author: JUSTICE BUCKLEY

text:
    DONALD HAYNER et al., Plaintiffs-Appellees, v. THERESA FOX et al., Defendants-Appellees (Connecticut National Bank, f/k/a Hartford National Bank, et al., Third-Party Plaintiffs-Appellees; Lash, Warner & Associates, Third-Party Defendant-Appellant).
    First District (1st Division)
    No. 1—87—3641
    Opinion filed May 8, 1989.
    Rehearing denied August 30, 1989.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker, Howard A. London, of counsel), for appellant.
    Levenfeld, Eisenberg, Janger, Glassberg, Samotny & Halper, of Chicago, for appellees Connecticut National Bank and Bank of Ravenswood.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Connecticut National Bank (Connecticut) and the Bank of Ravenswood (Ravenswood) brought this third-party action, arising from a judgment entered against them for accepting and paying a draft with forged indorsements, against Lash, Warner & Associates (Lash, Warner), a copayee and subsequent indorser of the forged instrument. The circuit court, on cross-summary judgment motions, entered judgment in favor of Connecticut/Ravenswood in the amount of $32,534. Lash, Warner appeals from these orders, contending that the circuit court erred in finding that it had created statutory warranties of good title and authenticity of prior indorsements pursuant to the Uniform Commercial Code (the Code) (Ill. Rev. Stat. 1987, ch. 26, pars. 3 — 417(1)(a), (2)(a), (2)(b)).

We reverse and remand this case to the circuit court with instructions to enter summary judgment in favor of Lash, Warner.

This controversy arose from a $32,534 insurance check issued to six payees in settlement of a fire damage claim for real estate. The sequence of the payee indorsements occurred as follows. The check was first indorsed by Pioneer Bank & Trust Company, which was the land trustee, and First Federal Savings & Loan to the order of Donald Hayner and Andrew Van Styn, the contract sellers. The contract purchaser, Theresa Fox, in possession of the check with the signatures of the two banks and Hayner and Van Styn appearing on the check, then gave the check to Lash, Warner, the public adjustor who negotiated settlement. Lash, Warner indorsed the check in exchange for Fox’ check for $4,706.25 as payment for its services as adjustor. The final payee indorsement was made by Fox when she presented the check for payment to Ravenswood, which, in turn, forwarded the check to Connecticut for final payment.

Hayner and Van Styn then brought an action against Fox, Pioneer Bank & Trust Company, Ravenswood, and Connecticut alleging that their indorsements had been forged and that Ravenswood and Connecticut had converted the check. Judgment was entered in favor of Hayner and Van Styn in the full amount of the check. Connecticut/ Ravenswood then filed this third-party complaint now on appeal against Lash, Warner, alleging that Lash, Warner had breached its warranties under the Code. Lash, Warner denied in its answer that it breached any warranties to Connecticut/Ravenswood, but it admitted in response to discovery that at the time it indorsed the check, Hayner’s and Van Styn’s indorsements appeared on the check. Lash, Warner also admitted that it had indorsed the check and returned it to Fox in exchange for payment for its services in the amount of $4,706.25.

The facts of this case being undisputed, we determine whether Lash, Warner created, as a matter of law, statutory warranties under the Code.

The Code’s warranty provisions in issue here are section 3— 417(l)’s warranty of good title and section 3 — 417(2)’s warranties of good title and that all prior signatures are genuine or authorized. The precise question presented for our review is whether these warranties are triggered where a payee indorses a check in exchange for a co-payee’s payment for services rendered, such indorsement being made after the forged signature of another payee but before all necessary signatures appear on the check. As the parties have conceded in oral argument that no Illinois cases have addressed the effect of these warranties on this factual scenario and as we have not found any cases from other jurisdictions addressing this situation, we look to the language of the Code and the drafters’ intent to reach our determination of this question.

The “presentment” warranty in section 3 — 417(1)(a) provides:

“Any person who obtains payment or acceptance and any prior transferor warrants to a person who in good faith pays or accepts that
(a) he has a good title to the instrument or is authorized to obtain payment or acceptance on behalf of one who has a good title.” (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 417(1)(a).)

Under this provision, a person who gives his signature in exchange for payment under section 3 — 417(1) warrants that “he has a good title to the instrument.” In the absence of a Code definition for the term “good title,” evidence of the drafters’ intent as to this term, or the parties’ citation to any authority to the contrary, we rely on the plain meaning of the above phrase in concluding that section 3 — 417(1) applies to one who presents an instrument as one who purports to have and transfer title of the instrument by his indorsement. Lash, Warner could not have been purporting to have title to the check at the time it indorsed the check because a payee’s signature was missing at the time. Thus, we hold that Lash, Warner’s indorsement did not create the section 3 — 417(1) presentment warranty of good title.

Turning to the “transfer” warranties, sections 3 — 417(2)(a), and (2)(b) provide, in relevant part:

“Any person who transfers an instrument and receives consideration warrants to his transferee and if the transfer is by indorsement to any subsequent holder who takes the instrument in good faith that
(a) he has a good title to the instrument ***
(b) all signatures are genuine or authorized.” (Ill. Rev. Stat. 1987, ch. 26, pars. 3 — 417(2)(a), (2)(b).)

Lash, Warner contends that the events concluding in its signature did not trigger the “transfer” warranties because there was no “transfer of an instrument.” It argues instead that its signature was merely a relinquishment of its rights in the instrument or an authorization to a copayee to negotiate the check. Connecticut/Ravenswood, on the other hand, argues that Lash, Warner transferred the check when it gave up all rights it had in the instrument.

The Code does not define “transfer of an instrument,” nor do the drafters elucidate on the usage of the phrase. The parties, though, rely on different sections of the Code as indicating the drafters’ intent in this regard. We find none of these sections to be of much assistance.

Lash, Warner cites section 3 — 116(b), which states, in part, that “an instrument payable to the order of two or more persons *** may be negotiated *** only by all of them.” (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 116(b).) This section, however, was intended by the drafters not to define the warranty liability under section 3 — 417, but to clarify the distinction between an instrument payable to payees in the alternative and payable jointly as it relates to the negotiability of the instrument. Ill. Ann. Stat., ch. 26, par. 3 — 116, Uniform Commercial Code Comment, at 72 (Smith-Hurd 1963).

Connecticut/Ravenswood cites section 3 — 201, providing that a “[t]ransfer of an instrument vests in the transferee such rights as the transferor has therein” (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 201), and this section’s explicatory comment that the section “applies to any transfer, whether by a holder or not. Any person who transfers an instrument transfers whatever rights he has in it. The transferee acquires those rights even though they do not amount to ‘title.’ ” (Ill. Ann. Stat., ch. 26, par. 3 — 201), Uniform Commercial Code Comment 1, at 95 (Smith-Hurd 1963).) While this section explains the effect of a transfer, it sheds no light on when there is a “transfer of an instrument.” The Uniform Commercial Code Comment to the section on negotiation, section 3 — 202, so illustrates. In stating that negotiation is merely a special form of transfer, which importance lies entirely in the fact that it makes a transferee a holder, it states that “any negotiation carries a transfer of rights as provided in *** Section 3 — 201.” Ill. Ann. Stat., ch. 26, par. 3 — 201, Uniform Commercial Code Comment 1, at 101 (Smith-Hurd 1963).

Connecticut/Ravenswood further cites section 3 — 118(e), which provides: “[ujnless the instrument otherwise specifies two or more persons who sign as maker, acceptor or drawer or indorser and as part of the same transaction are jointly and severally liable even though the instrument contains such words as T promise to pay.’ ” (Ill. Rev. Stat. 1987, ch. 26, par. 3 — 118(e).) We find no merit to Connecticut/Ravenswood’s contention that this section provides for several liability against each of the payee indorsers in the instant case even though each individual indorser is not conveying the entire instrument.

