author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JORGE CARVAJAL, Defendant-Appellant. — THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN C. TORRES, Defendant-Appellant.
    Second District
    Nos. 2—91—0454, 2—91—0463 cons.
    Opinion filed February 26, 1993.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellants.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Jorge L. Carvajal and Brian C. Torres, defendants, were convicted by a jury in the circuit court of Kane County of one count of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)), and two counts each of attempt (murder) (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 9 — 1(a)(1)) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 3). The armed violence convictions were subsequently vacated. Carvajal was given a 60-year term for the murder and a 30-year term for the attempt (murder) convictions, with the terms to run concurrently. Torres was sentenced to concurrent terms of 50 years for murder and 30 years for the attempt (murder) convictions. They appeal, claiming: (1) the trial court should have severed their trials from that of Angel Loera; (2) they were not proved guilty beyond a reasonable doubt of murder and attempt (murder); (3) the attempt (murder) jury instruction given at their trial was erroneous; and (4) the constructive possession jury instruction given at their trial was erroneous.

The charges in this case arose out of a shooting that occurred at about 10 p.m. on June 3, 1990, on Beach Street in Aurora, Illinois. Defendants, members of the Insane Deuces street gang, shot into a crowd of Latin Kings who had gathered for a party. One person in the crowd died and two others were wounded.

Alex Ramos testified that he was a member of the Latin Kings, which he maintained was a mere loose-knit organization without any hierarchical structure. He stated that his gang and the Insane Deuces were at “war” at the time of the shooting and at the time of trial. He identified defendants and Loera as Insane Deuces. He also stated that he was at the scene just prior to the shooting and that he saw Loera, Torres and a third person at a nearby intersection holding guns and wearing black and gold clothes. He said that Carvajal appeared between two nearby houses on Beach Street and that all four individuals then opened fire on the crowd with automatic and semiautomatic weapons. Ramos further testified that shots came from a car at the other end of the block shortly before defendants began shooting. Also according to Ramos, he had gotten into a fight with Carvajal earlier on the day of the shooting.

Patrick Allen, another Latin King, identified Carvajal as one of the shooters, but said that the gunmen wore black clothing. He also recounted the confrontation between the people in the street and those in the car from which shots were fired, but described the car’s movements differently than did Ramos.

Michael Waters, another member of the Latin Kings, identified Carvajal and Torres as Insane Deuces and claimed that Torres was one of two shooters at the intersection. He stated that Carvajal was the gunman positioned between the houses on Beach Street. He testified that the shooters wore hooded black clothing with the hoods up. He also testified that individuals from a car had fired shots before defendants had begun shooting, but, in contrast to the other occurrence witnesses, testified that one individual had alighted from the car to fire at the crowd.

Fidel Elizondo, a former Latin King, identified Torres as one of two gunmen standing in the intersection. He stated that both shooters wore black clothing with hoods up over their heads. He also testified as to the presence of the car and gunshots from it before defendants opened fire, but described the car’s movements differently than some other witnesses.

Frank Ramirez, another Latin King, testified as to the presence of the car and gunfire from the car before the shots fired by defendants. He then identified Torres as one of two gunmen in the intersection and Carvajal as being between two houses on Beach Street, but stated that he did not see Carvajal firing a weapon. He also stated that he did not see the gunmen’s clothing.

Robert Saltijeral, who was not a gang member, identified Loera and Torres as being two of three persons standing in the intersection. However, he stated that he did not see anyone shooting.

Al Tiegelmann, an Aurora police officer, testified that he interviewed Loera and that Loera told him that he was with Torres and Carvajal until about 8:30 p.m. on the night of the shooting, at which time he left them and went home.

Scott Wolters, another Aurora policeman, testified that he found two pistols, some gun magazines and a plaque bearing gang graffiti during a search of the house in which Loera lived. A firearms expert subsequently testified that nine spent cartridge casings recovered from the shooting scene were fired from one of the guns found at Loera’s house.

The defense offered the testimony of various friends and family members of defendants. These persons provided an alibi for Torres from about noon on the day of the shooting until the next morning, and for Carvajal from about 7 p.m. on the day of the shooting until the next morning.

The jury convicted defendants on all charges. Defendants filed a timely appeal.

Severance

First, defendants claim that they were denied a fair trial when their trial was not severed from that of Loera. They claim that Loera’s statement to police that he was with defendants at about 8:30 p.m. on the night of the shooting was in direct conflict with their alibi defenses and that this prejudice was exacerbated because Loera did not testify and defendants were thus denied the opportunity to cross-examine him about the statement. Defendants also claim that the joint trial allowed the State to admit against all three defendants the gun found at Loera’s house and tied to the shooting scene and that this disparity in the proof required a severance. Defendants allege that the State would not have offered the gun at a trial without Loera, but that the defense would have offered it to deflect suspicion on a third party. The State claims that neither the conflict between defendants’ alibi defenses and Loera’s statement nor the disparity in the evidence was sufficiently acute to warrant severance.

