text:
    R.A.N. CONSULTANTS, INC., Plaintiff and Counterdefendant-Appellee, v. JAMES PEACOCK et al., d/b/a Peacock & Steen Architects, et al., Defendants and Counterplaintiffs-Appellants.
    Third District
    No. 3-90-0002
    Opinion filed August 10, 1990.
    John P. Nicoara and Richard L. Steagall, both of Nicoara & Steagall, of Peoria, for appellants.
    Thomas H. Trager, of Vonachen, Cation, Lawless & Slevin, of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

The plaintiff, R.A.N. Consultants, Inc., filed suit against the defendants, James Peacock and Thomas Steen, to recover $18,425 for engineering services performed by the plaintiff under a contract assigned to it by R.A. Nack & Associates. The defendants confessed the validity of the assignment and the correctness of the amount claimed, but filed a counterclaim alleging they were entitled to a setoff for money Nack owed them. The trial court entered judgment against the defendants for $18,425. The defendants appeal.

The record establishes the following facts. The defendants were the sole principals in an architectural design firm in Peoria known as Peacock and Steen Architects. They associated with the engineering firm of R.A. Nack & Associates to form a venture known as Architects Engineers Collaborative (AECO). The purpose of this collaboration was to increase the ability of the defendants and Nack to successfully bid on construction projects. By combining their efforts, they were able to offer both architectural and engineering services to potential clients. If the defendants learned of a project requiring both architectural and engineering services, they would prepare a proposal, obtain a budget from Nack regarding the engineering aspects, and incorporate Nack’s figures into a bid which would be submitted under the AECO banner. If the bid was accepted, the defendants, as procurers of the project, would receive the funds paid to AECO and would disburse to Nack the amount budgeted for its services. Similarly, if Nack was the procurer of a project requiring the combined resources of AECO, it would obtain an architectural budget from the defendants, include those figures in an AECO bid, and later disburse the funds from the work to the defendants. Given the ongoing nature of the various AECO projects, Nack would often owe money to the defendants and vice versa. Instead of writing separate checks for their respective debts, Nack and the defendants would generally set off their respective credits and debits.

There are two AECO projects pertinent to this case. The first was a project involving the United States Post Office in Salem, Illinois, which was procured by the defendants in June of 1983. The contract for that project provided that Nack would pay the defendants $29,000 for their services. After the completion of the project, Nack paid the defendants $13,423.29 of the $29,000. The defendants allege that no further payments were made to them for their work on the project, leaving a balance due of $15,576.71.

The second project pertinent to this case involved the City of Peoria public works facility on Dries Lane. That project was procured by the defendants in November of 1983, and the contract provided that the defendants would pay Nack $33,500 for its services.

Prior to 1984, Nack had a satellite office in Peoria, though its main offices and headquarters were in Carbondale. In December of 1983, the individuals comprising the Peoria branch entered into negotiations with Nack to separate from it and establish an independent engineering firm. The negotiations culminated in the formation of the plaintiff company, R.A.N. Consultants, Inc., which was incorporated in early January of 1984. At that time, Nack assigned its interest in AECO’s City of Peoria public works facility project to the plaintiff. Thereafter, the plaintiff performed the engineering work on the project. Of the $33,500 due for the work under the contract, the defendants paid the plaintiff only $15,075, leaving a balance of $18,425. The plaintiff submitted all of its transmittals and the bill for the project on AECO stationery.

On September 11, 1985, the plaintiff filed suit against the defendants to recover the $18,425 the defendants owed it pursuant to the contract assigned by Nack. The defendants responded by filing a counterclaim, alleging, inter alia, that they were entitled to a setoff of $15,576.71 against the plaintiff’s claim because Nack still owed them that amount from the Salem Post Office project.

The above-mentioned evidence was introduced at trial. Further, defendant Peacock testified that he was unaware that Nack had assigned its interest under the contract to the plaintiff until after the plaintiff filed the instant suit. He admitted, however, that he knew in the summer of 1984 that the plaintiff had formed an independent firm.

The trial court entered judgment for the plaintiff, awarding it the $18,425 it requested. The court ruled against the defendants on their counterclaim, finding that they were not entitled to a setoff.

The sole issue presented on appeal is whether the plaintiff’s claim was subject to a setoff for the debt the plaintiff’s assignor allegedly owed the defendants for the Salem Post Office project. The defendants contend that it was, arguing that section 2 — 403(a) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 403(a)) controls the outcome of the instant case. The plaintiff, on the other hand, contends that the outcome is controlled by Chessen v. Morick (1930), 260 Ill. App. 1.

Section 2 — 403(a) of the Code provides that “[t]he assignee and owner of a nonnegotiable chose in action may sue thereon in his *** own name. Such person shall in his *** pleading on oath allege that he *** is the actual bona fide owner thereof, and set forth how and when he *** acquired title. The action is subject to any defense or setoff existing before notice of the assignment.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 403(a).

In Chessen, the defendant entered into a real estate sales contract with O.H. Kramer in which Kramer agreed to pay $7,000 for some property. $3,000 was to be paid within 30 days and the balance within three years with interest. Kramer paid the first $3,000 within 30 days and then gave Mary R. Hess an assignment of the contract to secure certain notes he had with her. In May of 1926, the defendant loaned Kramer $3,000. At that time, Kramer agreed to repay the loan within one year and in addition agreed to pay the balance on the real estate contract before a deed was required to be delivered. In April of 1928, Hess obtained an absolute assignment of the real estate contract and then assigned it to James H. Chessen. Thereafter, Chessen filed suit against the defendant for specific performance of the real estate contract.

The question presented on appeal in Chessen was whether the defendant was entitled to withhold the execution and delivery of the deed until he was paid the amount of the $3,000 loan he had made to Kramer. In holding that he was not entitled to withhold delivery of the deed, the Chessen court noted that “[t]he general rule of law is that the assignee of a chose in action takes it subject to all equities and defenses between the assignor and the debtor existing at the time of the assignment, but the rule does not extend to a setoff or counterclaim arising out of an independent contract, whether the contract was made before or after notice of the assignment.” Chessen v. Morick (1930), 260 Ill. App. 1, 4.

