author: PRESIDING JUSTICE RAKOWSKI JUSTICE EGAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE COOPER, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 88—0132
    Opinion filed March 1, 1991.

      EGAN, J., concurring in part and dissenting in part.
    Randolph N. Stone, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Marie Quinlivan Czech, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant was found guilty of murder and sentenced to a term of 35 years. The issues raised on appeal are: (1) whether the trial court’s declaration of a mistrial violated the prohibition against double jeopardy; (2) whether compelling Aaron Cooper to testify violated defendant’s right to due process; (3) whether testimony regarding Aaron Cooper’s statements incriminating defendant violated the hearsay rule as well as defendant’s right to confrontation, cross-examination and due process; (4) whether compelling Aaron Cooper to invoke his fifth amendment privilege before the jury had the effect of suggesting that defendant was guilty; (5) whether the trial court’s refusal to let defense counsel ask Aaron Cooper certain questions violated defendant’s right to cross-examination; (6) whether the prosecutor’s redirect examination of Aaron Cooper regarding his taped conversation with defense counsel denied defendant a fair trial; (7) whether testimony about Annette Dorenzo’s out-of-court statements violated the hearsay rule and defendant’s right to confrontation, cross-examination and due process; (8) whether testimony and comments concerning other crimes by defendant denied him a fair trial; (9) whether the evidence of the grand jury subpoena, and arrest and search warrants, should have been admitted; (10) whether the State’s arguments were proper; and (11) whether the trial court erred in limiting defendant’s opening statement, cross-examination and closing argument as to other persons who may have committed the crime.

The evidence at trial established that sometime after 10 p.m. on October 13, 1986, the victim, Rodney Williams (also known as Pretty Boy), was found shot to death in an empty apartment located at 1376 West 79th Street in Chicago. When the police arrived at the scene of the crime they interviewed several people in the building, including Annette Dorenzo. Dorenzo testified that defendant and the victim had been at her apartment earlier that evening and that they both left at around 10 p.m. During the next few days, the police tried to locate defendant but they were unsuccessful.

During the early morning hours of October 26, 1986, the police responded to a report of domestic disturbance at 1262 West 72nd Place. Josephine Cooper, the defendant’s mother, had asked the police to arrest her son, Aaron Cooper, for disorderly conduct. According to Officer Getting’s testimony, Aaron Cooper became angry and made the statement that the police should be locking up defendant instead of him. Aaron Cooper then told his mother that he was going to tell the police everything because they should be getting her “killer son.” Cooper also asked Gettings and the other officers with him if they knew about the killing of Pretty Boy several weeks earlier. Aaron Cooper then told the police that his brother had committed the crime. On the way to the police station, Aaron Cooper stated several times that defendant had killed the victim, and at the station, he asked to speak with the detectives who were familiar with the Williams murder. On October 26 and 27, 1986, Cooper stated on four other occasions that defendant had shot the victim. The fourth instance was as part of his testimony before the grand jury.

Aaron Cooper’s testimony before the grand jury, which was later admitted into evidence through the trial testimony of the grand jury court reporter, was that defendant had collaborated with the victim and two other people to sell narcotics. Defendant made a sale to a fifth party but sold them baking soda instead of narcotics. He then refused to share the money he received from the sale with his collaborators and also refused to give them the narcotics he had replaced. In retaliation, the purchaser, victim and several other people beat defendant with a baseball bat. After the beating, defendant told Aaron Cooper that he would kill all of the people involved. Several days later, defendant told Cooper to stay away from 79th Street because defendant had shot “Pretty Boy.” Aaron Cooper had also testified that he saw his mother the next day, and that she had a gun protruding from her purse. He stated that, to the best of his knowledge, his mother kept handguns in a safe deposit box at the Chicago Bank of Commerce. Finally, Cooper acknowledged that he was testifying before the grand jury of his own free will.

Defendant was arrested on December 29, 1986. On May 19, 1987, Aaron Cooper contacted defendant’s attorney and recanted his prior statements implicating defendant in the victim’s murder. A tape recording of Cooper’s conversation with defendant’s attorney was made which was subsequently admitted into evidence and heard by the jury at the trial. In this conversation, Cooper stated that he had been drinking all day when he was arrested for disorderly conduct and had no recollection of making statements to the police implicating defendant in the victim’s murder. He also stated that he made the same statements in his testimony before the grand jury because of threats that his sentence for an unrelated conviction would be extended.

The trial was scheduled to begin on November 16, 1987, and the jury had been selected. However, Aaron Cooper and his mother, Josephine Cooper, had been subpoenaed by the State to testify and indicated at a pretrial proceeding that they intended to invoke their fifth amendment privilege against self-incrimination. At this point, the trial was postponed several days while the court heard the parties’ pretrial motions and conducted a hearing to determine whether Josephine or Aaron Cooper could claim the fifth amendment privilege. On November 19, 1987, there were still pretrial matters remaining. The trial judge and the State commented that the jury had been waiting several days for the trial to begin and had sent a note to the judge. The State represented that the note contained the statement that the jurors did not think they could still be fair and impartial, although it appears from the record that the trial judge described the contents of the note as simply containing a request to confer with the judge. In either case, the court determined that the jury was too frustrated by the delay to remain impartial, and that neither party would be prejudiced by dismissing them and selecting a new jury. The jury was then dismissed. In a separate proceeding, the trial court determined that Aaron Cooper did not have a valid fifth amendment claim and that if he refused to answer the State’s questions at the trial, he would be held in contempt of court. The trial court further determined that any invalid fifth amendment claim by Aaron Cooper would be considered testimony. Because Cooper would be available for cross-examination, the State could introduce his grand jury testimony and former statements to the police and assistant State’s Attorney as prior inconsistent statements pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1). However, the trial court found that Josephine Cooper did have a valid fifth amendment claim, and she was not required to testify.

On December 1, 1987, a new jury was selected, and the trial commenced the next day.

Defendant first contends that the trial court violated the State and Federal prohibitions against double jeopardy where jeopardy had attached, and there was no manifest necessity for a mistrial. The State concedes that jeopardy did attach when the jurors were impaneled and sworn but argues that the prohibition against double jeopardy was not violated because there was a manifest necessity to dismiss the jury.

The trial court has the authority to dismiss the jury when, taking all of the circumstances into consideration, there is a manifest necessity to do so, or the ends of justice would otherwise be defeated. (Illinois v. Somerville (1973), 410 U.S. 458, 461, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069, citing United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165; People v. Kettler (1983), 112 Ill. App. 3d 1061, 1064-65, 446 N.E.2d 550.) The “manifest necessity” standard was first formulated by the Supreme Court in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165. The relevant passage, which was quoted by the Supreme Court in United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, states:

“ ‘[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all of the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes ***. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.’ ” (Jorn, 400 U.S. at 481, 27 L. Ed. 2d at 554, 91 S. Ct. at 555, quoting Perez, 22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.)

The Jorn Court also discussed its holding in Gori v. United States (1961), 367 U.S. 364, 6 L. Ed. 2d 901, 81 S. Ct. 1523, which Jorn identified as a “variation” on the manifest necessity standard of appellate review. The Court stated:

“ We upheld reprosecution after the mistrial in an opinion which, while applying the principle of Perez, appears to tie the judgment that there was no abuse of discretion in these circumstances to the fact that the judge was acting “in the sole interest of the defendant.” ’ ” (Jorn, 400 U.S. at 482, 27 L. Ed. 2d at 555, 91 S. Ct. at 556, quoting Gori, 367 U.S. at 369, 6 L. Ed. 2d at 905, 81 S. Ct. at 1527.)