Generally, defendants indicted together should be tried together unless they can show potential prejudice sufficient to warrant separate trials. (People v. Bean (1985), 109 Ill. 2d 80, 92.) However, the mere anticipation of prejudice is not sufficient to obtain a severance; rather, a defendant must state how he will be injured by a joint trial. (Bean, 109 Ill. 2d at 92.) A severance is mandatory when codefendants’ defenses are so antagonistic that a joint trial would not be a fair one. (People v. Byron (1987), 116 Ill. 2d 81, 92.) Moreover, although “[ajctual hostility between the two defenses is required” (Bean, 109 Ill. 2d at 93), there is no requirement that the prejudice be reciprocal as between the defendants. (Bean, 109 Ill. 2d at 95.) “[Ajny set of circumstances which deprives a defendant of a fair trial is sufficient to require severance.” (Emphasis in original.) Bean, 109 Ill. 2d at 95.

A severance is also appropriate when the State, in a joint trial, introduces out-of-court statements of a nontestifying codefendant that implicate the defendant. (People v. Wilson (1987), 161 Ill. App. 3d 995, 1000.) In this instance, the defendant may be denied his constitutional right to confront witnesses against him because he cannot cross-examine the codefendant. Wilson, 161 Ill. App. 3d at 1000; see also Bruton v. United, States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

Further, a great disparity in the evidence against one codefendant may require a severance of his trial from that of another codefendant. (People v. Harris (1990), 198 Ill. App. 3d 1002, 1009.) Defendants here claim that all three of these situations exist in the case at bar.

Before we reach the merits, it is important to note that a trial court has the discretion to grant a motion for severance. (People v. Olinger (1986), 112 Ill. 2d 324, 346.) Thus, we review the circuit court’s decision under the abuse of discretion standard. “In ruling on the motion for severance the trial judge must make a prediction about the likelihood of prejudice at trial, taking into account the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings.” (People v. Daugherty (1984), 102 Ill. 2d 533, 541.) Further, a trial court has a duty throughout the trial to order a severance if sufficient prejudice appears. (Wilson, 161 Ill. App. 3d at 1000.) Finally, an appellate court reviewing a trial court’s decision on a severance motion “looks to the facts and circumstances which existed at the time [the motion] was denied [citation], although subsequent events may illustrate the prejudice which results when the motion is not granted at the earliest point.” People v. Threzzy (1987), 163 Ill. App. 3d 180, 183.

Here, we do not believe that the joint trial denied defendants their right to a fair trial. Specifically, the fact that Loera’s statement contradicted the testimony of defendants’ alibi witnesses did not render the defenses so antagonistic to warrant a severance. Additionally, the proof against Loera was not so much greater than the proof against defendants that a severance was required.

At trial, an Aurora police officer testified that Loera told him that he (Loera) was with defendants until 8:30 on the night of the shooting. This statement contradicted the testimony of defendants’ alibi witnesses, who provided alibis for defendants from points in time much earlier than 8:30 p.m.

Defendants point us to no cases factually similar to the present case, and the cases they cite for general propositions of severance law are distinguishable. In People v. Bean (1985), 109 Ill. 2d 80, the supreme court ruled that a severance should have been granted in a murder trial because the codefendant “could only convince the jury of his own innocence by convincing them to convict [the defendant].” (Bean, 109 Ill. 2d at 95.) Bean is replete with egregious examples of the codefendant’s attempts to portray the defendant as the murderer.

Similarly, in People v. Trass (1985), 136 Ill. App. 3d 455, the defense of each appealing defendant was that he was merely an onlooker during the robbery of the victim by his codefendants. In People v. Threzzy (1987), 163 Ill. App. 3d 180, the codefendant’s defense was that the defendant, not the codefendant, was the drug dealer that the State was after. Further, the Threzzy court noted the similarity of that case to Bean with regard to the prejudice suffered by the defendant at the hands of his codefendant’s counsel. Threzzy, 163 Ill. App. 3d at 184.

Here, Loera’s statement did not implicate defendants in the shooting. Indeed, since Loera’s defense was that he was not at the shooting scene, he could not have stated from personal knowledge that defendants were the shooters. Loera’s statement did not even place defendants at the scene at the relevant time. A full hour-and-one-half gap existed between the time Loera’s statement places the three defendants together and the time of the shooting. That Loera’s statement contradicts alibi testimony is not sufficient to warrant a severance.

We find support for our conclusion in the case of People v. Bramlett (1991), 211 Ill. App. 3d 172. In that case, the court held that a codefendant’s testimony placing a stolen clock in the defendant’s car hours before the burglary in which the clock allegedly was taken, and for which the defendant was on trial, did not render the codefendant’s defense so antagonistic to the defendant’s defense of innocence to require a severance. (Bramlett, 211 Ill. App. 3d at 178-80.) The court noted that the codefendant’s testimony did not implicate the defendant in the burglary. (Bramlett, 211 Ill. App. 3d at 179.) Such is the case here. The Bramlett court also stressed that the defendant’s criminal involvement was established without reference to the clock. (Bramlett, 211 Ill. App. 3d at 179.) Again, in this case, various witnesses identified defendants as the gunmen. Although the Bramlett court also noted that the codefendant’s other testimony was actually helpful to the defendant (Bramlett, 211 Ill. App. 3d at 179), we do not find that point to be determinative.