The defendants contend that the Chessen court never considered the applicability of the predecessor of section 2 — 403(a). They further argue that People ex rel. Nelson v. Roseland State Savings Bank (1935), 282 Ill. App. 289, rejects the reasoning of Chessen v. Morick (1930), 260 Ill. App. 1.

We disagree with both of the defendants’ contentions and find that Chessen is dispositive of the instant case. Here, the defendants’ counterclaim arose out of an independent contract with a separate entity. Thus, under Chessen the defendants were not entitled to a setoff. Regarding the defendants’ contention that the Chessen court never considered the applicability of the predecessor to section 2 — 403, we note that the Historical and Practice Notes of the Smith-Hurd Illinois Annotated Statutes indicate that section 2 — 403(a), although previously section 22 of the Civil Practice Act, and before that section 18 of the Practice Act of 1907, has not changed in substance since 1907. (Ill. Ann. Stat., ch. 110, par. 2 — 403, Historical and Practice Notes, at 346 (Smith-Hurd 1983).) Though the Chessen court did not specifically cite the statute in its opinion, we will presume the court was aware of the law at the time. Regarding Roseland State Savings Bank, we find the defendants’ reliance on that case misplaced. Roseland State Sav ings Bank dealt with a completely different issue and did not address the Chessen decision.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

GORMAN and BARRY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    CITY OF PEORIA MUNICIPAL EMPLOYEES ASSOCIATION et al., Plaintiffs-Appellants, v. THE CITY OF PEORIA, Defendant-Appellee.
    Third District
    No. 3-90-0336
    Opinion filed August 7, 1990.
    Rehearing denied September 11, 1990.

      Thomas E. Leiter and Sandra J. Birdsall, both of Leiter, Brady & Associates, of Peoria, for appellants.
    David L. Thomas, Corporation Counsel, and Roy Davis and Robert M. Riffle, both of Keck, Mahin & Cate, both of Peoria, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This case comes to us upon plaintiffs’ application for leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), and this is the second time this case is before us. On April 20, 1989, we reversed the trial court’s order dated June 16, 1988, granting defendant’s motion for a directed verdict and July 28, 1988, order denying plaintiffs’ post-trial motion. (See City of Peoria Municipal Employees Association v. City of Peoria (1989), 182 Ill. App. 3d 407, 537 N.E.2d 1115.) On appeal at that time was the procedural question of whether the evidence presented at jury trial, when viewed in a light most favorable to plaintiffs, warranted the trial court’s directed verdict in favor of defendant. We determined, after extensive review, that the jury’s verdict finding that plaintiffs were owed for work performed between December 10 and December 31, 1983, was correct, and therefore reversed the trial court’s decision and remanded the cause for hearing consistent with our opinion. At the time of our previous ruling, the only issue was that of liability. No evidence had at that time been presented regarding damages, as the trial had previously been bifurcated with liability issues to be tried before a jury and damages to be tried before a judge. On October 5, 1989, the Illinois Supreme Court denied defendant’s petition for leave to appeal our decision, and the mandate issued to the trial court on October 31,1989.

On remand, both parties filed motions for summary judgment regarding damages. Plaintiffs contend that, by our previous opinion, the trial court need only determine what each plaintiff’s wages were for the period of December 10, 1983, to December 31, 1983, and enter judgment plus interest. Defendant admitted that wages for the three-week period totaled $938,035.52 but filed a cross-motion for summary judgment, seeking summary judgment, alternatively, that either (1) nothing was owed to plaintiffs or (2) that a maximum of $119,021 was owed due to prepayment made to plaintiffs in prior years. The trial court denied both motions and subsequently denied plaintiffs’ motion to reconsider. The trial court did, however, grant plaintiffs’ motion for certification and thus certified the following question for review:

Whether the court’s denial of plaintiffs’ motion for summary judgment and motion for reconsideration violated the appellate court’s mandate.

For reasons discussed hereafter, we determine that the trial court properly denied plaintiffs’ motion for summary judgment and motion for reconsideration and, therefore, deny plaintiffs’ application.

Plaintiffs argue that our previous opinion absolutely determined that plaintiffs were owed for three weeks’ wages. Plaintiffs are incorrect. By our previous opinion, we determined only the liability question of whether defendant owed plaintiffs wages for work performed in 1983. After extensive review of the record, appellate briefs and argument, we determined that defendant’s change in the payroll system “effectively avoided paying plaintiffs for work performed from December 10 to December 31, 1983.” This determination was based upon the evidence that, prior to 1984, defendant paid plaintiffs for work performed subsequent to the date earned and any pay owed plaintiffs for the end of a given year would be paid the following year. In 1984, however, defendant changed its payroll system and took the position that any paycheck issued in 1984 was for work performed in 1984, a method drastically different than the method it had used previously. Thus, the final paycheck issued to plaintiffs in 1983 stated that it represented work performed through December 10, 1983. We illustrated plaintiffs’ position through the use of a fictitious “Mr. X” and herein correct our previous misstatement that “Mr. X” was owed for 3xk weeks, but more properly was owed for three weeks’ work. This illustration, however, was by no means a determination that each plaintiff was similarly situated to “Mr. X” and owed three weeks’ wages. Our illustration, used solely to clarify plaintiffs’ point as to liability, did not take into consideration any number of theories defendant may put forth as a defense at subsequent trial on damages.

In opposition to plaintiffs’ motion for summary judgment, defendant has filed the affidavits of a certified public accountant (CPA) and the payroll supervisor for the city, who both stated that simply calculating three weeks’ wages in assessing plaintiffs’ damages is incorrect.