As its title explains, section 3 — 118 is intended to clarify ambiguous terms and rules of construction. The drafters clearly intended that this section clarify the contract liability of an indorser or coindorsers to pay if an instrument is dishonored, not define the warranty liability of indorsers. The Uniform Commercial Code Comment to section 3 — 118(e) states that this joint and several liability rule “applies only where such parties sign as part of the same transaction; successive indorsers are, of course, liable severally but not jointly.” (Ill. Ann. Stat., ch. 26, par. 3 — 118(e), Commercial Code Comment 6, at 79 (Smith-Hurd 1963).) The comment’s latter sentence demonstrates that section 3 — 118(e) does not address the successive indorsement situation and the warranty liability of such indorsers. The “same transaction” language obviously refers to the contract liability of coindorsers, rather than the warranty liability of successive indorsers. Moreover, as Lash, Warner urges, construing section 3 — 118(e) to apply to section 3 — 417 would be illogical because it would suggest that if a check is issued to multiple payees, the first payee to indorse could be liable for subsequent forgeries of other payees.

Before revealing the outcome of our search for other provisions in the Code, we need to expound on the parties’ dispute in this case. Connecticut/Ravenswood argues that Lash, Warner confuses the concept of transfer with negotiation when it contends that its signature constituted merely a relinquishment of its rights as opposed to a transfer of an instrument. We understand this argument to be that the distinction between transfer and negotiation is that a transfer is the relinquishment of any interest in an instrument, whereas a negotiation conveys an entire instrument.

In our judgment, the Code provision relating to negotiation and the Uniform Commercial Code Comment suggest that the distinction between transfer and negotiation is not the quantum of the interest in the instrument that a person is purporting to convey but what rights the recipient acquires. The two reveal the correlation between the terms “transfer” and “negotiation.” Uniform Commercial Code Comment 1 to section 3 — 202 states:

“Negotiation is merely a special form of transfer, the importance of which lies entirely in the fact that it makes the transferee a holder ***.” (Ill. Ann. Stat., ch. 26, par. 3 — 202, Uniform Commercial Code Comment 1, at 101 (Smith-Hurd 1963).)

Section 3 — 202(3) provides:

“An indorsement is effective for negotiation only when it conveys the entire instrument ***. If it purports to be of less it operates only as a partial assignment.” (Ill. Rev. Stat. 1987, ch. 26, par. 3-202(3).)

The Code comment demonstrates that a negotiation and transfer are not separate and distinct concepts; their dissimilarity lies only in what the recipient acquires. A negotiation confers upon the recipient the status of a holder, whereas the recipient of a transfer may or may not acquire this status. Because the distinction in these two terms does not lie in the quantum of the instrument to be conveyed and because section 3 — 202(3) provides that to negotiate an instrument, an indorsement must convey the entire instrument, it follows that one must convey the entire instrument to “transfer an instrument.” The drafters’ use of the words “partial assignment” in section 3 — 202 instead of “transfer” to describe the effect of a conveyance of less than the entire instrument further supports this conclusion.

As a separate ground for holding that the “transfer” warranties are inapplicable to the instant case, we do not believe that the drafters could have intended the warranty provisions to apply to persons in the position of Lash, Warner. It is contrary to reasonable commercial expectations that in a multiple-payee situation, a payee could not give up his personal interest, however limited, to other copayees without warranting the title to the document or the genuineness of the signatures of other copayees who have previously signed the instrument. Contrary to Connecticut/Ravenswood’s argument that the drafters contemplated this situation and provided the protection of “without recourse” to such copayees, an indorser who signs “without recourse” disclaims his contract liability, but with the exception of limiting the subsection (2)(d) warranty to one that the indorser has no knowledge of any defenses, such an indorser makes all of the other section 3 — 417 warranties. Ill. Ann. Stat., ch. 26, par. 3 — 417, Uniform Commercial Code Comment 9, at 320 (Smith-Hurd 1963); see Wolfram v. Halloway (1977), 46 Ill. App. 3d 1045, 1048, 361 N.E.2d 587, 589.

Accordingly, we find that Lash, Warner is not liable under the Code’s warranty provisions because it did not “transfer an instrument” under section 3 — 417(2) or purport to convey good title under section 3 — 417(1)(a). Thus, we reverse the trial court’s summary judgment order in favor of Connecticut/Ravenswood and remand this case to the circuit court with directions to enter summary judgment in favor of Lash, Warner.

Reversed and remanded with directions.

CAMPBELL and O’CONNOR, JJ., concur.

      The $32,534 judgment was paid by Ravenswood, which had admitted its liability to Connecticut on its presentment warranty.

       6 R. Anderson, Uniform Commercial Code §3 — 417:27 (3d ed. 1984) supports our conclusion in stating that “it can be readily concluded that ‘good title’ requires all indorsements necessary to plaintiff’s chain of title be genuine and authorized.” We may infer from this comment that the necessary indorsements must exist and the warranty does not come into play where a necessary indorsement is missing. Accord First National Bank v. Nunn (Mont. 1981), 628 P.2d 1110, 1115.

      Lash, Warner argues that Connecticut/Ravenswood is procedurally barred from relying on section 3 — 118(e) on appeal because it sued Lash, Warner for breach of warranty under section 3 — 417(2)(b) and it did not argue the “joint liability theory” under section 3 — 118(e) in its motion for summary judgment or in its response to Lash, Warner’s motion for summary judgment. Connecticut/Ravenswood correctly points out, however, that its reliance on section 3 — 118(e) is not reliance on a new theory or substantive right; rather, section 3 — 118 is definitional. As the section’s title explains, it is intended to clarify “Ambiguous Terms and Rules of Construction.”

      Status of holder of a negotiable instrument is a prerequisite to qualifying as a holder in due course, which allows a person to take the instrument free from personal defenses. Ill. Rev. Stat. 1987, ch. 26, par. 3 — 305.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    MICHAEL K. CAROLLO et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. FINANCIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (1st Division)
    No. 1—87—3879
    Opinion filed May 8, 1989.

      Robert D. Kreisman, Steven D. Rakich, and Lee M. Weisz, all of Kreisman & Rakich, of Chicago, for appellants.
    William J. Gibbons and Mark S. Mester, both of Latham & Watkins, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiffs, Michael K. Carollo and Nancy L. Carollo, filed an action on behalf of themselves and all other persons similarly indebted on mortgage loans to the defendant, Financial Federal Savings and Loan Association (Financial Federal). Plaintiffs appeal from the granting of a motion to dismiss their complaint against defendant. In their complaint plaintiffs contend that Financial Federal breached the mortgage loan agreement between it and plaintiffs by requiring plaintiffs to pay a full month’s interest upon plaintiffs’ mid-month prepayment in full of their mortgage loan to Financial Federal.

The facts are undisputed. On November 13, 1979, plaintiffs entered into a mortgage loan agreement with Financial Federal whereby plaintiffs borrowed $55,100 from Financial Federal. Plaintiffs’ note of indebtedness to Financial Federal was secured by a mortgage on a new residence acquired by plaintiffs located in Lynwood, Illinois. The note provided that plaintiffs were to repay their indebtedness to Financial Federal by making monthly installment payments of $511.69 from January 1, 1980, through December 1, 2008. An interest charge of 105/s% per annum was assessed on the unpaid principal balance. Monthly installments on the note were due on the first day of each month over the course of the term of the note.

From January 1980 through October 1986, plaintiffs made monthly installments to Financial Federal, as required by the note. On November 3, 1986, plaintiffs notified Financial Federal that they wished to prepay their indebtedness on the note since they were in the process of selling their house. Plaintiffs were advised by Financial Federal that the amount necessary to prepay their indebtedness through November 30, 1986, was $52,729.43. This amount consisted of the outstanding principal balance of $52,246.89 plus the $925.20 interest due on the outstanding balance for the months of October and November 1986, together with a release fee of $50, minus the accumulated balance in the escrow account of $492.66. On November 15, 1986, Financial Federal received a check from plaintiffs in the amount of $52,729.43.

On July 13, 1987, plaintiffs filed a complaint alleging that Financial Federal had breached the mortgage loan agreement in connection with the charging of interest for the full month of November 1986, following plaintiffs’ prepayment of the entire loan amount on November 15, 1986. Plaintiffs sought to bring their action against Financial Federal on behalf of themselves and all others similarly situated. The trial court, after reviewing the briefs filed by the parties and hearing oral argument, granted Financial Federal’s motion to dismiss plaintiffs’ complaint and plaintiffs appeal.