The defenses of Loera and defendants here were not sufficiently antagonistic to require a severance. As the Bramlett court cautioned, “care must be taken in severance cases to ensure that the nature of the defenses are truly inconsistent.” Bramlett, 211 Ill. App. 3d at 179-80.

Further, the fact that defendants could not cross-examine Loera about his statement does not alter the result, as defendants were not denied their constitutional right to confront witnesses against them. Under the United States Supreme Court’s opinion in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the admission in a joint trial of an out-of-court statement by a codefendant implicating the defendant in the crime denies the defendant his right to confront witnesses against him. Here, however, Loera’s statement did not implicate defendants in the shooting, even though the statement contradicted the testimony of defendants’ alibi witnesses.

Similar to this case are the cases of People v. Boclaire (1981), 95 Ill. App. 3d 536, and People v. Hudson (1970), 46 Ill. 2d 177. In Boclaire, a police investigator testified at the defendant’s trial that a co-defendant had told him at the time of all the defendants’ arrest for murder that a rifle was in the trunk of the car the codefendant was driving. The investigator’s testimony was held not to violate the rule in Bruton because the codefendant’s statement did not implicate the defendant. Boclaire, 95 Ill. App. 3d at 539.

In Hudson, an informant who had participated in the crime testified that, after he had turned State’s evidence, the codefendant tried jointly with the defendant had called him a “stool pigeon.” (Hudson, 46 Ill. 2d at 196.) The informant also testified that a jailor holding the defendant and the codefendant had told him that “the boys they got back there are mad at you.” (Hudson, 46 Ill. 2d at 196.) The supreme court held that the testimony did not violate the Bruton rule because it did not “readily lead to the conclusion” that the defendant was guilty. (Hudson, 46 Ill. 2d at 196.) Likewise, in this case, Loera’s statement does not directly implicate defendants in the shooting, and, thus, defendants were not denied their right to confrontation as a result of their inability to cross-examine Loera.

Next, defendants claim that a severance was required due to the disparity in the amount of proof against them, as opposed to that against Loera. A gun found in the house in which Loera lived with his parents and siblings matched shells found at the shooting scene. Defendants claim that the joint trial allowed the State to admit the gun against Loera and have the jury connect the gun with defendants also, whereas the admission of the gun in a trial against just defendants would have benefitted the defense.

Although a great disparity in the evidence against codefendants may be sufficient, by itself, to warrant severance (People v. Harris (1990), 198 Ill. App. 3d 1002, 1009), a severance on such ground was not required in this case. The admission of the gun did not tilt the evidence so heavily in favor of Loera’s guilt that defendants were thereby denied a fair trial. As the State points out, five people placed Torres at the scene of the shooting, four witnesses identified Carvajal as being there, and two witnesses placed Loera at the scene. Defendants and Loera were identified as either shooting or standing in locations from which shots were allegedly fired. Moreover, the jury was instructed that each defendant should be given separate consideration and that each defendant’s case should be decided based on the law and the evidence applicable to him.

This case is not like the case of People v. Byron (1987), 116 Ill. 2d 81, in which a severance was required because of the “overwhelming volume” of evidence admitted against the defendant’s codefendant only. (116 Ill. 2d at 93.) Further, the disparity in Byron was exacerbated by the “bitter antagonism” between the two defendants’ defenses. (Byron, 116 Ill. 2d at 93.) In this case, we believe the jury “could fairly apply the evidence to the respective defendants.” Byron, 116 Ill. 2d at 93.

INSUFFICIENT EVIDENCE

Defendants argue that the inconsistent testimony of rival gang members and those members’ acquaintances was insufficient to support their convictions. The State counters that the evidence was sufficient because the witnesses were identifying people they knew and because the area was well lit. The State also argues that, in any event, the jury heard all about the inconsistencies in the testimony, the witnesses’ gang affiliations, the tardiness with which the witnesses came forward, and the alleged gang fear in the area of the shooting.

When reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) (Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89; People v. Fields (1990), 135 Ill. 2d 18, 40.) Moreover, an identification of a defendant by a single witness is enough to convict if the witness saw the defendant under circumstances allowing for a positive identification. (Fields, 135 Ill. 2d at 40-41.) Finally, questions of witness credibility and the weight to be given testimony are for the jury (People v. Hister (1975), 60 Ill. 2d 567, 573), and a reviewing court will not substitute its judgment for that of the jury where the evidence is merely conflicting. People v. Akis (1976), 63 Ill. 2d 296, 298-99.