Whether a manifest necessity is present rests within the sound discretion of the trial judge, “who is best situated intelligently to make such a decision.” (Somerville, 410 U.S. at 462, 35 L. Ed. 2d at 430, 93 S. Ct. at 1069, quoting Gori, 367 U.S. at 368, 6 L. Ed. 2d at 904, 81 S. Ct. at 1526.) The broad discretion which the trial judge is called upon to exercise, in considering all of the circumstances, requires the application of a flexible standard to the varying and often unique situations as opposed to any abstract mechanical formula. (Somerville, 410 U.S. at 462, 35 L. Ed. 2d at 429-30, 93 S. Ct. at 1069, citing Wade v. Hunter (1949), 336 U.S. 684, 93 L. Ed. 974, 69 S. Ct. 834.) There is a manifest necessity to discharge the jury where an impartial verdict could not be reached. Somerville, 410 U.S. at 464, 35 L. Ed. 2d at 431, 93 S. Ct. at 1070; People v. Turner (1982), 105 Ill. App. 3d 393, 396, 434 N.E.2d 428.

On November 16, 1987, the first jury was selected and sworn in. However, the commencement of the trial was delayed while the court heard and ruled on the parties’ pretrial motions as well as Aaron Cooper’s fifth amendment claim. On November 19, 1987, six or seven jurors sent the court a signed note. The State represented the note as “showing that they [the jurors] now say [sic] may not be able to give both sides a fair and impartial trial.” However, the trial judge referred to the note as stating that the jurors wanted to discuss the situation with the court. Neither the original note nor a copy of it can be found in the record. That afternoon there were still pretrial matters pending. The court concluded that the jurors appeared to be frustrated by the delay in the trial proceedings which would interfere with their ability to render a fair and impartial verdict. The court also concluded that, in view of this observation, defendant would be more prejudiced if the court failed to dismiss this jury than if they were dismissed and a new jury selected following the resolution of the pretrial matters.

In support of his argument that the trial judge’s dismissal of the jury was error, defendant initially quotes the passage in Jorn which states:

“[I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” (Jorn, 400 U.S. at 486, 27 L. Ed. 2d at 557, 91 S. Ct. at 558.)

Although the Court in Jorn held that the trial judge failed to exercise sound discretion to assure that there was a manifest necessity for the sua sponte declaration of a mistrial, the circumstances surrounding the dismissal of the jury differ from those in this case. In Jorn, the trial judge declared a mistrial and dismissed the jury to allow the witnesses to consult with their attorneys. In doing so, however, he acted very abruptly, without affording either counsel the opportunity to object or request a continuance. In this case, the trial judge allowed both counsel to respond to his determination that the jury should be dismissed and also allowed defense counsel to argue his motion to dismiss the indictment and bar a second trial based on double jeopardy. Further, the Jorn Court found that the judge’s insistence on stopping the trial was “motivated by the desire to protect the witnesses rather than the defendant.” (Jorn, 400 U.S. at 483, 27 L. Ed. at 555, 91 S. Ct. at 556.) We judge the contrary to be true in this case.

Defendant also cites People v. Camden (1986), 140 Ill. App. 3d 480, 488 N.E.2d 1082, rev’d on other grounds (1987), 115 Ill. 2d 369, 504 N.E.2d 96, and People v. Campbell (1984), 126 Ill. App. 3d 1028, 467 N.E.2d 1112. In Camden, the appellate court concluded that the dismissal of the proceedings was improper because only one of the jurors had indicated that he might not be able to render an impartial verdict, and the trial court had other alternatives to resolve the problem, such as polling other jurors as to their ability to remain impartial and substituting the tainted juror with an alternate juror. Both counsel could have also stipulated to continue the trial with 11 jurors. (Camden, 140 Ill. App. 3d at 488.) In Camden, the trial had also progressed to the point where the State had already presented its case in chief, and defense counsel had begun the presentation of his case. These factors distinguish Camden from the instant case. In Campbell (126 Ill. App. 3d 1028, 467 N.E.2d 1112), the trial court determined that a juror’s comment that she would be influenced by the appearance of defendant’s mother as a witness was not a sufficient basis for a mistrial. Campbell also does not provide much support for defendant’s argument because only one juror made the statement that she would be influenced by a witness’ testimony, and she later made the statement that she could be fair and impartial.

The trial judge in this case determined that there was a manifest necessity to dismiss the jury because their demeanor reflected their frustration with the four-day delay in the trial proceedings, and further delay was anticipated. The judge concluded that jurors’ frustration might interfere with their ability to render an impartial verdict, which would be more prejudicial to defendant than the selection of a new jury after the pretrial matters had been resolved. There were also no alternative measures the trial judge could have taken to avoid what he perceived as the potential prejudice to defendant. Based on these factors, we conclude that the trial judge exercised sound discretion and considered all of the relevant circumstances in finding that there was a manifest necessity to dismiss the jury. As a result, defendant’s retrial did not violate the double jeopardy prohibition.

Defendant next contends that Aaron Cooper had a valid fifth amendment privilege and that defendant’s right to due process was violated when he was compelled to testify. However, the trial court determined that he did not have a valid fifth amendment claim, and its ruling was affirmed by this court in People v. Cooper (1990), 202 Ill. App. 3d 336, 559 N.E.2d 942.

Defendant’s third contention is that the State’s presentation of Aaron Cooper’s grand jury testimony as substantive evidence as well as his out-of-court statements to the police for impeachment was reversible error. Prior to the trial, the court ruled that Aaron Cooper did not have a valid fifth amendment claim, and that if Aaron Cooper invoked the fifth amendment privilege at the trial, his statements would be considered as his testimony. At the trial, Aaron Cooper was called as a witness by the State, and after answering a few preliminary questions concerning his name, age and criminal record, invoked the fifth amendment in response to all remaining questions asked of him during direct, cross- and redirect examination. However, by way of leading questions, the State brought out the prior statements which incriminated defendant. On cross-examination, again by the use of leading questions, defense counsel brought out the fact that Cooper had contacted him several months earlier and had recanted his grand jury testimony. The court admonished the jury to regard Cooper’s invalid assertion of the fifth amendment privilege as his testimony. Because the court determined that Aaron Cooper had testified, his statements before the grand jury were admitted as prior inconsistent statements pursuant to section 115 — 10.1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1). The relevant portion of the statute provides:

“In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
(1) was made under oath at a trial, hearing or other proceeding.” Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1.

While there is no question that defendant’s statements before the grand jury were “statements made under oath,” there is an issue of whether defendant’s assertion of his fifth amendment privilege as his only response to both counsel’s questions can be considered as testimony, and whether he was available for cross-examination. In People v. Redd (1990), 135 Ill. 2d 252, 553 N.E.2d 316, Leslie Bea, the fiance of the defendant’s sister, requested an attorney and asserted his fifth amendment privilege when he was called as a witness by the State. In Redd, as in the instant case, the State used leading questions to examine the witness regarding his grand jury testimony, which contained statements incriminating to defendant. By this method, the witness’ grand jury testimony was placed before the jury as substantive evidence even though the witness continued to invoke the fifth amendment in response to the prosecutor’s questions. During cross-examination, the witness also refused to answer defense counsel’s questions and continued to invoke the fifth amendment privilege. Defense counsel also used leading questions to put before the jury the witness’ alleged pretrial statements to the public defender and an investigator in which he recanted a statement in his grand jury testimony implicating defendant in the crime. Defense counsel also brought out Bea’s alleged statement to the investigator and public defender that he had been coerced by the police to make the statement. The trial court stated, outside the presence of the jury, that Bea’s grand jury testimony was being admitted as substantive evidence pursuant to section 115 — 10.1 of the Code of Criminal Procedure.

