author: PRESIDING JUSTICE MURRAY JUSTICE PINCHAM,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMMY ROBINSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—0713
    Opinion filed June 30, 1989.

      PINCHAM, J., dissenting.
    Randolph N. Stone, Public Defender, of Chicago (Vicki Rogers, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Richard G. Cenar, Jr., Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Sammy (also known as Sammie) Robinson appeals his conviction for the crime of communicating with a witness, for which he received a four-year extended prison sentence. The following facts are pertinent to this appeal.

In December 1985, defendant was arrested and charged with the aggravated sexual assault of a 14-year-old girl. He was free on bond pending trial in May 1986 when the rape victim and her mother, Mildred Stephen, were approached by Lemual Taylor. Taylor told the mother that “Sammie sent me to [offer] you a thousand dollars for [your daughter] not to come to court,” after which Taylor gave Stephen a piece of paper with a telephone number on it, telling her to call Sammie. That number was later shown by competent evidence to be the number assigned to defendant’s car telephone.

Stephen returned to her apartment and dialed the number. The person answering the call identified himself as Sammie and proceeded to offer Stephen $1,000 if her daughter would not go to court. After Stephen stated to Sammie that he now offers her $1,000 after burning down her mother’s house, almost killing her parents, defendant raised his offer to $3,000. Meanwhile, a police officer arrived, having been summoned by a call from a family member, and picked up a telephone extension at Stephen’s direction and after she had informed him that Robinson was on the phone. The officer testified that he listened to the conversation for about 30 seconds and heard defendant say that he would give Stephen $1,000 to drop the sexual assault charges pending against him.

Prior to trial on the communicating with a witness charge, the court overruled defendant’s motion to preclude mention of the sexual assault charge and any mention of arson. During the jury trial, defense counsel made various hearsay objections, which the court overruled when the State asserted that it would later prove the existence of a conspiracy. After the jury found defendant guilty of communicating with a witness, defendant filed this appeal, asserting that he was denied a fair trial by the admission of irrelevant other crimes evidence, hearsay statements should have been excluded because the State failed to prove the existence of a conspiracy, and the State’s evidence did not prove the acts charged in the indictment.

There is no need to address the first two issues raised on appeal since we must reverse defendant’s conviction because the State failed to prove an essential element of the crime charged.

The offense with which defendant was charged and convicted— communicating with a witness, a Class 4 felony — occurs when “[a] person who, with intent to deter any party or witness from testifying freely, fully and truthfully to any matter pending in any court ***, forcibly detains such party or witness, or communicates, directly or indirectly, to such party or witness any knowingly false information or a threat of injury or damage to the property or person of such party or witness, *** or offers or delivers money or another thing of value to such party or witness or to a relative of such party or witness.” Ill. Rev. Stat. 1985, ch. 38, par. 32 — 4(b).

There is no evidence in this record that defendant offered money to Stephen to deter her or her daughter from testifying freely, fully and truthfully. Section 32 — 4(b) appears to be directed to the prevention of paying a witness to testify other than truthfully and of her own will. The offense defendant should have been charged with is compounding a crime: “A person compounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosection of an offender." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 32 — 1(a).) Compounding a crime is a petty offense.

Defendant’s offer of money for the Stephens not to appear in court is in return for their nonaid in the prosecution of the sexual assault charge. Nonappearance is a refusal to aid in a prosecution rather than a refusal to testify other than freely, fully and truthfully. Furthermore, the police officer testified that defendant asked Stephen not to prosecute the case. Although the State argues that an offer of money not to appear in court can be equated to an offer of money not to testify freely, fully and truthfully, there is no supporting authority for this equation. If the Stephens had accepted defendant’s offer, the State could still have proceeded with the prosecution, subpoenaing them as witnesses whereupon they could then testify freely, fully and truthfully.

The opinion in People v. Scribner (1982), 108 Ill. App. 3d 1138, is illuminative of the confusion between sections 32 — 1 and 32 — 4 of the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, pars. 32 — 1, 32— 4.) In Scribner, the defendant was charged with communicating with a witness after offering the complainant money to request that criminal charges be dropped against defendant’s nephews. The Scribner court found that the evidence did not show any payment to the complainant to not testify or to testify other than freely, fully and truthfully, and that defendant was instead guilty of the petty offense of compounding a crime. In so doing, the court noted that the power to dismiss criminal charges rests with the prosecuting officer. Scribner, 108 Ill. App. 3d at 1143.

We agree with the reasoning of the Scribner court that our legislature probably did not intend section 32 — 4 to be a duplicate of section 32 — 1, thus making the latter superflous, and further, that criminal statutes must be construed strictly in favor of an accused and nothing is to be taken by intendment or implication against a defendant beyond the literal and obvious meaning of the statute. Scribner, 108 Ill. App. 3d at 1144.

Accordingly, we conclude that the State did not prove that defendant offered Stephen money to not testify freely, fully and truthfully, but rather offered her money not to aid in the prosecution of the sexual assault charge against him. We must therefore reverse defendant’s conviction and resultant sentence.

It is to be noted that during oral argument before this court, it was revealed by the attorneys that the aggravated sexual assault charge against defendant was nol-prossed by the State and that he is now on parole from his sentence in the present case.

Reversed.

LORENZ, J., concurs.

JUSTICE PINCHAM,

dissenting:

I dissent. I do not agree with the majority’s conclusion that:

“[T]he State failed to prove an essential element of the crime charged.
There is no evidence in this record that defendant offered money to Stephen to deter her or her daughter from testifying freely, fully and truthfully. ***
*** j-ip]he State did not prove that defendant offered Stephen money to not testify freely, fully and truthfully, but rather offered her money not to aid in the prosecution of the sexual assault charge against him.” 186 Ill. App. 3d at 3, 4.

The defendant was charged with the offense of communicating with a witness (Ill. Rev. Stat. 1985, ch. 38, par. 32 — 4(b)), which provides in pertinent part as follows:

“A person who, with intent to deter any party or witness from testifying freely, fully and truthfully to any matter pending in any court *** offers or delivers money or another thing of value to such party or witness *** commits a Class 4 felony.” (Emphasis added.)

The indictment alleged in pertinent part:

“Sammie Robinson committed the offense of communicating with a witness in that he with intent to deter Mildred Stephen and her daughter Sarah Stephen from testifying freely, fully and truthfully in a manner pending in the criminal division of the Circuit Court of Cook County, entitled People of the State of Illinois versus Sammie Robinson offered said Mildred Stephen a sum of United States Currency in violation of Chapter 38, Section 32 — 4(b) of the Illinois Revised Statutes ***.” (Emphasis added.)

The cause was tried by a jury. The State’s uncontradicted trial evidence established the following.

In December of 1985, the defendant Sammie Robinson was arrested for and charged with the offense of aggravated criminal sexual assault (rape) of Sarah Stephen, a 14-year-old minor. The defendant was at liberty on bond on the charge, which was set for trial for June 10,1986.

Eighteen days before the June 10, 1986, trial date, on May 23, 1986, at about the noon hour, Mrs. Mildred Stephen, the mother of Sarah Stephen, and other family members were moving into a second-floor apartment on West 101st street in Chicago. Lemuel Taylor approached Sarah and stated to her, “Sammie sent me to talk to you.” Mrs. Stephen told Lemuel Taylor that neither she nor her daughter wished to speak to Sammie and Taylor left. The police were called and a police report was made of Taylor’s visit and conversation with Mrs. Stephen.

Later that afternoon Lemuel Taylor returned outside the Stephen apartment. Taylor stated to Tina Clark, Mrs. Stephen’s niece and Sarah’s cousin, that he had to speak to Sarah’s mother “because Sammie got some money and wants to give it to her not to come to court.” Taylor further stated that if he did not speak to Sarah’s mother, Sammie would not pay him for delivering the message. Mrs. Stephen was upstairs in the apartment and Tina Clark asked Tracy, a family friend, to go and tell Mrs. Stephen that Lemuel Taylor was back. Tracy related Taylor’s and Sammie Robinson’s messages to Mrs. Stephen, who told Tracy to call the police. Tracy did so, while Mrs. Stephen went downstairs onto the porch where she saw Taylor.

Mrs. Stephen told Taylor that she was Sarah’s mother and asked him if he wanted to talk to her. Taylor answered that he did. Taylor had something in his hand and said, “Sammie sent me to give you a thousand dollars for Sherry not to come to court. *** [H]ere’s a number for you to call him, he is on 104th and Wentworth in his car. Taylor handed Mrs. Stephen a piece of paper with telephone number 802-0464 written on it.

The unrebutted testimony of Charles Moran, the general auditor of Ameritech Mobile Communication, Chicago police detective Gallagher, Joliet police officer Christine Lang and a certified vehicle registration established that telephone number 802-0464 was a car phone purchased from Ameritech by defendant Sammie Robinson, whose address was listed at 5659 S. Shields, that a Cadillac with that license number had been observed parked at that address, that there was a telephone inside the Cadillac, and that six incoming calls to that telephone number were received on May 23, 1986, between 4:45 p.m. and 5:31 p.m.

When Mrs. Stephen received the paper with telephone number 802-0464 on it from Lemuel Taylor, she went upstairs to her apartment and dialed that telephone number. She related that the following conversation occurred:

“MRS. STEPHEN: Hello, could I speak to Sammie?
SAMMIE: This is Sammie.
MRS. STEPHEN: This is Sarah’s mother, you wanted to talk to me?
SAMMIE: Yeah, I want to give you a thousand dollars for Sarah not to come to court.
MRS. STEPHEN: You offer me money after you burn my mother’s house down and almost killed them?
SAMMIE: Well, I can give you three thousand dollars, whatever I guess to help.”

Mrs. Stephen testified that Sammie further stated that he was not worried about Sarah’s case, but he did not want Sarah to come to court and help hurt the case they already had in court.