Plaintiffs allege, however, that all of the defenses being raised by defendant were previously raised and rejected at the liability stage. First, plaintiffs argue that the affidavit of the CPA is nothing more than an argument that plaintiffs were paid in advance for work performed between December 10 and December 31, 1983. Second, plaintiffs argue that the affidavit of the payroll supervisor is merely a statement that plaintiffs were paid in 1984 for work performed in 1983, contrary to her previous testimony at trial. We do not agree with plaintiffs’ assertions. The affidavit of the CPA states that because there are more working days in a year than are actually figured into a biweekly pay system, each plaintiff may not be entitled to three weeks’ wages. We did not previously consider this defense and will not consider the merit of this defense now, but believe that when viewed in a light most favorable to defendant, this defense creates a material issue of fact. Likewise, the affidavit of the payroll supervisor does not state that plaintiffs, across the board, were paid in 1984 for work performed in 1983. If the affidavit did make that claim, we then would concur with plaintiffs’ position, since we determined in assessing liability that plaintiffs were not, as a class, compensated in 1984 for work performed in 1983. The affidavit, however, merely states that, upon termination, an employee is compensated for one week’s additional pay beyond the date of termination. If in fact this is true, then those plaintiffs who are no longer employed by defendant may not be entitled to the same consideration as those plaintiffs still employed by defendant. This affidavit thus creates a material issue of fact regarding damages.

Simply stated, our previous opinion determined that the defendants were exposed to liability as a result of the change in the payroll system. At that time we had no evidence before us regarding damages and made no such determination. We remanded the cause for hearing consistent with our opinion. To clarify we remanded the cause to the trial court for a hearing to assess damages. Defendant is entitled to present any theory it desires regarding this issue. If the defendant’s defense goes to liability and not damages, we have confidence the trial court will recognize this and either disallow or disregard that defense.

Pursuant to Supreme Court Rule 308, the appellate court has discretion in whether to allow an appeal after the trial court has certified an issue for review. In that regard, we must determine whether the question certified involves a question of law to which there is a substantial ground for difference of opinion. (134 Ill. 2d R. 308.) Essentially, however, it appears that.what is most desired is clarification of our previous opinion. We trust that this opinion will provide such clarification and this cause may proceed in the trial court. For all the foregoing reasons, plaintiff’s application for leave to appeal is denied.

Application denied.

HEIPLE, P.J., and BARRY, J., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER ANDERSON, Defendant-Appellant.
    Third District
    No. 3-89-0423
    Opinion filed August 8, 1990.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Christopher Anderson, was charged with murder following the shooting death of Vicki Scarabello. Anderson filed motions to quash his arrest and to suppress evidence which the trial court granted. Thereafter, the State brought an interlocutory appeal to contest the trial court rulings, and this court reversed and remanded for further proceedings. (People v. Anderson (1988), 169 Ill. App. 3d 289.) Following a jury trial, Anderson was convicted of murder and was sentenced to an extended term of 75 years’ incarceration.

On appeal, the defendant raises three arguments: (1) this court should reconsider its previous holding that the defendant’s fourth amendment rights were not violated; (2) the defendant was denied a fair trial when the trial judge gave Illinois Pattern Jury Instruction, Criminal, No. 26.01Q (2d ed. Supp. 1989) in its entirety (hereinafter IPI Criminal 2d No. 26.01Q (Supp. 1989)); and (3) the trial court erred in giving the defendant an extended-term sentence since none of the statutory extended-term eligibility factors applied to him. We affirm the defendant’s murder conviction but reduce the defendant’s 75-year extended-term sentence to 40 years, which is the maximum non-extended-term sentence permitted by section 5 — 8—1(a)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(1)).

Given this court’s disposition of the issues raised by this appeal, it is unnecessary to completely recite the facts, which are adequately set forth in our earlier opinion. (People v. Anderson (1988), 169 Ill. App. 3d 289.) The facts relevant to the questions presented by this appeal are as follows.

On November 20, 1986, Vicki Scarabello, 22 years old, was employed in the rental office of Oakwood Manor Apartments in Park Forrest, Illinois. Shortly before noon, Christopher Anderson entered Scarabello’s office and inquired about renting an apartment. This was witnessed by Donald Rogers, an apartment maintenance man, who then left for lunch. According to the defendant’s police statement, the defendant then returned to Scarabello’s office because he wanted her to help him obtain a painting contract with the apartment complex and because he thought Scarabello was good looking and he wanted to try to date her. When the defendant tried to touch Scarabello around the waist, Scarabello pushed the defendant to the floor and a gun fell out of the defendant’s coat pocket. The two then allegedly went for the gun and, as they struggled, Scarabello was shot twice in the neck. The defendant then fled from the rental office.

Park Forrest detectives Carl Kuester and Patrick Fitzgerald obtained information that a man fitting Anderson’s description was the last potential apartment lessee to speak with the victim before she was murdered. The detectives also learned that Anderson, who lived near the apartment complex, had a prior conviction for armed robbery and that his Illinois driver’s license had been suspended. On November 22, 1986, the two detectives arrested the defendant for driving with a suspended license. The defendant was then taken to the Park Forrest police- department, where he gave the police permission to search his car. Several items were taken from the vehicle, including a small gun case, live rounds of ammunition, and proposal forms from the apartment complex where Scarabello had been employed. The police subsequently interrogated the defendant about his involvement in Scarabello’s murder, and the defendant admitted that he was involved in the Scarabello shooting incident but that it was an accident.

The defendant first argues that this court should reconsider our previous decision in People v. Anderson (1988), 169 Ill. App. 3d 289, wherein we found that the defendant’s fourth amendment rights were not violated when he was arrested for a traffic violation and was then interrogated about his involvement in Scarabello’s homicide. Applying a standard of objective reasonableness, this court found that both the valid custodial arrest and the subsequent investigatory procedures were reasonably undertaken and that no fourth amendment violations occurred. (Anderson, 169 Ill. App. 3d at 300.) Without pinpointing any legal or factual errors in our earlier opinion, the defendant in the present action merely reasserts the identical fourth amendment argument already litigated before this court. Under the doctrine of law of the case, we are precluded from reconsidering the defendant’s fourth amendment claim and are bound by the particular views expressed in our earlier opinion. People v. Weinger (1981), 101 Ill. App. 3d 857.

