author: JUSTICE McMORROW

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY MALONE, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—0901
    Opinion filed March 21, 1991.
    Rehearing denied April 9, 1991.

      Michael J. Pelletier, Linda Eigner, and Patricia Unsinn, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Shauna Boliker, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of three counts of armed robbery and sentenced to three concurrent terms of 25 years’ imprisonment. On appeal, he contends that this case should be remanded because the trial court failed to determine whether the State’s explanations for its use of peremptory challenges excluding certain black venire persons were race-neutral so as to rebut defendant’s prima facie case of purposeful discrimination. Defendant also contends that several prejudicial instances of prosecutorial misconduct during rebuttal closing argument denied him a fair trial.

The charges arose from a robbery which occurred on May 24, 1986, at the Paradise Lounge on West Cermak Road in Chicago. The State’s case consisted primarily of the testimony of Jessie Hearron, the bartender; Margaret Brown, the owner of the lounge; and Clarence Lawrence, a regular patron and friend of Brown.

On June 11, 1986, Hearron, Brown and Lawrence viewed between 10 and 15 albums of mug shots, but did not identify anyone. The investigating officer then received five additional photographs which he showed to Brown first. She selected the photograph of defendant and said that she was pretty sure that he was the man who robbed them.

The photographs were then shown to Lawrence, who was in a separate room. He too selected the photograph of defendant, stating that he looked like the robber. On June 16, 1986, the defendant was arrested and identified in a lineup as the robber by Brown and in a second lineup by Hearron.

The jury found defendant guilty of three counts of armed robbery. Following the denial of defendant's motion for a new trial and after the sentencing hearing, the trial court sentenced defendant to three concurrent terms of 22V2 years’ imprisonment. This timely appeal followed.

Opinion

Defendant contends that under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, this case should be remanded for a specific determination on whether the State, through its use of peremptory challenges, discriminatorily excluded three black female members of the venire from serving as jurors. He asserts that the trial court .did not determine, as Batson requires, whether the State’s challenges to the three women were racially motivated.

In Batson, the United States Supreme Court restated the well-settled constitutional principle that the equal protection clause forbids prosecutors from engaging in discrimination against a racial group by exercising peremptory challenges of prospective jurors to exclude from the jury members of the racial group to which defendant belongs solely on account of their race. Batson provides defendants with recourse against such purposeful discrimination. The defendant must first establish a prima facie case of discrimination by showing (1) that he is a member of a cognizable racial group; (2) that the State used peremptory challenges to remove members of his race from the venire; and (3) that these facts and any other relevant facts and circumstances raise an inference of discrimination. Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; People v. Hope (1990), 137 Ill. 2d 430, 560 N.E.2d 849.

The Batson court did not define or enumerate what relevant facts and circumstances may be considered in determining whether the defendant has made a prima facie case. Dlustrative examples provided by the Batson court and our own supreme court include whether there has been a pattern of strikes against black jurors; the prosecutor’s questions and statements, if any, during voir dire and while exercising the challenges; whether the excluded blacks were a heterogenous group sharing race as their only common characteristic; the level of black representation in the venire as compared to the jury; and the races of the defendant, victim and witnesses. Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; People v. Hope, 137 Ill. 2d at 453.

Once the defendant establishes a prima facie case, the burden shifts to the prosecution to come forward with race-neutral explanations for exercising its challenges against the black venire persons. (Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; Hope, 137 Ill. 2d 430, 560 N.E.2d 849; People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107.) The explanations must be related to the case being tried and must be clear and reasonably specific; however, they need not rise to a level which would warrant a challenge for cause. (Hope, 137 Ill. 2d 430, 560 N.E.2d 849; Mack, 128 Ill. 2d 231, 538 N.E.2d 1107.) The trial court then has the duty to determine if the defendant has established purposeful discrimination. Hope, 137 Ill. 2d 430, 560 N.E.2d 849.

Because the trial court’s decision will turn largely on its assessment of credibility, the trial court’s decision should be given great deference by a reviewing court. The appropriate standard of review is whether the decision of the trial judge is against the manifest weight of the evidence. Mack, 128 Ill. 2d 231, 538 N.E.2d 1107.

The record in the instant case reveals that the 12 jurors and two alternate jurors were selected from a venire of 24 persons. Of the 10 persons not selected, four were excused for cause, four were challenged by the State, three of whom were black, and two were challenged by the defense. The record does not disclose the racial composition of the 24-person venire, but it appears from discussions at trial and arguments in the briefs that of the 18 jurors not excused for cause or by the defense, a total of seven (four who served as jurors and three peremptorily challenged by the State) were black.

Upon the State’s peremptory challenge of the third black woman, defense counsel moved for a mistrial, arguing that the prosecution was systematically excluding black jurors. The State responded that a prima facie case of purposeful discrimination had not been made due to the fact that three black persons had already been accepted by the State to serve on the jury. The trial court asked the prosecutor if he was prepared to provide a race-neutral explanation for each of the black women challenged. The prosecutor responded, “[o]nly if your Honor rules there has been a prima facie case made.” Without requiring the defense to show, in addition to the facts that defendant is black and that three black women were challenged by the State, any other relevant facts and circumstances raising an inference of purposeful discrimination, the trial judge stated “[tjhere is a prima facie case.” The court then asked the prosecutor to give his reasons for excusing the three black women venire members, Crawford, Cameron and Norris.

As to venire member Norris, the third of the three black women excluded, the prosecutor stated that his challenge of her was based on the fact that she had once testified on behalf of the defense in a murder trial. The trial court responded “[A]ll right.”

The prosecutor then noted that Crawford stated that she read the Bible every day. He pointed out that another prospective juror had been excused for cause on the basis of religious convictions which, the man said, prevented him from being involved in the possible taking away of another’s freedom. The prosecutor stated that he felt that Crawford’s religious beliefs might similarly influence her. He also noted, and the trial court acknowledged, that she indicated she did not want to serve.

Regarding Cameron, the prosecutor stated that she was challenged because she had a lawsuit pending in Cook County. The record reveals that earlier, the prosecutor had requested in a side bar that she be excused for cause, noting that the pendency of a lawsuit is one of the statutory bases for challenge of a juror. The statute to which the prosecutor referred states that “[i]t shall be sufficient cause of challenge of a petit juror *** that he is a party to a suit pending for trial in that court.” (Ill. Rev. Stat. 1985, ch. 78, par. 14.) The trial judge denied the State’s request to excuse the juror for cause on the basis of her suit, and the State thereafter exercised a peremptory challenge to excuse her.

After the State’s enunciation of its reasons for excluding the three black women, the court stated, “Given the fact that there have been three black jurors accepted, who will serve on this jury, we will accept the neutral explanations tendered by the State.” Jury selection proceeded during which a fourth black person of unknown gender was selected to serve as a juror.

Defendant argues that the above-quoted statement by the trial court establishes that his motion for a mistrial was not denied on a finding that the prosecutor’s explanations for challenging the three women were race-neutral but, rather, on the erroneous basis that at the time the motion was made three black persons had already been accepted as jurors. Defendant maintains that under Batson, the issue was not whether the State did not discriminate against the black jurors who served or based upon the ultimate racial composition of the jury, but whether the State purposefully discriminated against the three black women it challenged.

Batson does not require the total exclusion of a racial group from the jury in order to prove discrimination (People v. Seals (1987), 153 Ill. App. 3d 417, 505 N.E.2d 1107). On the other hand, Batson does not depart from the principle enunciated in Strauder v. West Virginia (1880), 100 U.S. 303, 25 L. Ed. 664, that a defendant has no right to a jury composed in whole or even in part of his own race. Defendant claims, however, that the record does not show that the trial court made an assessment of whether the prosecutor’s explanations for his challenges were race-neutral but, instead, shows that the trial judge found that the inclusion of blacks on the jury relieved him of the duty to scrutinize the prosecutor’s explanations at all.

Defendant’s claim is at odds with the trial court’s ruling that a prima facie case had been' made. The court found that defendant had presented a prima facie case of discrimination even- though (1) the defendant did not enunciate, nor did the court request, any “relevant circumstances” other than defendant’s race and the three State challenges of blacks, and (2) the court was aware prior to making its ruling that three blacks had been accepted as jurors. Defendant does not offer and we find no explanation as to why the court ruled that a prima facie case had been made and would then require the prosecution to articulate the reasons for its challenges if the judge “found that the inclusion of black jurors relieved him of the duty to scrutinize” those explanations. Had the court determined that the acceptance of three black persons for that portion of the jury already selected negated defendant’s claim of purposeful discrimination, there would be no need for the court to then require the prosecutor to state his reasons for excluding the three black women peremptorily challenged.