To be sure, the testimony in the present case is conflicting on a good many points, such as the number of shooters, the manner in which the shooters were dressed, the exact locations from which the shooters fired, and the activities of the car from which shots were fired shortly before the pedestrian shooters opened fire. However, we believe that the conflicting evidence was sufficient to convict. This case is similar to the Fields case, in which inconsistent testimony of gang members was enough to convict rival gang members of murder. (Fields, 135 Ill. 2d at 40-49.) As in this case, several of the witnesses in Fields delayed in telling the police what they knew about the crime. (Fields, 135 Ill. 2d at 41.) Also here, as in Fields, several witnesses gave what the defendants characterized as inherently improbable testimony and possessed various reasons to perjure themselves. Fields, 135 Ill. 2d at 43-46.

In this case, the jury was informed of all the factors bearing on the credibility of the State’s witnesses, and it chose to believe them anyway. We cannot say that the jury’s decision is “so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to the defendants’ guilt.” (Fields, 135 Ill. 2d at 49.) Finally, People v. Hister (1975), 60 Ill. 2d 567, cited by defendants, is not on point. In Hister the supreme court held that conflicting testimony was too inconsistent to uphold murder convictions. However, in that case the witnesses’ testimony revealed completely different scenarios as to how, where and under what circumstances the shooting occurred. (Hister, 60 Ill. 2d at 570-71.) In contrast, the witnesses in this case generally agreed that a small number of gunmen positioned themselves in the intersection and between some houses and fired at the crowd. Several witnesses identified defendants. We will not disturb the jury’s verdict.

ATTEMPT INSTRUCTION

Defendants argue that their attempt (murder) convictions cannot stand because the jury was not instructed that it had to find that defendants acted with specific intent to kill. The State responds that any error has been waived by defendants’ failure to object to the instruction at trial. Defendants counter this argument with the claim that the plain error exception to the general waiver rule applies here. The State then asserts that any error that occurred was harmless because defendants’ intent was not at issue and because the prosecutor informed the jury during closing argument that the offense of attempt (murder) required a finding of specific intent to kill.

At trial the jury was instructed as follows:

“A person commits the offense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.
The offense attempted need not have been committed.” Illinois Pattern Jury Instructions, Criminal, No. 6.05 (2d ed. 1981) (hereinafter IPI Criminal 2d).
“To sustain the charge of attempt, the State must prove the following propositions:
First: that the defendant, or one for whose conduct he is legally responsible, performed an act which constituted a substantial step toward the commission of the offense of murder; and
Second: that the defendant, or one for whose conduct he is legally responsible, did so with intent to commit the offense of murder.” IPI Criminal 2d No. 6.07.
“A person commits the offense of first degree murder when he kills an individual without lawful justification if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual or another.” IPI Criminal 2d No. 7.01A (Supp. 1989).
“To sustain the charge of first degree murder, the State must prove the following propositions:
First: that the defendant, or one for whose conduct he is legally responsible, performed the acts which caused the death of Dennis Evans; and
Second: that when the defendant, or one for whose conduct he is legally responsible, did so he knew that his acts created a strong probability of death or great bodily harm to Dennis Evans or another.” IPI Criminal 2d No. 7.02A (Supp. 1989).

It is now well settled that these instructions are erroneous because they do not particularly instruct the jury that it must find specific intent to kill in order to convict defendants of attempt (murder). (See People v. Trinkle (1977), 68 Ill. 2d 198; People v. Jones (1979), 81 Ill. 2d 1; People v. Deason (1991), 223 Ill. App. 3d 320.) Here, the jury could have convicted defendants of attempt (murder) if it found that defendants acted with knowledge that their acts created a strong probability of death or great bodily harm to the victims.

However, leaving aside the waiver issue, we find that the error was harmless under the circumstances of this case. Here, intent was not at issue (see Jones, 81 Ill. 2d at 9-10), as defendants raised alibi defenses. Moreover, that defendants possessed the specific intent to kill is evident from the fact that they fired automatic and semiautomatic weapons into a crowd of rival gang members with whom defendants’ gang was at “war.”

Our conclusion is supported by cases such as People v. Mendez (1991), 221 Ill. App. 3d 868, and People v. Smith (1984), 127 Ill. App. 3d 622. In Mendez, similar attempt (murder) instructions were given and the court found the error to be harmless since the evidence of the defendant’s intent to kill was clear. (Mendez, 221 Ill. App. 3d at 876-77.) The defendant there had fired a gun at a group of rival gang members. Likewise, in Smith, similarly incorrect attempt (murder) instructions were found not to present a sufficiently grave error to escape operation of the general rule that a failure to object to allegedly erroneous jury instructions waives the alleged error. (Smith, 127 Ill. App. 3d at 633-34.) The court found that the evidence was not closely balanced on the issue of the defendant’s state of mind when he attacked the attempt (murder) victim. (Smith, 127 Ill. App. 3d at 634.) In Smith, the defendant stabbed a presumed witness to the defendant’s previous murder with a butcher knife, causing three 6- to 10-inch cuts on the victim’s upper body and severing part of the victim’s finger.