Officer Walsh entered Mrs. Stephen’s apartment while she was talking on the phone to Sammie and Mrs. Stephen stated to Officer Walsh, “Robinson is on the phone, pick it up.” Officer Walsh listened on a phone extension and heard a male voice say to Mrs. Stephen that he would give her $1,000 to drop the charges against him and that he would beat the case.

When Mrs. Stephen ended her telephone conversation with Sammie, she went outside, where she observed the police arrest Lemuel Taylor.

The defendant did not call any witnesses or present any evidence.

The jury found the defendant guilty of the offense of communicating with a witness, as charged. The foregoing evidence is abundantly adequate to sustain that guilty finding. The evidence is more than sufficient to establish beyond a reasonable doubt that the defendant, with the intent to deter Mrs. Stephen and her daughter Sarah from testifying freely, fully and truthfully to a matter pending in court, offered Mrs. Stephen a sum of money. Understandably, the defendant neglected to use the express language of the statute or indictment. Of course he did not expressly state to Mrs. Stephen that he offered her the money with intent to deter her and her daughter from testifying freely, fully and truthfully to a matter pending in court. Nevertheless, the foregoing evidence of Robinson’s offer of $1,000 to Mrs. Stephen for her and Sarah not to come to court was sufficient and competent evidence from which the jury was authorized to and could justifiably conclude and find beyond a reasonable doubt that Robinson offered Mrs. Stephen the money with the intent to deter her and Sarah from appearing in court and that by not appearing in court, they would and could not testify freely, fully or truthfully, or at all.

Robinson’s offer also may have been an offer by Robinson “for their nonaid in the prosecution of the sexual assault charge” and for them “not to aid in the prosecution of the sexual assault charge against him,” as the majority concludes, but that does not preclude this offer from also being with the intent to deter the Stephens from testifying freely, fully and truthfully in court, as charged and as the jury so found by their guilty verdict. 186 Ill. App. 3d at 3, 4.

The majority’s conclusion, that “[i]f the Stephens had accepted defendant’s offer, the State could still have proceeded with the prosecution, subpoenaing them as witnesses whereupon they could then testify freely, fully and truthfully,” is immaterial, irrelevant and inconsequential. 186 Ill. App. 3d at 4.

Additionally, the majority’s reliance on People v. Scribner (1982), 108 Ill. App. 3d 1138, 440 N.E.2d 160, is ill-founded. Scribner is not analogous to the instant case. In Scribner, criminal charges were pending against Kevin Crottly and Jeffrey Crottly stemming from a fight between them and John Zini. Scribner, the Crottlys’ uncle offered to pay Zini $500 to go to the State’s Attorney’s office and request that the charges against the Crottlys be dropped. At the State’s Attorney’s office, Zini signed an affidavit stating that he was dropping the charges against the Crottlys and that he was not being threatened, coerced, or paid to do so. Zini signed another affidavit which stated that he was being offered $500 by Scribner to drop the charges against the Crottlys but he intended to prosecute them despite the payment. Scribner had given Zini $100 before Zini entered the State’s Attorney’s office and gave Zini an additional $150 when Zini left. The $250 balance was to be paid upon Jeffrey Crottly being released from custody. On these facts the jury found Scribner guilty of offering and delivering money to Zini with intent to deter from testifying freely, fully and truthfully in the Crottly prosecution.

Scribner urged on appeal for reversal that the evidence failed to prove the commission of the offense with which he was charged, i.e., that he offered or delivered money to a witness with intent to deter the witness from testifying freely, fully and truthfully to any matter pending in court. Scribner contended that the evidence established his intent to cause Zini to ask the State’s Attorney to drop the charges. The Scribner court concluded:

“Our review of the evidence reveals that, without doubt, defendant’s offer to pay Mr. Zini was made contingent upon Mr. Zini’s agreement to ask the State’s Attorney to drop charges against his nephews. There is no evidence of any specific request by defendant that Mr. Zini refuse to testify or testify other than freely, fully and truthfully. Rather, Mr. Zini admitted on several occasions at trial that defendant never made such a request. Nowhere in the [tape-]recorded conversations between Mr. Zini and defendant does such a request appear. *** The most the complaining witness can do is request that the State’s Attorney not proceed with the prosecution. As former assistant State’s Attorney Rand Hale admitted in testifying for the State, the State’s Attorney was empowered to disregard Mr. Zini’s request not to prosecute and to subpoena Mr. Zini to testify, though doing so would cause the State’s Attorney additional difficulty.
Based on the evidence adduced at trial, we conclude that defendant’s acts evinced an intent to cause Mr. Zini not to aid in prosecution of defendant’s nephews. Although such evidence establishes guilt of the petty offense of compounding a crime (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 1), this is not an offense defendant was charged with committing and presumably was not prepared to defend. Mr. Zini could have fulfilled his part of the bargain with defendant, as revealed by both the testimony of Mr. Zini and by the tapes, by asking the State’s Attorney to drop the charges; yet he still could have testified fully and truthfully at trial. ***
*** [W]e conclude that the State’s evidence, if it were accepted as true, was not sufficient to establish that defendant committed the offense charged.” (Emphasis added.) 108 Ill. App. 3d at 1143-44.

First, in Scribner, unlike in the case at bar, and as the Scribner court pointed out, the testimony of Zini affirmatively established, without contradiction, that the defendant Scribner never requested Zini to refuse to testify or not to testify freely, fully and truthfully.

Second, in Scribner, again unlike in the instant case, Scribner offered to pay Zini upon Zini’s agreement to ask the State’s Attorney to drop the charges against his nephews, the Crottlys, whereas, in the instant case the defendant Robinson offered the Stephens money not to come to court. Although Officer Walsh testified that the offer he overheard when listening on the telephone extension was that the man would give Mrs. Stephen $1,000 to drop the charges and that he would beat the case, Mrs. Stephen testified, however, that the defendant offered her the money for Sarah not to come to court. The jury was authorized to accept her testimony, which was not necessarily contradictory or inconsistent with Officer Walsh’s testimonial version of the telephone conversation offer.

Third, in the instant case, as in Scribner, “there is no evidence of any specific request by defendant” that Mrs. Stephen or her daughter Sarah not testify freely, fully and truthfully. In the instant case, however, unlike in Scribner, the evidence does not affirmatively establish, as the evidence established in Scribner, that the defendant did not request Mrs. Stephen and Sarah to testify freely, fully and truthfully.

Fourth, concededly, the defendant in the case at bar did not expressly couch his request to Mrs. Stephen in the precise and exact words of the statute. Rarely, if ever, is even the most sophisticated criminal so articulate. Nevertheless, the jury could validly conclude beyond a reasonable doubt that the language that the defendant did employ in his request and offer of money to Mrs. Stephen, and that the defendant by such language and offer intended to deter Mrs. Stephen and her daughter from testifying freely, fully and truthfully in the case in which he was charged with aggravated criminal sexual assault upon the minor daughter. Scribner is not analogous with, applicable to, or controlling in the case at bar.

The instant case is more closely analogous to People v. Powell (1978), 72 Ill. 2d 50. In Powell, Juanita Guevara was charged with aggravated battery arising out of a stabbing of Arvilda Torres. Officer Martinez, the investigating officer in the case, was offered $250 by Guevara’s attorney, Paul Powell, if he could get the stabbing victim, Arvilda Torres to “drop the charges.” After meetings and numerous conversations between Officer Martinez and attorney Powell on how to manipulate the dismissal of the battery charges, Officer Martinez appeared in court, and when Guevara’s case was called, Officer Martinez falsely represented to the judge that Torres did not ■wish to prosecute the case, and the aggravated battery charge against Guevara was stricken on leave to reinstate. Officer Martinez and attorney Powell left the courtroom and entered attorney Powell’s car parked outside the court building. Powell drove off. As they approached the corner, Powell threw $250 on the floor at Officer Martinez’ feet. Officer Martinez picked the money up and handed attorney Powell a grand jury subpoena which commanded Powell’s appearance before the grand jury concerning the just completed Guevara bribery. Officer Martinez got out of Powell’s car. In the ensuing conversation, which gave rise to the solicitation charge against Powell, Powell repeatedly asked Officer Martinez for a “pass” and told Martinez that the officer was “blowing my whole license.” Powell urged the officer to hide the money and tell the State’s Attorney that he, Powell, “stiffed him” (failed to pay) and that he, Powell, would “drop anything you want any place.” Powell was convicted of the Guevara bribery offense and also of the Officer Martinez solicitation offense. The appellate court reversed the bribery conviction on the grounds that the bribery had not been proven as it was charged in the indictment and that the acts Powell sought Officer Martinez to perform were not related to the performance of Officer Martinez’ official duties. The appellate court also reversed Powell’s solicitation conviction on the ground that the evidence was insufficient to establish that Powell’s solicitation was with the requisite intent to obstruct the apprehension or prosecution of a specific person.

The supreme court granted the People leave to appeal in Powell. The supreme court pointed out that the bribery statute that Powell allegedly violated provided:

“A person commits bribery when:
(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee or juror, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept ***.” (Ill. Rev. Stat. 1973, ch. 38, par. 33 — 1.)

The supreme court thereafter pointed out that the bribery indictment against Powell alleged:

“[W]ith the intent to influence the performance of acts related to the employment and function of a public employee, Jose Martinez, he [Powell] promised and tendered to that person property which Jose Martinez is not authorized by law to accept, to wit: Paul Powell did promise and tender a quantity of United States currency to Chicago Police Officer Jose Martinez, to influence Martinez in the securing of witnesses, and investigation and prosecution of a criminal case entitled People v. Juanita Guevara in the Circuit Court of Cook County.” (Powell, 72 Ill. 2d at 6.)