Plaintiffs argue on appeal that Financial Federal’s policy of requiring mortgagors to pay interest on their outstanding loan balance for an entire monthly period, even though they have completely paid off their loan prior to the end of such monthly period, constitutes a violation of the provisions of the standard mortgage and loan documents used by Financial Federal for home mortgage transactions. Financial Federal maintains that the agreement between the parties specifically contemplates the charging of a full month’s interest upon the premature, mid-month retirement of the plaintiffs’ indebtedness.

The practice of charging interest in advance on mortgage loans has repeatedly been upheld by Illinois courts. (Beaty v. Land of Lincoln Savings & Loan (1984), 127 Ill. App. 3d 248, 468 N.E.2d 1259; Wishnoff v. Guardian Savings & Loan Association (1975), 34 Ill. App. 3d 107, 339 N.E.2d 494; Goodman v. Advance Mortgage Corp. (1975), 34 Ill. App. 3d 307, 339 N.E.2d 257.) In Wishnoff, the plaintiffs prepaid the monthly interest in advance on their mortgage loan and later in the month elected to pay off the remaining balance on the loan, but they did not receive a refund for the interest collected during that part of the month after which the loan was fully paid. The plaintiffs brought an action for unjust enrichment and for an accounting. This court held that the plaintiffs were not entitled to a partial refund of interest where the terms of the mortgage note provided that monthly interest was payable in advance on the first of the month. The operative language of the mortgage note provided:

“Interest for each month shall be added to the unpaid balance on the first day of each month at the rate of one-twelfth (1/i2) of the annual interest rate and shall be calculated upon the unpaid balance due as of the last day of the preceding month.”

In rejecting the plaintiffs’ contention that the portion of the prepaid interest allocable to the part of the month during which there was no outstanding principal was “unearned,” the court held that interest was to be charged and collected in accordance with the language of the debt instrument. Since the subject note provided for the payment of monthly advance interest and did not contain a provision for a rebate of interest upon prepayment of the loan, the interest was “earned” within the terms of the parties’ contract. The court noted that the plaintiffs could have obviated the interest payment by paying the principal on the first of the month. The court stated:

“There is no provision for a rebate of interest upon prepayment of the loan. It is true, as plaintiffs point out, that they paid interest for a period during which there was no outstanding principal. However, it does not follow that the interest for that period was unearned. Earned interest is that to which the parties agree. Plaintiffs in effect contracted for the use of principal on a monthly basis with each month’s interest to be paid in advance. We fail to comprehend how the interest for the entire month *** was any less earned merely because plaintiffs chose not to make full use of the principal.” Wishnoff, 34 Ill. App. 3d at 110, 339 N.E.2d at 496.

A similar factual situation was presented to this court in Goodman. There the plaintiffs relied on virtually identical contract language as was present in Wishnoff. This court affirmed the judgment of the trial court dismissing plaintiffs’ complaint. The court observed that the parties in their loan agreement had clearly provided for the collection of monthly interest in advance. This arrangement was part of the consideration received by the defendant financial institution for granting loans, and the agreement of the parties did not contain a provision for a rebate of interest upon prepayment of the loan. Therefore, the court held that the lender could collect interest in advance. See also Beaty v. Land of Lincoln Savings & Loan (1984), 127 Ill. App. 3d 248, 468 N.E.2d 1259.

The Illinois Savings and Loan Act provides that interest is to be charged and collected in accordance with the language of the loan agreement. (Ill. Rev. Stat. 1983, ch. 17, par. 3138.) It is clear that the payment of interest is determined by the contract between the borrower and the lender. In the case at bar, paragraph 6 of the loan information sheet executed by the plaintiffs states that in the case of the collection of advance payments, “interest for these advance monthly payments will be charged automatically.” Paragraph 4 of the note executed by the plaintiffs provides, in part, that the

“[b]orrower may prepay the principal amount outstanding in whole or in part. The Note holder may require that any partial prepayments (i) be made on the date monthly installments are due.”

Further, paragraph 1 of the note provides that monthly installment payments are due on the first day of each month. From our reading of these provisions, the loan agreement required that prepayments were to be made on the first day of the month and interest, as a component of such prepayments, was to be charged and collected automatically at the time the prepayment was made. The loan agreement of the parties clearly contemplated the payment of interest in advance rather than after it had accrued. Further, there was no provision for a rebate of interest. The payment of interest on the first day of the month constituted part of the consideration received by Financial Federal for granting the loan to plaintiffs. Accordingly, it is our opinion that the charging and collection of interest for the entire month of November was justified since plaintiffs did not make their prepayment on November 1, 1986, as required by the terms of their loan agreement.

Plaintiffs argue that the language of the mortgage loan agreements relied upon in Wishnoff and Goodman is virtually identical, but the loan agreement here does not contain the same language. From our review of the agreement of the parties here, as did the agreements construed in Wishnoff and Goodman, it provided that interest would be charged on the borrower’s account at the beginning of each installment period from the date the note was executed. Although the language of the loan agreement is not identical to that in Wishnoff and Goodman, the contract clearly provided that interest was to be paid “automatically” on the first day of each month until the loan was fully paid. There was no provision for a refund of interest collected during that part of the month after which the loan was fully paid. In our judgment, the language of the loan agreement is clear and sufficient to bind the parties. In the absence of ambiguous language, this court has no legal basis to support a judicial reformation of a commercial agreement. (Lustgarten v. First Federal Savings & Loan Association (1963), 42 Ill. App. 2d 86, 191 N.E.2d 434.) Since the loan agreement in the case at bar contemplated the charging of interest in advance and provides that interest will be charged automatically on prepayments, Financial Federal was entitled to charge and collect interest on plaintiffs’ loan for the month of November 1986.

Plaintiffs contend that Item 2 of the loan information sheet provided by defendant supports their claim that the defendants have not earned the prepaid monthly interest when the loan is fully paid prior to the end of the month. Item 2 provides that “interest on your mortgage loan is collected in arrears.” From our reading of this provision, it pertains to the collection of late interest payments and does not preclude defendant from charging interest on plaintiffs’ loan as of the first day of the month. The note executed by the parties specifically provides that payment of the principal and interest is due on the first day of each month. Although Item 2 does provide that interest is collected in arrears on ordinary monthly installments, collection of interest on advance payments is governed by Item 6 of the loan information sheet, which provides that interest will be charged “automatically.” Accordingly, interest was charged in advance on the principal balance on the date the loan agreement was consummated, and thereafter, the interest for each installment period was charged to the plaintiffs at the beginning of each installment period and was collected at the end of the installment period. The interest on plaintiffs’ loan for November 1986, the month in which plaintiffs prepaid their loan, was charged to plaintiffs on November 1, 1986. Therefore, Financial Federal did not violate the loan agreement by charging interest for the entire month of November 1986, since the interest was charged to plaintiffs on November 1, 1986. Under the terms of the loan agreement, interest was charged in advance on regular payments but collected in arrears on late payments.

For the reasons stated, the judgment of the circuit court of Cook County dismissing plaintiffs’ complaint is affirmed.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE McBOUNDS et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—86—0369
    Opinion filed February 22, 1989.

      Mary Ellen Dienes, of Chicago, for appellant Willie McBounds.