We also note that after the prosecutor stated that one of the women challenged had testified as an eyewitness for the defense in a murder trial, the court responded “[A]ll right.” Similarly, when the prosecutor pointed out that the juror whom he felt might be influenced by religious beliefs had also indicated that she did not want to serve, the court confirmed “[s]he is the one who said she did not want to serve.” Both of these remarks serve as further support for the conclusion that the trial court properly evaluated the State’s explanations and found them to be credible and race-neutral. It was not necessary for the trial judge to make a specific finding on each of the challenge explanations. People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107.

Further, while placing great emphasis on the first phrase of the court’s statement, i.e., “given *** that there have been three black jurors accepted,” defendant virtually ignores the very next phrase in which the court specifically states that the explanations were “neutral.” Defendant also overlooks the fact that the trial court reiterated, at the hearing on defendant’s post-trial motion relative to the Batson issue, that “[t]he State placed of record a neutral explanation.” In contrast to defendant’s interpretation, we interpret the trial judge’s statement expressly noting that three persons had already been accepted as jurors to have been an additional reason, not the sole reason, for his denial of defendant’s motion for a mistrial on the ground of purposeful discrimination of black venire members.

Moreover, having read the transcript of the voir dire, we are of the opinion that .the denial of defendant’s motion was not against the manifest weight of the evidence. As noted earlier, the record does not reveal the exact racial composition of the 24-person venire. However, it appears from the dialogue at the hearing on defendant’s Bat-son motion for a mistrial and his post-trial motion for a new trial, as well as the arguments in the parties’ briefs, that of the 18 persons not excused for cause or by the defense, 7 of the 18 venire members, or approximately 33%, were black. Four black persons were retained as jurors, resulting in 33% of the jury being comprised of black persons. We have previously recognized that the inclusion of black jurors is not, standing alone, sufficient to overcome a Batson claim. However, as also stated earlier, factors which may be considered by the trial court include whether there has been a “pattern of strikes” against black persons and the number of black persons in the venire as compared to the number selected as jurors.

Our review of the voir dire proceedings indicates that the trial court’s finding that the State’s explanations were “neutral” was not erroneous. Venire member Crawford stated that she lived alone; that except for her job, she rarely left her home or had visitors and that when not working, her primary activities were daily exercise and reading “The Word” and the Bible. Prior to the exercise of any challenges of the panel on which she sat, she also requested that the court excuse her from jury service for reasons relating to her job. It should be noted that the fourth venire member excused by the State was a white woman who lived alone, was near graduation from a theological seminary after which, she stated, she would be assigned as a parish minister and that her primary activities were editing the seminary’s newspaper and reading ministry-related materials. Another venireman, of unknown race, was excused for cause on the basis of his religious convictions. Thus, even disregarding that Crawford, the black woman, expressly asked to be excused, all three of the venire members who shared the characteristic of religion playing a major role in their lives were excused.

The trial court’s assessment of the credibility and race-neutrality of the State’s explanations is entitled to great deference on review. From our review of the voir dire proceedings, we cannot say that the court’s acceptance of the State’s explanations as neutral and the court’s denial of defendant’s motion for a mistrial pursuant to Batson were against the manifest weight of the evidence.

Defendant also contends that repeated instances of prosecutorial misconduct during rebuttal argument were so prejudicial as to have denied him a fair trial. Defendant argues that during his summation, the prosecutor (1) minimized the State’s burden of proof; (2) improperly bolstered the credibility of the State’s witnesses; (3) misstated the law; (4) disparaged defense counsel; and (5) introduced inadmissible demonstrative evidence.

Prosecutorial misconduct may be a ground for reversal. (E.g., People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298.) However, a prosecutor is allowed wide latitude in closing argument as long as his comments are based on the evidence or reasonable inferences from the evidence. (People v. Piscotti (1985), 136 Ill. App. 3d 420, 483 N.E.2d 363.) Moreover, it is well settled that improper prosecutorial remarks generally do not warrant reversal unless they are so prejudicial as to constitute such a material factor in defendant’s conviction that the jury likely would have reached a contrary verdict had the remarks not been made. (People v. Townsend (1985), 136 Ill. App. 3d 385, 483 N.E.2d 340.) Further, defendant may not claim such prejudice where the comments complained of were provoked or invited by comments or arguments of defense counsel. (Piscotti, 136 Ill. App. 3d 420, 483 N.E.2d 363.) Finally, each case must be decided on its own facts. Townsend, 136 Ill. App. 3d 385, 483 N.E.2d 340.

Defendant first argues that the State minimized its burden of proof. Defendant asserts that because the State’s case consisted almost entirely of the testimony of the three eyewitnesses/victims, it was necessary for his counsel to attempt to discredit their testimony and cast doubt on their identifications of defendant as the offender by arguing that the lighting in the tavern was poor and that the victims were in a state of extreme fear. In rebuttal argument, the prosecutor responded:

“What are we supposed to do? Close up the courtroom? We won’t try any more violent cases anymore. We won’t try armed robberies or murder.”

Defendant’s objection to these remarks was overruled. The prosecutor continued:

“Because victims are too frightened. They cannot remember what the guy’s face looks like. Maybe we should all go home, close the courtroom. It is nonsense.”

Regarding the lighting, the prosecutor said:

“What are we going to tell the citizens of Chicago? That if you go into a tavern, you can’t be a victim of a crime because you won’t be able to identify anybody?
[Defense counsel’s objection was again overruled.]
What they are telling you is nonsense. You can’t be the victim of a crime because it is too dark?”

Defendant maintains that the plain meaning of the State’s “sarcasm” is clear, i.e., that persons accused of violent crimes cannot be acquitted merely because eyewitness identifications might be inaccurate, and “[t]hus, by implication, the State need not prove beyond a reasonable doubt the only evidence it has presented — the identification of defendant as the offender.”

We find no merit in defendant’s argument. First, a reading of the arguments of counsel discloses that the assistant State’s Attorney opened his rebuttal argument by acknowledging that the State’s burden is proof of guilt beyond a reasonable doubt and later argued that the evidence established defendant’s guilt beyond a reasonable doubt. We do not read the comments complained of by defendant as suggesting otherwise. Defendant’s theory of the case was that he was mistakenly identified. He attempted to cast doubt on the witnesses’ ability to positively identify the offender by emphasizing the fear the witnesses acknowledged experiencing during the robbery and the fact that the tavern was not well lighted. He pointed out that Brown had testified that the tavern was “pretty well lit for a lounge,” and then restated, “It probably was pretty well lit for a lounge.” The implication, of course, was that lounges are generally dimly lit. In our view, the remarks of the prosecutor were invited by defense counsel and were intended to rebut defense counsel’s theory. The gist of the prosecutor’s comments was that simply because the scene of a crime may be dim or dark and because victims of violent crimes are afraid do not render them incapable of making positive or accurate identifications.

It is also noteworthy that defense counsel stated, approximately seven times during his closing argument, that the prosecution’s burden in this case was proof beyond a reasonable doubt. At one point, he characterized the State’s burden as “the highest legal standard known to civilized man.” In light of defense counsel’s repetition of the State’s burden of proof, the prosecutor’s own statements acknowledging its burden and the instructions given by the court, the jury was well aware that the State was required to prove defendant guilty beyond a reasonable doubt.

Defendant argues that the State further minimized the burden of proof by stating that the defendant was guilty unless the witnesses were lying. Defendant cites United States v. Vargas (7th Cir. 1978), 583 F.2d 380, and People v. Cole (1980), 80 Ill. App. 3d 1105, 400 N.E.2d 931, for the principle that it is error for a prosecutor to argue that an acquittal is equivalent to a declaration that the State’s witnesses have lied. In each of those cases, the prosecutor advised the jury that to convict the defendant, the jurors had to find that the witnesses were lying.

No such comments were made in the case at bar, and the remarks which defendant complains of were clearly invited by defense counsel. In his closing argument, defense counsel made the following remarks:

“[The State’s witnesses] didn’t get up on the witness stand and lie to you. We are not saying that they are liars. They made an honest mistake. They are human beings and people make mistakes.”

After further comments on the circumstances of the robbery, defense counsel stated:

“It is only natural for these people — who again are not lying. They are convinced in their own minds that they are accurate— to try to make their testimony better.
* * *
Witnesses are trying to make the situation better for themselves.”

In rebuttal argument the prosecutor responded:

“[Defense counsel] says, well the witnesses are not lying. The witnesses are not lying, but, well, they are making their testimony better. See they [the defense] want to have it both ways. They are nice people and they are not lying, but they are making their testimony better.
How do you make your testimony better? You lie. Either they [the defense] are saying they are lying or they are not. We know they are not lying.”