On review, the supreme court noted that there was no record as to whether the trial court found that the witness’ assertion of the fifth amendment privilege was valid. However, the court concluded that, based on the fact that the witness was allowed to refuse to testify based on the privilege, the trial court determined that reasonable grounds did exist for the witness to fear incriminating himself. The supreme court then addressed the trial court’s finding regarding the witness’ assertion of his fifth amendment privilege and held that it was error to construe the witness’ assertion of the privilege as being inconsistent with his grand jury testimony. The supreme court further held that the witness was not available for cross-examination when he refused to answer any questions presented by the State or the defense. The court addressed recent cases ruling that the assertion of a memory loss could be considered as an inconsistent statement pursuant to section 115 — 10.1 of the Code of Criminal Procedure. (See People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481.) The Redd court ruled, however, that the assertion of the fifth amendment privilege could not be treated as a memory loss for purposes of satisfying the “inconsistency” requirement of section 115 — 10.1(a).

“When a witness is permitted to assert the privilege not to incriminate himself, he is not claiming to be unable to recollect prior affirmations of asserted facts. The witness is not asserting a ‘gap in [his] recollection concerning the content of a prior statement.’ [Citation.] The witness is asserting only that he believes the answers to questions posed may tend to incriminate him.” Redd, 135 Ill. 2d at 308.

We conclude that the ruling in Redd is dispositive of this case and that Aaron Cooper’s assertion of the fifth amendment privilege is not a statement which is inconsistent with his grand jury testimony. Although the State attempts to distinguish Redd based on the reasoning that the witness in that case had a valid privilege, we find no language by the court in Redd limiting its ruling to only those instances where the assertion of the privilege was valid. Rather, the focus of the court’s determination appeared to be on the content of the witness’ assertion of the privilege and the fact that it did not meet the “inconsistency” requirement of the statute rather than on the validity of the assertion. In addition, the supreme court noted that there was no record regarding the trial court’s determination as to whether the witness had a valid fifth amendment privilege. Therefore, the supreme court could only assume that the witness’ assertion of the privilege was found to be valid based on the trial court’s conduct. However, even though there was no record of the trial court’s finding or its reasoning, the validity of the privilege did not appear to be a pivotal issue in the supreme court’s ruling. Thus, the fact that Aaron Cooper’s assertion of the privilege was found to be invalid does not alter the fact that it did not meet the requirement of section 115— 10.1(a).

We also conclude, as in Redd, that, where Aaron Cooper’s only response to both the State and defense counsel’s questions was the assertion of the fifth amendment privilege, he was not available for meaningful cross-examination. Like the witness in Redd, Aaron Cooper had also recanted his grand jury testimony prior to the trial. However, when he refused to answer any questions put to him by either counsel, he was not in a position to explain or be questioned regarding any inconsistencies between his grand jury testimony and his later statements to defense counsel. The fact that Aaron Cooper was present as a witness and sat still long enough for questions to be put to him did not qualify as meaningful cross-examination. See Redd, 135 Ill. 2d at 312.

The State argues, without any supporting authority, that the tape recording of Aaron Cooper’s conversation with defense counsel prior to trial could substitute for defendant’s cross-examination of Cooper at the trial. The State also claims that, although the witness in Redd also recanted his grand jury testimony, claiming that he had been coerced by the police, Redd is distinguishable because that witness’ statements were not recorded. We find the State’s reasoning that a pretrial, tape-recorded conversation can substitute for trial testimony without merit. “Cross-examination” is defined as:

“The examination of a witness upon a trial or hearing, or upon taking a deposition, by the party opposed to the one who produced him, upon his evidence given in chief, to test its truth, to further develop it, or for other purposes.” (Black’s Law Dictionary 339 (5th ed. 1979).)

The tape recording at issue met none of these criteria. It was a recording of Aaron Cooper’s conversation with defense counsel rather than defense counsel’s examination of Cooper, and because it took place several months before trial, the conversation could not have been based on evidence in the State’s case-in-chief. Furthermore, the conversation, unlike trial testimony, did not take place while Aaron Cooper was under oath. Finally, if Cooper’s pretrial, tape-recorded conversation could substitute for cross-examination, defense counsel would be precluded from examining Cooper regarding the discrepancies between his grand jury testimony and the recorded conversation.

For the aforementioned reasons, we conclude that Aaron Cooper’s grand jury testimony did not meet the requirements of subsections (a) and (b) of section 115 — 10.1 of the Code of Criminal Procedure and, therefore, constituted inadmissible hearsay and reversible error.

As part of this issue, defendant also contends that the admission of Aaron Cooper’s other statements to the police as well as the use of the statements for impeachment was reversible error. Although not necessary to our disposition of this case, we will decide this issue because it is likely to reoccur upon retrial. William Gettings testified as a witness for the State that he was one of the officers who arrested Aaron Cooper for disorderly conduct. Gettings initially found Cooper asleep in bed. He woke him up and told him that his mother had requested that he leave the premises. According to Gettings’ testimony, Cooper made the statement as he was getting dressed that “we were locking up the wrong person, that we shouldn’t be locking him [sic] because he hadn’t done anything, we should be looking for his brother.” Prior to leaving with the police, Cooper made the statement to his mother that “he was going to tell the police everything because they should be getting her killer son.” Gettings also stated that Cooper asked him and his partner whether they knew about a shooting on 79th Street.

The State argues that these statements were properly admitted as spontaneous declarations. We disagree. For a statement to qualify as a spontaneous declaration, three factors must be present: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Gacho (1988), 122 Ill. 2d 221, 241, 522 N.E.2d 1146; People v. Poland (1961), 22 Ill. 2d 175, 180, 174 N.E.2d 804.) The court in Poland addressed the underlying reasons for this exception, stating:

“ ‘Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.’ ” Poland, 22 Ill. 2d at 180-81, quoting 6 Wigmore, Evidence, 1747, at 195 (Chadboum rev. 1976).

The event which was identified as startling by the State was Aaron Cooper’s arrest for disorderly conduct. Thus, the only statement Cooper made which was close enough to this event to preclude any time to fabricate was the statement he made to the police while getting dressed, that they should be looking for his brother. However, although Cooper may not have had time to fabricate between the time he was awakened and the time he made the statement, the statement referred to the fact that defendant shot the victim, which was an occurrence Cooper had known about for two weeks. Consequently, he had two weeks during which he could have fabricated the statement. Furthermore, Cooper’s statement does not meet the third requirement of relating to the occurrence. The occurrence in this instance was Aaron Cooper’s arrest for disorderly conduct. His statement that the officers should be looking for defendant related to defendant’s commission of a murder rather than Aaron Cooper’s arrest. We also note that Aaron Cooper’s statement was contrary to the underlying purpose for this hearsay exception where the statement was made following a disagreement involving Cooper, his mother and defendant, and where the trustworthiness of the statement was questionable.

