard against excessive levels of noise and failed to give notice of the conditions to persons entering the restricted areas. The amended complaint also alleged that Nally had no knowledge that a jet aircraft would be revving its engines and creating a dangerous and excessive level of noise in the area where he was located at the time of the occurrence and that he would not have entered that area had he known of the excessive and dangerous levels of noise. In our view, these additional allegations were insufficient to cure the original complaint’s failure to plead a duty on the part of the defendants.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

LINN and JOHNSON, JJ., concur.

      The plaintiffs have presented no argument on appeal regarding the dismissal of the strict liability count and have therefore waived review of count IV for purposes of this appeal. Zimring v. Wendrow (1985), 137 Ill. App. 3d 847, 848, 485 N.E.2d 478.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL DANIELS, Defendant-Appellee.
    First District (6th Division)
    No. 1—88—0355
    Opinion filed October 20, 1989.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Gael O’Brien, Assistant State’s Attorneys, of counsel), for the People.
    Randolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

The State appeals from a trial court order dismissing the indictment against defendant, Michael Daniels, for violation of the speedy trial statute. The State contends that the court improperly dismissed the indictment because the nolle prosequi sought and obtained by the State tolled the running of the speedy trial period.

On January 31, 1987, defendant was arrested for possession of a controlled substance and was taken into custody. On February 26, 1987, defendant appeared for a preliminary hearing. The court denied the State’s request for a continuance to await the laboratory report on the analysis of the seized substance. The State was allowed to nolpros the charges pending against defendant due to its inability to obtain the laboratory report.

On March 17, 1987, the laboratory analysis was complete. On August 12, 1987, an indictment was returned against defendant. Defendant moved to dismiss the indictment, alleging a violation of his right to a speedy trial. The court found the nolle prosequi did not toll the statute for speedy trial purposes and granted the motion to dismiss.

The speedy trial statute provides as follows:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant ***.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.
* * *
(d) Every person not tried in accordance with subsections (a), (b), and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.” (Ill. Rev. Stat. 1987, ch. 38, pars. 103 — 5(a) through (d).)

Thus, the statute by definition applies only to persons either in custody or on bail or recognizance. Accordingly, the speedy trial provisions are inoperative unless charges are pending against defendant. People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E.2d 1204; People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.

Defendant points out, however, that the speedy trial statute has been held to apply in those situations in which the charges against a defendant have been stricken with leave to reinstate (SOL). (See People v. Baskin (1967), 38 Ill. 2d 141, 230 N.E.2d 208.) Defendant maintains, and the trial court found, that the speedy trial provisions apply with equal force when a nolle prosequi has been entered on a charge. We believe the trial court erred in its conclusion.

When a charge has been stricken with leave to reinstate, the same charge subsequently may be reinstated. (People v. Toney (1978), 58 Ill. App. 3d 364, 374 N.E.2d 695.) In fact, the same charge continues to lie against the accused and may be resurrected upon the State’s motion at any time. (People v. Griffin (1978), 58 Ill. App. 3d 644, 374 N.E.2d 1031.) Accordingly, this court has held that the statutory speedy trial term continues to run after the charges have been stricken with leave to reinstate as long as defendant demands trial. People v. Griffin (1978), 58 Ill. App. 3d 644, 374 N.E.2d 1031.

When a nolle prosequi is entered on a particular charge, however, that charge is terminated, and the defendant is free to go wherever he pleases, without entering into recognizance to appear at any time. (People v. Watson (1946), 394 Ill. 177, 68 N.E.2d 265; People v. Woolsey (1989), 180 Ill. App. 3d 534, 536 N.E.2d 147.) It is true that the decision to nol-pros a charge lies within the discretion of the State and could be used to manipulate proceedings in the same way as an SOL. (People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.) Nevertheless, unlike the SOL, the nolle prosequi requires the institution of a new and separate proceeding to prosecute a defendant for that offense. (People v. Stinnett (1988), 166 Ill. App. 3d 1027, 520 N.E.2d 1204; People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.) After a nolle prosequi is entered on the charge against a defendant, that defendant is under no more jeopardy than any other citizen. Cf United States v. Flores (2d Cir. 1974), 501 F.2d 1356.