This case, like Mendez and Smith, presents a scenario in which the conclusion that defendants acted with the intent to kill is compelled by the evidence. Defendants claim that, had they intended to kill their gang rivals, the carnage would have been much greater, given defendants’ use of automatic and semiautomatic weapons. We refuse to engage in such speculation. The error in the attempt (murder) instructions was harmless and defendants’ attempt (murder) convictions will stand.

CONSTRUCTIVE POSSESSION INSTRUCTION

Last, defendants contend that they were denied a fair trial by the trial court’s giving of the following constructive possession instruction:

“Possession may be actual or constructive. A person has actual possession when he has immediate and exclusive control over a thing. A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing either directly or through another person.” IPI Criminal 2d No. 4.16.

Defendants claim that the instruction was not needed since no possession charge was at issue and the State was not required to prove that Loera possessed the gun found in his home in order to use the gun as part of its case against Loera. Defendants accuse the State of requesting the instruction so that the jury would improperly infer that defendants, as well as Loera, constructively possessed the gun. The State argues that the charge was proper because the gun was found in a home shared by Loera and other members of his family and because the gun was admissible against all three defendants.

First, it is clear that the gun recovered from Loera’s house was admissible against all three defendants, not just Loera. In People v. Miscichowski (1986), 143 Ill. App. 3d 646, this court held: “Where there is sufficient evidence to establish that at least one weapon was used in the commission of the offense and that defendant participated in the offense, the weapon may be admitted even though the evidence does not show that defendant himself wielded or possessed it.” (143 Ill. App. 3d at 653.) The Miscichowski court rejected the defendant’s claim that a rifle was not admissible because it was connected only to his codefendant and because there was no evidence showing that the defendant had fired the shot that killed the decedent. The court noted that the evidence placed the defendant in the area of the shooting with a rifle at the time of the shooting. It also stated that it was not necessary to prove that the rifle in question was the one actually fired in order for it to be admissible. (143 Ill. App. 3d at 652.) As in Miscichowski, the gun recovered from Loera’s house was admissible against Torres and Carvajal because there was sufficient evidence that the gun was used in the crime and that Torres and Carvajal participated in the shooting.

Turning to the constructive possession instruction, we hold that giving the instruction created no error. “[A] jury in a criminal case may be instructed as to any theory of the case that may reasonably be inferred from the facts. [Citation.] The prosecution, as well as the defense, is entitled to appropriate instructions which present its theories of the case, if such theories are supported by the evidence.” (People v. Carlson (1992), 224 Ill. App. 3d 1034, 1043.) However, a trial court should not give instructions that do not accurately state the law, or that are confusing or misleading. (People v. Wendt (1989), 183 Ill. App. 3d 389, 398.) Rather, “[t]he sole function of instructions is to convey to the minds of the jury the correct principles of law applicable to the evidence submitted to it.” People v. Gambony (1948), 402 Ill. 74, 81-82.

Wben determining the propriety of a single instruction, all the instructions must be reviewed, and it is sufficient if the instructions as a whole fully and fairly announce the applicable law. (People v. Hartfield (1985), 137 Ill. App. 3d 679, 689.) Finally, “[t]he test of the correctness or propriety of instructions is not what meaning the ingenuity of counsel can attribute to them, but how and in what sense, under the evidence before them and considering the circumstances of the trial, ordinary men acting as jurors will understand the instructions.” People v. Haas (1990), 203 Ill. App. 3d 779, 796.

Here, although the constructive possession instruction might not have been essential to the State’s case, we do not believe it prejudiced defendants. The instruction certainly helped the jury connect the gun to Loera, which was important to the State’s case and which was supported by the evidence. In addition, the instruction could not have been used by the jury to find that Torres and Carvajal constructively possessed the gun unless there was evidence that Torres and Carvajal had power over Loera with which to exercise control over the gun through Loera. Although there was evidence that Loera, Torres and Carvajal all belonged to the Insane Deuces gang, there was no evidence that defendants occupied a higher rank than did Loera, as would give defendants power over him. We believe that the instructions, as a whole, did not confuse or mislead the jury, and we find no error created by the constructive possession instruction.

For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
    MIDLAND MANAGEMENT COMPANY, Plaintiff-Appellant, v. RONALD HELGASON, Defendant-Appellee.
    Second District
    No. 2—92—0331
    Opinion filed February 8,1993.

      Sanford Kahn, of Sanford Kahn, Ltd., of Chicago (Richard W. Christoff, of counsel), for appellant.
    Jerry Brask, of Prairie State Legal Services, Inc., of St. Charles (Sarah Megan, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Midland Management Company, appeals from an order in a forcible entry and detainer action which determined that defendant, Ronald Helgason, was prejudiced and his due process violated by plaintiff’s trial testimony. Plaintiff also appeals the ruling that plaintiff waived its right to forfeiture of the lease by its acceptance of housing assistance payments by HUD. We affirm.