      Steven Clark and Debra R. Salinger, both of State Appellate Defender’s Office, of Chicago, for appellant Fred Edwards.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Theodore F. Burtzos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendants Willie Earl McBounds and Fred Edwards were convicted of the murder of Ricardo Wright. Defendant McBounds was sentenced to the Illinois Department of Corrections for a term of 38 years, and defendant Edwards was sentenced to a term of 28 years. On appeal, defendant McBounds contends that: (1) the statute under which the only evidence of defendant’s guilt was admitted is an unconstitutional legislative encroachment on the rulemaking power of the judiciary; (2) he was denied his constitutional right to confrontation of witnesses against him by the State’s use of the prior inconsistent statements of two prosecution witnesses; (3) he was not proved guilty beyond a reasonable doubt where the only evidence against him was untrustworthy; and (4) he was denied a fair trial by the prosecution’s improper arguments. Defendant Edwards contends that: (1) the State failed to prove him guilty of murder beyond a reasonable doubt; (2) he was denied his constitutional right to present a defense by the trial judge’s failure to enforce subpoenas for two critical defense witnesses; (3) the State’s impeachment of two witnesses with their prior inconsistent statements was improper under Supreme Court Rule 238 (107 Ill. 2d R. 238) and deprived defendant Edwards of his right to a fair trial; (4) section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1) violates both the Illinois and United States Constitutions; (5) he was denied a fair trial by the prosecutor’s improper statements during rebuttal and closing argument; (6) the trial court violated his right to due process by considering his protestation of innocence as a lack of remorse and using it as an aggravating factor in sentencing; (7) his 28-year sentence was excessive in view of his rehabilitative potential; and (8) the trial court acted improperly in allowing the use of prior inconsistent statements of two prosecution witnesses as substantive evidence without a determination of the voluntariness of the statements.

The trial began with the testimony of Frances Poston, the victim’s mother, who stated that on July 14, 1985, sometime after 11 p.m. she received a telephone call from defendant McBounds stating that he was not at home, but that he had just heard that her son had been killed and would visit her the next day. Poston stated that defendant McBounds and her son were good friends, and she knew of no problems between them prior to the shooting.

Valerie Barnes, the victim’s common law wife, testified that the victim came to her house at around 9:15 p.m. on the night of the shooting and remained there for 20 minutes while his friend Anthony Moore stayed outside in a car. Sometime later Barnes learned that the victim had been shot.

Anthony Moore was the next witness called by the State. Moore was accompanied by his attorney, Steven Stern. Moore claimed that his prior statements to the police and grand jury had been coerced and that he intended to testify contrary to his former statements. Stern stated that Moore would not testify unless he was granted immunity from perjury. The trial judge advised Moore that a grant of immunity would not cover a charge of perjury and that he would be held in contempt of court if he refused to testify. Moore then testified that on the evening of July 14, 1985, he met the victim and they went to Marilyn Rice’s house. While the victim stayed in front of the house, Moore went to the back of the house and fell asleep. Moore stated that the next thing he remembered was Kenny Rice waking him up and telling him that the victim had been shot. Moore went to the front of the house and saw the victim in a pool of blood. After an unsuccessful resuscitation attempt, Moore stated that he went home and informed the victim’s brother of the shooting.

Several days later Moore was taken to the police station. He claimed that he was detained for 23 hours, handcuffed to a wall, denied food or the use of a bathroom and was beaten and kicked in the groin, back and legs. Moore claimed that the police also threatened to tell defendants that Moore had given them a statement against them. The police allowed him to leave only after he signed a statement which the police directed him to make. Following this experience, Moore contacted the State’s Attorney’s office to complain about his treatment at the police station, but his call was never returned.

In his statement to the police, Moore said that on the day of the murder he was talking with the victim in the parking lot by the Rice’s house when defendant Edwards called the victim to the area in front of the porch and started arguing with him. Moore overheard Edwards say something about drugs and money and tell the victim that he “blew it.” Defendant McBounds then walked up behind defendant Edwards, and as Edwards moved away, the victim also turned to move away but was shot in the back of the head by defendant McBounds.

Moore was later subpoenaed to testify before the grand jury. Prior to his testimony, he was directed to go to the State’s Attorney’s office. Moore stated that when he arrived, Assistant State’s Attorney Beuke left, and Officers Digman and McGuire, who were also present, then hit him in the face and head with a golf club and told him to “put the case on” defendants. Moore stated that his face was red and swollen when he was taken to the grand jury room to testify. He did not tell any member of the State’s Attorney’s office or grand jurors that he had been beaten, and he testified to facts similar to those in his earlier statement.

Gerald King, the nephew of the victim, was the next witness to testify. He stated that on the day of the shooting, he borrowed the victim’s car and drove around Altgeld Gardens, where he saw both defendants shortly before returning the car at 8:30 p.m. King did not report seeing either defendant in Altgeld Gardens to the police or State’s Attorney’s office until he was questioned shortly before the commencement of trial. He also acknowledged talking to Angela Parker, but denied telling her that he would lie to put defendants in jail.

Anthony King was also the victim’s nephew. He testified that about 3:30 p.m. the day after the shooting, he was out with the victim’s daughter, Tasha Barnes, when he saw defendant Edwards with a group of men. When Edwards saw them, he pointed and said “[Ajin’t that the man’s daughter that we killed last night?” King and Barnes left and reported the incident to their parents.

The State’s last witness was Rozena Petty. She stated that on the evening of July 13, 1985, she and the victim drove to the forest preserve, drank beer and talked. She was with the victim until 10:30 a.m. the next day, when he brought her home. She went to sleep at 2 p.m. and was awakened by her daughter, who told her that the victim had been shot.

Sometime after the shooting, the police asked Petty to give them a statement. She stated that she was drunk when she was taken to the police station at 9 p.m. and that the police kept her at the station until 11:30 a.m. the next day. Petty testified that she only signed the statement because the police would not allow her to go home to her one-year-old twins, who were unattended, until she signed it. In the statement Petty told the police that she was with the victim at the Rices’ house on the evening of July 14, 1985, and that she heard three shots and saw defendant McBounds with a gun. Petty also stated that defendant Edwards was at the scene of the shooting. In her trial testimony, Petty contradicted Gerald King’s testimony that he had borrowed the victim’s car on the day of the shooting. Petty claimed that the victim would not have allowed anyone else to drive it.

Marva Whitfield testified for the defense that she had known defendant Edwards for more than five years and that he was at her house on the night of the shooting. She stated that defendant received three telephone calls at her house that night; two calls were from his nephew Howard Foreman and one was from Eddie Hudson. All three calls were initially answered by her. She also testified that she and defendant were at her house the entire day, that her car was in front of her house with a flat tire, and that defendant and the victim had been good friends.

Howard Foreman testified that on the night in question he called defendant at Marva Whitfield’s house at around 10:10 p.m. to arrange for a ride home. Foreman stated that defendant Edwards answered the phone. According to Foreman, defendant stated that he could not give Foreman a ride because Whitfield had used his car to drive to her mother’s house and was not at home. Foreman stated that he called defendant two more times and was told each time that Whitfield had not returned home. Foreman also testified that it was defendant who initially responded to each of his calls.

Dorothy Foreman, defendant Edwards’ sister, testified and corroborated Howard Foreman’s testimony regarding the telephone calls to defendant. Quintana Cage was the next defense witness to testify. She knew defendant McBounds through her mother, Diane Cage Edinburg, who was defendant McBounds’ girlfriend. She also stated that she had known the victim because he was a friend of defendant McBounds. Quintana Cage stated that on the night of July 14, 1985, she saw the victim after he had been shot and she called home and. spoke to defendant McBounds.

Sid Williams testified that three weeks before the trial he was with his friend Russell Spikes when Gerald King telephoned and asked to speak to Spikes. Spikes used one of the telephones to talk with King while Williams eavesdropped on their conversation. Williams stated that King asked Spikes to testify that he had seen both defendants in Altgeld Gardens on the day that the victim was shot but Spikes refused.

Kenneth Baker testified that he saw the victim on the morning of July 14, 1985, and that the victim gave his car to Gerald King but asked to have it returned by 8:30 p.m. According to Baker, the victim then went to Marilyn Rice’s house and King drove away.

Diane Cage Edinburgh testified that, on the evening of the shooting, defendant McBounds was home with her the entire evening. Beginning at 10 p.m. she and defendant received several calls informing them of the victim’s death, and they subsequently spoke with the victim’s mother. Cage also testified that the victim and defendant had been close friends.

Cage stated that she knew Anthony Moore and on one occasion had given him a ride to court. She said that she knew Moore was testifying against defendant McBounds, but that she was not concerned and did not talk with him about the case. Cage also testified that she knew Marilyn Rice, and that at the request of the defense attorney, she had gone to her house to inquire if she needed a ride to court. Cage stated that she thought Rice would be a witness for the prosecution. She also claimed that she had seen Rice in court several times and that on one of these occasions Rice was crying. Angela Parker testified that several weeks earlier Gerald King and Russell Spikes had been at her house and that King said that he would lie in court if he had to in order to get defendants convicted because he did not like them.