In making these comments the prosecutor was directly responding to defense counsel’s argument that the witnesses were “making their testimony better.” At no time did the prosecutor state that, in order to acquit defendant, the jury had to find that the State’s witnesses were lying. We see no misconduct in the above-quoted remarks.

Defendant also argues that it is improper for the prosecutor to personally vouch for the credibility of the witnesses. (People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.) He maintains that the prosecutor’s statement, that “[w]e know they are not lying,” and a later remark that the State’s witnesses were “honest, decent people” who were willing to testify were improper.

Although we agree that generally it is improper to vouch for the credibility of witnesses, comments on the strength of the evidence are permitted. (People v. Emerson (1987), 122 Ill. 2d 411, 522 N.E.2d 1109.) In Emerson, the supreme court held that the prosecutor’s statement that “we know [a named witness] was telling you the truth,” made on at least two separate occasions, was a fair comment on the evidence and did not amount to a personal opinion of the prosecutor. In so ruling, the court noted that the prosecutor went on to point out that the witness’ testimony was corroborated by that of a defense witness.

In contrast, in Valdery, cited by defendant, among several other improper remarks found to require reversal, the prosecutor stated:

“ '*** |jjn my minc[ *** the equality [sic] and integrity of the three witnesses *** have never been higher. I have never had contact with people who have come forth and testified as witnesses who have had the level of integrity and character of those people and I’m particularly impressed. ***. They have shown to me a high level of responsibility coming forth and testifying as they have and I hope that you’re as impressed with them as I have been.’ ” (Omissions in original.) Valdery, 65 Ill. App. 3d at 378.

The instant case is clearly distinguishable from Valdery. Here, the entire summation by the prosecutor concerned the strength of the State’s case presented through the clear and consistent testimony of the victims as to what occurred on the night of the offense and their positive identification of defendant as the offender. As in Emerson, the prosecutor’s brief and isolated remarks were fair comments on the strength of the evidence and did not amount to the prosecutor personally vouching for the credibility of the witnesses. Moreover, we note that defense counsel himself stated on a number of occasions that the State’s witnesses were not lying. Finally, we do not believe that the jury interpreted the prosecutor’s use of the plural word “we” as a reference to the State’s Attorney’s office but, rather, to the jurors themselves. Cf. People v. Leverston (1985), 132 Ill. App. 3d 16, 37, 476 N.E.2d 1344.

Defendant next asserts that the prosecutor prejudiced defendant by disparaging defense counsel. His entire argument on this point is that the prosecutor labeled defense counsel’s arguments as “speculation.” Once again, it is necessary to review defense counsel’s argument. As is acknowledged, the focus of his entire argument was to interject doubt as to defendant’s guilt. In addition to arguing that the eyewitnesses were mistaken, he argued that the State did not produce physical evidence to corroborate their testimony. He pointed out that the State did not produce evidence of defendant’s fingerprints on the bar or cash register and that the police did not recover a weapon, wallet or purse from defendant when they arrested him.

Concerning the lack of fingerprints, the prosecutor noted that the robbery was in a tavern patronized by many people and stated:

“They are trying to take your mind away from what is crucial in this case.”

In response to defense counsel’s argument regarding the failure of the police to recover any of the items taken in the robbery, the prosecutor noted that defendant was not arrested until three weeks after the crime. He later stated:

“What you are concerned with in this case is the evidence in this case, what you hear from the witness stand, *** not the speculations of [defense counsel].”

Defendant’s objection was properly overruled. There was nothing improper about the comments nor did they disparage defense counsel. (See People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357.) The cases cited by defendant, involving blatant attacks on defense counsel and accusations of lying and trickery, are clearly inapposite to the case before us.

Defendant’s final claim of prosecutorial misconduct is that the prosecutor “reenacted the robbery” and thereby introduced inadmissible demonstrative evidence which misled the jury. From our reading of the argument, it appears that as the prosecutor summarized the witnesses’ testimony concerning their ability to observe and identify defendant, he demonstrated, without objection from defense counsel, the distances each of the witnesses had testified they were from the defendant as he moved about during the robbery.

Admission of demonstrative evidence is within the discretion of the trial court. No abuse will be found if the demonstration was based on evidence at trial. (People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514.) In the instant case, defendant did not object to the demonstration. Further, defendant states in his brief: “The prosecutor walked the jurors through the testimony of the witnesses.” In reading the prosecutor’s chronological review of the events of the robbery, we find nothing in the review which was not testified to by the witnesses.

In summary, we hold that the prosecutor’s remarks in rebuttal argument were generally proper or were invited by defense counsel. Further, in light of the overwhelming evidence of defendant’s guilt, we do not believe that any of the comments of which defendant complains were a material factor in defendant’s conviction.

For the reasons stated, defendant’s conviction is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICK McGEE, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—0905
    Opinion filed March 21, 1991.

      Mary Ellen Dienes, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and John Guinn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Rick McGee, was convicted of possessing more than 30 grams of a controlled substance with intent to deliver (Ill. Rev. Stat. 1985, ch. 56½, par. 1401(a)(2)) following a jury trial in the circuit court of Cook County. Defendant was sentenced to the penitentiary for a term of 10 years.

Defendant appeals, contending the trial judge: (1) refused to permit defendant to be represented by retained counsel of defendant’s choice, and also denied defendant’s right to a bench trial; (2) erred in admitting improper rebuttal evidence and other irrelevant evidence; and (3) based the sentence on additional improper testimony.

We affirm the judgment of the trial court in part, vacate in part, and remand.

Background

The record contains the following pertinent facts. On April 24, 1986, Detective Patrick Darcy swore out a search warrant for 831 South Dwyer Avenue, apartment B, in Arlington Heights. At approximately 10 p.m., Darcy and Detectives George Graham, Michael Bobko, and other Chicago and Arlington Heights police officers executed the warrant. When they arrived at the building, they noticed a gray Chevrolet Corvette in the parking lot.

Detective Darcy and the other officers positioned themselves at the front, back, and patio doors of the apartment. Darcy knocked on the front door and received no response. He knocked a second time. Lucretia Meo asked who was there. Darcy announced his office, stated that he had a search warrant, and directed Meo to open the door. The officers heard Meo run away from the door and shout, “It’s the police.”

Darcy forced the door open and the police entered the apartment. They observed defendant, wearing a bathrobe, run out of an office and into a bedroom. Darcy followed defendant and ordered him to halt. The officers asked defendant his name, and he responded “Rick.” The officers led defendant and Meo to the living room, where they gave defendant and Meo a copy of the search warrant and advised them of their rights.

The police found .10 grams of cocaine in an unfolded paper packet in the bedroom. In the office, they found 8.48 grams of cocaine in an unfolded paper packet lying on a desktop. A further search of the office yielded a plastic container containing 106.53 grams of cocaine. The police also found various drug paraphernalia. Karen Garst, a police laboratory chemist, subsequently performed a field test that identified the substance as cocaine. The cocaine weighed a total of approximately 115 grams and had a street value of approximately $60,000.

The officers found cash totalling $810 on top of a bedroom dresser and $594 in a dresser drawer. Meo claimed the $810 and defendant claimed the $594. The police found documents that belonged to Meo and found no documents bearing defendant’s name.

The police allowed defendant and Meo to dress prior to leaving the apartment. While defendant was dressing, Darcy searched defendant’s pants and found several keys attached to a key ring. Darcy asked defendant if he owned an automobile. Defendant answered that he had a gray Chevrolet Corvette, the car was parked in the lot, its key was attached to the key ring, and that the officers could search the car. The police did so and did not find any contraband. One of defendant’s keys fit the apartment’s back door lock. When Meo and defendant left the apartment to be taken to the police station, Meo locked the back door with one of her keys.

At the police station, defendant told the police that he “was staying” with Meo, whom he described as his girlfriend. However, he stated that his “legal residence” was at an address on Oconto Avenue in Chicago, where his ex-wife lived. When asked for his telephone number, defendant gave the number listed to Meo at the Dwyer address. Although the arrest report lists as defendant’s residence the Oconto address, another police report lists as his residence both the Dwyer and Oconto addresses separated by a slash mark.

On December 31, 1986, defendant and Meo were jointly charged by information with possessing more than 30 grams of a controlled substance, i.e., cocaine, with intent to deliver. Defendant moved for severance because Meo’s defense would be that defendant brought the cocaine into the apartment without her knowledge. Defendant’s motion was granted, and he and Meo were tried separately. A jury acquitted Meo. However, defendant’s trial ended with a hung jury, which the trial judge discharged. Meo was represented by Ralph Meczyk, and defendant was represented by Richard Stopka.