There are sufficient differences between an SOL and a nolle prosequi to warrant a conclusion that the statutory period of the speedy trial act is tolled by a nolle prosequi when the defendant is neither in custody nor on bail or recognizance. (See People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.) Thus, we find that the trial court improperly determined that defendant’s right to a speedy trial had been violated.

Significantly, we note that there is no evidence in the record to support defendant’s allegation that the nolle prosequi was an attempt by the State to evade the speedy trial act. At the preliminary hearing, the State sought a continuance because the crime laboratory had not completed the laboratory analysis. When the trial court denied this motion, the State elected to request a nolle prosequi rather than to proceed without the results of the laboratory analysis. In light of the probable cause requirements at the preliminary hearing (see People v. Bonner (1967), 37 Ill. 2d 553, 229 N.E.2d 527), we do not believe the State’s election was unreasonable.

Defendant urges affirmance based on the right to a speedy trial under section 8 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §8). Defendant maintains that constitutional protections must be invoked in this case because the State abused its nolle prosequi power in its attempt to evade the speedy trial act. Because we have determined that the record reveals no indication that the State was attempting to evade the speedy trial act when it requested a nolle prosequi, we need not consider defendant’s contention.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent with the holdings contained herein.

Judgment reversed and remanded.

EGAN, P.J., and QUINLAN, J., concur.


author: JUSTICE QUINLAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFREDO CASTRO, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3360
    Opinion filed October 27, 1989.

      Julius Lucius Echeles, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Carol A. Burkett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court;

The defendant, Alfredo Castro, was charged with possession of more than 30 grams of a substance containing cocaine with intent to deliver and was convicted of that offense in the circuit court of Cook County. The trial court denied defendant’s motion for a new trial and sentenced him to six years in the Illinois Department of Corrections. Defendant now appeals his conviction to this court.

On September 20, 1985, Chicago police officer Frank Garza executed a complaint for a search warrant based on an informant’s tip. Garza requested a search warrant for a male Latin named Alfredo who was approximately 30 years old, 5 feet 3 inches tall, 140 pounds, with brown eyes, a beard and a light complexion. Garza also specified that he wanted to search for cocaine and any controlled substances, as well as any items or documents showing proof of residence. Garza said that he had probable cause that the items would be found as stated based on a conversation with a reliable informant. Garza had known the informant for approximately three years and, in the past 18 months, the informant had given Garza information on three separate occasions which had resulted in three separate narcotics raids. Each raid had culminated in arrests and had yielded a substance that tested positively for cocaine.

Relevant to this case, the informant told Garza that he met with Alfredo on September 19, 1985, at Alfredo’s first-floor apartment located at 2915 W. Belden in Chicago, in order to purchase cocaine. Alfredo offered to sell the informant a quarter ounce of cocaine for $425, but the informant asked to sample the cocaine first. The informant told Garza that Alfredo then went to the back of his apartment and returned with a clear plastic bag containing what the informant estimated to be an ounce of cocaine. Next, Alfredo took a small amount of white powder out of the bag and gave it to the informant, who then told Alfredo that he would take it home to try it and, if he was satisfied with its quality, he would return for more. The informant told Garza that he tried the powder and, based on his frequent cocaine use in the past five years, he determined that the substance was cocaine. The informant also told Garza that he believed Alfredo was still in possession of at least one ounce of cocaine.

Based on Garza’s affidavit, the circuit court issued a search warrant for Alfredo and for Alfredo’s first-floor apartment at 2915 W. Belden in Chicago. Four Chicago police officers proceeded to 2915 W. Belden with the warrant. The officers searched the premises and discovered cocaine. When the officers discovered the cocaine, they arrested the defendant, Alfredo Castro.