In reversing the appellate court and in affirming Powell’s bribery conviction, the supreme court stated, in language most analogously applicable to the facts in the instant case:

“The appellate court found that Powell never actually told Officer Martinez not to bring a witness to court, and that, even if he did, the bringing of witnesses to the courtroom was not related to the official duties of the officer. Officer Martinez testified, however, that his function and role as a police officer was to ‘investigate crime, secure witnesses, bring enough evidence to court,’ and that inquiries as to the availability of witnesses were part of his ‘official duties.’ But such testimony is not essential. It is common knowledge of which we take judicial notice that a principal duty of a policeman or any other law enforcement officer is the enforcement of the law. That payments made to an investigating officer in a criminal case to induce him to persuade key prosecuting witnesses not to appear or to withdraw a complaint are not intended to influence the performance of the officer’s duties in investigating, identifying and securing witnesses in criminal cases is an argument we believe does not merit further discussion. *** It seems to us clear that an important part of any investigating officer’s official duties is the location and procuring of witnesses for the prosecution or for the defendant so that the result of a crime will be a fair trial and punishment for the proper person.” (Emphasis added.) 72 Ill. 2d at 61-62.

Regarding Powell’s conviction of solicitation to obstruct justice, the supreme court stated that, “The crime of solicitation is committed when a person, with intent that an offense be committed, commands, encourages or requests another to commit that offense. (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 1(a).) Obstructing justice occurs when one, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, knowingly commits one of certain enumerated acts, including concealing physical evidence or furnishing false information. (Ill. Rev. Stat. 1973, ch. 38, par. 31 — 4(a).)” (Powell, 72 Ill. 2d at 63.) The solicitation count against Powell alleged:

“Paul Powell committed the offense of solicitation in that with intent that the offense of obstructing justice be committed encouraged and requested Chicago Police Officer Jose Martinez to commit that offense, to wit: knowingly encouraged and requested Jose Martinez to conceal $250.00 in United States currency, said currency being physical evidence that the offense of bribery was committed by Paul Powell on or about October 18,1973.
In violation of Chapter 38, Section 8 — 1, Illinois Revised Statutes, 1973.” (Powell, 72 Ill. 2d at 64.)

Powell argued, and the appellate court agreed, that the solicitation count was invalid because it did not allege which person’s apprehension Powell sought to prevent and thus failed to inform him of the nature of the offense and prevented him from preparing his defense. The supreme court held that this contention was also without merit, and:

“In our judgment this indictment did in fact allege the name of the particular persons — namely, Paul Powell — whose apprehension Officer Martinez would intend to prevent if he had concealed the evidence as defendant had requested. An indictment which charges an offense in the language of the statute is sufficient when the statute itself apprises the defendant with reasonable certainty of the precise offense with which he or she is charged ***. This indictment is first couched in the language of the solicitation statute, then goes on to specify the key elements of the crime solicited; a common sense reading of it makes difficult a belief that Powell could not properly prepare his defense because the indictment was not sufficiently specific. In any event, ‘[t]he office of a bill of particulars is to provide more specificity of detail to supplement a sufficient indictment so as to enable an accused better to understand the nature of the charge against him or better to prepare his defense.’ [Citation.] No bill of particulars was requested.” 72 Ill. 2d at 64-65.

The appellate court in Powell also concluded that the evidence was insufficient to prove the solicitation to obstruct justice offense. The supreme court likewise held this conclusion to be without merit, stating, again, in language most analogously applicable to the instant case:

“[T]he conversation which occurred after Officer Martinez gave Powell the grand jury subpoena, clearly establishes that Powell solicited the obstruction of justice. Telling the assistant State’s Attorney that Powell ‘stiffed’ Officer Martinez, or did not pay him the bribe money, obviously involves concealing the $250. In addition, Powell directly encouraged the officer to hide the currency, which was later introduced against Powell * * *
The trial judge *** found the evidence sufficient, and we find nothing in this record justifying a contrary conclusion.” 72 Ill. 2d at 63-65.

In the instant case the jury found the evidence sufficient and there is nothing in this record which justifies a contrary conclusion.

The defendant Robinson finally argues in the case at bar that the “admission of irrelevant other crimes’ evidence” and the admission of Lemuel Taylor’s conversations with Tina Clark and Mrs. Stephen denied him a fair trial. I disagree.

Evidence of a defendant’s commission of other crimes for which the defendant is not on trial ordinarily is inadmissible. (People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499; People v. Davis (1984), 130 Ill. App. 3d 41, 473 N.E.2d 387; People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667; People v. Lindgren (1980), 79 Ill. 2d 129.) I have repeatedly expressed my views of the law’s prohibition against the admission of evidence of the defendant’s commission of other crimes for which the defendant is not on trial in People v. McCarthy (1989), 181 Ill. App. 3d 208, 214 (Pincham, J., concurring in part and dissenting in part); People v. Howard (1988), 169 Ill. App. 3d 536, 541-81, 523 N.E.2d 943 (Pincham, J., dissenting); People v. Hayes (1988), 168 Ill. App. 3d 816, 821-44, 522 N.E.2d 1279 (Pincham, J., dissenting); People v. Porter (1987), 156 Ill. App. 3d 365, 374-94, 509 N.E.2d 662 (Pincham, J., dissenting); People v. Harris (1986), 147 Ill. App. 3d 891, 896-909, 498 N.E.2d 621 (Pincham, J., dissenting); and People v. Wachal (1987), 156 Ill. App. 3d 331, 340-44, 509 N.E.2d 648 (Pincham, J., specially concurring). I do not here retreat from those views. In the instant case evidence of the defendant’s commission of other crimes for which the defendant was not on trial simply was not offered or admitted. In the instant case, the evidence presented to the jury was only that the defendant was charged with the offense of aggravated criminal sexual assault upon Sarah Stephen. The jury was not presented one speck of evidence of the defendant’s commission of that offense. The charge of aggravated criminal sexual assault upon Sarah Stephen by the defendant was an integral ingredient of the offense of communicating with a witness with which the defendant was charged and on trial. Evidence that the defendant was so charged was therefore clearly admissible. The learned trial judge, in properly overruling the defendant’s in limine motion to exclude such evidence, aptly and correctly stated:

“[T]he charge of communicating with a witness is intricately involved with what the pending charge was. I can’t see any way of properly trying the case without knowing that. However, any evidence concerning the case other than the facts of what the charge was would be irrelevant. While it is relevant that communication concerning aggravated criminal sexual assault, I believe to go into the actual facts of that case would be inappropriate. The motion in limine however will be denied.”

Likewise, Mrs. Stephen’s statement to the defendant over the telephone that “you offer me money after you burn my mother’s house down and almost killed them,” and the defendant’s response, “Well, I can give you three thousand dollars, whatever I guess to help,” were an integral part of the defendant’s commission of the offense of communicating with the witness with intent to deter her and her daughter from testifying freely, fully and truthfully. The statements immediately followed and were components of the defendant’s offer to Mrs. Stephen to give her a thousand dollars “for Sarah not to come to court,” which offer the defendant thereby raised to $3,000. Moreover, Mrs. Stephen’s statement was not evidence of the defendant’s commission of the arson. It was no more than an accusation by Mrs. Stephen to the defendant that he committed the arson of her mother’s home. For these foregoing reasons, this statement of Mrs. Stephen was also admissible.

The defendant’s contention that Tina Clark and Mrs. Stephen’s testimony of Lemuel Taylor’s statements that Sammie sent him to give Mrs. Stephen $1,000 for Sarah not to come to court, that Sammie would not pay Taylor if he did not deliver the message, that Sammie was on 104th and Wentworth in his car and about Sammie’s telephone number were inadmissible because no conspiracy between Taylor and defendant Robinson was shown is without merit.

When a conspiracy has been shown, admissions by a coconspirator in the course of the conspiracy are admissible against the conspirators. (People v. Masters (1987), 155 Ill. App. 3d 1015, 508 N.E.2d 1163, citing People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215.) The prosecution is required to establish a prima facie case by independent evidence that two or more persons were engaged in a common plan or agreement to accomplish a criminal goal or criminal end. (People v. Olmos (1979), 77 Ill. App. 3d 287, 395 N.E.2d 968.) The existence of the agreement need not be proved by direct evidence, but may be inferred from all the surrounding facts and circumstances, including the acts and declarations of the accused. 77 Ill. App. 3d at 291, 395 N.E.2d at 971, citing People v. Veltese (1978), 61 Ill. App. 3d 279, 282, 377 N.E.2d 1168.

The independent, undisputed evidence in the instant case established that Lemuel Taylor went to Mrs. Stephen’s apartment twice. During Taylor’s second visit he gave Mrs. Stephen a piece of paper. On the piece of paper was written defendant’s telephone number. Mrs. Stephen called the phone number given to her by Taylor and spoke with defendant. During the phone conversation, defendant offered her $1,000 and later $3,000 in exchange for her daughter Sarah not to go to court. It is abundantly clear by Taylor’s actions and defendant’s words that they had entered into an agreement. There was overwhelming unrebutted direct and circumstantial evidence which established an agreement between Taylor and the defendant to accomplish a criminal act.

The defendant’s trial was without reversible error. Accordingly, I would affirm his conviction. I therefore dissent.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    FIRST NATIONAL BANK OF DEERFIELD, Plaintiff-Appellant, v. CORT I. LEWIS, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—3764
    Opinion filed June 30, 1989.

      Mathewson, Hamblet & Casey and Jenner & Block, both of Chicago (Michael J. Hamblet, Bruce T. Hopple, Laura H. Morill, Arthur M. Martin, Donald R. Cassling, and Jay S. Geller, of counsel), for appellant.
    John Thomas Moran, of Law Offices of John Thomas Moran, and Hal Kessler, of Kessler & Ex, both of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, First National Bank of Deerfield, appeals from the entry of summary judgment on count I of its declaratory judgment complaint in favor of defendant, Cort I. Lewis. We affirm.

Count I of plaintiff’s complaint alleged the following facts. Defendant and his father, Gerson E. Lewis (Gerson), formed a partnership under the name Gerson E. Lewis & Son (partnership) for the purpose of making investments.