The circumstances in Gacho (122 Ill. 2d 221, 522 N.E.2d 1146), which is cited as authority by the State, differ from this case in several respects. The declarant in that case had been shot several times and then locked in the trunk of a car for 6V2 hours before he made the statement naming defendant as the one who shot him. The occurrence in that case was far more startling than the one in this case, and although the declarant in Gacho had been shot several hours earlier, he had been confined during that time and had no opportunity to talk with anyone about the crime. Finally, there is no question that the declarant’s statement related to his being shot and confined in the trunk of the vehicle. For these reasons, we conclude that the admission of Aaron Cooper’s statement was also error. Because of our conclusion regarding this statement, we find that Cooper’s other statements were not admissible as spontaneous declarations.

According to the police officers’ trial testimony, Aaron Cooper made other statements incriminating to defendant while he was on his way to the police station and after his arrival. The State claims that it was proper to allow the jury .to hear testimony regarding these statements for the purpose of impeaching Aaron Cooper’s trial testimony. As previously discussed, Cooper’s only statement at the trial was his assertion of the fifth amendment privilege.

The purpose of impeaching evidence is to destroy the credibility of a witness. (People v. Bradford (1985), 106 Ill. 2d 492, 499, 478 N.E.2d 1341.) A witness whose only response is his assertion of the fifth amendment is only asserting that he believes he has reasonable grounds to fear self-incrimination. In this instance, the only credibility issue is whether the witness is being truthful in asserting this belief. (Redd, 135 Ill. 2d at 317.) Therefore, we also conclude that the use of Aaron Cooper’s out-of-court statements for impeachment was improper.

Because defendant’s remaining issues are not likely to reoccur upon retrial, they are not addressed.

Accordingly, the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

McNAMARA, J., concurs.

JUSTICE EGAN,

concurring in part and dissenting in part:

I concur in the majority view that trial errors require a new trial. But I dissent from the majority view that the judge’s action in declaring a mistrial and the defendant’s subsequent trial did not violate the constitutional provision against double jeopardy. For that reason I would reverse the defendant’s conviction.

The rule governing the right to retry a defendant in a criminal case after a mistrial had been declared was set forth 167 years ago in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L. Ed. 165. The Supreme Court warned:

“[T]he power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.” (Emphasis added.) (22 U.S. (9 Wheat.) at 580, 6 L. Ed. at 165.)

In my judgment, to sanction the granting of a mistrial in this case is to ignore those words of the United States Supreme Court in Perez.

The majority emphasize that the decision whether to grant a mistrial must be left to the sound discretion of the trial judge, and I agree. But the majority opinion omits one overriding fact: the judge did not believe the defendant was in jeopardy after the jurors had been sworn but before any evidence had been heard. The State concedes that the judge was in error. When a court is acting under a misconception of the facts or the law, its exercise of discretion is seriously, if not fatally, flawed. See Lawson Products, Inc. v. Avnet, Inc. (7th Cir. 1986), 782 F.2d 1429; Beermart, Inc. v. Stroh Brewery Co. (7th Cir. 1986), 804 F.2d 409; cf. Williamson v. Swank (1971), 2 Ill. App. 3d 600, 603, 276 N.E.2d 737 (In determining whether discretion had been abused in the grant of a new trial, the question was whether the trial judge acted under “a misapprehension or clearly erroneous understanding of the law”).

It is my judgment that the record must reflect the “very plain and obvious causes” required by Perez and that this record does not do so. All we know is that the judge received a note from six or seven jurors. The contents of the note we do not know. The State represented that the note was an indication that the jurors “may not be able to give both sides a fair and impartial trial.” (Emphasis added.) The judge made no such statement; he said only that the jurors wanted to discuss the matter with him. He did not discuss the matter with the jurors. Instead, he made a subjective determination, based on nothing except his personal observation, that the jurors “appeared to be frustrated.” On that flimsy ground, he granted a mistrial over the defendant’s objection.

The majority seek to distinguish United States v. Jorn (1971), 400 U.S. 470, 27 L. Ed. 2d 543, 91 S. Ct. 547, on the ground that the Supreme Court concluded that the mistrial declared was for the benefit of witnesses, while in this case, the mistrial was declared for the benefit of the defendant. Any conclusion that the mistrial was declared for the benefit of the defendant is based on speculation and nothing more. The defendant did not think so, and certainly some deference must be accorded his views. As the Jorn Court held, the judge’s decision to abort the trial must always be tempered by considering the importance to the defendant of having the case concluded by the verdict “of a tribunal he might believe to be favorably disposed to his fate.” (Emphasis added.) 400 U.S. at 486, 27 L. Ed. 2d at 557, 91 S. Ct. at 558.

In sum, I believe that when a mistrial is declared in a criminal case, the burden is on the State to show that there was a manifest necessity for the judge to do so. There was no such showing in this case. For this reason, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE DiVTTO

license: Public Domain

text:
    AMERICAN STANDARD INSURANCE COMPANY, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Subrogee of the Estate of Joan K. Reidy, Deceased, Defendant-Appellee (Mark Runyan, Defendant).
    First District (2nd Division)
    No. 1 — 89—1902
    Opinion filed March 5, 1991.
    — Rehearing denied April 4, 1991.

      Purcell & Wardrope, Chartered, of Chicago (Robert L. Bartolone and Sandra Young, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Peter C. Morse, and Joshua G. Vincent, of counsel), for appellee.
   JUSTICE DiVTTO

delivered the opinion of the court:

This declaratory judgment action arises out of a motorcycle accident in which Joan Reidy, a passenger on a motorcycle driven by Mark Runyan, suffered injuries which caused her death. Plaintiff American Standard Insurance Company (American Standard) filed a complaint for declaratory judgment against defendants Mark Runyan and Allstate Insurance Company (Allstate), subrogee of the estate of Joan Reidy. The complaint alleged that, pursuant to a passenger liability exclusion, American Standard’s motorcycle policy issued to Mark Runyan’s father did not provide liability coverage. The circuit court granted Allstate’s motion for summary judgment and denied American Standard’s cross-motion for summary judgment.

American Standard now appeals, contending that the circuit court erred in finding that a cover illustration and a provision allowing passengers under certain circumstances when the insured’s vehicle was used for hire were in conflict with an exclusion barring coverage for all motorcycle passengers.

On August 11, 1985, Mark Runyan was driving his father’s motorcycle when he lost control and crashed. As a result, Joan Reidy, a passenger on the motorcycle, suffered injuries which caused her death.

American Standard had issued to Mark’s father, Robert Runyan, a motorcycle liability policy, which was in effect on the date of the accident and covered the involved motorcycle. Under the policy’s uninsured motorists provisions, an insured, defined as anyone using the insured motorcycle, could recover for bodily injuries caused by the owner or operator of an uninsured motor vehicle.

The cover of American Standard’s policy contained an illustration of a motorcycle with two occupants, the driver and a passenger. The policy itself specifically excluded injury or damage “arising out of the use of a vehicle to carry persons or property for a charge.” However, this “vehicle for hire” provision of the policy stated that “[t]his exclusion does not apply to shared-expense ride pools or the charitable carrying of persons.” Notwithstanding this particular exclusion, the policy also provided that “[b]odily injury to any passenger while occupying any motorcycle” was excluded.

After the accident, Reidy’s estate made a claim under the uninsured motorists provisions of American Standard’s policy. Pursuant to the uninsured motorists provisions of its policy, American Standard paid Reidy’s estate the policy’s maximum limit, $15,000. Reidy’s estate subsequently executed a release and trust agreement which released American Standard from all claims arising out of the accident.