Before his trial, the defendant filed a motion to suppress the evidence seized pursuant to the search warrant. In his motion, the defendant alleged that: Garza had no reason to believe his informant had ever been inside the defendant’s apartment because Garza made no effort to determine the truth of the informant’s claim; without Garza’s “misleading” affidavit, the search warrant would not have been issued; the warrant failed to state facts sufficient to show probable cause, failed to describe with particularity the person or premises to be searched, and failed to adequately state why a warrant should issue; Garza’s affidavit was based upon uncorroborated hearsay; and Garza’s affidavit contained allegations that were deliberate falsehoods or were made with a reckless disregard for the truth, and those false statements were necessary to a finding of probable cause to search.

Defendant also submitted three affidavits in support of his claim that Garza’s affidavit contained falsehoods. Defendant submitted his own affidavit, which stated that he worked from early morning until late afternoon on September 19, 1985, at St. Joseph’s Paper Company, where he had been employed for 13 years. Defendant said that when he returned home on that day, his wife and her family were already home. Defendant claimed that he ate supper, watched television and went to bed. During the time he was home, defendant said, no one came to his home, and, more specifically, no one came to his home to purchase controlled substances.

Carmen Castro, defendant’s wife, also submitted an affidavit in this case. She said that she resided with the defendant at 2915 W. Belden on September 19, 1985. Carmen claimed that she was home throughout the day on September 19 and that the defendant was at work from the early morning until the late afternoon. When the defendant returned home, Carmen said, he ate dinner, watched television and went to bed. Carmen stated that the defendant never left the house once he arrived home from work, and he did not receive any visitors or sell any controlled substances that day.

The third affidavit that defendant submitted was that of his stepson, Luis Munoz. Luis said that he was Carmen’s son and on September 19, 1985, he lived with Carmen and the defendant at 2915 W. Belden. Luis stated that in the late morning or early afternoon of September 19, a man came to the back door of the apartment and asked Luis if he “had anything.” When Luis asked the man what he wanted, the man asked if Alfredo was home. Luis said the man left when Luis told him that Alfredo was not home. Luis stated that he did not give the man anything, nor did anyone in Luis’ presence give the man anything. Finally, Luis said that he was 25 years old, 5 feet 8 inches tall, 170 pounds, with brown eyes and a light complexion. Luis also said that he occasionally wore a beard.

The trial court denied defendant’s motion to suppress and the case proceeded to jury trial. Officers Fernando Correa and Frank Garza both testified for the State. Their testimony was essentially the same and was as follows. Around 4:30 p.m. on September 20, 1985, the officers went to 2915 W. Belden with a search warrant and knocked on the door to the first-floor apartment. A young man answered the door, who the officers later determined was Luis Munoz. When the officers asked if Alfredo was home, Luis said “yes” and walked away. Another man then appeared and said he was Alfredo. The officers showed the defendant their search warrant and entered the apartment. The officers gathered all the occupants of the apartment into the front room and began their search in the front bedroom of the apartment.

Upon entering the bedroom, the officers saw an electronic scale, a brown glass jar labeled “Superior Inositol C6 H12 06,” and clear plastic sandwich bags on top of a dresser. Two clear plastic sandwich bags containing white powder were discovered in the top left drawer of that dresser. The officers conducted a field test on the powder which indicated the presence of cocaine. The officers testified that they then placed the defendant under arrest, read him his Miranda rights in English, and asked him to empty his pockets. A small paper packet containing white powder was discovered in the defendant’s wallet.

Following the arrest of the defendant, the officers returned to the front bedroom to continue searching. At this point, the officers said, the defendant told them that he slept in the front bedroom. The second search of the bedroom yielded three more paper packets of white powder, as well as a shoe box containing $5,300 in cash. The officers also found papers with the defendant’s name on them in the bedroom, including a bank statement and a traffic citation. The defendant then asked to speak with the officers and pulled them aside. The defendant told the officers that everything they had found belonged to him. Officer Correa stopped the defendant from speaking and repeated defendant’s Miranda rights in Spanish. The defendant said he understood his rights and again told the officers that the white powder was his and that no one else was involved. Finally, the officers testified that as they were leaving with the defendant, the defendant’s wife said to him, “I told you to stop selling that shit, but you won’t [sic] listen.”