Plaintiff alleged that beginning in January of 1980 until July of 1982, it “made a series of loans *** to Gerson which were used for the partnership’s investments.” Because the loans were not repaid, plaintiff instituted an action against him for the unpaid balance of the loans. Plaintiff obtained a judgment against Gerson for $196,430.33 plus attorney fees, which was also not paid.

Plaintiff also alleged that the partnership held a checking account with plaintiff, and in August of 1982, it was overdrawn in the amount of $8,180.98.

Defendant, in his own name, had a money market account and a certificate of deposit with plaintiff. On July 20, 1985, plaintiff transferred funds from defendant’s money market account into the partnership checking account to cover the overdraft. On July 23, 1985, plaintiff notified defendant that it would also set off the remaining balance of his money market account and his certificate of deposit for the judgment that plaintiff obtained against Gerson.

Plaintiff also alleged “on information and belief” that Gerson attempted to make himself “judgment proof” by transferring funds and other property from the partnership to defendant in his name but “secretly held” for the partnership.

Plaintiff asked the court to declare that Gerson E. Lewis & Son was a partnership at the time in question; that the overdraft and the judgment against Gerson were partnership debts for which defendant was responsible; that defendant’s money market account and certificate of deposit were subject to plaintiff’s right of setoff; and that the setoff was proper.

Defendant answered the complaint and denied that he entered into a partnership with Gerson, denied knowledge of the loans made to Gerson, denied knowledge of the overdraft but admitted that plaintiff transferred $8,180.98 from his money market account in July of 1985. Defendant also denied that the judgment against Gerson was a partnership debt.

Defendant moved for summary judgment arguing that plaintiff did not have factual support for the allegations in its complaint, relying on the deposition testimony of Alan Meyer, who was president of plaintiff at the time in question. Defendant also argued that even if there was factual support for the allegations, as a matter of law, plaintiff could not set off a partnership debt against the individual account of a partner, relying on International Bank v. Jones (1887), 119 Ill. 407, 9 N.E. 885.

In response to the motion, plaintiff argued that although Mayer “lacked personal knowledge of some of the ultimate facts stated in the [cjomplaint, *** [ojther bank officers and employees will testify as to their personal knowledge” and documents would be introduced at trial to prove the allegations. Plaintiff, however, did not attach any affidavits, deposition testimony, or other evidence to support its argument that it could prove the allegations of the complaint. Plaintiff also argued that International Bank was no longer “good law” and was inapplicable to the present case.

The trial court agreed with defendant and granted his motion for summary judgment on count I of the complaint, excluding paragraphs 14 and 15, which related to a different promissory note and are not relevant on appeal. Plaintiff appealed from that order but the appeal was dismissed for lack of jurisdiction in First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 516 N.E.2d 552. On December 10, 1987, the trial court entered an order finding that there was no just reason to delay enforcement or appeal of the previous order and thereafter, plaintiff filed a timely notice of appeal.

Opinion

A motion for summary judgment almost necessarily assumes that plaintiff’s complaint states a cause of action and its purpose is to determine whether a genuine issue of material fact exists. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) A motion to dismiss, on the other hand, challenges the legal sufficiency of a party’s pleading, such as whether a complaint states a cause of action. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) The Illinois Supreme Court has expressly disapproved of the use of “hybrid” motions which combine aspects of both a motion to dismiss and a motion for summary judgment. See Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738; Janes, 57 Ill. 2d 398, 312 N.E .2d 605.

In the present case, defendant’s motion, although titled as one for summary judgment, was actually a hybrid motion which included an argument that should have been brought as a motion to dismiss. Defendant argued that the allegations of plaintiff’s complaint did not give it a remedy under International Bank. This argument should have been raised as a motion to dismiss because it tests the legal sufficiency of the pleading and necessarily accepts the allegations of plaintiff’s complaint as true. Although the trial court entered summary judgment on the ground that International Bank barred plaintiff’s claim, the court should have dismissed plaintiff’s complaint with prejudice for failure to state a cause of action. Accordingly, we will review defendant’s motion as one to dismiss plaintiff’s complaint. See Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 476 N.E.2d 1259.

A declaratory judgment complaint must set forth sufficient facts to state a cause of action and it should be dismissed if plaintiff is not entitled to relief under the facts as alleged. (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885.) In considering whether the complaint should have been dismissed, we must accept the allegations as true and determine whether it states a cause of action upon which relief can be granted. Denkewalter, 82 Ill. App. 3d 569, 402 N.E.2d 885.

Plaintiff alleged facts to support that defendant and Gerson formed a partnership. The partnership held a checking account with plaintiff which was overdrawn. Plaintiff loaned money to Gerson which was used to fund the partnership. When the loans were not repaid, plaintiff obtained a judgment against Gerson. Plaintiff set off defendant’s money market account and certificate of deposit to satisfy the judgment and the overdraft.

The general rule in Illinois is that a bank may apply its depositor’s account for a debt he owes to the bank. (Kerner v. Kinsey (1943), 384 Ill. 180, 51 N.E.2d 126; International Bank, 119 Ill. 407, 9 N.E. 885; First National Bank v. Estate of Philp (1982), 106 Ill. App. 3d 360, 436 N.E.2d 15.) The application of the deposit, which is called a setoff, is only proper when the debts are mutual between the parties. (International Bank, 119 Ill. 407, 9 N.E. 885; Coates v. Preston (1882), 105 Ill. 470; Stuart v. Lott (1922), 304 Ill. 170, 136 N.E. 454.) As the supreme court stated:

“[A] bank has a right to set-off, as against a deposit, only when the individual who is both depositor and debtor, stands, in both these characters alike, in precisely the same relation, and on precisely the same footing, towards the bank, and hence an individual deposit cannot be set off against a partnership debt.” International Bank, 119 Ill. at 410, 9 N.E. at 886.

Despite the above-quoted language from the supreme court, plaintiff contends International Bank is not applicable to the present case because at the time that case was decided, partnership obligations were joint. Plaintiff argues that partnership debts are joint and several in equity (see Sternberg Dredging Co. v. Estate of Sternberg (1957), 10 Ill. 2d 328, 140 N.E.2d 125) and that under section 2 — 410 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 410) all partnership obligations are deemed joint and several.

Relying on the appellate court case of Merchants National Bank v. Maple (1896), 65 Ill. App. 484, which held that a bank may set off a joint and several debt against the deposit of one of the joint and several obligors, plaintiff contends it had the right to set off defendant’s deposit for the partnership debt because it was a joint and several obligation. In Merchants National Bank, the bank set off an individual deposit for the amount due on a promissory note signed by the individual and a third person. The court noted that the setoff was proper because the bank could have brought an action against either of the joint and several obligors and recovered the amount due on the note.

The decision in Merchants National Bank based the bank’s right of setoff on the liability of the parties to the note. In International Bank and Coates, however, the supreme court focused its decision on the relationship between the bank and its depositor. In both cases the supreme court stated the requirement of mutuality must be present before a bank can exercise its right of setoff.

In Coates the court considered whether a bank’s right of set-off would be different if partnership obligations were joint and several. Referring to a statute that stated “[a]ll joint obligations *** shall be taken and held to be joint and several obligations” (Ill. Rev. Stat. 1874, ch. 76, par. 3), the court noted that although the statute was not applicable to partnerships, if it were applicable and as a result, partnership obligations were joint and several, a bank still could not set off an individual partner’s deposit against a partnership debt because the requirement of mutuality would not be present. Accordingly, even if a partnership debt imposed joint and several liability, the requirement of mutuality would not be satisfied. See also Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 246 N.E.2d 96 (a bank’s right of setoff is not “co-extensive” with its right to recover).

We are bound to follow the supreme court’s decisions in International Bank and Coates. Under that authority we find that a bank is not entitled to exercise its right of setoff against an individual partner’s deposit for a partnership debt. Therefore, plaintiff’s complaint fails to state a cause of action upon which relief can be granted.

Affirmed.

MURRAY, P.J., and COCCIA, J., concur.


text:
    RUTHIE WILLIAMS, Adm’r of the Estate of Andrew Ware, Petitioner-Appellant, v. MARGUERITE GATLING, Respondent-Appellee.
    First District (5th Division)
    No. 1—88—0699
    Opinion filed June 30, 1989.

      Emory Andrew Tate & Associates, Ltd., of Chicago, for appellant.
    Ronald E. Shadle, of Cappetta & Shadle, Ltd., of Oakbrook Terrace, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Ruthie Williams, the administrator of the estate of Andrew Ware, appeals from a judgment awarding proceeds from the deceased’s life insurance policy and employee stock ownership plan to Marguerite Gatling, the deceased’s former wife. The issue presented is whether a waiver of claim to property not specifically disposed of by a divorce decree precludes payment to the former wife, as named beneficiary, of proceeds of a life insurance policy and employee stock ownership plan of the former husband.

We conclude it does not and affirm the judgment of the circuit court.

Andrew Ware and Marguerite Gatling were married on August 10, 1974. Ware named Gatling as beneficiary of his Metropolitan Life insurance policy and General Motors Corporation Employees Stock Ownership Plan (ESOP) account. On September 27, 1982, Ware and Gatling were divorced. The property settlement portion of the divorce decree did not contain specific provision of the insurance policy or ESOP account. After Ware’s death on November 20, 1986, the proceeds of the policy and ESOP account were paid to Gatling as named beneficiary.

Subsequently, Ruthie Williams, as administrator of Ware’s estate, successfully sought to recover the proceeds. However, on February 3, 1988, the circuit court vacated its prior order and returned the proceeds to Gatling.

This appeal followed.