On November 16, 1988, Lawrence Hyman moved to substitute as counsel for defendant. At a hearing on the motion, the State expressed concern whether Hyman’s representation of defendant would create a conflict of interest. Hyman assured the trial judge that no such conflict would arise. Although Hyman shared offices with Meczyk, they had no formal business relationship. Hyman even speculated that he and Meczyk could represent defendant as co-counsel. However, the trial judge noted that Meo might testify at defendant’s trial. Thus, the trial judge reasoned, Meo’s appearance would raise a severe conflict of interest in Meczyk’s representation of defendant. Hyman reassured the trial judge that Meczyk would not represent defendant.

Additionally, Hyman appeared at Meo’s trial and testified on her behalf as a character witness. However, defendant stated at the hearing that he knew of Hyman’s testimony. In response to the trial judge’s questions, defendant stated that he wanted Hyman to represent him.

On November 21, 1988, the trial court held a hearing to review the status of defendant’s upcoming trial. The State reiterated its concern over Hyman representing defendant after testifying as a character witness on behalf of Meo. Again, in response to the trial judge’s questions, defendant stated that he wanted Hyman to represent him. Hyman then asked the court if Meczyk could sit with him and defendant at defense counsel’s table. The trial judge denied the request. He again stated that because Meczyk represented Meo, Meczyk should not be involved in defendant’s trial in any fashion.

On November 28, 1988, immediately prior to trial, Hyman presented a motion in limine to prohibit any reference to defendant’s automobile, the Chevrolet Corvette. The court denied the motion. The trial judge deemed it highly probative that defendant gave to police officers a key ring that had attached thereto keys to the car and also a key that fit the apartment’s back door lock. Thus, the court would permit testimony that police officers observed the automobile in the parking lot and that it was registered to defendant. However, the trial judge prohibited the State’s witnesses from testifying that the presence of the automobile indicated that defendant was in the apartment or that the police sought the car.

Hyman again requested the court to allow Meczyk to sit at defense counsel’s table and assist by taking notes. The trial judge allowed Meczyk to take notes, but not at defense counsel’s table and not in any official capacity. Hyman informed the court that defendant signed a waiver of conflict of interest arising from Meczyk’s representation. The trial judge stated that he was not only concerned with defendant’s rights, but with those of Meo as well. Hyman then tendered defendant’s signed waiver of conflict of interest arising from Hyman’s representation of defendant. Defendant was present at this hearing. The trial judge again asked defendant whether he waived any conflict of interest regarding Hyman. Defendant responded that he did.

At trial, Detectives Darcy, Bobko, and Graham, and police laboratory chemist Garst testified in the State’s case in chief. In addition to the above-stated pertinent facts, Detective Bobko testified that defendant did not disclose that he lived in an apartment at 2829 West Fullerton Avenue in Chicago. The State rested.

Catherine McGee, defendant’s ex-wife, testified in pertinent part that their family lived at 3637 North Oconto Avenue. The couple established a trucking business and a property management company. They bought the Fullerton building and other properties prior to their divorce. As part of the divorce, Catherine received the trucking business and the family domicile, while defendant received the management company and other properties. The Oconto address remained defendant’s purported “legal address,” although he rarely occupied it. Also, Catherine continued to work with defendant in the trucking business. It was their custom to carry large amounts of cash in the course of business.

Defendant testified on his own behalf. He testified essentially that he lived at the Fullerton Avenue address. He only occasionally occupied the Oconto Avenue address, but considered it his “legal address”; his driver’s license listed the Oconto Avenue address, where he also received his mail. He never lived at, kept clothes at, or possessed a key to Meo’s apartment. He did not possess narcotics with the intent to deliver them.

Defendant began to date Meo in March 1985. However, by 1986, he dated Meo only one to three times per week. Defendant testified essentially that on April 24, 1986, he drove to Meo’s apartment in his Chevrolet Corvette. Defendant was lying on the bed watching television. Police officers crashed into the apartment unannounced. Defendant jumped up and stood in the bedroom doorway. Police officers aimed guns at him and threatened him. He raised his arms and stood motionless. He did not go into the apartment’s office area that night.

Police officers took every item defendant carried in his pants pockets, including cash totalling $594 and his car keys. He gave the officers permission to search his car. At the police station, defendant never told Detective Bobko that he lived with Meo, or gave as his address that of Meo’s apartment. He never saw the cocaine and paraphernalia in Meo’s apartment prior to that night. The defense rested.

Muriel Otto testified for the State in rebuttal. Otto testified that she was a neighbor of Meo; further, she was acquainted with Meo and came to know defendant. Between January and April 1986, she saw defendant at Meo’s apartment “on a daily basis.” She additionally saw defendant enter the building alone through a door that locked automatically upon closing. On cross-examination, however, Otto testified that she did not see defendant everyday. In surrebuttal, defendant testified that he did not visit Meo daily at the time of his arrest.

The jury convicted defendant as charged. At the sentencing hearing, the trial judge denied defendant’s post-trial motion.

Over defense counsel’s objection, the trial judge heard testimony of defendant’s subsequent arrest for again possessing cocaine. Detective Graham testified that on November 26, 1986, he suspected defendant of possessing illegal drugs based on information from an anonymous source. He went to defendant’s Fullerton Avenue apartment to investigate. In response to Graham’s request and after being advised of his rights, defendant gave Graham permission to search the apartment. Graham did so and did not find any contraband. Graham then asked defendant for permission to search the basement of one of defendant’s buildings, located at 1555 North St. Louis Avenue. After being advised of his rights, defendant gave permission and signed a consent form. They went to the St. Louis Avenue building. Graham forced open the basement and searched it. He found 441 grams of cocaine. Defendant was arrested, tried, and acquitted. Defendant presented two witnesses in mitigation.

At the close of the hearing, the trial judge found that the facts of the case, and Graham’s testimony on the subsequent arrest, called for a prison term in excess of the statutory minimum sentence. However, noting defendant’s potential for rehabilitation and his dependents, the trial judge did not consider a substantial sentence to be necessary. The court sentenced defendant to a prison term of 10 years. Defendant appeals.

Opinion

I

Defendant makes two claims pertaining to the pretrial proceedings. He contends the trial judge: (A) refused to permit him to be represented by retained counsel of his choice, and (B) denied his right to a bench trial.

A

Defendant argues that the trial court erred by not allowing Meczyk, defendant’s retained counsel of choice, to represent him. A criminal defendant’s constitutional right to assistance of counsel includes the right to be represented by counsel of his choice. However, a defendant may be held to have exercised that right by his acquiescence in appearing counsel’s conduct and statements, as well as the defendant’s express affirmation that the attorney is his chosen counsel. “In other words, the defendant’s appearance with and treatment of a private attorney as his retained counsel ordinarily is deemed to constitute a ratification of defendant’s employment of that attorney and the exercise of his right to counsel of his choice.” People v. Smalley (1988), 178 Ill. App. 3d 314, 318, 533 N.E.2d 428, 431 (and cases cited therein).

Applying these principles to the case at bar, it is clear that defendant chose Hyman to be his retained counsel. The record shows that the trial judge questioned defendant on his choice of counsel on three separate occasions prior to trial. Defendant responded each time that he wanted Hyman to represent him. If defendant wanted to retain Meczyk as counsel, he had ample opportunity to notify the trial court. Defendant refers us to his signed waiver of any conflict of interest arising from Meczyk’s representation. However, defendant also signed at the same time a waiver of any conflict of interest arising from Hyman’s representation. Since defendant received Hyman’s representation, we hold that he was not denied his right to retained counsel of his choice.

B

Defendant also contends that the trial judge denied his right to a bench trial. Defendant posits that the State “apparently” demanded a jury for his first trial, pursuant to section 115—1 of the Code of Criminal Procedure of 1963 (see Ill. Rev. Stat. 1987, ch. 38, par. 115—1). Defendant further states that at his second trial, he did not waive his right to a jury because it would have been a meaningless act; the statute required a jury if the State so requested. Defendant notes that our supreme court declared section 115—1 unconstitutional in People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873. Thus, defendant contends, he was denied his right to a bench trial.

We initially note that defendant misstates the record. At his first trial, it was defendant who demanded a jury and not the State. Further, at his second trial, defendant did not waive his right to a jury and the State did not demand one. These facts notwithstanding, defendant nevertheless argues that “there is no independent factual account to resolve this question” and “suggests that a remand is required to resolve this issue.” This argument completely lacks merit. The record does not contain a jury demand by the State at either the first or second trial. However, the record does contain defendant’s jury demand for his first trial. These facts are sufficient to resolve the issue.