The State also presented the testimony of Gerald Pazin, a forensic chemist for the Chicago police department crime lab. Pazin said that he had examined the evidence in this case and determined that it contained cocaine. Pazin testified that the total weight of the substance containing cocaine was 74.07 grams, or approximately 2lk ounces. Pazin also told the court that the brown glass jar labeled Inositol contained a sugar which, he knew from his experience, was used as a “cutter,” meaning it was used to dilute samples of cocaine or heroin in order to have a larger quantity to sell.

The State rested its case following Pazin’s testimony. Defendant’s first witness was Jeffrey Cole, the assistant controller for the St. Joseph Container Company (which defendant referred to as the St. Joseph Paper Company). Cole testified that the defendant punched out of work at 3 p.m. on September 19, 1985. He punched into work at 6:20 a.m. on September 20, 1985, and punched out again at 3 p.m.

Luis Munoz, defendant’s stepson, also testified on the defendant’s behalf. Luis said that he never heard the defendant ask to speak with the officers, nor did he see the defendant pull the officers aside. In addition, Luis told the court that as the officers were leaving with the defendant, his mother said to him (Luis), “I told you about this Luis, to stop, you know messing around with this stuff. Now see what you done [sic] to my husband.” Defendant’s attorney then asked Luis whether, on September 19, 1985, he had been convicted of possession. The State objected, and the trial court sustained the State’s objections. The defendant then made an offer of proof following Luis’ testimony. In the offer of proof, the defendant said that Luis had been convicted on March 27, 1985, of possession of less than 30 grams of cocaine and had been placed on probation for that offense. The defendant conceded, however, that the testimony was not offered to impeach Luis’ testimony, but was offered in an effort to assist the defendant.

The defendant’s wife, Carmen, testified next. She said that she lived with the defendant, Luis, Luis’ fiancee and Ramundo, a cousin, in the apartment at 2915 W. Belden on September 20, 1985. Carmen claimed that she and the defendant shared a bedroom in the back of the apartment, and Luis and his fiancee shared the front bedroom where the cocaine was discovered. Carmen testified that when the officers entered the apartment and gathered the occupants into the front room, they found Luis in the front bedroom. Carmen also denied telling the defendant to “stop selling that shit.” Carmen testified that, as the officers were leaving with the defendant, she told Luis that he had caused her husband this trouble. At this point in Carmen’s testimony, the State objected, and the court sustained the objection. The defendant then made another offer of proof. In this offer of proof, the defendant said that Carmen would testify that her son, Luis, had been placed on probation for possession of less than 30 grams of cocaine nine months before the defendant’s arrest, and as a condition of allowing Luis to live with her, Luis had agreed that he would not have any drugs in the house. Accordingly, Carmen’s statement to Luis when the defendant was arrested indicated that Carmen realized Luis had broken his promise to her.

The defendant also took the stand in his own defense. The defendant said that he was 31 years old in 1985. He testified that he and his wife used the back bedroom of their apartment, and Luis and his fiancee used the front bedroom. The defendant said that he had never used cocaine and denied that he had a packet of cocaine in his wallet when the police arrested him. The defendant also denied telling the police officers that he slept in the front bedroom or that the cocaine belonged to him. The defendant then testified that as the officers were escorting him out, he heard his wife tell Luis, “I told you to stop doing that — you have got [sic] Alfredo into trouble,” but defendant denied that his wife said anything to him concerning the cocaine.

Following the defendant’s testimony, the defendant rested his case. Defendant then asked the trial court to instruct the jury on the lesser-included offenses of possession and of possession of less that 30 grams of a substance containing cocaine, in addition to the instruction on possession of more than 30 grams of cocaine with intent to deliver, the crime with which he was charged. The court refused the defendant’s request to instruct the jury on the lesser-included offenses.

The defendant’s case was then submitted to the jury. As the jury was deliberating, it sent the court a note asking whether a person who allows a controlled substance into his house knowingly has constructive possession of that substance. The judge told the jury that he would not answer that question because he would be deciding the case for them if he did so. The jury found the defendant guilty of possession of more than 30 grams of a controlled substance containing cocaine, with intent to deliver. The trial court entered judgment on the verdict and sentenced the defendant to six years’ imprisonment. The trial court denied defendant's motion for a new trial and this appeal followed.