The defendant next argues that he was denied a fair trial because the last paragraph of jury instruction IPI Criminal 2d No. 26.01Q (Supp. 1989) conveyed to the jury the idea that the defendant could be found guilty of both murder and involuntary manslaughter. The last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) provided:

“If you find the State has proved the defendant guilty of both [greater offense] and [lesser offense], you should select the verdict form finding the defendant guilty of [greater offense] and sign it as I have stated. Under these circumstances, do not sign the verdict form finding the defendant guilty of [lesser offense].”

The defendant claims the instruction was erroneous since murder and involuntary manslaughter involve inconsistent mental states. We find that the defendant has waived any alleged error and that the inclusion of the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) did not affect the fundamental fairness of the defendant’s trial.

IPI Criminal 2d No. 26.01Q (Supp. 1989) was a defense-tendered instruction that was given over the State’s objection. The defendant, who was charged with the offense of murder, requested the instruction on involuntary manslaughter in order to give the jury the option of finding him guilty of the lesser offense. The defendant did not object to the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) nor did the defendant proffer an alternate instruction. Under these circumstances, the defendant has waived any issue concerning the propriety of IPI Criminal 2d No. 26.01Q (Supp. 1989). (People v. Almo (1985), 108 Ill. 2d 54.) The waiver rule is designed so as not to permit a party failing to object to the complained-of erroneous instruction from gaining an advantage of obtaining a reversal premised upon his own failure to act. (People v. Roberts (1979), 75 Ill. 2d 1.) Consequently, we reject the defendant’s untimely attempt to object to IPI Criminal 2d No. 26.01Q (Supp. 1989).

Additionally, we decline the defendant’s request to apply Supreme Court Rule 451(c) in reviewing jury instruction IPI Criminal 2d No. 26.01Q (Supp. 1989). (134 Ill. 2d R. 451(c).) Supreme Court Rule 451(c) provides that substantial defects in jury instructions are not waived by the failure to make timely objections if the interests of justice require. (People v. Roberts (1979), 75 Ill. 2d 1.) This rule, however, only applies to correct grave errors, or to cases which are factually close and fundamental fairness requires that the jury be properly instructed. (People v. Huckstead (1982), 91 Ill. 2d 536.) In the instant case, the jury was properly instructed as to the essential elements of the offenses of murder and involuntary manslaughter. The jury subsequently returned a verdict of guilty of murder based on the overwhelming evidence presented at trial. Accordingly, the defendant was not substantially prejudiced by the inclusion of the last paragraph of IPI Criminal 2d No. 26.01Q (Supp. 1989) such that the interests of justice would require the relaxation of the waiver rule.

Finally, the defendant contests his 75-year extended-term sentence since he argues that none of the statutory extended-term eligibility factors applied to him. Under section 5 — 8—2 of the Unified Code of Corrections, a sentence for murder cannot exceed the maximum term of 40 years’ imprisonment, as set out in section 5 — 8—1, unless aggravating factors, as set out in section 5 — 5—3.2(b), are found to be present by the trial judge. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—2(a)(1), 1005-8-l(a)(l), 1005-5-3.2(b)(2).) Where specific aggravating factors are found, the term may be extended to 80 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)(1).) Here, the trial court, in sentencing the defendant to an extended term, characterized the shooting incident as a “tragic killing” and considered the following factors in aggravation: (1) the defendant’s prior juvenile record, which indicated that the defendant had committed an armed robbery on a young female wherein the defendant forced the victim to disrobe and then fondled her breasts and pubic area; and (2) evidence which revealed that the motivating force behind the defendant’s entry into the apartment complex was the defendant’s sexual attraction to Scarabello. While these are not improper factors to be considered in sentencing the defendant to a nonextended-term, these factors do not make the defendant eligible for an extended-term sentence. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b).) Nevertheless, the State argues that a review of the trial judge’s sentencing determination adequately indicates the existence of one of the eligibility factors for the imposition of an extended term; that being that the murder of Scarabello was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(b)(2).) We disagree with the State’s position for two reasons. First, the trial judge’s comments during sentencing do not reflect that the court made the determination that the murder was exceptionally brutal and heinous. Second, we do not believe that the murder in this case was exceptionally brutal and heinous within the meaning of section 5 — 5—3.2(b)(2).

The trial judge in instructing the jury defined “murder” as follows:

“A person commits the offense of murder when he kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another.”

For most people, all murders, by definition, are brutal and heinous to some extent. Section 5 — 5—3.2(b)(2), however, only permits trial courts to impose an extended-term sentence for murder if the murder is “exceptionally” brutal and heinous. The Illinois Supreme Court in People v. Andrews (1989), 132 Ill. 2d 451, recently examined whether the seemingly unnecessary fatal shooting of a defenseless victim as part of an armed robbery constituted exceptionally brutal or heinous behavior indicative of wanton cruelty. In Andrews, the 18-year-old victim died as a result of a gunshot wound to his right temple. In finding that the trial court abused its discretion in imposing an extended-term sentence, the supreme court stated:

“Although the victim was defenseless and the defendant could have achieved his goal of robbing the victim and the victim’s girlfriend without killing the victim, every single murder is by nature unnecessary; section 5 — 5—3.2(b)(2), however, requires that the murder be “exceptionally” brutal or heinous. All murders are brutal and heinous to a certain degree. Moreover, many murdered robbery victims are defenseless when killed. Section 5 — 8—2, however, allowing for extended-term sentences, ‘was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.’ People v. Evans (1981), 87 Ill. 2d 77, 88-89.” Andrews, 132 Ill. 2d at 465-66.

Similarly, the murder in the instant case did not rise to the higher level of cruelty so as to warrant the imposition of an extended-term sentence. In the case at hand, Scarabello was killed by two gunshot wounds to the neck, which were fired at close range and in rapid succession. If the extended-term sentence statute were applied to this killing, it would be difficult to conceive of a murder to which the extended-term sentence would not apply. Rather, the extended-term provision is meant for murders that go beyond the mere infliction of death.