II

Defendant next makes two evidentiary claims. He contends the trial judge erred in admitting: (A) improper rebuttal evidence, and (B) other irrelevant evidence. We note at the outset that the admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a showing that the court exceeded its discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.

A

Defendant contends that the trial judge erred by allowing Muriel Otto to testify in rebuttal for the State. Rebuttal evidence is evidence that explains, repels, contradicts, or disproves evidence produced by a defendant. Rebuttal evidence may only be used to contradict the defendant’s testimony as to a material issue and not to a collateral or immaterial issue. People v. Williams (1981), 96 Ill. App. 3d 958, 964, 422 N.E.2d 199, 204.

Defendant notes that Otto testified that she saw defendant at Meo’s apartment daily for several months immediately prior to his arrest. Defendant further notes that the State offered Otto’s testimony to rebut defendant’s testimony that he visited Meo only approximately one to three times per week. Defendant argues that Otto’s testimony went to an immaterial issue because defendant admitted visiting Meo at least once per week.

We disagree. Otto’s testimony contradicted that of defendant on the frequency of defendant’s visits to Meo’s apartment. Of course, this went to the material issue of defendant’s control over the premises, which is an element of the offense. (See People v. Pintos (1988), 172 Ill. App. 3d 1096, 1103-04, 527 N.E.2d 312, 316-17; People v. Burke (1985), 136 Ill. App. 3d 593, 599-600, 483 N.E.2d 674, 679.) The admission of Otto’s rebuttal testimony was well within the discretion of the trial court. See People v. Johnson (1973), 11 Ill. App. 3d 745, 297 N.E.2d 683.

B

Defendant contends that the trial judge erred by admitting into evidence testimony that defendant drove a Chevrolet Corvette. Defendant argues that the evidence is irrelevant because no connection existed between the crime charged and the type of automobile defendant drove.

The general test for the admissibility of evidence is its relevance. Evidence is admissible where it fairly tends to prove the particular offense charged. Any circumstances that tend to make the proposition more or less probable may be put into evidence. Evidence is therefore relevant where the fact or circumstance offered tends to prove or disprove a disputed fact or to render the matter at issue more or less probable. Relevance can also be established by means of inference. People v. Jones (1982), 108 Ill. App. 3d 880, 884-85, 439 N.E.2d 1011, 1015-16.

In the instant case, the trial judge allowed testimony that police officers observed the automobile in Meo’s parking lot and that it was registered to defendant. The court considered the car’s ownership to be probative because defendant’s key ring had attached thereto keys to the car and a key to the apartment’s back door lot. During oral argument before this court, defense counsel conceded that the car's ownership had probative value. Further, the probative value of this evidence outweighed any prejudicial effect. To prevent undue prejudice, the trial judge prohibited any testimony that the presence of the automobile indicated that defendant was in the apartment or that the police sought the car. We cannot say that the trial court exceeded its discretion in admitting this evidence.

Ill

Defendant claims that the trial judge erred in allowing Detective Graham to testify in aggravation at the sentencing hearing. Detective Graham described the events leading to a subsequent arrest for drug possession. The record shows that the trial court based the sentence in part on Graham’s testimony. Defendant argues that Graham’s testimony, which we earlier described in detail, was irrelevant and untrustworthy. Defendant asks us to vacate the sentence and remand the cause to the trial court for a new sentencing hearing.

The State relies on cases such as People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, in which our supreme court held as follows:

“Whether a defendant had been prosecuted and convicted for other misconduct, proof of which is offered at a sentencing hearing, is not, in our judgment, controlling as to its admissibility. More important are the questions of relevancy and accuracy of the information submitted. *** While trial judges should be cautious in admitting such proof and sensitive to the possibilities of prejudice to defendant if inaccurate information is considered, we believe that a trial judge may, under circumstances such as those here, properly receive proof of criminal conduct for which no prosecution and conviction ensued.” 88 Ill. 2d at 498-99, 431 N.E.2d at 351-52.

This court, however, in People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618, held that a new sentencing hearing was required where a trial judge, in sentencing a defendant, expressly relied on evidence of a pending charge, of which the defendant was subsequently acquitted. (156 Ill. App. 3d at 355, 509 N.E.2d at 624-25.) The facts in the case at bar fall squarely within our holding in Dean. We acknowledge that the Appellate Court for the Second District has expressly rejected Dean for this point. (People v. Jackson (1990), 200 Ill. App. 3d 92, 557 N.E.2d 1287.) Based on Dean, we vacate defendant’s sentence and remand the cause to the trial court for a new sentencing hearing.

For the foregoing reasons, defendant’s conviction of possessing more than 30 grams of a controlled substance with intent to deliver is affirmed, his sentence is vacated, and the cause remanded for a new sentencing hearing.

Affirmed in part; vacated in part and remanded.

JOHNSON and McMORROW, JJ., concur.


author: JUSTICE LINN PRESIDING JUSTICE JIGANTI,

text:
    JOHN HOPKINS et al., Plaintiffs-Appellants, v. ILLINOIS MASONIC MEDICAL CENTER, Defendant-Appellee (Sid John Shafer et al., Defendants).
    First District (4th Division)
    No. 1—89—3213
    Opinion filed March 21, 1991.
    JIGANTI, P.J., dissenting.
    Michael W. Rathsack, of Chicago (Philip F. Maher, of counsel), for appellants.
    Connelly, Mustes & Schroeder, of Chicago (John J. Mustes and John R. Ostojic, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiffs, John and Eunice Hopkins, brought a medical malpractice action in the circuit court of Cook County against defendants, Illinois Masonic Medical Center (Illinois Masonic); Sid Shafer, M.D.; William Meltzer, M.D.; Michael Lewis, M.D.; and Ira Kornblatt, M.D. The trial court dismissed Illinois Masonic from the action.

Approximately three years later, plaintiffs petitioned the trial court to vacate the dismissal of Illinois Masonic and thereby reinstate it in the lawsuit, which is still pending in the trial court. The trial court denied the petition, and plaintiffs assign error to the denial.

We reverse the order of the trial court and remand.

Background

The record contains the following pertinent facts. Plaintiffs filed their first amended complaint on February 14, 1986. They named as defendants Drs. Shafer, Meltzer, Lewis, and Kornblatt; L.L. Braun, M.D.; Illinois Masonic; Johnson and Johnson, Inc.; and Chas. F. Thackray USA, Inc.

In the multicount complaint, John brought medical malpractice actions against the individual physicians and Illinois Masonic. He alleged that those defendants negligently treated a broken artificial hip; further, their negligence proximately resulted in additional surgery and permanent injury. John also brought product liability actions against defendants Thackray USA and Johnson and Johnson. Eunice Hopkins sought damages from all defendants for loss of consortium.

On June 16, 1986, Hlinois Masonic filed a motion to dismiss the complaint. Plaintiffs’ counsel was absent from the hearing on the motion. However, counsel for plaintiffs and Illinois Masonic agreed to a briefing schedule on the motion, which culminated in a final hearing on August 19, 1986. On that date, plaintiffs’ counsel again failed to appear. At the close of the hearing, the trial court granted the motion and dismissed Illinois Masonic from the lawsuit. Counsel for Illinois Masonic drafted the dismissal order, which stated in pertinent part:

“IT IS HEREBY ORDERED:
1. Defendant, ILLINOIS MASONIC MEDICAL CENTER’S Motion to Dismiss is hereby granted.
2. This order of dismissal is Final and Appealable as to Illinois Masonic Medical Center only.”

On January 18, 1989, plaintiffs petitioned the trial court to vacate the dismissal of Illinois Masonic pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401). At the close of a hearing on October 24, 1989, the trial court denied the motion. Plaintiffs appeal.

Opinion

Plaintiffs initially claim that the August 19, 1986, order, which dismissed Illinois Masonic from the lawsuit, was not enforceable and appealable. They contend the order thus was, and remains, subject to revision at any time. Plaintiffs argue that, consequently, a section 2—1401 petition for relief from judgment was not the appropriate standard to apply to the August 19, 1986, dismissal order.

We agree. The dismissal order, which Illinois Masonic drafted, did not include the language that Illinois Supreme Court Rule 304(a) requires. (107 Ill. 2d R. 304(a).) The rule provides that in a case having multiple parties or multiple claims for relief, no appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims, unless the trial court makes an express written finding that there is no just reason for delaying enforcement or appeal. “In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (Emphasis added.) 107 Ill. 2d R. 304(a).