On November 14, 1986, plaintiff as lessor and defendant as lessee entered into a written lease for a residential unit at Harbor Village Apartments in Aurora. Defendant’s tenancy was subsidized by the United States Department of Housing and Urban Development (HUD) under the United States Housing Act of 1937, section 8, as amended (42 U.S.C.A. §1437f (West Supp. 1992)) (the Act). According to the record, the purpose of the section 8 program is to provide safe, decent and sanitary housing for eligible low-income families. Under the program, the government fixes the contract rent to which the landlord is entitled for the subsidized unit. Of this amount, the tenants each pay a fixed percentage of their adjusted income as their portion of the monthly rent, and the remainder of the contract rent for each unit is paid by HUD directly to the landlord. The landlord enters into a lease with the tenant and also a housing assistance payment contract with HUD. Based on his low income, Mr. Helgason’s portion of the rent was $6 per month.

On April 3, 1991, Carol Meeks, plaintiff’s manager at Harbor Village, served defendant with a demand for reimbursement of damages. The demand said that as a result of water damage caused to defendant’s bathroom floor plaintiff incurred repair charges of $238, for which plaintiff demanded reimbursement from defendant within 30 days, under the lease. Defendant did not pay any sum pursuant to the plaintiff’s demand. On May 8, 1991, defendant tendered and plaintiff received his rental payment for May 1991 in the form of a money order for $6. On May 15, 1991, plaintiff served defendant the notice of termination of tenancy for failure to reimburse plaintiff for the damages set forth in the prior demand. Plaintiff returned defendant’s May 8, 1991, money order with the notice of termination. Plaintiff continued to accept HUD housing assistance payments through August 1991 for the apartment. When defendant failed to vacate the premises pursuant to the notice, plaintiff filed this forcible entry and detainer suit for possession of the premises on July 12, 1991.

The case proceeded to trial on August 23, 1991. Carol Meeks testified that she had been in defendant’s apartment twice and witnessed a large puddle of water on the bathroom floor on both occasions. She testified that the water appeared to be present because of the inadequacy of the defendant’s shower curtain, which had holes in it. She further stated that she had also seen a mop and water-soaked rags in defendant’s bathroom on both occasions when she observed the water puddles. Lisa Howard, plaintiff’s vice-president of property management, testified that the floor and subfloor in defendant’s bathroom had been replaced in 1989 and that the average life of this type of floor and subfloor is 15 years under normal conditions. She, too, stated that she had seen standing water on defendant’s bathroom floor on two occasions and that she had told defendant that he should replace his shower curtain. She also testified she believed that the water on defendant’s floor could only have been caused by water coming out of the tub through holes in the shower curtain. She testified she ordered defendant’s bathroom floor and subfloor to be replaced in March 1991, a job which cost plaintiff $238.

Defendant testified that he never caused his bathroom floor to have standing water on it. He stated he washed the floor approximately once per week with a mop he kept in the bathroom. He denied that there ever was standing water on the bathroom floor when he conducted conversations with Ms. Meeks or Ms. Howard. He testified that he was always cautious about water on the floor since the floor had been replaced in the past. He stated that his tub never overflowed, that there were three small holes in his shower curtain, and that the two holes above the tub rim were no larger than the width of a pencil.

After considering the evidence presented, the trial court found that the defendant was less credible than the witnesses for plaintiff and awarded possession, $18 in damages, and $83 in costs to plaintiff. Enforcement of the judgment for possession was stayed until September 13,1991. '

On September 20, 1991, defendant filed a motion to vacate judgment on several grounds. On October 24, 1991, the court took the motion under advisement. On February 20, 1992, the court entered an order granting defendant’s motion to vacate the judgment for plaintiff and entered judgment in favor of defendant, ruling that defendant was prejudiced by plaintiff’s trial testimony as to defendant’s damaged shower curtain. It also ruled that the HUD housing assistance payments constitute rent and that plaintiff’s acceptance of those constituted a waiver of defendant’s breach of the lease as a matter of law. Plaintiff timely filed its notice of appeal from the judgment.

The material facts and documentary evidence pertinent to the issues of due process and whether HUD payments constitute rent are not disputed in this case; thus, the manifest weight of the evidence standard is inappropriate to apply here. While a court of review ordinarily will not reverse a trial court’s judgment unless it finds that its decision was against the manifest weight of the evidence, where the material facts are not in dispute, that standard is inapplicable. (Merchants National Bank v. The Old Second National Bank (1987), 164 Ill. App. 3d 11, 13.) The questions of sufficiency of plaintiff’s termination notice and whether HUD housing payments constitute “rent” are questions of law and not subject to the manifest weight standard.

WAIVER OF RIGHT TO FORFEITURE

Plaintiff contends that the trial court correctly decided that plaintiff did not waive its right to forfeiture by its temporary retention of defendant’s money order and that the trial court erred in finding that plaintiff waived its right to forfeiture by its acceptance of housing assistance payments from HUD.