Eddie Hudson testified that when he learned that the victim had been shot, he telephoned defendant Edwards at Whitfield’s house between 10:05 and 10:10 p.m. Hudson stated that Edwards’ girlfriend initially answered the telephone but that he then spoke directly with defendant.

Following Hudson’s testimony, defense counsel requested a two-day continuance in order to obtain Marilyn Rice’s appearance in court. Defense counsel reported that subpoenas were served on Marilyn Rice and her mother but that her mother was ill, and Marilyn refused to come to court. The court granted the continuance for two days, but defense counsel was still unable to obtain Rice’s appearance in court. The State refused to stipulate as to what Rice’s testimony would be, and the court refused to allow defense counsel’s offer of proof.

Renee Fields testified that between 9 p.m. and 10 p.m. on the date of the shooting, she went to the Rices’ home and saw the victim in front of the house talking with a man she did not know. While she was in back of the house, she heard what sounded like two firecrackers. About 10 to 15 minutes later, she went to the front of the house and found the bleeding victim on the ground.

Defendant Edwards testified that he and the victim had been close friends. On the day of the shooting he claimed that he was at Whitfield’s house all day, and that except for a few hours in the afternoon, she was with him during that time. Edwards learned of the victim’s death through a telephone call he received from Hudson. He also received three calls from his nephew requesting a ride. Defendant stated that he lied to his nephew about not being able to give him and his mother a ride home because he was tired.

When defendant Edwards was arrested for the victim's murder, he spoke to Assistant State’s Attorney Fitzgerald and gave a written statement, which he read and signed. In the statement defendant said that he received a call regarding the victim’s death at 11:15 p.m. on the date of the shooting. He also said that the day prior to the shooting he was with defendant McBounds and three other men, and that they were talking about resolving a problem with someone who had taken narcotics from a person called Pearly. Edwards denied both written statements and said that the case against him was fabricated because they wanted to see him go to prison.

Gregory Vonderheide, a special agent for the Federal Bureau of Investigation, testified for the State in rebuttal. He said that he spoke with Anthony Moore regarding Moore’s allegations against the police. Moore told Vonderheide that he left the grand jury proceeding at 1:30 p.m., and that he reported to the Roseland Community Hospital at 6:52 p.m. The hospital records indicated that Moore was treated for bruises and that he reported being hit in the head and chest with a golf club.

Dorothy Foreman testified on surrebuttal that testimony was not presented before the grand jury in defendant Edwards’ case until 3:30 p.m. on September 5, 1985. She also stated that she saw Moore at 12:30 p.m. that day and he did not appear to be injured. Defense counsel’s request to withdraw from the case and testify regarding the time of the grand jury proceeding was denied.

On appeal, defendant McBounds contends that section 115— 10.1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10.1) is unconstitutional because it is a legislative encroachment on the rulemaking power of the judiciary. The statute authorizing the use of prior inconsistent statements is constitutional as within legislative authority and the legislature has the power to prescribe methods of proof and alter existing rules of evidence. (People v. Orange (1988), 121 Ill. 2d 364, 521 N.E.2d 69; People v. Hastings (1987), 161 Ill. App. 3d 714, 515 N.E.2d 260, appeal denied (1988), 118 Ill. 2d 547; People v. Winfield (1987), 160 Ill. App. 3d 983, 513 N.E.2d 1032, appeal denied (1987), 117 Ill. 2d 552.) The fact that the Illinois Supreme Court has not previously allowed the substantive use of prior inconsistent statements did not preclude the legislature from doing so. (People v. Orange, 121 Ill. 2d 364, 521 N.E.2d 69.) Contrary to defendant’s allegations, the Illinois Supreme Court has affirmed the legislative enactment of section 115 — 10.1 and has expressly found that it was not an encroachment on judicial power. The holdings in People v. Hastings and People v. Winfield have not been rejected by the Illinois Supreme Court as defendant argues, and they are valid law. Therefore, the statute in question is constitutional, and the prior inconsistent statements of Moore and Petty were admissible as substantive evidence.

Defendant Edwards has also challenged the constitutionality of this statute, and based on People v. Orange and our discussion above, we conclude that the statute under which the prior inconsistent statements in question were admitted is constitutional.

Defendant McBounds next contends that he was denied his constitutional right to confront adverse witnesses where the only evidence against him was the prior inconsistent statements of two witnesses. Defendant contends that he was unable to confront the two witnesses regarding their prior inconsistent statements because the witnesses either could not remember or denied making the prior statements. However, the United States Supreme Court has held that the confrontation clause of the sixth amendment is not violated by the admission of a witness’ prior inconsistent statements as substantive evidence as long as the witness is testifying at trial and is subject to cross-examination. California v. Green (1970), 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930.

The Court chose, however, not to decide the issue of whether a witness’ alleged lapse of memory would make a critical difference in the application of the confrontation clause and deferred the determination of this issue back to the State courts, concluding that the resolution of this issue would depend on the unique facts of each case. (California v. Green, 399 U.S. at 170, 26 L. Ed. 2d at 503-04, 90 S. Ct. at 1941.) The court in United States v. DiCaro (7th Cir. 1985), 772 E2d 1314, stated that a determination of how much a witness’ memory lapse hampers cross-examination turns on the degree to which the witness’ memory lapse affects the ability of the trier of fact to determine the veracity of the out-of-court statements.

In the instant case, it was the judge, as the trier of fact, who heard the testimony and out-of-court statements of Anthony Moore and Rozena Petty. Although defendant McBounds contends that his cross-examination of these witnesses was hampered by their denial or inability to recall their previous out-of-court statements, the evidence reflects otherwise. During his trial testimony, Moore acknowledged making a statement to the police that he was with the victim at the Rices’ house at the time of the shooting, but that he fell asleep and saw nothing. Moore then described how he was brought back to the police station, and that rather than ask him questions, the police told him what he had seen. Moore then claimed that he was detained for 23 hours, handcuffed to a wall without any bathroom facilities or nourishment. He was then given what was represented as his written statement to the police. Moore testified that he read the statement, made changes and signed it, but that none of the contents of the statements were his words except the changes he made. Moore also acknowledged testifying before the grand jury, and although he initially claimed that he was just saying anything “to get out of there,” he then acknowledged his prior testimony at the trial. Moore recalled testifying that he saw both defendants at the Rice house, that defendant Edwards spoke to the victim, and that defendant McBounds pulled a gun and fired it. Moore then recalled testifying that defendant McBounds caught up with defendant Edwards who had already started running from the scene. Moore also recalled telling the grand jury that he pretended to be asleep after the victim was shot. On cross-examination Moore did not claim any memory loss or deny making the statements in question but described in detail how he was physically abused and coerced into making them.

Rozena Petty also testified on direct examination that she gave a statement to the police. However, she stated that what was represented to her as her statement in writing was not what she had previously told police. Petty also testified that she read the statement and signed it. On cross-examination, Petty stated that her previous out-of-court statement was not true and that she had only signed it because she had been ill due to her drinking and also because the police would not allow her to go home to her one-year-old twins, who were unattended, until she did.

Both Moore and Petty were hostile witnesses for the State. Neither witness had any significant memory lapse either on direct or cross-examination and neither witness denied anything but the truth of their prior statements. Furthermore, during cross-examination both witnesses testified extensively as to the reasons for the inconsistencies in their trial testimony and prior statements. Therefore, we conclude that both witnesses’ recollections and acknowledgements of their prior statements did not hamper defendant’s right to confront or cross-examine witnesses against him.

Defendant McBounds also contends that the confrontation clause was violated by the admission of witnesses’ out-of-court statements not made under oath. Where a witness testifies under oath regarding his prior statements and is available for cross-examination with respect to both past and present versions of the event, the prior statements are equally admissible as far as the confrontation clause is concerned whether or not they were made under oath. (California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930.) Under section 115 — 10.1 of the Code of Criminal Procedure, statements not made under oath are admissible if they narrate, describe or explain an event or condition of which the witness had personal knowledge and the statements comply with subsections (c)(2)(A), (c)(2)(B) or (c)(2)(C). Ill. Rev. Stat. 1985, ch. 38, pars. 115-10.1(c)(2)(A), (c)(2)(B), (c)(2)(C).