At the time of the accident, Reidy was insured under an automobile liability policy issued to her mother by Allstate. Pursuant to the terms of its excess uninsured motorists coverage, Allstate paid Reidy’s estate $85,000, which equaled the difference between the policy’s maximum uninsured motorists limit, $100,000, and the amount recovered under American Standard’s uninsured motorists coverage, $15,000. Before paying uninsured motorists benefits to Reidy’s estate, Allstate obtained a release and an assignment of Reidy’s right to proceed against American Standard for its failure to offer increased uninsured motorists coverage to Robert Runyan.

On August 8, 1987, Allstate filed a subrogation action against Mark Runyan which alleged that his negligent operation of the motorcycle caused Reidy’s death. On December 7, 1987, American Standard offered Runyan a defense to the litigation under a reservation of rights.

On December 21, 1988, American Standard filed a two-count complaint for declaratory judgment which alleged that its policy did not afford coverage to Runyan for injuries sustained by passengers on his motorcycle, that Reidy’s estate released American Standard from any claims under the uninsured motorists provisions of its policy, and that Allstate had accepted and paid the claim of Reidy’s estate under its excess uninsured motorists provisions.

On April 10, 1989, Allstate filed a motion for summary judgment on American Standard’s complaint. In its motion, Allstate argued that American Standard’s passenger exclusion was ambiguous and in conflict with both the written representations of the “vehicle for hire” exclusion and the illustration on the cover of the policy.

In its response and cross-motion for summary judgment, American Standard asserted that, under Illinois law, an exclusion which precludes liability coverage for motorcycle passengers is valid and enforceable. American Standard also asserted that its passenger exclusion was neither in conflict with the policy’s other exclusions nor in conflict with the illustration on the policy’s cover.

On May 30, 1989, the circuit court conducted a hearing on the parties’ motions. After considering the respective arguments of the parties, the court found that the “vehicle for hire” exclusion and the illustration on the policy’s cover were in conflict with the passenger exclusion and created an ambiguity in the policy. Based on this ambiguity, the court concluded that the liability provisions of American Standard’s policy were applicable to the injuries sustained by Reidy.

In this appeal, American Standard maintains that the circuit court erred in granting Allstate’s summary judgment motion. Specifically, American Standard contends that the liability exclusions in its policy were clear and unambiguous and, as such, properly excluded liability coverage for bodily injury to passengers on the motorcycle. See Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.

Summary judgment is appropriate where the pleadings, affidavits, depositions, admissions, and exhibits show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Protective Insurance Co. v. Coleman (1986), 144 Ill. App. 3d 682, 686, 494 N.E.2d 1241.) Since the construction of an insurance policy presents a question of law, summary judgment is an appropriate disposition when the construction of a policy is at issue. Protective Insurance Co. v. Coleman, 144 Ill. App. 3d at 686.

In construing an insurance contract, a clause in a policy which is clear and unambiguous will be applied as written. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495, 475 N.E.2d 872; Strzelczyk v. State Farm Mutual Automobile Insurance Co. (1985), 188 Ill. App. 3d 346, 349, 485 N.E.2d 1230; Murphy v. Peterson (1984), 129 Ill. App. 3d 952, 955, 473 N.E.2d 480.) An insurance contract will be considered ambiguous if it is subject to more than one reasonable interpretation. (Reserve Insurance Co. v. General Insurance Co. of America (1979), 77 Ill. App. 3d 272, 279, 395 N.E.2d 933.) However, in determining whether there is an ambiguity, the clause must be read in its factual context, not in isolation. (Strzelczyk v. State Farm Mutual Automobile Insurance Co., 138 Ill. App. 3d at 350.) If an exclusionary clause in a policy is relied upon to deny coverage, its applicability must be clear and free from doubt; otherwise, any doubts with respect to coverage will be resolved in favor of the insured. International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 367, 522 N.E.2d 758.

These rules of construction, however, will not support construing a contract against an insurer when no real ambiguity exists. (Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d at 495.) Courts should neither exercise their inventive powers to create an ambiguity where none exists nor approve of the distortion of language to reach a desired result. (Scudella v. Illinois Farmers Insurance Co. (1988), 174 Ill. App. 3d 245, 252, 528 N.E.2d 218; International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co. (1988), 168 Ill. App. 3d 361, 371, 522 N.E.2d 758; Reliance Insurance Co. v. Martin (1984), 126 Ill. App. 3d 94, 96, 467 N.E.2d 287.) Rather, a court should examine the policy as a whole and, to the extent possible, give effect to all provisions and interpret words according to their plain, ordinary, and popular meanings. International Minerals & Chemical Corp. v. Liberty Mutual Insurance Co., 168 Ill. App. 3d at 371.

Here, the circuit court, in construing the provisions of American Standard’s motorcycle policy, found that the policy’s “vehicle for hire” exclusion was in direct conflict with the exclusion for all motorcycle passengers. The court further found that the illustration on the cover of the policy which depicted a motorcycle carrying both a driver and a passenger also was in conflict with the passenger exclusion. Thus, the conflicting written exclusions coupled with the policy illustration created an ambiguity which was resolved in favor of coverage to motorcycle passengers. In reaching its conclusions, the court stated,

“This picture and the first exclusion lead people to believe that the passenger is covered. Then you come in with twelve and say he is not covered. An ambiguity exists.”

The first exclusion stated in its entirety that coverage did not apply to

“[b]odily injury or property damage arising out of the use of a vehicle to carry persons or property for a charge. This exclusion does not apply to shared-expense ride pools or to the charitable carrying of persons." (Emphasis added.)

The last exclusion, number 12, stated that the coverage did not apply to “jbjodily injury to any passenger while occupying any motorcycle.” American Standard argues that the circuit court misconstrued the “vehicle for hire” exclusion. Specifically, American Standard contends that the purpose of the “vehicle for hire” exclusion was to preclude all liability coverage when the insured vehicle was being used for hire; in contrast, the purpose of the passenger exclusion was to preclude all liability coverage for injuries sustained by any passengers on a motorcycle.

For support, American Standard relies upon Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872. In that case, the insured argued that a limitation contained in one exclusion was in conflict with the language in two other exclusions. The supreme court concluded that the provisions in conflict were standard clauses commonly utilized in the insurance trade. Further, the court concluded that each exclusion served a separate and distinct purpose and was not in conflict with the other. Western Casualty & Surety Co. v. Brochu, 105 Ill. 2d at 495.

Likewise, American Standard argues that the two exclusion provisions in its policy served separate and distinct purposes and were not, if given their plain, ordinary meaning, in conflict.

In response, Allstate contends that the exclusions in American Standard’s policy were indeed in conflict. One exclusion was not simply used to narrow an exception contained in an earlier exclusion; rather, the passenger exclusion eliminated the entire exception to the “vehicle for hire” exclusion and was directly in conflict with it.

We agree with the circuit court’s conclusion that if the two provisions are given their plain and ordinary meanings, they are in conflict. In the first provision, the “vehicle for hire” exclusion, the policy denies coverage to passengers who have paid to ride on the motorcycle. Those passengers who receive “charitable” rides, however, are exempted from this exclusion. Yet, several provisions later in the policy, any motorcycle passengers, regardless of whether they are “charitable” riders, are excluded from recovery under the policy.

Because exclusionary provisions should be applied only where their terms are clear, definite, and explicit, the circuit court properly held that the passenger exclusion was inapplicable. (State Farm Mutual Automobile Insurance Co. v. Schmitt (1981), 94 Ill. App. 3d 1062, 1064, 419 N.E.2d 601.) Moreover, ambiguous provisions in which the insurer seeks to limit liability are to be construed most strongly against the insurer and liberally in favor of the insured. State Farm Mutual Automobile Insurance Co. v. Schmitt, 94 Ill. App. 3d 1062.