The defendant raises four issues on appeal. The defendant claims that the trial court committed reversible error in refusing to instruct the jury on the lesser-included offenses of possession and possession of less than 30 grams of a substance containing cocaine, the trial court committed reversible error when it denied him an evidentiary hearing on his motion to suppress, the trial court committed reversible error when it refused to allow him to introduce testimony of his stepson’s prior conviction for possession of cocaine, and the State failed to prove him guilty beyond a reasonable doubt.

We first address the defendant’s claim that the trial court committed reversible error in refusing to instruct the jury on the lesser-included offenses of possession of cocaine or possession of less than 30 grams of cocaine. The defendant claims that there was sufficient evidence for the jury to conclude that the defendant possessed the cocaine but did not have the requisite intent to distribute, or that he possessed only the cocaine found in his wallet, which was only .10 grams. The State, however, denies that the defendant was entitled to an instruction on the lesser-included offenses.

In certain cases, a defendant may be entitled to have the jury instructed on a less serious offense that is included within the offense with which he is charged. (People v. Bryant (1986), 113 Ill. 2d 497, 502, 499 N.E.2d 413, 415.) The reason for allowing an instruction on a lesser-included offense is to provide “an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.” (Bryant, 113 Ill. 2d at 502, 499 N.E.2d at 415.) Instructions on lesser-included offenses are not required in every case, however, because the evidence presented in a particular case might rationally preclude instruction on a lesser-included offense. (Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417.) A lesser-included offense instruction is proper when the evidence would permit a jury rationally to find a defendant guilty of the lesser-included offense and acquit him of the greater offense, and when the greater offense charged would require the jury to find a disputed factual element which is not required for conviction on the lesser-included offense. Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417-18.

Based on the facts of this case, we conclude that the defendant was entitled to instructions on the lesser offense of possession of less than 30 grams of cocaine. We believe the jury’s note to the trial judge concerning constructive possession shows that the jury believed the defendant was guilty of something but was uncertain whether the offense charged had been proved. Further, the evidence here was sufficient to permit the jury to find the defendant guilty of either of the lesser offenses and to acquit him of the greater offense. Here, conviction of the greater offense, possession of more than 30 grams of cocaine with intent to deliver, would require the jury to decide a disputed fact, viz., whether the defendant or Luis used the front bedroom, a fact that was not required for a conviction of possession of less than 30 grams of cocaine. This was also not a case where an instruction on the lesser offense would have allowed the jury to reach a compromise verdict. (Cf. People v. Zipprich (1986), 141 Ill. App. 3d 123, 127-28, 490 N.E.2d 8, 12.) Accordingly, we find that the trial court committed reversible error in refusing to give this lesser tendered instruction and, therefore, we remand the case for a new trial.

Inasmuch as the defendant must be tried again, we deem it appropriate to consider here those questions raised by the defendant that are likely to recur on retrial. Defendant also contended in this appeal that he was entitled to an evidentiary hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, on his claim that Officer Garza’s affidavit, upon which the search warrant was issued, contained false statements. Defendant claims that he made a substantial preliminary showing that the warrant affidavit in this case contained false statements because he submitted three affidavits directly contradicting the information contained in Officer Garza’s affidavit. Defendant thus concludes that since he made such a preliminary showing, the trial court had no choice under Franks except to hold an evidentiary hearing. Accordingly, defendant asserts that the trial court committed reversible error when it refused his request for an evidentiary hearing.

In response, the State argues that the trial court properly denied defendant’s request for an evidentiary hearing. The State alleges that the defendant failed to make a substantial preliminary showing that the warrant affidavit was false since the defendant did not deny each and every factual allegation in Garza’s affidavit, did not challenge the integrity of Garza’s oath as a whole, and did not challenge any specific allegations in Garza’s affidavit. The State further argues that even if the defendant made a substantial preliminary showing of falsehood, the defendant was not entitled to an evidentiary hearing because the remainder of Garza’s affidavit was sufficient to establish probable cause.