Accordingly, we vacate the defendant’s 75-year extended-term sentence for murder and sentence the defendant to 40 years’ imprisonment, which is the maximum nonextended-term sentence permitted by section 5 — 8—1(a)(1) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8— 1(a)(1)).

Affirmed in part; vacated in part.

SCOTT and STOUDER, JJ., concur.


text:
    JAMES HAMILTON et al., Plaintiffs-Appellants, v. STEVEN C. FINK, Defendant (Ronald J. Cole, Defendant-Appellee).
    Third District
    No. 3-89-0775
    Opinion filed August 10, 1990.

      Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee (Michael D. Kramer, of counsel), for appellants.
    Ackman, Marek, Boyd & Simutis, of Kankakee (Robert W. Boyd and Randolph Spires, of counsel), for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Plaintiffs, James and Mary Hamilton, appeal from an order granting summary judgment in favor of defendant, Robert Cole. We reverse.

Plaintiffs filed a complaint seeking damages for injuries sustained on June 22, 1987, when their vehicle hit a vehicle driven by defendant, Steven Fink. Count I of plaintiffs’ complaint was directed at Fink, whose disabled vehicle was stationary at the time of the collision. Count II was directed at Cole, whose tow truck had been struck by Fink’s vehicle just prior to plaintiffs’ collision. Cole filed a memorandum in support of motion for summary judgment on July 29, 1989. Following a September 11, 1989, hearing, the trial court issued a memorandum opinion granting summary judgment in favor of Cole. Plaintiffs appeal.

Deposition testimony and interrogatories reveal the following scenario. Cole, owner of an auto repair business, was summoned to a disabled car along Route 45 in Douglas Township just after midnight on the morning of June 22, 1987. He arrived at the scene with his tow truck and provided a jump start, at which time the disabled vehicle left. Cole remained on the edge of the roadway for a few minutes, and then prepared to drive back to his garage. As Cole waited to pull out into the southbound lane, several cars passed him going southbound before he noticed a red convertible approaching at high speed. The convertible, driven by defendant Fink, collided with the rear left side of Cole’s truck, forcing Cole into the ditch, and coming to rest crosswise on the roadway. Plaintiffs, returning from a fair in Dan-forth, came upon the defendants’ vehicles as they drove southbound on Route 45. Both plaintiffs indicated that they noticed a dark, black object in the west ditch, and that their attention was diverted. When they saw Fink’s car in the road, it was too late to stop, and the collision ensued.

Police arriving on the scene took Fink’s statement, in which he said he' saw Cole’s truck on the west side of the road, but swerved to avoid hitting a dog and hit Cole’s truck. Donald Flett, an Illinois State trooper, gave deposition testimony that he issued Fink a ticket for exceeding the speed limit. Drag tests conducted by Trooper Flett at the scene indicated that Fink was traveling at approximately 71 miles per hour when he collided with Cole’s truck. Trooper Flett’s deposition also reveals that he found skid and gouge marks indicating that Cole’s truck was facing southbound on the edge of Route 45, protruding approximately two feet onto the pavement at the time of impact. Finally, Flett stated that both James Hamilton and Fink had alcohol on their breath at the time he arrived at the scene. Fink was never served with process and remains unavailable for discovery or testimony.

Plaintiffs’ action against Cole was premised on the theory that Cole’s negligence in parking his truck on the roadway and failing to provide proper warning reflectors and lights to mark his truck resulted in Fink’s hitting his truck and was a proximate cause of their collision with Fink. In its written opinion, the trial court ruled that summary judgment was appropriate because the conduct of Cole, viewed in a light most favorable to plaintiffs, cannot be deemed to be a proximate cause of the plaintiffs’ injuries. The trial court reasoned that although parking a vehicle partially on a roadway is arguably negligent, any causal connection between Cole’s negligence and plaintiffs’ injuries was severed by the intervening conduct of Fink. The trial court emphasized that Cole is not required to foresee illegal and gross intervening conduct, such as Fink’s excessive speed, nor is he required to anticipate the presence of a dog. Fink was the “intervening efficient cause which broke any original causal connection, if one existed, between Cole and [the] Hamiltons.”

Plaintiffs raise issues on a number of factual disputes present in discovery. We find it necessary to address only one for purposes of this appeal. Plaintiffs maintain that facts exist which make the issue of whether Cole acted negligently and whether his negligence caused the collision with Fink, one for the jury to determine. A determination of whether conduct is negligent is a composite of the experiences of the average person and is left to the jury for evaluation. (Singer v. Sehmudde (1988), 174 Ill. App. 3d 253.) Similarly, proximate cause is properly a matter for jury determination. (Filipetto v. Village of Wilmette (1985), 135 Ill. App. 3d 781.) An exception exists only when the facts are undisputed and there can be no difference in the minds of reasonable men as to the inference to be drawn therefrom. Jeanguenat v. Zibert (1979), 78 Ill. App. 3d 948.

Such is not the case here. A question remains regarding the placement of Cole’s tow truck prior to the first collision between Cole and Fink. Evidence exists, in the form of State Trooper Flett’s testimony, that Cole’s truck was sitting approximately two feet on the pavement at the time of impact. This evidence belongs before a jury for a determination of Cole’s negligence, if any, and its contribution as a proximate cause of the subsequent collision.

We cannot agree with the trial court’s determination as a matter of law that Fink’s conduct was an unforeseeable intervening cause that broke any casual connection that might have existed between Cole and plaintiffs. The trial court based its reasoning on a number of assumptions, some of which should have been reserved for a jury. The question of whether or not Fink’s intervening conduct, inattentiveness, an animal in the road, or excessive speed was within the range of Cole’s reasonable anticipation is the type of factual question for a jury. While Fink may have been exceeding the speed limit, the intervention of even a criminal act does not necessarily break a causal chain. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74.) A question exists as to whether there was a break in any potential causal chain. Questions such as this, composed of qualities sufficient to cause reasonable minds to arrive at different results, inferences and conclusions, are not properly determined as a matter of law. Green v. Welts (1970), 130 Ill. App. 2d 600.

A motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The traditional elements of a negligence action which a plaintiff must establish are a duty to exercise care, a breach of that duty, proximate cause and damages. (McMillen v. Carlinville Area Hospital (1983), 114 Ill. App. 3d 732.) Application of these principles to the instant case reveals that there is, indeed, a genuine issue of material fact with respect to Cole’s conduct. Evidence placing the tow truck two feet on the pavement before the first collision could be construed by reasonable minds as negligent conduct. Such conduct could be found to be a proximate cause of plaintiffs’ injuries. This issue should be decided by a jury.

The judgment of the circuit court of Iroquois County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

GORMAN and SCOTT, JJ., concur.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY TRAYLOR, Defendant-Appellant.
    Third District
    No. 3-89-0608
    Opinion filed August 13, 1990.
    Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Michael C. Rolinski, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

Defendant Larry Traylor was indicted and charged with two other men (Nobles and Robinson) with one count of unlawful delivery of a controlled substance containing cocaine in violation of sections 401(a)(2) and 401.1(a) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56%, pars. 1401(a)(2), 1401.1(a)). The defendant was tried separately and, following a jury trial, was convicted and sentenced to a 10-year term of imprisonment. The defendant appeals his conviction. We reverse the defendant’s conviction and remand for a new trial.

The record reveals that the State’s only occurrence witness, Roberto Flores, testified that, in conjunction with several different law enforcement agencies, he had arranged to pick up a package of cocaine from Nobles on October 13, 1988. Flores had been in contact with Nobles for months regarding a drug transaction. When Flores arrived at the designated rendezvous point, however, he was met by Robinson, who was standing outside his car. Robinson indicated to Flores to get into the back seat of Robinson’s car. Flores complied, and Robinson got into the front seat on the driver’s side.

When Flores entered Robinson’s car, he noticed a passenger in the front passenger seat. Although Flores did not know the passenger’s name, he did recognize him as someone he had seen before. At trial Flores identified the defendant as being the passenger in the car on October 13, 1988.

Robinson and Flores engaged in a brief discussion, during which Robinson indicated that Nobles had sent Robinson to meet with Flores. Robinson retrieved a package from under the driver’s seat and handed it to Flores. Flores opened the package and quickly examined the contents. Flores testified that no money changed hands during the delivery. Flores further testified that the entire meeting took between 30 seconds and 1 minute.

Flores testified that the defendant said nothing during the meeting. Flores testified that the defendant was in possession of a gun and alternated between looking at Flores and Robinson and outside the automobile. Flores further testified that after receiving the package, he exited the vehicle and gave the package to the police. He also testified that he picked the defendant’s photo out of a police photo array.

On cross-examination, Flores admitted that he had not been in contact with the defendant prior to the delivery. He further testified that he had failed to initially tell the police about the defendant’s gun. Flores testified that he later remembered the gun while they were at the police station but could not recall which police officers he told about the gun.

Joliet police officer Donald Edgerly testified that on October 13, 1988, he was in continual contact with Flores from noon until after Flores’ meeting with Robinson. Edgerly and Officer Phillip Valera met with Flores within approximately three minutes of Flores’ meeting with Robinson. Flores handed a package to Valera and indicated that Robinson was the driver and that he could identify the passenger from police photographs. Edgerly did not recall Flores mentioning that the passenger had a gun, and this information was not contained in the report Edgerly filed regarding the evening’s activities.

Officer Phillip Valera testified that he and Edgerly met with Flores shortly after the delivery. He received a package from Flores that included eight individual packets of a white substance later identified as containing cocaine. Valera also testified that he had no recollection of Flores ever mentioning the passenger’s possession of a gun.

The State’s final witness was a forensic expert in drug chemistry who testified that her analysis of the substance received from Edgerly resulted in the conclusions that the total weight was 119.1 grams and contained cocaine.

The defendant’s motion for a directed verdict was denied. Robinson then testified for the defense. He indicated that he had pleaded guilty in the case. He testified that the defendant was not the man present with him in the October 13,1988, meeting with Flores.

During cross-examination, the State called Robinson’s attention to his guilty plea proceedings. The jury was excused. The defendant made a motion to preclude the State’s use of certain statements from that earlier proceeding. The defendant argued that the State would attempt to improperly impeach Robinson with portions of the transcript from his earlier guilty plea hearing in which the State’s Attorney had elicited Robinson’s agreement with a statement of facts which the State expected its case against Robinson could prove. This statement of facts referred to defendant Traylor being in the car when Robinson made the delivery to Flores.

The defendant argued that Robinson’s prior agreement with the State’s evidence against him should not be interpreted as an acknowledgement of Traylor’s presence by Robinson for purposes of impeachment. The trial court denied the defendant’s motion.

The State proceeded to ask Robinson if he had expressed agreement, at his guilty plea proceeding, with the fact that Traylor was present in the car during the delivery to Flores. Robinson initially denied expressing such agreement. The following exchange then took place:

“STATE’S ATTORNEY: Q. Mr. Robinson, did you or did you not agree before this judge that Larry Traylor was with you on the night of October 13,1988?
ROBINSON: A. I pled guilty to that charge.
STATE’S ATTORNEY: Your Honor, would you please instruct the witness to answer the question?
THE COURT: Will you answer the question yes or no, sir?
ROBINSON: Yes.
STATE’S ATTORNEY: Q. You did agree that Larry Traylor was there that night?
ROBINSON: A. Oh, man.
DEFENSE COUNSEL: Your Honor, I’m going to — .
THE COURT: The question’s been asked and answered.”

The State’s Attorney then read the literal words spoken from the transcript and asked Robinson if he recalled the statement that included an implication of Traylor. Robinson testified that he did not notice Traylor’s name being mentioned therein at the time. Robinson then responded, however, that he had answered affirmatively to a question from the court on January 30, 1989, asking whether he agreed that evidence in a trial against him would be substantially as was stated by the State’s Attorney beforehand.