American Standard argues further that, without more, an illustration on the cover of a policy is not in conflict with the written language inside the policy itself. The circuit court, however, found that the illustration did present a conflict with the language in the policy, specifically the passenger exclusion. In so finding, the court stated,

“You have on the cover of the policy *** a driver with a person behind him and I do not see anywhere an arrow pointing saying that the second party is not covered under this policy, as you did in your briefs. *** This picture and the first exclusion lead people to believe that the passenger is covered.”

American Standard argues that the circuit court misconstrued the case law in its finding that the illustration on the policy’s cover rendered the passenger exclusion ambiguous. (See Dobosz v. State Farm Fire & Casualty Co. (1983), 120 Ill. App. 3d 674, 458 N.E.2d 611.) In Dobosz, the insurance company sent an advertising brochure which illustrated various coverage options. One picture was captioned “Water damage” and depicted rain coming in through an open window. The brochure also stated in small, black print that “[t]his brochure contains only a general description of coverages and is not a statement of contract.” The insured made a claim under the policy when water leaked through the walls of the insured’s basement. The policy, however, specifically excluded water damage for the type of loss incurred by the insured. Dobosz v. State Farm Fire & Casualty Co., 120 Ill. App. 3d at 677.

The circuit court found, in Dobosz, that the insurer properly denied the insured’s claim for water damage. In reversing the circuit court’s ruling, the appellate court stated that the clear implication of the insured’s advertising brochure, which depicted coverage for water damage, was in conflict with the policy’s exclusionary provisions exempting that type of coverage, thereby creating an ambiguity in the policy which required a finding that the broader coverage applied. Dobosz v. State Farm Fire & Casualty Co., 120 Ill. App. 3d at 679.

In this case, American Standard contends that the circuit court misapplied and overextended the holding in Dobosz. Because the brochure in Dobosz also contained language which stated that the pictured coverages were “added” to the policy (Dobosz, 120 Ill. App. 3d at 677), the illustration, standing alone, was not necessarily In conflict with the policy exclusions. American Standard also stresses the fact that the insured in Dobosz relied on the brochure illustrations in choosing his coverage. It argues, despite the lack of record support, that in the instant case the insured relied only on the representations contained in the policy itself.

Notwithstanding American Standard’s argument that the illustration, standing alone, could not be in conflict with clear written provisions in the policy, it is possible that the illustration on the front cover of the policy was far more potent a representation than that of a brochure’s illustrations. Moreover, in the instant case, there was no qualifying language printed at the bottom of the cover page which might have warned the insured that the impression created by the illustration may have been contradicted by the written language inside the policy itself.

Although Dobosz is not precisely on point, it does offer support for the circuit court’s finding that the illustration on the cover of the policy was in conflict with the passenger exclusion inside the policy. It is certainly possible that a reasonable insured would conclude that the illustration depicted a covered activity.

In any event, we conclude that the circuit court did not err in its conclusion that the combination of the illustration on the front cover and the ambiguity in the terms of the policy required coverage for a passenger on the motorcycle. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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


author: JUSTICE DiVITO

text:
      In re MARRIAGE OF JUDITH C. EDDY, Petitioner-Appellant, and J. MICHAEL EDDY, Respondent-Appellee.
    First District (2nd Division)
    No. 1 — 88—3615
    Opinion filed March 5, 1991.

      McDermott, Will & Emery, of Chicago (Sandra R. Murphy and Roger W. Wenthe, of counsel), for appellant.
    Pierce, Yavitz & Eslick, Ltd., of Chicago (Dennis J. Eslick and Barry E. Yavitz, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Petitioner Judith C. Eddy (Judith) appeals from portions of the circuit court’s judgment granting the dissolution of her marriage to respondent J. Michael Eddy (Michael). Judith contends that the circuit court erred in (1) classifying certain business assets acquired by Michael during the marriage as his nonmarital property; (2) failing to reimburse the marital estate for Michael’s uncompensated personal services, which allegedly substantially increased the value of a non-marital business; (3) failing to award Judith sufficient assets or maintenance; (4) assigning to the parties the responsibility for payment of their own litigation expenses without a hearing; and (5) imposing sanctions against Judith’s counsel for preparing an erroneous summary of business records.

Judith and Michael were married on June 28, 1958, and were the parents of two children, Sarah and Thomas. The dissolution of their marriage occurred on October 5, 1988. At the time of dissolution, Thomas was a high school student scheduled to graduate in June 1990 and was dependent on his parents; Sarah was emancipated and married.

At the time of dissolution, Judith was 52 and Michael was 53 years of age. Both had college degrees. Judith was a housewife during the marriage and was not employed. She had income from investments, gifts, and trusts. Michael had been employed from 1958 to 1972 by General American Transport Corporation and its successor, GATX Corporation. Since 1972, Michael was employed by the Eddy Corporation. In the year before dissolution, he earned a salary of $250,000.

Michael possessed a number of business assets which were acquired during the marriage and which ultimately were configured into two entities: (1) Eddy Properties, Ltd., a partnership which owned real estate primarily located in Florida and North Dakota and (2) Eddy Corporation, which owned and operated 25 McDonald’s restaurants. He owned each entity equally with his brother, Ray Eddy, Jr. (Ray).

During his lifetime, Michael’s father had given certain North Dakota ranch and farm property as gifts to Michael and Ray. They ran this business under a partnership called Eddy Brothers. After the death of Michael’s father in 1967, the remainder of his father’s ranch and farm business in North Dakota and certain Chicago business interests were devised to Michael, Ray, and their father’s widow. The partnership, which had changed its name to Eddy Farms, eventually purchased the widow’s interests in the property. There was evidence that in 1967 the estate had a gross value of $1.9 million. Eddy Properties, Ltd., eventually evolved from Eddy Farms.

In 1969, Michael and Ray formed Eddy Foods, a partnership which purchased three McDonald’s restaurants in Florida. The money to purchase the restaurants came from loans made to the brothers and from a mortgage and loan secured by the property owned by Michael and Ray. Pursuant to the Eddy Foods partnership agreement, each brother’s capital contribution to the partnership was $2,500. Eddy Corporation eventually evolved from Eddy Foods.

During the marriage, Judith’s grandmother, Constance Blumenthal, died and left two trusts each worth about $1.9 million, in the names of Judith’s parents, James L. Cook, Jr., who was 85 years of age at the time of dissolution, and Helen M. Cook, who was 83 years of age at that time. The trust funds were invested in a diversified portfolio of stocks, bonds, and money-market instruments. Judith was an eligible beneficiary of these trusts, subject to the discretionary power of the trustee and her father. Additionally, Judith received gifts-in-kind of stock from her parents, which the parties stipulated were nonmarital property. These separate stocks were valued at $45,241 at the time of dissolution.

The circuit court concluded that there was an oral agreement between the parties that what was Judith’s was hers and what was Michael’s was his. The court found that, although Michael’s business interests had been acquired during the marriage, since no family income or marital money was used to acquire those business interests or was used for business loans and since no marital property was ever pledged as security on any loans relating to those business transactions, the presumption that Eddy Corporation and Eddy Properties, Ltd., were marital property was rebutted by clear and convincing evidence. The court therefore concluded that no reimbursement to the marital estate from Michael’s estate was required.

The circuit court further found that Judith had a “Vz interest” in the Blumenthal trust funds; it classified this interest as nonmarital property; and it valued her interest at $1.9 million. The circuit court found that Judith never asked for more money from the Blumenthal trust, but that, in its opinion, “she would not have been denied had she asked and she could do so at this time.”