In Franks, the United States Supreme Court held that, under certain circumstances, a defendant may be entitled to an evidentiary hearing to challenge the veracity of statements in a warrant affidavit. (Franks, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674.) The Franks Court held that a defendant would be entitled to an evidentiary hearing if he “makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” (Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at 2676.) The Court also held that the challenge to the warrant affidavit must be more than conclusory, because a warrant affidavit is presumptively valid and, therefore, a defendant must specifically point out those portions of the affidavit alleged to be false, in an offer of proof, accompanied by a statement of supporting reasons. Franks, 438 U.S. at 171, 57 L. Ed. 2d at 682, 98 S. Ct. at 2684.

The Illinois Supreme Court has accepted these principles as set forth in the Franks decision, but has refused to extend Illinois law beyond Franks, and in fact specifically overruled an Illinois Appellate Court decision which ruled that a warrant executed pursuant to an affidavit containing any false statement must be quashed. (See People v. Lucente (1987), 116 Ill. 2d 133, 145, 506 N.E.2d 1269, 1274, overruling People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269.) In Lucente, the supreme court held that a defendant’s challenge to a warrant affidavit based on an alibi-type preliminary showing could, in some cases, be sufficient to entitle a defendant to an evidentiary hearing. (Lucente, 116 Ill. 2d 133, 506 N.E.2d 1269.) However, the determination of whether a defendant has made a substantial showing sufficient to trigger an evidentiary hearing is within the trial court’s discretion and will not be disturbed on review absent an abuse of discretion. (Lucente, 116 Ill. 2d at 152-53, 506 N.E.2d at 1277.) The Lucente court held in that case that the defendant’s preliminary showing there was sufficient to entitle the defendant to an evidentiary hearing, even though it was an alibi-type showing, because the defendant had presented the court with his own affidavit, along with the affidavits of his wife and his sister, and those affidavits were sufficiently detailed so as to subject the affiants to penalties for perjury if their statements were untrue. Lucente, 116 Ill. 2d 133, 506 N.E.2d 1269.

In a recent decision, this court clarified that the Lucente decision did not mandate a Franks hearing in every factually similar case. (People v. Tovar (1988), 169 Ill. App. 3d 986, 523 N.E.2d 1178.) In fact, the supreme court had recognized in Lucente that because the determination of whether to grant a hearing is unavoidably subjective, there may be some cases where a trial court denies a hearing when in fact a warrant was issued on the basis of false statements, and other cases where a hearing is granted and was not warranted. (Lucente, 116 Ill. 2d at 153, 506 N.E.2d at 1277.) However, so long as the trial court exercised its discretion within permissible limits, its judgment should not be disturbed on appeal. (Lucente, 116 Ill. 2d at 153, 506 N.E.2d at 1277.) In Tovar, the court noted that both Lucente and the case before it “involved a complaint for a search warrant based on a confidential informant’s claim that a drug sale had taken place at the defendant’s residence, and both defendants sought a Franks hearing by setting up an alibi, corroborated in this [the Tovar] case by defendant’s wife, and in Lucente by defendant’s wife and sister.” (Tovar, 169 Ill. App. 3d at 992, 523 N.E.2d at 1182.) Despite the similarities to Lucente, however, the Tovar court held that the defendant was not entitled to an evidentiary hearing. The court concluded that the defendant was not entitled to an evidentiary hearing because the affidavits the defendant had submitted were from interested parties, a factor which the Lucente court held weakened the affidavits; the affidavits did not establish that it was impossible for the informant to have had access to the defendant’s apartment, but instead were “I didn’t do it” type affidavits, which the Lucente court found insufficient; and there was no evidence that the State had been uncooperative or evasive as the State had been in Lucente, a factor that the Lucente court found important in granting a hearing. Tovar, 169 Ill. App. 3d at 992, 523 N.E.2d at 1182.

We find this case to be factually similar to Lucente and Tovar. This case involved a complaint for a search warrant based on an informant’s claim that a drug deal had taken place at the defendant’s apartment. The defendant here also sought a Franks hearing based on an alibi defense. Similarly the affiants here, defendant, his wife and his stepson, were interested parties. Moreover, in Tovar, the affidavits submitted by defendant did not establish that it was impossible for Garza’s informant to have had access to the defendant’s apartment, but were “I didn’t do it” type affidavits. There is also no evidence here that the State was uncooperative or evasive, in contrast to Lucente, where the State repeatedly failed to produce documents requested by the defendant which would have supported the officer’s affidavit.