In the instant case, both Moore’s and Petty’s signed statements were admissible pursuant to section 115 — 10.1 (Ill. Rev. Stat. 1985, ch. 38, pars. 115 — 10.1(a), (b), (c)(2)(A).) Both written statements described events of which the witnesses allegedly had personal knowledge, and each witness testified at trial that he read the statements, made changes and signed them. In addition, Moore’s signed statement was corroborated by his testimony under oath before the grand jury.

The last issue raised by defendant McBounds regarding the confrontation clause is that it does not permit the use of statements as evidence against a defendant where the statements were the involuntary product of coercion and violence. Moore testified at the trial that he signed the statement in question because he was handcuffed and detained overnight at the police station and beaten with a small stick. Moore did not seek medical attention following the alleged abusive treatment at the police station, but testified that he sought help from the State’s Attorney’s office and civil rights organizations. Moore also stated that shortly prior to his testimony before the grand jury the police beat him on the head and face with a golf club and told him how he was to testify. Moore also stated that he sought treatment at Roseland Community Hospital after he testified. Moore’s responses to the prosecutor’s questions as to the time of his grand jury appearance were vague but he said that it was late in the afternoon.

The State, on rebuttal, presented the testimony of Gregory Vonderheide, an investigator for the Federal Bureau of Investigation. Vonderheide stated that he worked in the unit to which claims of police brutality were directed and that he had been assigned to investigate Moore’s complaints of the alleged mistreatment he received. Vonderheide also testified that the Roseland Community Hospital record disclosed that Moore had sought treatment at 6:52 p.m. on the date of his grand jury appearance, that he had suffered some bruises and that he was treated with Tylenol. Vonderheide also testified that Moore informed him that he left the grand jury at 1:30 p.m. According to Vonderheide’s testimony, an investigation of Moore’s allegations was conducted, no police officers were indicted, and at the time of trial, the investigation was closed.

Petty also testified that her prior statement to the police regarding the shooting was coerced and involuntary, and that she had only signed the statement claiming that she did not know what she was doing because of her drinking the night before. Petty also claimed that the police had detained her overnight and would not allow her to return home to her young unattended children until she signed the statement.

The trial judge considered the witnesses’ prior statements as well as their trial testimony regarding their allegations of abuse. The trial judge also heard the testimony of Investigator Vonderheide that Moore’s allegations had been investigated and that no evidence was found to support them. We conclude that there was sufficient evidence to support the trial court’s finding that the witnesses’ prior statements were not coerced and were voluntary, and that no further inquiry was needed.

Defendant Edwards has also raised this issue. We have considered his arguments, and for the same reasons, we conclude that there was sufficient evidence to support the trial court’s finding that the statements in question were voluntary.

Defendant McBounds next contends that he was not proven guilty beyond a reasonable doubt where the only evidence against him was untrustworthy. The trier of fact must determine the credibility of the witnesses and the weight to be given their testimony, and where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. A trial court’s finding will only be set aside if the evidence, when viewed in a light most favorable to the prosecution, is such that no rational trier of fact could have found defendant guilty beyond a reasonable doubt. People v. Linscott (1986), 114 Ill. 2d 340, 500 N.E.2d 420; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267; People v. Lester (1981), 102 Ill. App. 3d 761, 430 N.E.2d 358.

In the instant case, the trial court heard the testimony of several State’s witnesses and 12 witnesses, including defendant Edwards, for the defense. Although there were two witnesses who presented alibi testimony for both defendants that neither was in Altgeld Gardens on the day of the shooting, Gerald King, the nephew of the victim, testified that he saw both defendants in Altgeld Gardens that evening. The trial judge considered the testimony of all the witnesses, including Moore and Petty, whose out-of-court statements he found more trustworthy than their trial testimony, and he concluded that there was sufficient evidence to find defendant guilty beyond a reasonable doubt. Therefore, viewing the evidence in a light most favorable to the prosecution, we conclude that a rational trier of fact could have made the same finding.

Defendant McBounds’ last contention is that he was denied a fair trial because the prosecutor presented improper arguments before the court which were unsupported and contradicted by the evidence presented. Defendant claims that the prosecutors made improper comments that Moore and Petty testified contrary to their out-of-court statements because they were aft aid of defendants. Defendant also claimed that the prosecutor misstated the evidence when he argued that there was no evidence that the police coerced Moore and Petty into making their out-of-court statements. Defendant argues that the prosecutor’s comment that the police were not investigating either defendant and had no reason to force Moore and Petty to provide evidence against them was improper and contrary to evidence because there was evidence that defendants were suspects prior to Moore’s and Petty’s statements.

A prosecutor is allowed a great deal of latitude in making his closing argument, and the trial court’s determination of the propriety of the argument will be followed absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill. 2d 163, 514 N.E.2d 970; People v. Neumann (1986), 148 Ill. App. 3d 362, 499 N.E.2d 487.) To constitute reversible error the complained-of remarks must have resulted in substantial prejudice to the accused so that absent these remarks the verdict would have been different. (People v. Morgan (1986), 112 Ill. 2d 111, 492 N.E.2d 1303.) Where there are allegations of prosecutorial misconduct, the arguments of both the prosecutor and defense counsel must be examined in their entirety, and the complained-of comments must be placed in their proper context. People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174.

In the instant case, the prosecutor’s comment that Moore and Petty contradicted their former statements because they were fearful of defendants could be inferred from the fact that their trial testimony and former statements were inconsistent, their testimony in defendants’ presence was favorable to them and both witnesses had contact with several people who testified for the defense.

The other argument of the prosecutor, which defense counsel claimed was improper, was the prosecutor’s reference to the fact that the police had no reason to coerce Moore and Petty into making statements against defendants because they were not suspects at the time Moore and Petty met with the police. Whether or not the prosecutor was correct about when defendants became suspects, there was other evidence to support the same contention of the State, such as Vonderheide’s testimony that he found no evidence of Moore’s allegations of abuse.

The trial judge had an opportunity to hear the testimony and observe the demeanor of over 15 witnesses to determine whether Moore or Petty had been intimidated by defendant or the police and which of their contradictory statements were most credible. Therefore, we conclude that the prosecutorial arguments were not prejudicial to the defense, and that absent these remarks, the trial court’s finding would still have been the same. People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970.

Defendant Edwards has also raised this issue, and based on our discussion above and the authorities cited, we reach the same conclusion.

Defendant Edwards contends that the State failed to prove him guilty of murder based on accountability. The trier of fact must determine the credibility of the witnesses and the weight to be given their testimony, and to resolve inconsistencies and conflicts therein. Therefore, where the evidence is only conflicting, a reviewing court will not substitute its judgment for the trier of fact. (People v. Torres (1981), 100 Ill. App. 3d 931, 427 N.E.2d 329.) In addition, guilt by accountability is governed by section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 5 — 2). To sustain a conviction on an accountability theory, -the State must establish beyond a reasonable doubt that a defendant solicited, aided, abetted or attempted to aid another in the commission of a crime. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631.) Although mere presence or negative acquiescence is not sufficient to establish guilt by accountability, an accused may be found to have aided or abetted the commission of a crime based on his presence at the scene in addition to his acts after its commission. People v. Bunting (1982), 104 Ill. App. 3d 291, 432 N.E.2d 950; People v. Tate (1976), 63 Ill. 2d 105, 345 N.E.2d 480.

The trial judge in the instant case found the pretrial statements of Moore and Petty more credible than their testimony at trial. Petty’s prior statement placed both defendants at the scene of the shooting, and Moore’s statement and grand jury testimony stated that defendant Edwards called the victim over to where he was standing, started talking to him and began to walk away. The victim then turned his back on both defendants and was shot in the back of the head by defendant McBounds. Defendant McBounds then caught up with defendant Edwards, and they left the scene together. Moore’s description of the murder was corroborated by the physical evidence that the victim was shot in the back of the head. Gerald King testified that he saw defendants in Altgeld Gardens sometime between 7:30 and 8:30 p.m. on the night of the shooting, and Anthony King testified that on the day after the shooting, Edwards pointed to the victim’s daughter and said, “[A]in’t that the man’s daughter that we killed last night?”