Based upon its findings, the court apportioned the property in the following manner:

The circuit court ordered that Michael pay $3,000 per month in child support; that neither party was responsible for maintenance payments; that the parties pay their own attorney fees; and that, because of a faulty summary of business records, Judith’s attorneys pay a sanction of $1,000 to Michael.

I

Judith initially maintains that the circuit court erred in classifying Michael’s business interests as nonmarital property. She specifically contends that Michael failed to prove by clear and convincing evidence that he acquired his stock in Eddy Corporation in exchange for nonmarital property.

Prior to assigning or dividing property upon dissolution of marriage under section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act), the court must classify it as either marital or nonmarital. (Ill. Rev. Stat. 1987, ch. 40, par. 503.) Normally, property acquired by either spouse after the marriage, but prior to judgment of dissolution, is presumed marital property regardless of how title is held. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b); In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) Property obtained by gift, legacy, or descent, or in exchange for property acquired by gift, legacy, or descent, however, is excepted from marital property and is classified as nonmarital property. (Ill. Rev. Stat. 1987, ch. 40, pars. 503(a)(1), (a)(2).) Thus, the property given to Michael by gift and the property distributed to him upon the death of his father fell within the exception and were properly classified as nonmarital.

As to newly acquired property, clear and convincing evidence is required to show that it has been acquired in exchange for nonmarital property in order to classify it as nonmarital property (In re Marriage of Rogers, 85 Ill. 2d 217); any doubts must be resolved in favor of finding that the property is marital. (In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267.) Once marital and non-marital funds are commingled and lose their identity through the acquisition of a newly created asset during the marriage, the asset is marital. Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(1); see In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068.

Judith’s contention is that Michael failed to prove by clear and convincing evidence that the businesses he held at the time of dissolution were acquired in exchange for nonmarital property. Her premise is that Michael failed to present clear and convincing evidence that the three McDonald’s franchises, the genesis of the Eddy Corporation, were acquired in exchange for nonmarital property. She argues that the evidence established that Michael and Ray borrowed all of the money needed to buy the franchises and that they did not exchange nonmarital property for the franchises nor did they repay the loans with nonmarital property. We disagree.

The circuit court correctly determined, after tracing the stock of Eddy Corporation back to Eddy Foods, that the funds used to purchase the McDonald’s restaurants were nonmarital; thus, the presumption that the stock of Eddy Corporation was marital property was rebutted. Evidence at trial established that two loans totaling $275,000 were obtained in August 1969, secured by property owned by Michael and Ray prior to August 1969. Evidence further established that Michael and Ray obtained loans for $111,000 from the Commercial Bank of Daytona; that an additional $90,000 was loaned to the brothers from relatives; that Michael and Ray used the money to close the purchase of the McDonald’s restaurants; and that Judith did not want to invest money in the venture.

The record further shows that the partnership agreement creating Eddy Foods stated that the capital of $5,000 was contributed equally by each of the partners, Michael and Ray. Michael’s initial capital contribution of $2,500 into Eddy Foods is shown as a draw from Eddy Farms. All the loans were included on the books as a debt of Eddy Foods.

Most of the loans were paid by proceeds of the McDonald’s restaurants. Michael and Ray obtained another loan, secured by the same property as the original loan, which was used to pay the amount remaining on the $275,000 loan. Additionally, one loan was cancelled without being repaid after it was bequeathed to Michael and Ray, and another loan held by Ray’s second wife has had none of its principal repaid, although monthly interest has been paid from revenues of the McDonald’s business.

The $5,000 listed as capital and the funds to purchase the McDonald’s restaurants were derived from Eddy Farms. At the time of purchase, Michael’s salary was approximately $24,000 and the house of the parties was then valued at $64,000. These figures and the documents in the record show that the collateral for the loans of money and the funds used to pin-chase the McDonald’s restaurants were derived from the properties Michael received through inheritance and as gifts. Michael did prove by clear and convincing evidence that the property which formed Eddy Foods was nonmarital property. Furthermore, since the McDonald’s business itself repaid the loans, there was clear and convincing evidence that the assets were acquired by exchanging nonmarital property for them. (In re Marriage of Rogers, 85 Ill. 2d 217; In re Marriage of Brooks, 138 Ill. App. 3d 252.) The circuit court therefore properly concluded that Eddy Properties and Eddy Corporation were formed from nonmarital funds. Michael’s interest in Eddy Corporation was therefore properly classified as non-marital property.

II

Judith maintains that the circuit court erred in not ordering that the marital estate be reimbursed for Michael’s uncompensated and significant contribution, from 1969 to 1983, of personal effort to the farm and ranch business, which evolved into Eddy Properties, Ltd. She contends that Michael’s efforts resulted in substantial appreciation of the North Dakota property.

Section 503(c)(2) of the Dissolution Act provides that a spouse’s nonmarital estate is to reimburse the marital estate for the spouse’s contribution of significant personal effort to nonmarital property which results in substantial appreciation of that property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2).) The party claiming reimbursement must prove that the property has substantially appreciated through the significant personal efforts of the spouse. (In re Marriage of DiAngelo (1987), 159 Ill. App. 3d 293, 512 N.E.2d 783.) An increase in value which results from inflation or other factors which are external to the marriage is not synonymous with appreciation arising from the personal effort contemplated by the statute. In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088.

Though Judith testified that Michael bragged to friends about how he had improved the property, the record does not establish by clear and convincing evidence Judith’s contention that Michael contributed significantly to the farm and ranch properties in North Dakota between 1969 and 1983. There was evidence that when Ray moved to Florida in 1969 to oversee their business interests there, Michael developed a role in managing the North Dakota business. However, before that time, Michael had no role in the running of that business. Occasionally, Michael flew to North Dakota to survey property if it was deemed necessary and there were telephonic communications regarding any business concerns. Although there was evidence that Michael approved and negotiated sharecropping agreements with tenant farmers and ranchers, negotiated financing arrangements with bankers, and bought and sold parcels of land, the agriculture department at the bank managed the properties and was paid a fee for its services.

Though Judith asserts that Michael’s limited partnership interest in Eddy Properties, Ltd., valued at $2,256,402 at the time of dissolution, represents a substantial appreciation from his one-third interest valued at approximately $1,900,000 at the time of acquisition, we cannot say that the circuit court erred in holding that the evidence was not clear and convincing that this increase was due to the significant efforts of Michael. Reimbursement to the marital estate was therefore not required.

Ill

Judith next asserts that the circuit court erred when it failed to award her additional property or maintenance because its decision was based on speculation about future events. She contends that the property distribution left her a $60,000 annual shortfall between income and expenses. Further, Judith contends that the circuit court erroneously reasoned that she had a vested half interest in the Blumenthal trusts and that she could control the trusts’ investments and distributions. Judith contends that an award of additional property or of maintenance, either of which would alleviate the shortfall, is necessary.

Michael maintains that the circuit court properly weighed Judith’s interest in the Blumenthal trusts as a relevant factor to be considered in arriving at a just division of the parties’ property, and in determining whether Judith had established a right to maintenance. He argues that the circuit court did not improperly speculate about a future event when it considered the Blumenthal trusts and that it did not misunderstand the nature and extent of Judith’s rights in the trusts.