Opinion

As the administrator acknowledges on appeal, the appellate court in Cox v. Employers Life Insurance Co. (1975), 25 Ill. App. 3d 12, 322 N.E.2d 555, and O’Toole v. Central Laborers’ Pension & Welfare Funds (1973), 12 Ill. App. 3d 995, 299 N.E.2d 392, has determined that, unless specifically provided for in divorce decrees, a former wife, as named beneficiary, is not precluded her interest in her former husband’s insurance policy proceeds upon his death. The administrator also concedes the decree before us is silent as to Ware’s policy and ESOP account proceeds and that, if we follow the above authority, Gatling is entitled to the amounts as named beneficiary. However, the administrator contends Gatling waived claim to that interest under paragraph 2(k) of the decree. The administrator argues that that paragraph evidences an intention to extend Gatling’s waiver of claim to property not specifically disposed of in the decree to the proceeds of the policy and ESOP account.

Paragraph 2(k) of the judgment provides in pertinent part:

“[E]ach of the parties does hereby forever relinquish, release, waive and forever quitclaim and grant to the other *** all rights of maintenance, dower, inheritance, descent, distribution, community interest and all other right, title, claim, interest and estate as Husband and Wife, widow or widower, or otherwise, by reason of the marital relations existing between said parties hereto *** or which he or she otherwise has or might have or be entitled to claim in, to or against the property and assets of the other, real personal or mixed, or his or her estate whether now owned or hereafter in any manner acquired by the other party, or whether in possession or in expectancy, and whether vested or contingent.”

The administrator also argues we should decline to follow Cox and O’Toole and should rule, instead, that divorce automatically revokes the designation of beneficiary similar to the operation of section 4— 7(b) of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110½, par. 4 — 7(b)) regarding a legacy to the testator’s former spouse in a will executed prior to divorce.

Contrary to the administrator’s arguments, we find O’Toole and Cox squarely applicable and dispositive of the instant case.

In O’Toole, the administrator of the estate of William Russell sought to compel payment of life insurance proceeds and death benefits to Russell’s estate instead of to his former wife, Patricia, the named beneficiary. The deceased had died two months after entry of a divorce decree. The administrator contended that, due to the divorce decree and property settlement, Patricia was not entitled to the proceeds despite the fact that the deceased did not designate a different beneficiary. The appellate court described the property settlement as “dispos[ing] of a few specific items of property including an interest in real estate, an automobile, household goods and furniture, with no mention of insurance policies or proceeds.” (O’Toole, 12 Ill. App. 3d at 997, 299 N.E.2d at 393.) The court observed that a general clause also stated, “ ‘each party is further barred as to any and all claims or interests whatsoever in and to the property of the other now owned and hereafter acquired.’ ’’ O’Toole, 12 Ill. App. 3d at 997, 299 N.E.2d at 393.

The appellate court rejected the administrator’s argument that the life insurance proceeds constituted property included in the general waiver clause. Rather, the court concluded, Patricia’s interest was a mere expectancy as her former husband retained the right to change the beneficiary at any time. The court further observed:

“Illinois follows the majority rule that a decree of divorce in no way affects the rights of the divorced wife as a beneficiary in a husband’s life insurance policy. (See, 22 I.L.P., Insurance, sec. 93 and 44 Am. Jur. 2d Insurance, sec. 1740.) Only if a property settlement agreement should specifically include a termination of the beneficiary’s interest, will the right to the proceeds of a policy on the life of the husband be affected, unless the policy itself or a statute provides otherwise. (Couch on Insurance 2d ed., sec. 27:111.)” (O’Toole, 12 Ill. App. 3d at 997, 299 N.E.2d at 394.)

Thus, the court held Patricia was entitled to the proceeds as the decree did not address the life insurance policies nor did the policies provide for termination of her interest upon divorce. The court reasoned that, had the deceased insured desired to substitute another person or his estate as beneficiary following divorce, he could have done so, or attempted to do so, and that no such indication existed. O’Toole, 12 Ill. App. 3d at 997-98, 299 N.E.2d at 394.

In Cox, the deceased insured died in an accident one day after entry of the divorce decree. On appeal, the court relied extensively on the rationale of O’Toole and held the surviving former wife, the named beneficiary, was entitled to the proceeds of the deceased’s life insurance policies. (Cox, 25 Ill. App. 3d at 18-19, 322 N.E.2d at 559-60.) Although the court did not set out the exact language of the property settlement involved there, the court stated that the language was, “for all practical purposes, identical” to that in O’Toole. Cox, 25 Ill. App. 3d at 19, 322 N.E.2d at 560.

Similarly, in the instant case, the decree, despite the broadly worded waiver of claim to property contained in paragraph 2(k), makes no mention of Ware’s insurance policy or ESOP account and, therefore, cannot defeat Gatling’s interest. In fact, we believe circumstances here present an even more compelling factual situation for affirming award of the proceeds to Gatling as named beneficiary than were before the court in either O’Toole or Cox. We note that Ware died over four years after his divorce from Gatling. During that period, Ware retained the sole power, and had ample opportunity, to designate a different beneficiary than his former wife. He did not do so nor attempt such effort.

Further, we are not persuaded by any argument that we should extend provisions of the Probate Act to govern over what is, essentially, a contract to pay Ware’s designee. Such an argument is properly directed, instead, to the legislature, not this court.

We therefore affirm the judgment of the circuit court.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARNELL COURTNEY, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—1371
    Opinion filed June 30, 1989.

      State Appellate Defender’s Office and Eckhart, McSwain, Silliman & Sears, both of Chicago (Harry C. Lee III, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Sara Dillery Hynes, and Peter T. Petrakis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

A jury found defendant, Darnell Courney, a/k/a Darnell Courtney, guilty of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1)), and the trial court sentenced defendant to a term of five years’ imprisonment (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(b)). On appeal, defendant initially contends that section 4— 103(b) of the Illinois Vehicle Code is unconstitutional. Our supreme court recently upheld the constitutionality of that provision (People v. Bryant (1989), 128 Ill. 2d 448), and thus the issue will not be addressed in this appeal.

Defendant also contends that the court improperly denied his motion in limine to bar any mention of a prior conviction; that his statement to the police was improperly admitted where made during a custodial interrogation absent Miranda warnings; and that the State improperly shifted the burden of proof in rebuttal closing argument.

The trial court denied defendant’s pretrial motions to preclude mention that defendant possessed the complainant’s credit cards at the time of his arrest, and preclude mention of defendant’s prior convictions for robbery and for Illinois Credit Card and Debit Card Act (Ill. Rev. Stat. 1987, ch. 17, par. 5901 et seq.) (Credit Card Act) violations.

John Sochacz testified for the State that on June 5, 1986, at 9 a.m., he reported the theft of his 1983 dark gray two-door Oldsmobile Toronado, with a light gray top and interior, and license plate number J559. The keys were in the ignition, and his wallet was in the car. He later identified the car recovered by the police, and noticed a new small scratch on the window in the driver’s door, along with other body damage.

Officer Roy Van Smith testified that on June 9, 1986, at 4:45 p.m. he and his partner were in uniform and in a squad car when they received a radio assignment to proceed to an address in Chicago. There, they saw defendant sitting in a parked gray Oldsmobile Toronado which bore no license plates. They parked the squad car behind the Oldsmobile. A second squad car arrived from the other direction and parked in front of the Oldsmobile. Smith asked defendant to exit the car and asked who owned the car. Defendant replied that his attorney owned the car. The police determined over the radio that the car was stolen. They arrested defendant and informed him of his Miranda rights. The officers searched the car and in the trunk found license plates with the number J559. They also found seven identification and credit cards on defendant’s person, all bearing the name of John Sochacz.

Stephanie Taylor testified for the State that on June 6, defendant gave her a ride home in a gray Oldsmobile Toronado with a gray interior. Defendant tested Taylor’s diamond ring by scratching the upper right side of the window in the driver’s door of the car.

Defendant testified that on June 9, 1986, he was struck by a 1983 Oldsmobile Toronado. The driver stopped and ran away. Defendant chased him on foot, then returned and drove the Oldsmobile several blocks, looking for the driver. The police then approached him, informed him the car was stolen, and arrested him. He carried credit cards which he found on the seat of the Oldsmobile. Defendant had given Taylor a ride home, but he was driving a light green 1975 Thunderbird and did not scratch a window with a diamond ring.

Defendant contends that he was denied a fair trial when the trial court denied his motions in limine to bar use of his prior convictions for robbery and for violation of the Illinois Credit Card Act (Ill. Rev. Stat. 1987, ch. 17, par. 5901 et seq.). Initially we note that the court properly cautioned the jury not to use the evidence except for the purpose of impeaching defendant’s credibility. (See People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017.) Moreover, a reviewing court will not reverse a trial court’s allowance or denial of a motion in limine unless the court manifestly abused its discretion. People v. McCoy (1987), 156 Ill. App. 3d 194, 509 N.E.2d 567; People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367.

It is permissible to admit impeachment evidence of the conviction of a crime punishable by imprisonment of more than a year, or involving dishonesty or false statements, where less than 10 years have elapsed since the later date of release from prison or conviction. (People v. Pegram (1987), 152 Ill. App. 3d 656, 504 N.E.2d 958, aff’d (1988), 124 Ill. 2d 166, 529 N.E.2d 506.) In using a prior conviction to impeach a witness’ credibility, the proof of past crimes must directly bear on testimonial deception. (People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867.) Even where the prior conviction bears upon the witness’ credibility, the court must use its discretion to determine whether the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to this issue of credibility. People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821; People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867.

Factors to be considered in weighing the probative and prejudicial effect of the prior conviction evidence include the nature of the crime, nearness or remoteness, subsequent career of the person, and whether the crime was similar to the one charged. People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563; People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695; People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867; People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017.