This court has held that the requirements of Rule 304(a) are mandatory. (Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 694-95, 508 N.E.2d 324, 325-26.) In Hamer, the trial court stated that its order was “a final and appealable order.” (155 Ill. App. 3d at 694, 508 N.E.2d at 325.) We held that Rule 304(a) requires “an express written finding of both enforceability and appealability,” and that it is the two-pronged finding that renders a final judgment enforceable and a final judgment appealable. (155 Ill. App. 3d at 695, 508 N.E.2d at 326, citing Rauscher v. Albert (1985), 138 Ill. App. 3d 799, 803, 485 N.E.2d 1362, 1365.) We reasoned that the word “final” did not even address the concept of enforceability. We further reasoned that we would defeat the purpose of the rule, to prevent piecemeal appeals, if we held that the mere inclusion of the word “final” in an order rendered the order final. We concluded, therefore, that the order appealed from was unenforceable and unappealable. Hamer, 155 Ill. App. 3d at 695, 508 N.E.2d at 326.

The dismissal order in the case at bar is indistinguishable from the order in Hamer. During oral argument, Illinois Masonic conceded that Hamer would control the outcome of this case if we applied it. However, Illinois Masonic urged us not to follow Hamer. Illinois Masonic argued that the Appellate Court for the Third District expressed the better view in Lawyers Title Insurance Corp. v. Kneller (1988), 172 Ill. App. 3d 210, 525 N.E.2d 1155. The court in that case held that an order could “constructively” fulfill “the technical language requirement” of Rule 304(a). 172 Ill. App. 3d at 213, 525 N.E.2d at 1157.

We adhere to Hamer, which expresses the purpose and policy behind Rule 304(a). We note that the Appellate Court for the Second District has also approved of and followed the Hamer approach. (Lurz v. Panek (1988), 166 Ill. App. 3d 179, 519 N.E.2d 1110.) Additionally, we agree with Justice Tobias Barry, who dissented in Lawyers Title Insurance Corp. He observed as follows:

“The language of Rule 304(a) is mandatory and precise, not directory or generic — its purpose, salutary, not cavalier. The rule is not unduly burdensome. Accordingly, the rule should be, and until today has been, applied strictly.” Lawyers Title Insurance Corp., 172 Ill. App. 3d at 217, 525 N.E.2d at 1159 (Barry, J., dissenting).

Based on Hamer, we hold that the August 19, 1986, order, which dismissed Illinois Masonic from the lawsuit, was not enforceable or appealable. Since this lawsuit is still pending in the trial court, the order was and remains subject to revision at any time. (See First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 516 N.E.2d 552.) Consequently, we reverse the order of the trial court that denied plaintiffs’ section 2 — 1401 petition for relief from judgment. We remand the cause with directions that the trial court consider plaintiffs’ motion to vacate the dismissal order in light of the nonenforceable and nonappealable nature of the order.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

Under scrutiny is the legally necessary language making a final order appealable under Supreme Court Rule 304(a). (107 Ill. 2d R. 304(a).) The wording of the rule itself is indirect and understated. It states an order is appealable if the court finds there is “no just reason for delaying enforcement or appeal.” In contrast, the wording of the trial court’s order in the instant case is clear, assertive and direct. It grants the motion to dismiss and states that the order “is final and appealable.” The finding of appealability is patent. Neither the majority opinion nor the opinion in Hamer v. Lentz (1987), 155 Ill. App. 3d 692, 508 N.E.2d 324, provides a rationale for mandating that to be appealable a final order must precisely track the wording of Rule 304(a). I would affirm the trial court.


author: PRESIDING JUSTICE JIGANTI

text:
    JOSEPH PIONKE et al., Plaintiffs-Appellants, v. LEO BEITZ et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—0723
    Opinion filed March 21, 1991.

      Samuel N. Warsawsky, of Chicago, for appellants.
    Richard A. Cowen, of Cowen, Crowley & Nord, P.C., of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Joseph Pionke and Richard Wadzinski, filed an action seeking specific performance of their contract with the defendants, Leo and Ella Beitz, for the sale of the defendants’ bowling business and the real estate from which the business was operated. Following a trial, the court found in favor of the defendants and denied the plaintiffs’ claim for specific performance. The plaintiffs have appealed, contending that the trial court’s judgment constituted an abuse of discretion. The issue before us is whether the parties’ contract was sufficiently definite and unambiguous to support a judgment of specific performance.

The defendants own certain real estate located at 3325 North Southport in Chicago and operate a bowling business on the premises known as Southport Lanes, Inc. In late 1986 they decided to retire and advertised that the real estate and the business were for sale. Richard Wadzinski, a long-time patron of the bowling alley, and his cousin, Joseph Pionke, expressed an interest in buying the property and the business. Both parties agreed that the sale would be a package deal encompassing both the real estate and the business. The defendants told the plaintiffs that the price for the package was $375,000.

In late November of 1986, the defendants gave the plaintiffs a complete tour of the premises and showed them all of the personal property that would be included in the sale. In mid-December, the plaintiffs’ attorney delivered to the defendants a letter of intent to purchase, which included the following paragraph with respect to the purchase of the business:

“All assets owned by Southport Lanes Inc. (this may be accomplished by purchase of the stock of the corporation or by purchase of the assets depending upon the agreement of the attorneys for the parties).”

The parties’ attorneys drew up two contracts — one for the sale of the real estate and the other for the sale of the business. Both contracts contained language indicating that they were mutually interdependent. The real estate contract provided:

“This Contract is further subject to the parties executing, performing and closing on an Agreement for the sale of the capital stock of Southport Lanes, Inc., an Illinois corporation. The failure of either party to execute and to close on the Agreement for sale of stock shall relieve the parties from closing on this transaction ***.”

The agreement covering the sale of the business was drafted by the defendants’ attorneys as a sale of stock and provided:

“The parties acknowledge that the execution and performance of the REAL ESTATE CONTRACT and the closing under this Agreement are mutually interdependent and shall occur simultaneously. The failure of the PURCHASER or SELLER, as the case may be, to close one transaction shall relieve the other party from closing the second transaction.”

At the plaintiffs’ request, the real estate contract was separated from the contract for the sale of the business and signed by the parties so the plaintiffs could begin the process of securing financing. The contract for the sale of the business was never signed by either of the parties. The real estate contract had a mortgage contingency clause that expired on March 20, 1987. The closing was to occur on March 31, 1987. The real estate contract showed the purchase price of the property to be $350,000, and the contract for the sale of the business showed a purchase price of $25,000. The plaintiffs applied for a loan at Lincoln Park Federal Savings & Loan Association.

Before the defendants signed the real estate contract, they questioned their attorney about the allocation of the $375,000 purchase price. It had always been their intention that 75% of the purchase price, or $281,250, would be allocated to the real estate and 25%, or $93,750, would be allocated to the sale of the business. This was significant to the defendants because they owned the business and Leo Beitz’ mother owned the real estate. The defendants’ attorney explained that the figure of $350,000 contained in the real estate contract was an accommodation to the plaintiffs to enable them to secure a higher mortgage. He further explained that a reallocation agreement would be signed later establishing the agreed-upon 75%/25% allocation between the real estate and the business. At trial, both the plaintiffs and the defendants testified that such a reallocation of the purchase price was intended by the parties. However, no reallocation agreement was actually signed, and the defendants’ accountant, Sharon Jones, testified that the reallocation would have tax disadvantages for the plaintiffs.

Much of the testimony at trial focused upon the contract for the sale of the business. As drafted by the defendants’ attorney, Eugene Filice, the contract provided that the sale of the business would be structured as a sale of the stock of the corporation. In a letter to Filice dated February 19, 1987, the plaintiffs’ attorney, Barry Holt, stated that he wanted the defendants to transfer all of the equipment and assets out of the corporation and to include these items as part of the real estate sale. This would allow the plaintiffs to benefit from a new depreciation schedule for the assets and equipment.

Filice testified that he consulted with the defendants’ accountant, Sharon Jones, and that Jones strongly recommended against Holt’s suggestion to transfer corporate assets from the business to the real estate. Jones testified at trial that structuring the sale in this manner would have negative tax consequences to the defendants, could trigger an Internal Revenue Service (IRS) audit of Leo Beitz’ mother, who actually owned the real estate, and would cause the defendants to incur costs for an appraisal to determine the fair-market value of the corporate equipment and assets. According to Jones, if the equipment and assets were transferred out of the corporation and included as part of the real estate, this would be treated as a dividend to the defendants and taxed upon the basis of the fair-market value of the items transferred. Among the items owned by the bowling business were the cigarette machine, the ball racks, bar stools, the tables and chairs in the bar and banquet room, and certain bowling machinery that could not be replaced because it was no longer manufactured. The defendants’ business is one of very few manually operated bowling businesses in the area. Jones estimated that the tax cost to the defendants would be $4,000. Jones explained that a transfer of the assets as suggested by Holt could be viewed by the IRS as a sham transaction and thereby trigger an audit. The plaintiffs on the other hand would realize a significant tax benefit by establishing a new depreciation schedule for the equipment and assets. Because of the negative consequences to the defendants, Jones never considered recommending a transfer of the assets and did not give a list of the equipment and assets owned by the corporation to the plaintiffs. Jones testified that it was to the plaintiffs’ benefit to have as much of the purchase price as possible allocated to the real estate.