This court has found that forfeiture of leases is not favored, and the courts will readily adopt any circumstances that indicate waiver of forfeiture. (Steven W. Barrick & Associates v. Witz (1986), 147 Ill. App. 3d 615.) Any act which affirms the existence of a tenancy after a landlord had knowledge of a breach results in the landlord’s waiver of the right to forfeiture. (Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, 993.) The lessor’s acceptance of rent, with knowledge of the breach, is a well-established waiver of the right to forfeiture based on that breach. (Barrick, 147 Ill. App. 3d at 620; Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622; Okey, 96 Ill. App. 3d at 993.) In the present case, plaintiff knew of the breach by defendant on May 4, 1991, when the 30-day period for reimbursement expired. Therefore, any acceptance of rent by plaintiff with respect to defendant’s apartment, after plaintiff knew of the breach of the lease, would constitute a waiver of the right to forfeiture. The issue of forfeiture with respect to tenant’s payment and HUD’s payment will now be addressed individually.

WAIVER OF RIGHT TO FORFEITURE BY TEMPORARY RETENTION OF MONEY ORDER

Plaintiff argues that the trial court correctly found that its retention of defendant’s money order did not waive its right to forfeiture of defendant’s lease. Defendant argues that a money order is virtually cash and that acceptance thereof constituted waiver.

The trial court found that, although there was conflicting evidence as to the tendering of the money order to Midland on May 8, 1991, it was clear that the money order was returned to defendant May 15, 1991. It then found that, even laboring under the assumption that plaintiff received the money order on May 8, 1991, plaintiff’s retention of the money order for one week did not constitute an acceptance. We agree.

The retention of a draft can constitute acceptance. If a draft of a third party is held by a creditor and not returned to the debtor within a reasonable time, the creditor has accepted the draft, even though he has not deposited it. (Day-Luellwitz Lumber Co. v. Serrell (1913), 177 Ill. App. 30.) A money order is considered a third-party draft. Bank of Niles v. American State Bank (1973), 14 Ill. App. 3d 729, 732; Ill. Rev. Stat. 1991, ch. 17, par. 4703.

The court in Day-Luellwitz found that, when the facts of a case are undisputed, the issue of what is a “reasonable” time within which an act should have been done is a question of law. (Day-Luellwitz, 177 Ill. App. at 38.) The court held that where a creditor held a draft for 3V2 months without returning it, offering to return it, or notifying the debtor of an intention to not accept it, such draft was accepted. (Day-Luellwitz, 177 Ill. App. at 38-39.) Thus, 3V2 months is an unreasonable time. To hold a draft for such a long period of time goes against the general principles of negotiable instruments. (DayLuellwitz, 111 Ill. App. at 39.) A negotiable instrument is not meant to be hoarded, but rather negotiated or presented promptly. Day-Luellwitz, 177 Ill. App. at 39.

This court assumes the money order was received on May 8, 1991. On May 15, 1991, the money order was returned along with the delivery of the notice of termination. Thus, the money order was retained for at most one week. We determine that this short period of time does not constitute “unreasonable” time with respect to this issue. It is not against the general principles of negotiable instruments to hold a draft for one week. This does not constitute hoarding. Thus, the rental payment in the form of a money order was not accepted by being held for a week, and by this action plaintiff did not waive the right to forfeit the lease.

WAIVER OF RIGHT TO FORFEITURE BY ACCEPTANCE OF HUD PAYMENTS

Plaintiff argues that the trial court erred in finding plaintiff waived its right to forfeiture by its acceptance of housing assistance payments by HUD. It argues that such payments are not rent.

Here, the issue pivots on whether HUD housing assistance payments constitute rent. This district has not previously ruled on this issue. Plaintiff relies on East Lake Management & Development Corp. v. Irvin (1990), 195 Ill. App. 3d 196, where the Appellate Court, First District, held that the acceptance of HUD payments by a landlord after knowledge of a breach did not constitute waiver. (East Lake, 195 Ill. App. 3d at 202.) In its analysis of whether acceptance of housing assistance payments constitutes acceptance of rent, the East Lake court relied on two Ohio Appellate Court cases which it found persuasive. (National Corp. for Housing Partnerships v. Chapman (1984), 18 Ohio App. 3d 104, 481 N.E.2d 654; Sandefur Co. v. Jones (1982), 9 Ohio App. 3d 85, 458 N.E.2d 390.) After a careful analysis of the two Ohio cases, this court does not find either of them to be persuasive as to the disposition of this case.

In Chapman, tenant (Chapman) was given notice to vacate the premises when she was late in paying her rent. Landlord (Spring Hill) accepted two months’ worth of HUD housing assistance payments after notice was given. In its analysis, the Chapman court set out to determine whether payments from HUD had the same legal effect as if they were payments made by Chapman. The court first found that Spring Hill had a right to terminate the lease on the basis of nonpayment of rent. (Chapman, 18 Ohio App. 3d at 105, 481 N.E.2d at 656.) The court concluded that “a tenant may be evicted for failing to pay rent or a portion of the rent even though the landlord has received partial payment in the form of federal housing assistance.” (Chapman, 18 Ohio App. 3d at 106, 481 N.E.2d at 656.) The Chapman court, an Ohio court, then cites Jones as authority for that statement. (Jones, 9 Ohio App. 3d 85, 458 N.E.2d 390.) The reasons this court does not rely on the Jones reasoning is discussed below. Thus, Chapman is distinguishable on the ground that this court does not rely on the Jones analysis of this issue.