The convictions here were for robbery and Credit Card Act violations, which involve dishonesty. (See, e.g., People v. Smith (1982), 105 Ill. App. 3d 84, 433 N.E.2d 1054.) The convictions were within the 10-year time period authorized by our courts. The court properly exercised its discretion in determining that defendant’s credibility should be weighed together with his previous involvement in these criminal offenses. (See People v. Pegram (1987), 152 Ill. App. 3d 656, 504 N.E.2d 958.) The admission of the past convictions did not rise to the level of proof to show defendant’s propensity to commit a crime or similar crimes. It did not cause a search for the truth to be based upon the prior convictions rather than solely on the facts of the case and the credibility of the witnesses. (Cf. People v. Pruitt (1988), 165 Ill. App. 3d 947, 520 N.E.2d 867.) The trial court did not abuse its discretion in admitting defendant’s prior convictions for the limited purpose of impeachment.

We are unpersuaded by defendant’s argument that the prejudicial impact of the evidence outweighed its probative value because the jury might believe defendant stole the car only on the basis that he “had previously committed the crime of theft of credit cards.” Defendant also argues that “use of the Credit Card Act conviction immediately after use of the robbery conviction improperly suggested to the jury that defendant had stolen credit cards and thus was more likely to have improperly possessed the victim’s cards and thus more likely to have knowledge that the car was stolen.” This reasoning is much too tenuous and fails to demonstrate sufficient prejudice to establish that the trial court abused its discretion in balancing the probative value of permitting this impeachment evidence to go before the jury.

Defendant next contends that he was denied a fair trial as a result of the introduction of evidence of his statement to the police that the car belonged to his attorney, where it was a custodial interrogation and he had not yet received Miranda warnings.

Defendant waived this issue on review by failing to move to suppress the statement, failing to object at trial, and failing to object in a post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Cimino (1970), 45 Ill. 2d 556, 257 N.E.2d 97.) Notwithstanding this waiver, we find that the on-the-scene questioning here was not the type of compelling atmosphere inherent in the process of custodial interrogation. (See Miranda v. United States (1966), 384 U.S. 436, 478, 16 L. Ed. 2d 694, 726, 86 S. Ct. 1602, 1630.) Defendant was parked in a car on a public street in daylight. The police approached and immediately, without any lengthy interrogation, asked who owned the car. The fact that the two police cars, arriving in opposite directions, parked in front of and behind defendant does not transform this into a custodial setting. Defendant was not denied a fair trial by the introduction of this statement.

Defendant finally contends that he was denied a fair trial where the State improperly shifted the burden of proof in its rebuttal closing argument when it argued defendant’s “testimony was inconsistent, groundless speculation, and a manipulation of facts,” and concluded that the jury should “hold the defendant responsible for his actions.” Defendant insists that the argument was improper because it “focused the jury’s attention on defendant’s testimony and its inadequacies and not on the evidence of the crime which it had presented to meet its burden.”

The prosecutor asserted that defendant’s testimony was inconsistent with the facts and contrary to ordinary experience. The court sustained an objection. The prosecutor went on to state the defendant’s testimony was inconsistent with what he originally told the police about the car being owned by his attorney, and argued that his testimony was groundless speculation and endless manipulation of the facts.

Absent a clear abuse of discretion, we will not disturb the trial court’s determination of the propriety of closing argument. (People v. Lasley (1987), 158 Ill. App. 3d 614, 511 N.E.2d 661.) The argument merely reflected the evidence at trial, including defendant’s testimony, which was strongly contradicted by the overwhelming evidence of guilt presented by the State. Defendant contradicted Taylor’s testimony and his own statements to the police. We find no improper argument and no improper shifting of the burden of proof. In any event, there is no indication that the jury would likely have reached a contrary verdict absent the argument. See People v. Townsend (1985), 136 Ill. App. 3d 385, 483 N.E.2d 340.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

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


author: JUSTICE McMORROW

text:
    MARVIN DEAN KUEHL, Petitioner-Appellee, v. KAREN ELIZABETH KUEHL, Respondent-Appellant.
    First District (4th Division)
    No. 1—88—0421
    Opinion filed June 29, 1989.
    Jeffrey M. Leving and Samuel J. Cahnman, both of Chicago, for appellant.

      Edward A. Berman, of Berman, Roberts & Kelly, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Karen Elizabeth Kuehl (Karen) appeal from the trial court’s denial of her petition for a temporary restraining order or a preliminary injunction to forbid removal from the State of Illinois of her minor child, Elizabeth Sarah Kuehl (Elizabeth), and to award Karen temporary and permanent custody of her daughter. In support of her petition, Karen alleged facts to show that there was presently an emergency situation in the daughter’s life that was detrimental to the girl’s emotional well-being. Karen and the child’s father, Marvin Dean Kuehl (Marvin), had been previously granted a judgment in Iowa that dissolved their marriage and awarded both parents joint custody, with Marvin accorded primary residential custody of the child.

The trial court denied Karen’s emergency petition -without an evidentiary hearing. The court concluded that it would decline to exercise jurisdiction over the cause since either the State which had entered judgment dissolving the parties’ marriage and awarding custody of Elizabeth (Iowa) or the State where Marvin and Elizabeth currently reside (Arizona) would be more appropriate forums for the matters raised in Karen’s petition. We affirm, finding no abuse of discretion in the trial court’s decision to decline to exercise its jurisdiction over the case at bar.

Karen and Marvin were married in July 1978 and one child, Elizabeth, was born to the marriage in July 1980. In an Iowa judgment for dissolution of their marriage, entered August 1984, both parents were awarded joint custody of Elizabeth, and Marvin was granted primary residential custody of the child. Since their divorce, Karen has lived in Chicago, Illinois; Marvin and Elizabeth have lived in Iowa, and more recently, in Arizona.

In December 1987, while Elizabeth was in Chicago visiting Karen, Karen filed an emergency petition for an ex parte temporary restraining order and for other relief in the circuit court of Cook County. This verified petition alleged the following relevant facts. On or about December 18, 1987, Karen received Elizabeth from Marvin for Christmas visitation. Karen became concerned because Elizabeth showed symptoms of physical and emotional problems, such as bed-wetting, tantrums, confusion, and either belligerent or fearful behavior. Karen believed that Elizabeth’s conduct resulted from Marvin’s failure to provide the child with a stable living environment in which the child would receive proper supervision. In this regard Karen stated that since the Iowa dissolution of marriage judgment was entered: (1) Marvin and the child moved to Arizona without permission of the Iowa court approximately six weeks after the divorce; (2) Marvin has remarried, divorced, remarried again, and is currently separated from his fourth wife; (3) Marvin and the child have moved at least 11 times and have lived in at least 10 separate locations; and (4) Elizabeth comes home from school to an empty house and on one occasion found that the house had been burglarized and a long knife left on the doorstep.

Karen also stated that a pediatrician and a psychiatrist who had interviewed her daughter during the December visit in Chicago were both of the opinion that the child’s environment with her father was unstable, that she was suffering emotional damage from this unstable environment, and that Elizabeth should not remain with Marvin but instead should reside with Karen. Their reports so stating were attached as exhibits to Karen’s emergency petition.

The trial court denied Karen’s petition without an evidentiary hearing. In its written order, the court stated that it “declined to exercise jurisdiction in this matter because Iowa or Arizona are the appropriate forums.” Karen appeals.

Section 4 of the Uniform Child Custody Jurisdiction Act as adopted in Illinois (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.) provides in pertinent part that the “circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if: *** the child is physically present in this State and *** it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.” Ill. Rev. Stat. 1987, ch. 40, par. 2104(a)(3)(ii).

Karen argues that the trial court should have held an evidentiary hearing with respect to her petition to determine whether there existed an “emergency” situation under this section of the Act. Karen also argues that the facts stated in her petition demonstrated the existence of an “emergency” sufficient to confer jurisdiction upon the circuit court in the case at bar. We need not and do not resolve these questions, however. Assuming arguendo that the circuit court had jurisdiction over Karen’s emergency petition pursuant to section 4 of the Act, the court nevertheless properly exercised its discretion when it declined to exercise jurisdiction over the instant cause.

Section 8 of the Act permits a court which has jurisdiction to decline the exercise of this jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” (Ill. Rev. Stat. 1987, ch. 40, par. 2108(a).) Section 8 further states:

“(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
4. if the parties have agreed on another forum which is no less appropriate; and
5. if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Section 2 of this Act.” Ill. Rev. Stat. 1987, ch. 40, par. 2108(c).

“These principles require the exercise of a trial court’s discretion and cannot be applied in a rigid or mechanical fashion. Accordingly, a trial court’s decision *** to decline jurisdiction will be affirmed absent an abuse of that discretion. [Citation.]” (In re Marriage of Hilliard (1989), 178 Ill. App. 3d 620, 624-25, 533 N.E.2d 543.) We find no abuse of discretion in the trial court’s conclusion that it should decline to exercise its jurisdiction in the case at bar.

According to the record, Elizabeth has resided in either Iowa or Arizona since her birth, and both States have closer connections with the child than does Illinois. Elizabeth has never permanently resided in Illinois, nor does the record show that she has spent substantial time here during visitation periods with her mother in Chicago. Evidence regarding Marvin’s ability to care for his daughter is obviously located in Iowa and Arizona, not Illinois. There is nothing in the record to show that the courts of either Iowa or Arizona would not consider, or have declined to consider, the substantive questions raised in Karen’s petition. Although we do not dismiss the concerns expressed by Karen in her petition regarding her daughter’s emotional well-being, we would nevertheless note that Elizabeth has since returned to her father in Arizona, and Karen’s petition does, not indicate that the child’s living environment with her father poses an immediate, grave risk to the child’s physical or emotional well-being. In light of all of these considerations, we cannot say that the trial court abused its discretion when it declined to exercise jurisdiction over the instant cause. See generally 1 J. Atkinson, Modem Child Custody Practice §3.18 (1986).