Filice testified that after consulting with Jones, he informed Holt that the defendants would not agree to the plaintiffs' suggestion of restructuring the business sale. According to Filice, Holt then asked about the possibility of structuring the sale of the business as a “Section 358” transaction. Upon checking with Sharon Jones, Filice learned that this was not possible because it would require a liquidation of the corporation. The corporation could not be liquidated because it held the liquor license which the plaintiffs needed to operate the business. Filice stated that he informed Holt that neither of the plaintiffs’ suggestions regarding the restructuring of the business was acceptable to the defendants. Holt testified that Filice never informed him that the restructuring of the business sale was not possible and that neither side ever said that failure to agree on that issue would be a “deal breaker.”

In mid-March of 1987, the plaintiffs were informed that their loan application had been rejected. The plaintiffs then approached the defendants with offers of “under the table” cash in order to lower the purchase price. The defendants rejected the offers, and the plaintiffs continued to seek financing.

On March 19 or 20, 1987, the plaintiffs asked for an extension of the mortgage contingency clause and the closing date. In a letter dated March 20, 1987, the defendants stated that they would agree to extend the financing contingency to March 31, 1987, and the closing to April 30, 1987, on the condition that “[a]ny and all additional costs relating to the business incurred by the Sellers by reason of the transaction not closing on March 31, 1987, (including renewal of liquor license, insurance and related items) shall be adjusted and credited to Seller as of the date of actual closing.” The letter instructed the plaintiffs to sign and return it if its terms were acceptable. The plaintiffs did not sign the letter. The plaintiffs’ attorney, Barry Holt, testified that the terms were acceptable for the most part, but that he was unsure of the meaning of “[a]ny and all additional costs.” The defendants’ attorney, Eugene Filice, testified that Holt told him that the plaintiffs considered the liquor license and insurance costs as corporate obligations and were unwilling to pay a portion of those costs.

The issue of whether or not the defendants orally agreed to extend the financing contingency and closing date was disputed at trial. The plaintiffs testified that they were told by Filice and by Leo Beitz that the financing contingency would be extended to April 2, 1987. Filice denied this, stating that he insisted on the March 31, 1987, closing date and told the plaintiffs’ attorney only that he would try to “resurrect” the deal if the plaintiffs could obtain a written loan commitment by April 2, 1987. The plaintiffs received an oral loan commitment on April 2 and immediately sent a letter to the defendants stating that the closing should be set close to April 30, 1987, and instructing the defendants to “have the assets transferred” out of the corporation and included as part of the real estate. On the same day this letter was sent, the plaintiffs received a letter from the defendants stating that the contract had expired of its own terms and that the deal was off because of their failure to close on March 31,1987.

At the conclusion of the trial, the trial court found in favor of the defendants and denied specific performance on the grounds that the parties failed to reach a meeting of the minds on essential contract terms. The plaintiffs have appealed, contending that the court erred in denying specific performance because the parties had reached an agreement on all essential terms.

The remedy of specific performance involves the sound discretion of the trial court to be determined from all the surrounding facts and circumstances of the individual case. (Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 900, 384 N.E.2d 512.) Before a court may grant specific performance of a contract, it must find that the terms of the contract are clear, definite and unequivocal. (Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011, 1013, 419 N.E.2d 503.) As stated in Cinman v. Reliance Federal Savings & Loan Association (1987), 155 Ill. App. 3d 417, 423-24, 508 N.E.2d 239, 244:

“[W]here a party seeks specific performance of a contract, the law requires a greater degree of specificity than is demanded for other purposes. Where the court would be left to order further negotiations and where the parties have yet to reach agreement on essential terms, specific performance is not available. Specific performance requires as a prerequisite a clear and precise understanding of the terms of the contract.”

Where extrinsic facts and circumstances are controverted, questions involving the understanding and intent of the parties are factual determinations to be resolved by the trier of fact. Nerone v. Boehler (1976), 34 Ill. App. 3d 888, 891, 340 N.E.2d 534.

In the case at bar, we cannot say that the trial court abused its discretion in denying specific performance. At the very least, the trial testimony amply supported the court’s determination that the parties did not reach a meeting of the minds on how the sale of the bowling business would be structured. The defendants proposed that the sale be structured as a sale of the corporate stock. The plaintiffs’ attorney, Barry Holt, then responded in writing that the plaintiffs wanted the defendants to transfer the corporate assets and equipment out of the business and to include those items as part of the real estate sale. This would allow the plaintiffs to benefit from a new depreciation schedule for tax purposes. The defendants’ attorney, Eugene Filice, testified that he consulted with the defendants’ accountant and discovered that such a transfer of assets would have significant tax disadvantages for the defendants and could potentially trigger an IRS audit. Filice testified that he spoke with Holt and informed him that the transfer was not acceptable. At that time, Holt made another suggestion concerning the structuring of the business sale. After again consulting with the accountant, Filice informed Holt that neither proposal was acceptable to the defendants. Holt’s testimony at trial conflicted with that of Filice. Holt testified that Filice never told him that the proposals regarding the structuring of the business sale were not acceptable. Regardless of whose testimony was believed by the trial court, it is undisputed that no further discussions took place and that the contract for the sale of the business was never signed. After the date for the closing had passed and the defendants declared the contract at an end, Holt sent a letter informing the defendants that financing had been secured and instructing them to “have the assets transferred.” Thus, the evidence presented at trial was sufficient to support a determination that the parties had not reached agreement on the structuring of the sale of the business and that this was an essential term because of the tax ramifications for both parties. There is no dispute that the sale of the real estate could not occur without the simultaneous sale of the business. Under these circumstances, the trial court properly found that the contract lacked the degree of specificity necessary to support a judgment of specific performance.

The plaintiffs then make a number of arguments to the effect that the parties would have been able to agree had the defendants acted in good faith. They state, for example, that the defendants breached their duty of good faith and fair dealing by failing to give the plaintiffs a list of the assets owned by the corporation. According to the plaintiffs, had they been given the list they would have discovered that the most valuable assets were already part of the real estate, and they would have then agreed to structure the sale of the business as a sale of stock. By making these arguments, the plaintiffs fail to comprehend the nature of the remedy they are requesting. They are not suing the defendants for damages resulting from a breach of the defendants’ duty of good faith and fair dealing. Rather, they are asking that the contract be specifically performed. As stated earlier, the remedy of specific performance requires a greater deal of specificity than is demanded for other purposes. (Cinman, 155 Ill. App. 3d at 423, 508 N.E.2d at 244.) Because the evidence supports the trial court’s determination that the parties failed to reach a meeting of the minds on an essential contract term, it must be affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


text:
    PRISCILLA WASHINGTON, Plaintiff-Appellee, v. BOARD OF REVIEW, The Department of Employment Security, et al., Defendants-Appellants (St. Bernard Hospital, Defendant).
    First District (4th Division)
    No. 1—90—1255
    Opinion filed March 21, 1991.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellants.

      Karyn Glass, Jeffrey B. Gilbert, and Joan Matlack, all of Legal Assistance Foundation of Chicago, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Priscilla Washington was discharged from employment with, defendant St. Bernard Hospital (the Hospital) because she fell asleep for approximately 30 minutes at a Hospital executive meeting. After termination of her employment, plaintiff applied for benefits under the Unemployment Insurance Act (the Act) (Ill. Rev. Stat. 1989, ch. 48, par. 300 et seq.). The Board of Review of the Illinois Department of Employment Security (the Board) found plaintiff ineligible for benefits on the ground that the behavior leading to her discharge amounted to misconduct that disqualified her for benefits under the Act. Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

Plaintiff filed an action for administrative review of the Board’s decision in the circuit court of Cook County. Based upon its review of the record, the trial court concluded that plaintiff’s falling asleep did not amount to misconduct under the Act. We agree with the trial court’s determination. Accordingly, we affirm.

The facts of record are as follows. Plaintiff was employed as an administrative secretary at St. Bernard Hospital for seven weeks before she was discharged on September 16, 1988. A few days before her employment was terminated, plaintiff and another secretary were assigned to attend, take notes of, and tape record a meeting of the Hospital’s medical executive committee. Plaintiff’s counterpart was given primary responsibility for operating the tape recorder, taking notes, and typing minutes of the meeting. Plaintiff was to provide support in these activities and to assist the other secretary in composing the meeting minutes.