Although a reviewing court will not disturb the circuit court’s equitable distribution of property without a showing of an abuse of discretion (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925), when there is an error of law, the distribution is reviewable de novo. (In re Marriage of Skinner (1986), 149 Ill. App. 3d 788, 791, 501 N.E.2d 311.) This court must look to the trust document itself to determine whether Judith had a half interest in the trusts at the time of dissolution.

Paragraph 4.1 of the trust document creates two lifetime trusts, one for each of the beneficiaries, James L. Cook, Jr., and Helen M. Cook. The document states that the trustee may decide to pay such beneficiary and his or her descendants proportions which the trustee determines, “considering the best interests and welfare of such beneficiary and his or her descendants in that order and as a group.” (Emphasis added.) The trustee is given the discretion of what to pay to the beneficiaries, but must consider the primary beneficiary first and then the secondary beneficiaries, the descendants of James and Helen Cook, as a group, afterwards. Under paragraphs 4.8 and 4.9 of the will, the trustee and Judith’s father have discretion over the investment of the funds; her father may in writing direct investments, but no other eligible beneficiary has the right to veto the trustee’s investment decisions.

A reading of the trust document makes it clear that Judith does not have a present interest of $1.9 million in the trusts. Judith’s present interest is an eligibility to receive a portion of the trust if her father so directs or if he dies intestate. Contrary to Michael’s assertions that Judith, as a descendant of James Cook, has a present half interest subject to disfeasance, she actually has a right to receive a limited amount of funds per year and is eligible, with five other persons, to receive an interest in the trusts. The circuit court therefore erred when it concluded Judith’s interest to be a current one-half share of the trusts.

Although the circuit court could consider her present interest in the trust, it could not consider her eligibility to receive a portion of the trust because that is an expectancy and not a realization. (Goodpasteur v. Fried (1989), 183 Ill. App. 3d 491, 494, 539 N.E.2d 207; Croslow v. Croslow (1976), 38 Ill. App. 3d 373, 347 N.E.2d 800.) Potential inheritances, just as expected degrees or licenses, are not property which can be valued and awarded to a spouse, although they can be a given some consideration in determining property distribution. (In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, 244, 470 N.E.2d 551; In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 287, 518 N.E.2d 1316; In re Marriage of Woodward (1980), 83 Ill. App. 3d 253, 256, 404 N.E.2d 575.) The circuit court therefore erred when it apportioned an eligible interest to Judith as a current asset.

Judith has received small discretionary distributions from the trust funds from time to time, but never more than $5,000 in any 12-month period. The circuit court erred when it suggested that Judith could cure her $60,000-per-year shortfall by asking the trustee to increase the amount of these discretionary payments. Although the trust provides that the trustee may make payments to provide for the best interests of the beneficiaries, the trustee cannot, under the terms of the trust, disburse any amount to Judith without doing the same for other secondary beneficiaries. Because of medical expenses and other needs of the primary beneficiaries, it might not be prudent (see Ill. Rev. Stat. 1987, ch. 17, par. 1675) for the trustee to make such payments. Furthermore, the circuit court improperly suggested that Judith could increase her income by directing the trustee to invest the funds at higher interest rates, for the trust document did not empower her to do so.

The circuit court’s error in determining that Judith had a present interest in the Blumenthal trust necessitates a remand to the circuit court for the purpose of curing Judith’s shortfall between income and expenses by apportioning property differently or by providing maintenance.

Judith also contends that the circuit court erred by awarding her less than the statutory 20% of Michael’s salary for child support. Considering, however, that Michael is paying for their son’s school, car, and health insurance, the $3,000-per-month payment which was ordered appears to meet the son’s needs, and the circuit court did not err by so ruling. The order incorporated the previous child support order, which included that Michael pay extras beyond the $3,000 (insurance, tuition, etc.) until their son graduates; thus, Judith is able to require these payments until that time.

IV

Judith maintains that the circuit court erred when it assigned the parties the responsibility for payment of their own litigation expenses without a hearing.

As Michael points out, however, the circuit court invited Judith to present the reasonableness and amount of her fees and expenses to the court. In pertinent part the court stated as follows:

“The court believes that it must be mentioned that each side may ask for an itemized bill for their attorneys according to the Pitulla [In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 491 N.E.2d 90,] and the Kaiser [Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424,] cases. When presented with that itemization, even if some money has been paid, the parties may review the itemization. If they differ with the itemization or wish to negotiate a lower figure, they may do so. However, if after negotiation they still are unhappy with the money charged by their attorneys, they may ask the court to adjudicate the fee petitions to determine the amount of money they should pay in attorneys’ fees and costs.”

Judith asserts that she did not disagree with her attorneys’ bill and was not unhappy, and for that reason did not need to petition the court. However, the circuit court clearly stated that if the parties wished to negotiate a lower figure they could seek the court’s intervention. Moreover, ordering the parties to pay for their own attorney fees was not an abuse of discretion and was an equitable division, albeit not an equal one. See In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316; In re Marriage of Borg (1981), 96 Ill. App. 3d 282, 421 N.E.2d 214.

V

Judith contends that the circuit court erred when, without a hearing, it imposed sanctions on her counsel for preparing a summary of business records, which was not a pleading, motion, or other paper signed and filed by counsel. She further asserts that the court’s action was arbitrary because her counsel never referred to or incorporated the summary in any court filing, the summary was prepared with reasonable cause, and Michael never identified specific attorney fees incurred as a result of receiving the summary.

Section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611, repealed by Pub. Act 86 — 1156, eff. August 10, 1990) was penal in nature and had to be strictly construed according to its terms. (Fried v. Barad (1989), 187 Ill. App. 3d 1024, 543 N.E.2d 1018.) Section 2 — 611 was properly confined to papers filed in court, or at least to an oral motion. (See Modern Mailing Systems, Inc. v. McDaniels (1989), 191 Ill. App. 3d 347, 547 N.E.2d 762.) The purpose of the section was not to provide a sanction against all violations of court rules and for all professional misconduct of an attorney. Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 132, 356 N.E.2d 1150.

Here, the summary of business records was not filed with the court. Although the figures provided a basis for Judith’s pretrial memorandum filed with the court, the summary itself was not subject to section 2 — 611 as it was not a paper signed and filed by counsel. Furthermore, there is no proof that the document was not prepared “to the best of [the attorney’s] knowledge, information, and belief formed after reasonable inquiry” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) that the summary of business records accurately portrayed the balance sheet of Eddy Properties, Ltd. We note that both parties prepared other financial summaries which were later shown to be inaccurate and yet were not subject to attorney fees under section 2— 611. See Precision Components, Inc. v. Kapco Communications (1985), 131 Ill. App. 3d 555, 475 N.E.2d 1071.

Finally, the attorney fees were imposed without a hearing concerning the reasonableness of the summary of business records and of the attorney fees, and without a time summary which contained information concerning the nature of time expended and what that actual time was, the identity of who performed the service, the relation of the time spent to the untrue statements, and whether they were required services. (See Fried v. Barad, 187 Ill. App. 3d at 1028-29; Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424; In re Estate of Palm (1973), 11 Ill. App. 3d 24, 295 N.E.2d 580.) Considering all the foregoing circumstances, we conclude that the circuit court abused its discretion when it imposed attorney fees on Judith’s counsel. Accordingly, that portion of the judgment is reversed.

For the foregoing reasons, the judgment of the circuit court is affirmed in part, reversed in part and remanded for a hearing consistent with this opinion.

Affirmed in part; reversed in part and remanded.

SCARIANO, P.J., and BILANDIC, J., concur.

      Justice Bilandic participated in this decision prior to his election to the Illinois Supreme Court.