On redirect, Robinson testified that he wasn’t paying attention to the part about the other person being present. Defense counsel then attempted to question Robinson about statements he made during his arrest. The State’s objection to this was sustained. The court held that no prior statements made by Robinson, either before or after his guilty plea hearing, were admissible for rehabilitation purposes.

The defendant was the final witness in the trial. He denied being present at the meeting between Robinson and Flores.

Over defendant’s objection, the court determined that the standard Illinois Pattern Jury Instruction concerning a witness’ prior inconsistent statement should be given.

Following jury deliberations, the defendant was convicted and a 10-year prison term was imposed. The defendant appeals.

The defendant raises two issues on appeal. Initially, the defendant argues that he was not proven guilty beyond a reasonable doubt. The defendant maintains that while the State’s evidence may have shown him to be at the scene, it failed to demonstrate that he either knew that a crime was taking place or that he aided or abetted the crime.

Flores testified that the defendant was looking at him and Robinson, as well as outside the automobile. Flores also testified that the defendant had a gun. The clear implication is that the defendant was not merely present but served the function of serving as a lookout/ armed guard. If this was true, then the defendant certainly could be convicted under an accountability theory. People v. Jones (1980), 86 Ill. App. 3d 278, 282, 407 N.E.2d 1121, citing People v. Krouse (1975), 30 Ill. App. 3d 446, 333 N.E.2d 17.

While it is true that the two officers did not recall Flores telling them about the gun and Flores himself could not remember which officer he had told about the gun, this was brought up for the jury to consider. Any inconsistencies in the testimony of the witnesses, any bias or interest affecting the credibility of the witnesses and the weight to be given to the testimony are for the trier of fact to determine since the trier of fact is in a better position to observe the witnesses and to weigh discrepancies in their testimony. People v. Kirwan (1981), 96 Ill. App. 3d 121, 124, 421 N.E.2d 317, citing People v. Henderson (1976), 39 Ill. App. 3d 502, 348 N.E.2d 854.

In the instant case, the jury chose to believe Flores. We are of the opinion that there was sufficient evidence for the jury to conclude that the defendant was present at the scene and participated as a lookout/armed guard.

While we have concluded that there exists sufficient evidence to support the jury’s verdict, the defendant has raised a second issue contending that the trial court erred in admitting the statement from Robinson’s guilty plea hearing. We agree.

The defendant cites People v. Henderson (1981), 95 Ill. App. 3d 291, 419 N.E.2d 1262. In Henderson, the defendant, together with Ricky Hurt, was charged with the theft of a snowblower from a hardware store. At Henderson’s trial, the State presented an entirely circumstantial case. Hurt, previously convicted pursuant to a guilty plea, testified on Henderson’s behalf. He testified that Henderson was not his passenger on the day he was caught fleeing the hardware store with the stolen goods. No other witnesses were able to identify Henderson as having been Hurt’s accomplice that day. In an effort to impeach Hurt on the issue of the identity of the passenger seen fleeing the car just prior to Hurt’s arrest, the State questioned Hurt regarding portions of his guilty plea proceedings. The State focused on a factual basis statement pertaining to Hurt’s guilt, which had been made in Hurt’s presence prior to his plea. The statement contained a reference to the defendant (Henderson) having been a passenger in the car. The witness (Hurt) denied any acknowledgement of, or agreement with, the portion of the guilty plea statement of facts which inculpated the defendant.

This court, in reversing Henderson’s theft conviction, held that this method of cross-examination improperly introduced matters of a substantially prejudicial nature into the defendant’s trial. Henderson, 95 Ill. App. 3d at 296-97.

Henderson controls the introduction of Robinson’s guilty plea statement into these proceedings. The State urges this court to overrule Henderson or, in the alternative, hold the error to be harmless.

We reject the State’s argument to reverse Henderson. As to the “harmless error” argument, without the statement, there is no evidence rebutting Robinson’s testimony. Accordingly, it is a question as to who is the more credible witness — Flores or Robinson. Accordingly, we fail to see how the inclusion of this evidence could be considered harmless.

We reverse the defendant’s conviction and remand to the trial court for a new trial.

The decision of the circuit court of Will County is reversed and remanded.

Reversed and remanded.

STOUDER and SCOTT, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY FOSS, Defendant-Appellant.
    Second District
    No. 2-88-1139
    Opinion filed August 3, 1990.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Howard M. Goldrich, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Randy Foss, was charged by information in the circuit court of Lake County with criminal damage to property over $300 (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a)), aggravated assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 2(aXl)), and theft under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — l(aXl)). Following the State’s evidence, the trial court directed a verdict for defendant on the aggravated assault and the criminal damage to property over $300 charges. Defendant was found guilty by the jury of theft under $300 and the lesser included misdemeanor offense of criminal damage to property and was sentenced to concurrent four month terms of incarceration in the county jail.

On appeal defendant contends that he was denied a fair trial because of the prejudicial remarks of the prosecutor during opening statement asking the jury to observe defendant’s reactions to the State’s witnesses’ testimony and by the prosecutor’s remarks during closing argument referring to defendant’s physical appearance.

The following evidence was adduced at trial. Dana Rizzo testified that on July 20, 1988, at about 10:20 p.m., she and John Lemm were seated in her parked car at a location in Lake County known as the Cumeo property. Defendant drove up in his car, got out, approached Rizzo and Lemm, and told them they were under arrest. Rizzo laughed. Defendant then demanded that they give him their beer. Rizzo responded that they had no beer. Defendant started screaming and then reached into the backseat of the car and walked away with Rizzo’s purse.