Although numerous witnesses presented alibi testimony on behalf of both defendants, the testimony contained many inconsistencies and was also contradicted by testimony for the State. In addition, the trial judge had an opportunity to observe the demeanor of the witnesses and to weigh the credibility of their testimony. In considering the evidence as a whole, the judge was convinced that defendant Edwards was guilty of murder on the basis of accountability beyond a reasonable doubt. We conclude that this determination was not improbable, unreasonable, or unsatisfactory, and we will not disturb it. People v. McNeal (1987), 160 Ill. App. 3d 796, 513 N.E.2d 897.

Defendant Edwards next contends that he was denied his right to present a defense where the trial court failed to enforce subpoenas for two critical defense witnesses. All motions for a continuance are within the discretionary power of the trial court and will be considered in light of the diligence shown by the movant. (People v. McNeal, 160 Ill. App. 3d 796, 513 N.E.2d 897.) Where there is no evidence or expectation that the witness will be available in the foreseeable future, the denial of the motion is proper. People v. Davis (1986), 147 Ill. 3d 800, 498 N.E.2d 633.

In the instant case, defendants answered ready and demanded trial as early as October 1985, but neither Marilyn Rice nor her mother was listed among the witnesses that defendants intended to call. The State did list them as witnesses, however, and issued subpoenas for their appearance. The trial began on December 2, 1985, and 10 days later Rice appeared in court. However, she allegedly left in tears before she could testify. On December 17, 1985, defense counsel requested a two-day continuance to subpoena Marilyn Rice and her mother, which the court granted, but when defense counsel was again unsuccessful in bringing the witnesses before the court, the trial judge denied any further continuance. We conclude that where defense counsel had ample opportunity to subpoena both witnesses at an earlier date, failed to do so and was also unable to show the court that further continuances would have any different result than the ones already granted, the trial court’s denial of any further continuance was proper.

Defendant Edwards next contends that the trial court violated due process by considering his claim of innocence as demonstrating a lack of remorse and considering this as an aggravating factor in sentencing. He also contends that the 28-year sentence for murder was excessive in light of his rehabilitative potential. Defendant argues that his due process rights were violated by placing a penalty on the exercise of his fifth amendment right to be a witness against himself.

Factors properly considered in sentencing include the accused’s credibility, demeanor, general moral character, mentality, social environment, habits and age, and a reasoned judgment as to the proper sentence to be imposed must be based on the particular circumstances in each case. (People v. Ward (1986), 113 Ill. 2d 516, 499 N.E.2d 422, cert. denied (1987), 479 U.S. 1096, 94 L. Ed. 2d 168, 107 S. Ct. 1314.) A trial judge’s impression that a defendant who protests his innocence is lying may properly be considered along with other information about defendant, as well as the particular facts of the case, in order to determine defendant’s prospect for rehabilitation and restoration to society. People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422; People v. Hall (1987), 159 Ill. App. 3d 1021, 513 N.E.2d 429.

In the instant case, defendant Edwards did claim that he was innocent, and the trial judge did refer to defendant’s lack of remorse as one of the factors he considered in determining the sentence. However, the trial judge’s assessment of defendant’s attitude was not solely based on defendant’s claim of innocence at the sentencing hearing. He also considered the evidence presented at the trial, including the testimony of one of the witnesses that defendant had been overheard telling his companions about his participation in the victim’s murder. The trial judge also considered the credibility and demeanor of the witnesses, including defendant, who lied during his trial testimony regarding his use of the name David Cage. A defendant’s truthfulness, while testifying in his own behalf, has been deemed probative of his attitudes toward society, his prospects for rehabilitation and is relevant to sentencing. (People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422.) Also considered were the factors in mitigation and the presentence investigation report.

The trial judge is in a better position to determine the sentence to be imposed than the reviewing court, and his sentencing decision is entitled to great deference and weight. (People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Before reversing a sentence imposed by the trial court, it must be clearly evident that the sentence was improper. (People v. Ward, 113 Ill. 2d 516, 499 N.E.2d 422.) We conclude that the trial court considered all of the relevant factors and exercised its discretion properly in his determination of defendant’s sentence.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.


author: JUSTICE O’CONNOR

text:
    BRIAN O’MALLEY, Plaintiff-Appellant, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ROLLING MEADOWS et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—88—2251
    Opinion filed May 8, 1989.

      Thomas F. McGuire & Associates, Ltd., of Long Grove (Thomas F. McGuire, of counsel), for appellant.
    Di Leonardi & Broihier, Ltd., of Des Plaines (John C. Broihier, of counsel), for appellee Board of Fire and Police Commissioners of the city of Rolling Meadows.
    Massucci, Blomquist, Brown & Judson, of Arlington Heights (Ernest R. Blomquist III, of counsel), for appellee Ralph Evans.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Brian O’Malley, a commander in the Rolling Meadows police department, was brought before the Board of Fire and Police Commissioners of Rolling Meadows (the Board) on charges of misconduct stemming from several specific incidents that occurred from March to June 1986. The Board found O’Malley guilty and demoted him to the rank of sergeant. For the reasons below, we affirm.

On June 6, 1986, O’Malley was charged by the Board with four specific counts of misconduct. The Board charged that (1) on or about 3:30 a.m. on June 1, 1986, O’Malley received a report of an armed robbery at a hotel and, although in close proximity to the hotel, failed to respond to the call for 15 minutes; (2) on May 16, 1986, O’Malley failed to supervise or back up units responding to an altercation at a local carnival; (3) contrary to department rules, and particularly a memorandum order dated April 11, 1986, O’Malley failed properly to supervise personnel under his command by spending excessive amounts of time in the station rather than assisting and supervising the personnel on patrol; and (4) O’Malley exceeded the time allotted for meals and breaks, during which time he remained in the radio room with a female dispatcher. O’Malley was also charged with, in incidents occurring from March to June 1986, failure to respond to a call to make an arrest at a gambling party; failure to back up police at a fire at a home for the mentally physically disabled; and failure to assist in processing a suspect arrested for possession of drugs. The complainant was Rolling Meadows Police Chief Ralph Evans, whose attorney presented the case against O’Malley before the Board. Evans’ attorney was neither the village attorney for Rolling Meadows, nor the village prosecutor, but was retained by the Board to represent Evans, and his service was later ratified by a resolution of the city counsel.

On February 2, 1987, the Board found O’Malley guilty as charged and demoted him to the rank of sergeant. On February 9, 1987, O’Malley filed a petition for rehearing before the Board. On March 10, 1987, O’Malley's petition for rehearing was denied. On March 30, 1987, O’Malley filed a complaint for administrative review in the circuit court, naming the Board and its members as defendants, but omitting Chief Evans.

On April 9, 1987, O’Malley moved to amend his complaint to include Evans as a defendant. On July 1, 1987, O’Malley was granted leave to amend his complaint, and the amended complaint was filed on July 2, 1987. On October 1, 1987, Evans moved to dismiss O’Malley’s complaint for failure to comply with provisions of the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.). Evans’ motion was denied, and the trial court affirmed the rulings of the Board. O’Malley appeals the rulings of the Board, and Evans appeals the denial of his motion to dismiss. Because no relief is sought from Chief Evans on this appeal, we do not consider his appeal and address only the issues raised by O’Malley.