After the meeting began, plaintiff was directed to obtain the cassette recording of the committee’s prior meeting. Plaintiff left the meeting room to get the cassette. According to plaintiff, she took an aspirin while she was outside the meeting room, because she was suffering from a headache. Plaintiff then retrieved the cassette, returned to the meeting room, and sat down at the front table. As she was listening to the meeting, she rested her bent elbow on the table and leaned her head against her hand. Shortly thereafter, she dozed off. According to a vice-president for the Hospital who attended the meeting, plaintiff remained asleep during the meeting, for approximately 30 minutes, until plaintiff awoke after the meeting had ended.

A few days after the incident, plaintiff was informed that her employment was immediately terminated, because her behavior during the meeting violated Hospital policy that prohibited sleeping during work hours. When confronted with this information, plaintiff did not explain that she had fallen asleep because she had had a headache during the meeting, nor did plaintiff explain that she had taken an aspirin for the headache.

Following her discharge, plaintiff applied for unemployment benefits. The Hospital contested her eligibility, arguing that plaintiff’s employment had been terminated because she had violated the Hospital’s employment policy that prohibited sleeping on the job. The claims adjudicator found plaintiff ineligible for unemployment benefits, and plaintiff appealed to the Department of Employment Security. Following a hearing, the referee concluded that plaintiff was disqualified from receiving unemployment benefits because her behavior amounted to misconduct under the Act. Specifically, the referee found that plaintiff’s “sleeping on the job” was a “violation of Company policy” and “was within [plaintiff’s] control to avoid.” The Board affirmed the referee’s decision, reasoning that “[w]hile falling asleep for a few seconds might be beyond one’s control, falling asleep for 30 minutes *** was a willful disregard of the employer’s interests and deprived the employer of the claimant’s services for that time.”

Plaintiff then filed an action for administrative review of the Board’s decision. Following its review of the record, the trial court determined that plaintiff’s conduct did not constitute misconduct that would disqualify her from receiving unemployment benefits. In light of this determination, the trial court reversed the Board’s decision. The Board appeals from the trial court’s ruling.

On appeal, the Board contends that its decision was supported by the evidence of record. The Board argues that the evidence demonstrates that plaintiff’s behavior was a willful and deliberate disregard of her employer’s rules. Our function upon review is limited to a consideration of whether the Board’s findings are against the manifest weight of the evidence (see Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 510 N.E.2d 422), and the Board’s ruling is properly reversed if it is not supported by the evidence of record. London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 532 N.E.2d 294.

The Unemployment Insurance Act is intended to alleviate the harsh effects of involuntary unemployment (Ill. Rev. Stat. 1989, ch. 48, par. 300), and its terms are to be liberally construed to serve this goal. (Bellan v. Department of Employment Security (1987), 164 Ill. App. 3d 495, 520 N.E.2d 653.) It is the claimant’s burden to prove his eligibility for such benefits. (Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760.) The Act provides that an individual is ineligible for benefits if he was discharged for misconduct connected with his work. (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) However, an employer’s ground for discharge is not necessarily “misconduct” under the Act. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 475 N.E.2d 879.) At the time plaintiff was discharged and applied for unemployment benefits, the Act defined “misconduct” as follows:

“For purposes of this subsection, the term ‘misconduct’ means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit.” Ill. Rev. Stat. 1989, ch. 48, par. 432(A).

This definition of misconduct does not include carelessness or negligence, and reflects a legislative intent that persons should receive unemployment benefits although they were discharged for incapacity, inadvertence, negligence or inability to perform assigned tasks. Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760.

In the instant cause, the Board determined that plaintiff’s actions amounted to misconduct under the Act. Specifically, the Board reasoned that “falling asleep for a few seconds might be beyond one’s control,” but that “falling asleep for 30 minutes *** was a willful disregard of the employer’s interests.” We are unable to agree with this reasoning. In our view, the proper inquiry is not simply the period of time for which plaintiff was asleep, but whether, under all the circumstances, the plaintiff’s actions were deliberate and willful. See London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 532 N.E.2d 294.

Based upon this standard, we cannot conclude that the evidence demonstrates that plaintiff’s actions were a deliberate and willful violation of the Hospital’s policy that prohibited sleeping on the job. The record shows that plaintiff had never had a poor work performance review, and that she had never before fallen asleep during working hours. She testified without contradiction at the referee’s hearing that she had fallen asleep because she had taken an aspirin for a headache. There are no surrounding circumstances to indicate that plaintiff purposely “took a nap” during the session. In light of these considerations, we conclude that plaintiff’s behavior did not amount to misconduct that would disqualify her from eligibility for unemployment benefits.

The Board argues that plaintiff’s testimony regarding her headache and the taking of an aspirin should be discredited because plaintiff did not disclose these explanations when she was terminated. The Board also claims that plaintiff failed to sustain her burden of proof regarding the causal connection between taking an aspirin and falling asleep, because plaintiff presented no medical evidence to establish that ingestion of an aspirin will cause a person to fall asleep. However, the record indicates that the referee never found plaintiff’s explanations discreditable or improbable. In addition, the Board’s decision did not specifically reject plaintiff’s explanations regarding the reasons for her falling asleep. Consequently, we find the Board’s arguments on appeal insufficient ground to affirm the Board’s determination that plaintiff was ineligible for benefits because her falling asleep constituted misconduct under the Act.

The cases cited by the Board do not conflict with our conclusion that the evidence does not demonstrate that plaintiff’s falling asleep was willful and deliberate. In each of the decisions upon which the Board relies, the evidence of record demonstrated that the claimant purposely “took a nap” on company time. The instant cause does not reveal such circumstances. See Schwartz v. Unemployment Compensation Board of Review (1959), 188 Pa. Super. 558, 149 A.2d 182; Coleman v. Unemployment Compensation Board of Review (1958), 186 Pa. Super. 54, 140 A.2d 356; Johnson v. Commonwealth of Pennsylvania (1980), 54 Pa. Commw. 220, 420 A.2d 794; Unemployment Compensation Board of Review v. Simone (1976), 24 Pa. Commw. 248, 355 A.2d 614.

The Illinois decisions relied upon by the Board in the case at bar are also factually distinguishable. In Bandemer v. Department of Employment Security (1990), 204 Ill. App. 3d 192, 562 N.E.2d 6, Wilson v. Department of Employment Security (1990), 196 Ill. App. 3d 711, 554 N.E.2d 1006, and Bochenek v. Department of Employment Security (1988), 169 Ill. App. 3d 507, 525 N.E.2d 893, the employees were aware of a company rule, but made little effort to comply with their employers’ requirements. The courts determined that the employees’ actions were willful and deliberate. In the instant cause, there is no evidence to demonstrate that plaintiff realized that she was falling asleep during the meeting and that plaintiff made no effort to refrain from falling asleep. Rather, the plaintiff here accidentally fell asleep during the Hospital’s meeting for approximately 30 minutes. The cases cited by the Board do not support its argument that the plaintiff’s conduct was willful and deliberate.

The Board also argues that the standard of “misconduct” to be applied in the case at bar should be the definition stated in Jackson v. Board of Review (1985), 105 Ill. 2d 501, 475 N.E.2d 879, rather than the definition given in the Act (Ill. Rev. Stat. 1989, ch. 48, par. 432(A)). Jackson defined “misconduct” as follows:

“ ‘conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.’ ” Jackson, 105 Ill. 2d at 511-12, quoting Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259-60, 296 N.W. 636.

We decline the Board’s invitation to utilize the Jackson standard in the instant cause with respect to whether plaintiff’s actions were “misconduct” that disqualified her eligibility for unemployment benefits. The definition of misconduct as stated in the Act came into effect on January 1, 1988, and was applicable to a determination of plaintiff’s application for unemployment benefits relating to her discharge in September 1988. (See Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) In addition, a comparison of the definitions stated in Jackson and in the Act indicates that the two might not be completely synonymous. Although Jackson might appear to include gross negligence within the definition of “misconduct,” the Act limits misconduct to those acts that are intentional. The case cited by the Board applied reasoning from Jackson with respect to whether an employer’s required standard of employee behavior was reasonable, and does not support the Board’s claim that the definition of misconduct as stated in Jackson, rather than the definition found in the Act, is controlling in the instant cause. See Bandemer v. Department of Employment Security (1990), 204 Ill. App. 3d 192, 562 N.E.2d 6.

Based upon these considerations, we conclude that plaintiff’s act of falling asleep did not amount to misconduct under the Act. In light of this disposition, we need not and do not address the parties’ arguments regarding whether plaintiff’s conduct harmed her employer.

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

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.