Rizzo followed defendant to his car, where defendant shuffled through the purse, refusing Rizzo’s request to return the purse. Rizzo called to Lemm, at which point defendant drove away. Rizzo and Lemm followed defendant in Rizzo’s car. When Rizzo and Lemm reached the edge of the Cumeo property, defendant shut a metal gate on Rizzo’s car, damaging the front fender on the passenger side. Defendant also struck the roof and hood of the car with a baseball bat. Rizzo then left the scene to telephone the police while Lemm struggled with defendant. When she returned, Lemm had defendant pinned to the ground. Rizzo mistakenly informed Lemm that the police had arrived, and Lemm released defendant, who left the area in his car. Subsequently, the police arrived, and defendant returned to the scene. At this point Rizzo noticed that her keys were missing. They were discovered on defendant’s person.

Lemm’s testimony substantially corroborated Rizzo’s account. Lemm also testified that after striking the car with the bat, defendant swung the bat at him. Lemm testified that he had seen defendant twice prior to July 20, 1988, and knew who he was when he first approached the car that evening. Lake County sheriff’s deputy James Peters testified that he arrived at the scene and spoke with Lemm and Rizzo. When defendant arrived at the scene, Peters placed him under arrest. Peters recovered a set of keys from defendant and discovered a bat inside his car. Defendant did not testify, nor did he present any witnesses on his behalf.

During opening statement, the prosecutor made the following remark:

“I would also ask that during the course of the trial that as the State’s witnesses are telling you what happened to once in a while look over at the defendant’s table where counsel is sitting right now and look at the defendant and engage any response that he might have.”

Following defendant’s objection, which was overruled, the prosecutor continued:

“Ladies and gentlemen, I ask that you look over at the counsel table from time to time and observe the defendant and see if he has any reactions that you might see in reference to anything because it’s perfectly within your means to observe him.”

During closing argument, the prosecutor commented:

“He [defendant] took this bat and brought it down and smashed it down right on the car when there was somebody in the car. That’s the kind of person that Mr. Foss is. The kind of person that you’ve had an opportunity to look at as he sits there.
And take a look at him. Take a good look at Mr. Foss, the odd ball. Everyone says — one of the witnesses says he is an odd ball. Is he an odd ball or did he know exactly what he was doing on that day?”

Defendant raises several contentions of a constitutional dimension regarding the impropriety of the prosecutor’s comments to the jury regarding defendant’s demeanor during the trial. He also contends that such remarks were improper because they were based on matters not in evidence. The State responds that no constitutional error occurred here and, even if it did, any error was harmless beyond a reasonable doubt.

We begin our analysis by properly characterizing the complained-of error in this case. While defendant suggests that the prosecutor “commented” on his demeanor, and relies on cases addressing the issue of prosecutorial commentary, the prosecutor here, rather than commenting on defendant’s demeanor, invited the jury to consider defendant’s demeanor when certain witnesses testified. Thus, the prosecutor did not point to any particular aspect of defendant’s demeanor nor suggest to the jury how such demeanor should be interpreted.

Nevertheless, we cannot condone the prosecutor’s conduct in this case. An opening statement is designed to advise the trier of fact what the evidence will show. (People v. King (1986), 109 Ill. 2d 514, 535, 488 N.E.2d 949.) In a criminal case, the opening statement should be an outline of the facts which the prosecution in good faith expects to prove. (People v. Wills (1987), 153 Ill. App. 3d 328, 342, 505 N.E.2d 754.) Error may occur when the prosecution asserts in the opening statement facts or propositions on which no evidence is later presented. (King, 109 Ill. 2d at 535, 488 N.E.2d at 960.) While it is improper, at least with foreknowledge, to include matters in an opening statement which are not thereafter proved, reversible error occurs only when such impropriety is attributable to the deliberate misconduct of the prosecution and results in substantial prejudice to the defendant. Wills, 153 Ill. App. 3d at 342, 505 N.E.2d at 763.

Because an opening statement is limited to discussion of the “evidence” in a particular case, we believe the prosecutor’s opening statement that the jurors should look at defendant’s reactions while sitting at counsel table during the witnesses’ testimony was error. Evidence includes all the means by which any alleged matter of fact is established or disproved. (In re Application of County Treasurer & Ex Officio County Collector v. First National Bank (1967), 87 Ill. App. 2d 133, 137, 230 N.E.2d 571.) It is further defined as any species of proof legally presented at trial through the “medium of witnesses, records, documents, exhibits, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury.” (Black’s Law Dictionary 498 (5th ed. 1979).) Defendant’s demeanor, in any respect other than when he is testifying, does not constitute evidence in the case. (See Good v. Texas (Tex. Crim. App. 1986), 723 S.W.2d 734, 736.) It is equally obvious that defendant’s demeanor as it relates to the testimony of any witness is not a matter of evidence. Consequently, the prosecutor’s suggestion in the opening statement to the jurors to watch defendant’s demeanor while sitting at counsel table, a matter which was never in evidence, was improper. Because of our disposition of this issue on this basis, we need not address defendant’s constitutional arguments.

Although the prosecutor’s invitation to the jury to consider defendant’s demeanor in this respect was improper, we nevertheless find the error to be harmless as defendant was not prejudiced. First, we would emphasize that the prosecutor did not dwell on the issue of defendant’s demeanor during closing arguments. While the prosecutor did comment on the jury’s opportunity to look at defendant as he sat at the counsel table, when read in proper context, this comment appears to relate to the prosecutor’s discussion of defendant’s smashing the victim’s car with a baseball bat while the victim was in the car and whether defendant was an “odd ball.” Such a comment, while better left unsaid, did not cause prejudice to the defendant.

Furthermore, the evidence against defendant was overwhelming. Two witnesses identified defendant as the perpetrator. Keys of one of the victims, which were discovered missing at the scene, were found on defendant’s person shortly after the crime. Additionally, a bat was found in defendant’s car at the same time the keys were found. In light of the evidence connecting defendant to the crime, and the minimal reference to defendant’s demeanor during the opening statement, the error here, even if of a constitutional magnitude, did not contribute to defendant’s convictions and was harmless beyond a reasonable doubt.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS and McLAREN, JJ., concur.