For the reasons stated, the order of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY COLLINS et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—86—3008, 1—86—3081 cons.
    Opinion filed June 30, 1989.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, Jeffrey Haas, and Sue Augustus, all of Chicago, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The defendants, Jeffrey Collins (Collins) and Samuel Hayes (Hayes), were jointly indicted for the August 4, 1982, murder of Eddie McKeever (McKeever). Prior to trial, both defendants requested severance on the basis of antagonistic defenses and other forms of prejudice. Both motions were denied after a ruling by the trial court that Hayes’ statement would be redacted to eliminate any references to Collins. A jury trial followed. After the first few State witnesses testified, Collins moved for a mistrial due to the denial of the motion for severance on the basis of antagonistic defenses, and Hayes joined in the motion. The motion was denied. The jury found both Collins and Hayes guilty of McKeever’s murder, and the court sentenced them to 40 years’ imprisonment. Both defendants appeal, and their appeals have been consolidated for review.

On appeal, both defendants argue that the trial court abused its discretion in denying their motions for severance based on antagonistic defenses. The defendant Collins also contends that the trial court committed reversible error when it barred his cross-examination of the assistant State’s Attorney who took Hayes’ statement. The defendant Hayes additionally argues: (1) the trial court violated his sixth amendment right of face-to-face confrontation in allowing the statement of his nontestifying codefendant to be admitted at trial; (2) he was denied a fair trial because he was not allowed to testify about prior threats and acts of violence against him by Collins and Alfonso Pinex (Pinex); and (3) the case should be remanded for a hearing to determine if the prosecutor purposefully excluded jurors on the basis of race.

Prior to trial both defendants executed jury waivers for any potential death penalty sentencing hearings. Thereafter, a jury was selected. Fifty-six prospective jurors were questioned; four jurors challenged by the State were black; two jurors challenged by the defendants were black, and two jurors excused for cause were black. The final racial composition of the sworn jury included three black jurors and one black alternate.

During opening statements, each defense counsel argued that the codefendant and/or Pinex were the killer(s) of McKeever and not his respective client.

Next, Deborah Knox testified that she was with the victim during the late evening hours of August 3, 1982. McKeever offered to get chicken from Harold’s Chicken Shack and then rode his bicycle a few blocks away to Harold’s Chicken Shack. She testified that about 30 to 45 minutes later, she heard three gunshots, then a pause, then one more gunshot — all appearing to come from the same direction Mc-Keever had gone.

The State then established that McKeever was shot at the comer of 90th and Ashland at about 12:30 a.m., on August 4, 1982. Thereafter, various State witnesses testified that the victim died of multiple gunshot wounds, that three bullets recovered from McKeever’s body were probably fired from the same .32 caliber firearm, and there was a through-and-through bullet to his chin.

Next, Assistant State’s Attorney Tom Roche testified that on June 6, 1985, Collins gave him a written and tape-recorded statement. The court allowed the witness to publish the statement and play the tape to the jury. Collins’ statement indicated the following scenario of events. On August 4, 1982, he was driving his sister’s car. Pinex, Mark Pollet and Hayes were passengers in the car with him. As he parked the car to go to the liquor store, Collins and his passengers saw McKeever riding his bike with a bag of Harold’s chicken. Hayes and Pinex got out of the car, and Pinex kicked McKeever off the bike. Collins saw Pinex and Hayes shoot McKeever about five or six times. They ran back to the car, and he drove to a park and dropped off Pinex and Hayes. Collins and Pollett then drove off.

- Assistant State’s Attorney James Bigoness testified that he first spoke to Hayes on June 3, 1985. On the following day, he obtained a written statement from Hayes which was substantially similar to his oral remarks. Hayes’ redacted court-reported statement was published to the jury.

In the statement, Hayes said that on the afternoon of August 3, 1982, he attended a Disciples gang meeting in the basement of the home of Pinex, where a group of 50 to 55 discussed various matters, including shooting McKeever. He also stated that McKeever was a member of a rival gang — the Blackstones. At that time, he had a loaded .22 caliber and a loaded .38 caliber gun with him. After the meeting at Pinex’s request, Hayes went to the store at which he worked to look for bullets. Later that evening, Hayes entered a car in the vicinity of 90th and Ashland Streets with Pinex, Collins and Mark Pollet. Collins was driving. They drove around for a while, went to a club, and drove around some more. They spotted McKeever on his bike near 91st and Ashland, drove ahead of him, and turned the corner. Pinex got out of the car, hid behind a wall, and fired four or five shots at McKeever as he appeared around the comer. Hayes stated he stepped out of the car and fired his .22 caliber once at McKeever’s face. They got back into the car and drove off. The out-of-court statements of Collins and Hayes were very similar except for the following differences. Collins had stated he was driving to the liquor store when Pinex and Hayes spotted McKeever, got out of the car, knocked him off the bike and fired shots at him. Hayes had stated the group was looking for some Stones to beat up when Mark Pollet spotted McKeever. Pinex got out of the car, hid behind a wall and shot four or five times at McKeever with a .32 caliber gun as he appeared around the comer. Hayes then stepped out of the car with one foot and fired again, aiming the .22 caliber gun at the victim’s face.

The court allowed Hayes’ counsel to cross-examine Assistant State’s Attorney Bigoness. However, after a sidebar, the court refused to allow counsel for Collins to cross-examine Bigoness, ruling the questions counsel intended to ask were beyond the scope of direct examination and improper.

The parties then stipulated that if Tyrone Britton had been called as a witness, he would have testified that on April 29, 1982, he was with the victim, Eddie McKeever, when they were approached and shot by Collins. Britton and McKeever both testified against Collins at a preliminary hearing on May 18, 1982, regarding the April 29, 1982, shooting incident. After that stipulation, the State rested.

Ricky Collins, brother of defendant Collins, testified that he got Collins a job and encouraged him to return to school. Collins rested.

Prior to Hayes’ testimony, the court agreed with the State and ruled he was precluded from testifying about any threats made to him prior to August 4 since he had failed to give the State notice of a compulsion defense.

Defendant Hayes then testified on his own behalf. On direct examination, Hayes stated he knew both Collins and Pinex from the neighborhood. His testimony was either different from or added to his written statement in the following respects: (1) he was afraid of Pinex and Collins; (2) he was walking down the street when Collins demanded he come over to the car; (3) he was forced into the car by Collins; (4) he got out of the car because he was told to do so; and (5) he aimed his .22 caliber gun at the wall behind McKeever and fired once. He also testified that on the evening of August 2, 1982, he was beaten by Pinex, Collins and two others. Hayes stated he did not voluntarily give his statement to Bigoness but was encouraged to do so because the assistant State’s Attorney needed someone to say that they shot McKeever with a .22 caliber gun. He stated that he was told if he said this he would not be charged.

After objections from the State, the court refused to allow Hayes to testify further on the basis of its earlier ruling that he was precluded from raising a compulsion defense when he failed to disclose it in his answer to the State’s discovery.

On cross-examination by the State, Hayes further testified that some parts of the statement he gave the assistant State’s Attorney were not true: (1) he had a .38 caliber gun with him on August 4; (2) Mark Pollet was in the car; (3) “Maybe if we saw someone on the street, we were going to beat them up”; and (4) Mark Pollet shouted out, “[Tjhat was McKeever.”

Counsel for Collins was permitted to cross-examine Hayes, but at the State’s request was limited to asking about Collins only.

Initially, we must determine whether the trial court erred when it denied defendants’ motions for severance based on antagonistic defenses.

The general rule is that jointly indicted defendants will be tried together (People v. Strayhorn (1965), 35 Ill. 2d 41, 219 N.E.2d 517; People v. Lindsay (1952), 412 Ill. 472, 480, 107 N.E.2d 614, 618), unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.) There are two common examples of prejudice which dictate when jointly indicted defendants should be tried separately. The first example, known as the Bruton problem, occurs when one defendant has made out-of-court admissions that implicate a codefendant. Where these statements are introduced into evidence, even with limiting instructions to the jury not to consider the statements against the codefendant, the codefendant’s sixth amendment right of confrontation can be violated. Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

The second form of prejudice occurs and mandates a severance when defendants present defenses that are so antagonistic that it is unfair to try them together. People v. Daugherty (1984), 102 Ill. 2d 533, 542, 468 N.E.2d 969, 971; People v. Braune (1936), 363 Ill. 551, 2 N.E.2d 839.

The defendant who believes he will be prejudiced by a joint trial with a codefendant may request severance by pretrial motion. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 8; People v. Daugherty (1984), 102 Ill. 2d 533, 468 N.E.2d 969.) “The motion must demonstrate how the defendant is going to be prejudiced by proceeding with a joint trial. Mere apprehensions of prejudice are not enough.” (People v. Lee (1981), 87 Ill. 2d 182, 186, 429 N.E.2d 461.) The trial judge, in ruling on the motion, must make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge developed from the proceedings. (See People v. McMullen (1980), 88 Ill. App. 3d 611, 614, 410 N.E.2d 1174.) The decision whether to grant a motion to sever is discretionary with the trial court and will not be reversed absent an abuse of discretion. People v. Bean (1985), 109 Ill. 2d 80, 93, 485 N.E.2d 349, 355; People v. Canaday (1971), 49 Ill. 2d 416, 424, 275 N.E.2d 356.

In the case at bar, before trial both defendants moved by written motion for severance. Collins’ attorney asserted his defense was antagonistic to Hayes’ and that Hayes’ statement would implicate him, resulting in a possible Bruton problem. Additionally, Collins’ attorney argued he would stand by his out-of-court statement, denying all knowledge of the planning and participation in the acts of the murder, that Pinex and Hayes were the murderers, and he was an uninvolved witness. He did not testify at trial. Thus, his defense remained the same.

Before trial, Hayes’ attorney contended that he expected Collins’ testimony and defense would be the same as his pretrial statement. This was antagonistic to his defense because he did not shoot at or kill McKeever. He further argued at trial that he would repudiate his out-of-court statement and present evidence that Collins and Pinex had threatened him, that Collins was responsible for planning the murder, and that Pinex had killed McKeever. During the trial, on direct and cross-examination, Hayes’ defense remained consistent with the details outlined in the pretrial severance motion.