O’Malley first argues, without merit, that under Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, the Board had no authority to hold disciplinary hearings until it had exhausted the grievance procedures prescribed by the City of Rolling Meadows Personnel Rules (the Personnel Rules). In O'Malley v. City of Rolling Meadows (1st Dist. 1989), No. 1 — 88— 1396 (unpublished order under Supreme Court Rule 23), which involved the same plaintiff and the same demotion, O’Malley maintained that the Personnel Rules constituted a contract under Duldulao, which the defendants had breached by instituting the Board hearing before the grievance procedures were exhausted. In a Rule 23 (107 Ill. 2d R. 23) order, we affirmed the dismissal of O’Malley’s action to recover fees in connection with the breach of contract action, holding that Duldulao was inapplicable. The Personnel Rules stated that the rules of the Fire and Police Commission superseded the Personnel Rules in the event of conflict, which we held served as a disclaimer. We also held that the Personnel Rules did not constitute an offer sufficient to establish a contract. Thus the requirements of Duldulao were not met. That reasoning applies to the instant case as well.

No language in the grievance procedures of the Personnel Rules even intimates limitation, or control of, or jurisdictional prerequisite to, Board hearings. The rules of the Board of the Fire and Police Commission, promulgated under the authority of Rolling Meadows ordinances and State statute, grant the Board authority to conduct hearings and supersede the Personnel Rules where the two conflict. Even assuming applicability of the Personnel Rules, the proceeding against O’Malley would have been governed not by the grievance procedures, but by the disciplinary procedures, which are wholly separate and independent of the grievance procedures. Finally, Duldulao is inapplicable because it addressed a modification of the terms of traditional “at-will” employment; O’Malley’s hiring and appointment were governed by statute. The Board had the authority to institute proceedings against O’Malley, regardless of the grievance procedures of the Personnel Rules.

O’Malley next argues that Chief Evans’ attorney, Mr. Blomquist, had no authority to present the case against O’Malley and that the Board proceedings were therefore void. O’Malley contends that section 10 — 2.1—25 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—25) required the village prosecutor, and not Mr. Blomquist, to present the case against him. The actions of the Board, however, in assigning Mr. Blomquist to present the case against O’Malley met both the letter and the intent of section 10— 2.1-25.

Section 10 — 2.1—25 states in relevant part: “The municipal attorney, in the event there is a separate attorney designated as a prosecutor for such municipality, shall represent the board unless the board is authorized by the municipality to employ its own attorney, and such attorney shall handle prosecutions before the board ***.” (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 2.1—25.) The remainder of the section addresses the situation where a municipality employs a single attorney for the functions of municipal attorney and prosecutor. Rolling Meadows employs a municipal attorney and separate prosecutor. The plain language of section 10 — 2.1—25 indicates that where the functions of municipal attorney and village prosecutor are performed by different attorneys, the municipal attorney shall represent the Board. The statute seeks to avoid real or apparent conflicts of interest, where the attorney who represents the interests of the Board, and advises the Board on the law, is the same person who presents the case against the respondent; the statute seeks to prevent having the judge be the prosecutor. See Weisenritter v. Board of Fire & Police Comm’n (1979), 67 Ill. App. 3d 799, 385 N.E.2d 336, appeal denied (1979), 75 Ill. 2d 595; Mank v. Board of Fire & Police Comm’n (1972), 7 Ill. App. 3d 478, 288 N.E.2d 49. See also Finin v. Board of Fire & Police Commissioners (1981), 98 Ill. App. 3d 879, 424 N.E.2d 976, appeal denied (1981), 85 Ill. 2d 577.

Here, the Board was represented by the municipal attorney, and the case against O’Malley was presented by a separate attorney. Although Mr. Blomquist was not the village prosecutor, he had served in the past as a prosecutor on behalf of the village and the City Council later ratified his employment for purposes of O’Malley’s hearing. The Board complied with section 10 — 2.1—25 by being represented by the municipal attorney and having a separate attorney present the case against O’Malley.

O’Malley next argues that the findings of the Board were contrary to the manifest weight of the evidence. A court of review will not reverse the findings of an administrative body unless those findings are contrary to the manifest weight of the evidence. (Davern v. Civil Service Comm’n (1971), 47 Ill. 2d 469, 471, 269 N.E.2d 713, cert. denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.) Based on the record, the findings of the Board were consistent with the evidence presented.

O’Malley asserts that he was not required to respond immediately to calls, but does not dispute that the gambling party, the carnival altercation, and the fire were in progress, and the hotel robbery apparently in progress, at the time he was called, nor that he waited from 15 minutes to half an hour before responding. O’Malley also asserts that his job description required him to spend time in the station as well as on patrol, and that the Board was estopped from charging him for spending excessive time in the station because no one had discussed the matter with him prior to being charged. O’Malley contends that he spent time supervising radio dispatcher Bonnie Knuppel because she was the only dispatcher on duty when there are normally two dispatchers. O’Malley does not dispute that he spent the majority of his time during several shifts supervising Ms. Knuppel.

O’Malley raises other points of fact that militate in his favor, such as the fact that experienced police personnel were at the scene of the incidents described above. But O’Malley rarely disputes, and in no case rebuts, the factual findings of the Board. The record shows that O’Malley spent several hours of several shifts in the radio dispatch room and waited before responding to incidents in progress. The Board’s findings were supported by the evidence and will not be overturned.

O’Malley finally argues that the misconduct of which he was found guilty did not warrant demotion, according to the Rules of the Board (the Board Rules). Review of the Board’s decision to demote O’Malley shows, however, that the decision was appropriate and consistent with the manifest weight of the evidence.

O’Malley argues that the misconduct of which he was found guilty should have been judged according to the “substantial shortcoming” standard and that the Board failed to follow the standard. The Board responds that the substantial shortcoming standard applies only where a police officer is discharged from the force, citing Adams v. Board of Fire & Police Commissioners (1986), 144 Ill. App. 3d 905, 494 N.E.2d 728. But O’Malley properly distinguishes Adams, pointing out that here the substantial shortcoming standard applied pursuant to Board Rule 9.1, which states, “No police officer shall be removed, discharged, or demoted except for cause.” Board Rule 9.2(c) defines “cause” as “some substantial shortcoming which renders continuance in employment in some way detrimental to the discipline and efficiency of the public service and something which the law and sound public opinion recognize as cause for the officer to no longer occupy his position.” O’Malley contends that the Board did not apply the standard, making its ruling erroneous as a matter of law.

O’Malley’s argument, however, relies on an inflexible construction of the Board Rules: to remove or demote an officer, his conduct must be sufficient to warrant dismissal. Because the Board Rules state that there can be no removal, discharge or demotion without cause, the substantial shortcoming standard presumably applies to the imposition of all three sanctions. It is therefore reasonable that the standard have some flexibility to enable the Board to determine the appropriate sanction. Thus, a “substantial shortcoming” sufficient to remove or demote an employee need not be as severe as that required for discharge.

The relevant issue, therefore, is whether demotion was an appropriate sanction, given O’Malley’s misconduct. The Board determined that it was, and the court should reverse only where the decision of the Board was contrary to the manifest weight of the evidence. See Davern v. Civil Service Comm’n (1971), 47 Ill. 2d at 471, 269 N.E.2d 713, cert. denied (1971), 403 U.S. 918, 29 L. Ed. 2d 695, 91 S. Ct. 2229.

O’Malley contends that the court should consider that prior to the instant case, his 17-year record with the Rolling Meadows police force was unblemished. The Board notes that O’Malley’s past record was considered in choosing to demote, rather than discharge, him. The Board apparently chose to demote O’Malley because his conduct showed that, although an able police officer, he was not an able commander. O’Malley also contends that the calls affected by his actions were but a small percentage of the total calls that the police responded to during the period from March to June 1986 and that, therefore, the service to the public was not greatly affected. This argument would be valid only if all calls to the police department were equally important, or equally threatening to the safety of the community. Obviously they are not.

The problems with O’Malley’s conduct, such as failing to perform assigned duties and failing to communicate with his subordinates, created problems of a potentially continuous nature, affecting the operation of the police force and its service to the community. The sanction of demotion was appropriate to the degree of misconduct. The Board acted promptly in charging O’Malley and in holding hearings. Its decision was not contrary to the manifest weight of the evidence.

In summary, the Board had proper jurisdiction to hold disciplinary proceedings; it complied with State statute in ensuring that conflicts of interest were avoided and O’Malley’s due process rights were preserved, and its factual findings and decision to demote O’Malley were consistent with the manifest weight of the evidence. We therefore affirm the findings and decision of the Board.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.