Based on the foregoing, we conclude that the trial court properly denied defendant’s request for an evidentiary hearing. The facts presented here are more analogous to those in Tovar, where we upheld the trial court’s exercise of discretion in denying the defendant’s request for an evidentiary hearing. We also find that the trial court did not abuse its discretion here in denying defendant’s request for a Franks hearing.

The defendant further claimed in this appeal that the trial court committed reversible error when it refused to allow the defendant to introduce evidence that his stepson, Luis, was on probation for possession of cocaine at the time of the defendant’s arrest, and when it refused to allow Carmen Castro to testify concerning what she said to Luis when the defendant was arrested. Defendant claims that this information was relevant because it would have shown that Luis, and not the defendant, was the party in possession of the cocaine found in the defendant’s apartment. The defendant contends he was prejudiced by the trial court’s ruling, and that this prejudice was evident because the jury asked the court, as it was deliberating, whether a person who knowingly allows a controlled substance in his house thereby has constructive possession of that substance.

The State contends that the trial court’s rulings concerning Luis’ prior conviction and Carmen’s statements to Luis were properly excluded. The State argues that the evidence was properly excluded because it was not offered to impeach Luis’ credibility, which the State concedes would have been a proper purpose, but was offered to show that it was likely that Luis, rather than the defendant, was the guilty party because of his prior conviction, which was not a proper purpose.

A defendant may try to prove that someone else committed the crime for which he is charged, within limitations. (People v. Ward (1984), 101 Ill. 2d 443, 455, 463 N.E.2d 696, 701-02.) The test of whether evidence is admissible is whether the evidence tends to prove the offense charged and whether it is relevant, i.e., whether it tends to make the question of guilt more or less probable. (Ward, 101 Ill. 2d at 455, 463 N.E.2d at 702.) Evidence may be rejected as irrelevant and of little probative value if it is remote, uncertain or would possibly cause unfair prejudice. (Ward, 101 Ill. 2d at 455, 463 N.E.2d at 702; People v. Columbo (1983), 118 Ill. App. 3d 882, 971, 455 N.E.2d 733, 797.) Furthermore, the trial court has broad discretion in ruling on materiality and relevancy issues, and its ruling should be reversed only upon a showing that the trial court abused its discretion. Ward, 101 Ill. 2d at 455-56, 463 N.E.2d at 702; Columbo, 118 Ill. App. 3d at 971, 455 N.E.2d at 797.

In this case, the trial court, by denying the defendant’s offer of proof, apparently held that the defendant’s claim that the cocaine belonged to Luis Munoz was too speculative and was irrelevant to the present case. We agree. As the trial court noted, although the defendant contended that the cocaine here belonged to Luis because Luis used the front bedroom where the cocaine was discovered, Luis himself never admitted, in his affidavit or in his testimony, that he used the front bedroom. In fact, according to the police officers, the defendant admitted to them that he used the front bedroom and that the cocaine was his. Further, any prejudicial effect in limiting the evidence of Luis’ prior conviction was likely minimal, since the jury heard Carmen, Luis and the defendant each testify that Carmen allegedly accused Luis of keeping the cocaine in the apartment. Accordingly, the evidence of Luis’ prior conviction for possession of cocaine was of little probative value and, therefore, the trial court did not abuse its discretion in excluding the evidence.

Finally, the defendant contends that the State failed to prove him guilty beyond a reasonable doubt. We disagree and conclude that there was sufficient evidence to support the jury’s verdict. Our determination, however, concerning the sufficiency of the evidence here is not binding on retrial and is meant only to avoid subjecting the defendant to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375; People v. Taylor (1987), 163 Ill. App. 3d 346, 362, 516 N.E.2d 649, 659.

Accordingly, for all of the above reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

EGAN, P.J., and McNAMARA, J., concur.