During the hearing on the motions, each respective counsel contended his client would be prosecuted by his codefendant in addition to the State. The court denied the motions, ruling that references to Collins in Hayes’ statement would be redacted.

The court, in redacting all references to Collins from Hayes’ statement, attempted to cure any potential prejudice to Collins, and thus avoid the problem of confrontation in regard to the codefendant’s pretrial statement. (See People v. Johnson (1986), 144 Ill. App. 3d 997, 495 N.E.2d 633.) However, similar to the Bean case, this only solved part of the problem and did not address the issue of antagonistic defenses. On its facts, this case is similar to People v. Braune (1936), 363 Ill. 551, 2 N.E.2d 839, People v. Daugherty (1984), 102 Ill. 2d 533, 468 N.E.2d 969, and the companion cases of People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349, and People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247, where our supreme court determined that severance was warranted where the trial became more of a contest between the defendants than between the State and an individual defendant.

In Braune, the defendant was found guilty of manslaughter. Prior to trial, he filed a written petition for severance, alleging that the two defendants’ defenses were conflicting and antagonistic. The other defendant also filed a motion arguing the first defendant would testify and he would be disadvantaged because he was unable to cross-examine him. Both motions were denied. The supreme court was concerned that the trial became a contest between the defendants. The trial “produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other.” (citing Braune, 363 Ill. at 557.) Similar to this case, where on more than one occasion the State argued to the court that a codefendant’s counsel’s remarks or line of questioning was improper or should be stricken because he or she was creating an inference and pointing the finger at the other, and the codefendant should not prosecute the defendant for the crime.

In Daugherty, each of the two codefendants made a statement that he was present at the scene of the crime but blamed the victim’s death on the other. Similar to this case, the trial judge ordered the statement redacted.

In Bean and Byron, the supreme court recognized the long-standing rule in Illinois that any set of circumstances which deprives a defendant of a fair trial is sufficient to require severance, citing Braune. In the companion cases of Bean and Byron, codefendants were jointly tried for murder. Both moved for severance, and the trial court denied both motions. Bean had argued that Byron’s defense strategy would be to attack him and place all the blame for the crimes on him. Byron asserted that the evidence was overwhelming against Bean, and its introduction would be unavoidably and highly prejudicial to him. The supreme court reversed Bean’s conviction on the ground the defenses were antagonistic, noting that Byron’s strategy was to convince the jury of his own innocence by convincing them of Bean’s guilt.

In this case, the trial court was first made aware of the defendants’ intentions to blame each other prior to trial. Even though Hayes did not directly place the blame on Collins as the shooter, introduction of his out-of-court statement and his subsequent testimony indicated he sought to prove Collins was the mastermind of the murder. On appeal, the State argues this case is distinguishable from Daugherty because the defendants did not “place the blame” on each other. However, in Bean the supreme court ruled a similar argument by the prosecution was “specious” and rejected it. Bean, 109 Ill. 2d at 95.

The hostility defense counsel had predicted in fact manifested during the opening statements. In his opening statement, Collins’ attorney asserted:

“Jeffrey Collins is not a murderer. Samuel Hayes and Alfonso Pinex who are not charged presently in this courtroom are murderers. They shot the guns. They shot the guns into the body of Eddie McKeever, and they are the ones who are guilty. Samuel Hayes made a statement to the police. He confessed. He said he shot him, not Jeffrey. And who shot Eddie McKeever? Who did it, Alfonso Pinex and Samuel Hayes did.”

Similarly, in his opening statement, Hayes’ attorney argued:

“Jeffrey Collins is not Samuel Hayes’ friend. The reason that Jeffrey Collins and Alfonso Pinex had to kill Eddie McKeever was the fact that he was a witness in that case. Samuel Hayes is as much a victim of Jeffrey Collins and Alfonso Pinex as was Eddie McKeever.”

Following opening statements and testimony by the State’s first witnesses, defense counsel for Hayes moved for severance or mistrial. The judge made some comments on the opening statements and indicated that he had never been confronted with this situation before and did not want to declare a mistrial after two days. The State argued that this case was distinguishable because the defendants did not blame each other during the severance hearing, and hence, their statements were the same, indicating Hayes was the shooter and that Collins was present. The court denied the motions.

In a similar case, this court has held that a severance was warranted where the antagonism manifested itself in opening statements. (People v. Wilson (1986), 161 Ill. App. 3d 995, 505 N.E.2d 812.) Additionally, there is a continuing duty to grant a severance if prejudice appears during the trial. People v. Poree (1983), 119 Ill. App. 3d 590, 595, 456 N.E.2d 950.

The antagonism against Hayes became more apparent after opening statements and the introduction of Collins’ statement that Hayes and Pinex were the murderers. Hayes was further prejudiced because he could not cross-examine Collins, but Collins in cross-examining him attempted to implicate him by eliciting admissions that he had a motive and by further discrediting his testimony in order to prove he was the killer. Also, Hayes was repeatedly attacked in closing arguments:

“[Y]ou know Alfonso Pinex and Samuel Hayes shot and killed Eddie McKeever; that they are the ones who are guilty; Jeff is not guilty; that he wasn’t part of a plot or a plan ***. Besides, the evidence that you heard showed at least three motives for the murderers, Hayes and Pinex, to kill; which they did, not Jeff. Sam Hayes *** is an admitted armed robber and thief, and I submit, a partner in this murder.”

Collins was similarly prejudiced. Hayes took the stand, and contrary to his contention, was allowed to testify about his fear of Collins and Pinex. He attempted to prove he cooperated because he was acting under threats of force and compulsion. But for the State’s insistence that he not be allowed to testify further, and the court’s ruling limiting this line of testimony, Hayes may have in fact pointed the finger at Collins and placed the blame on him. Nevertheless, Hayes’ opening statement, coupled with his testimony and closing remarks, was prejudicial to Collins. In Hayes’ closing remarks, his counsel argued:

“Sam didn’t know that Eddie McKeever was going to be a witness against Jeffrey Collins. Only Jeffrey Collins knew that. Sam had nothing to do with it. He didn’t know why he was in the car. He told you that he didn’t know that they were going out to kill Eddie McKeever. And whether he (Jeffrey Collins) was a gang member or not, he still had a motive to shoot Eddie McKeever once before and he had a motive again this time.”

The court reached its ruling to deny severance during the trial on the basis that the statements interlocked in various aspects, and therefore, no antagonism existed. This court has recently rejected this contention in People v. Wilson (1986), 161 Ill. App. 3d 995, 505 N.E.2d 812. In Wilson this court stated:

“From the several colloquies among counsel and the trial court before and during trial, it appears that the court inverted the generally sound premise that where codefendants’ statements materially conflict so, usually, will their defenses, to conclude that, conversely, where the pre-trial statements are ‘interlocking’ there can be no true antagonism between the defenses presented at trial. Although there are, of course, innumerable cases finding the extent to which statements are consistent to be relevant to the question whether their admission poses potential Bruton problems, we have found none holding that the existence of interlocking statements in itself negates the possibility of antagonistic defenses.” 161 Ill. App. 3d at 1005.

More recently, the United States Supreme Court in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, rejected the position that Bruton did not require the codefendant’s confession to be excluded because the defendant had himself confessed, and his confession “interlocked” with his codefendant’s. The court stated, “in fact, *** ‘interlocking’ bears a[n] *** inverse relationship to devastation^ since] *** a codefendant’s confession that corroborates the defendant’s confession significantly harms the defendant’s case.” (481 U.S. at 192, 95 L. Ed. 2d at 171, 107 U.S. at 1718.) We believe the Cruz analysis is applicable to the case at bar in that it may be illogical and contrary to good judgment for a trial court to conclude, preliminarily without more, that codefendant confessions are less likely to be taken into account by the jury the more they interlock and are corroborated by the defendant’s own admission or that they are less likely to be harmful when they confirm the validity of the defendant’s confession.

Neither do we find the State’s other arguments persuasive. The State relies on several cases in which our supreme court has upheld the denials of motions for severance based on antagonistic defenses. However, we believe the circumstances of this case are distinguishable. In People v. Yonder (1969), 44 Ill. 2d 376, 256 N.E.2d 321, the codefendants expressed “mere apprehensions” that each defendant would incriminate the other. In People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461, the court was not informed of what the substance of the testifying defendant’s testimony would be, nor how it would be antagonistic to the moving defendant’s defense.

We find the case at bar to be similar to the Daugherty line of cases: “When codefendants have each made statements implicating the other, but professing their own innocence, it is almost inevitable that their lines of defense at trial will become inconsistent and antagonistic and severance is necessary to forestall that result and ensure a fair trial.” (Daugherty, 102 Ill. 2d at 544.) Particularly on point is People v. Gibons (1986), 149 Ill. App. 3d 37, where our court in reliance on Daugherty held the trial court had a continuing duty to grant a severance at any stage of the proceedings. Gibons determined that the trial court was obligated to grant severance upon repeated motions by the defendant, as well as at the opening statement when it became clear that codefendants would present antagonistic defenses, implicating him as the initiator of charged murders and as compelling and manipulating their participation. Gibons, 149 Ill. App. 3d at 49-50.

For the foregoing reasons, we hold that the trial court’s denial of the defendants’ motions for severance on the basis of antagonistic defenses resulted in substantial prejudice to both defendants and constitutes reversible error. Hayes’ and Collins’ convictions are therefore reversed, and the cause is remanded for new and separate trials. Because of our disposition on this issue, we do not address the remaining arguments on appeal.

Finally, we believe that the evidence at trial was sufficient for the trier of fact to conclude that defendants were guilty beyond a reasonable doubt. This does not mean we are making a finding as to defendants’ guilt or innocence which would be binding on retrial, but rather our consideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendants to double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

For the foregoing reasons, defendants Collins’ and Hayes’ convictions are reversed and their causes remanded for new and separate trials.

Judgment reversed and remanded, with directions.

CAMPBELL and BUCKLEY, JJ., concur.