Furthermore, the Chapman court reasoned that “[t]he rent subsidy, while providing a personal benefit to a qualified tenant, *** is not personal in the sense that it is her money. The fact that Spring Hill continued to receive the rent from HUD for Chapman’s account does not entitle Chapman to avoid her contractual obligations.” (Chapman, 18 Ohio App. 3d at 106, 481 N.E.2d at 656.) Thus, the court reasoned that the HUD payment did not constitute rent because it was not personal in the sense of Chapman’s contractual obligations or Chapman’s own money she used for rent.

We disagree. A HUD housing assistance payment rate is established for a specific rental unit and one qualified tenant. The tenant’s rent is established specifically for that tenant at that income. The rent subsidy is established on an individual basis. Granted, the tenant never personally possesses the money provided by HUD, as HUD pays the landlord directly. Yet if the tenant’s income varies, then the tenant’s rent and the subsidy will vary. Thus, the benefit is personalized and should be treated as rent.

Jones is another section 8 housing assistance payment case which was relied upon by the East Lake court. (Sandefur Co. v. Jones (1982), 9 Ohio App. 3d 85, 458 N.E.2d 390.) The landlord, Sandefur, gave notice to quit or comply with alternatives such as payment of past-due rent to the tenant, Jones, on the basis of nonpayment of rent. Tenant failed to comply; therefore, landlord brought a forcible entry and detainer action. HUD continued to pay housing assistance payments to landlord. The issue in the case was not whether HUD payments constitute rent, but whether landlord complied with the Federal requirements for notice set out in the regulations which were incorporated by reference into the lease. The court held that notice was sufficient to satisfy the regulations, so landlord prevailed in evicting tenant. No waiver of forfeiture of the lease occurred. We are not persuaded by the Jones court’s reasoning since the Jones court did not directly analyze whether HUD payments constitute rent. Thus, we do not rely on Jones.

East Lake also cites Federal regulations which it believes support the notion that HUD payments do not constitute rent. When a subsidized unit becomes vacant following an owner’s eviction of an eligible tenant, HUD regulations provide the owner is entitled to receive “vacancy payments” for 60 days or more upon a showing that he is actively trying to fill the vacancy (24 C.F.R. §§880.611, 881.611 (1992)). The East Lake court postulated that the intention is to reserve the subsidized unit for a subsequent qualified low-income tenant. The East Lake court then reasoned that continued HUD payments under a landlord’s contract with HUD serve the same purpose. The court reasoned that both serve as incentive for landlord to participate in the section 8 low income housing program. This may be true, although this court takes the analysis a step further to support the assertion that HUD payments constitute rent. We believe the payments serve as a substitute for nonassisted tenant rent. If HUD did not continue to pay the landlord in the instances of eviction of low income tenants or in a case such as the present case, then the landlord would seek rent from a nonassisted tenant. Thus, the payments are a reasonable substitute for nonassisted tenants’ rent, and thus the payments constitute rent.

Federal law supports the notion that HUD housing assistance payments are rent. Under the United States Housing Act of 1937, a rent is fixed by the government for the subsidized unit. (42 U.S.C.A. §1437f(c)(l) (West Supp. 1992).) HUD determines the amount of rent the family is to pay based on a fixed percentage of the annual family income. (42 U.S.C.A. § 1437(c)(3) (West Supp. 1992).) HUD pays the landlord the difference between the fixed monthly rent and the rent the family is required to pay. (42 U.S.C.A. §1437f(c)(3) (West Supp. 1992).) The statute itself refers to the HUD payments as monthly assistance payments. 42 U.S.C.A. §1437f(cX3) (West Supp. 1992).

It is difficult to imagine what the assistance payments are if they are not rent. The government sets the monthly rent for the unit. The family is required to pay a percentage of its income as part of the rental payment. The remainder is provided by HUD. It is unlikely that Congress intended for the tenant portion of the rent to be considered rent and the HUD portion to be considered nonrent.

Furthermore, the Code of Federal Regulations indicates that the monthly payments by both HUD and the tenant are “rent” for section 8 housing. “The total amount received by the Owner for rent is called the Contract Rent.” (24 C.F.R. §880.101(c) (1992).) Moreover, the regulations define “contract rent” as “[t]he total amount of rent specified in the contract as payable by HUD and the tenant to the owner for an assisted unit.” (24 C.F.R. §880.201 (1992).) The regulations state that the rent includes the amounts “payable by HUD and the tenant.” It is clear, therefore, that under the Code of Federal Regulations HUD payments are rent.

There are indications in Federal case law dealing with section 8 issues that HUD assistance payments are rent. In its statement of facts, the court in Sheridan Square Partnership v. United States (D. Colo. 1991), 761 F. Supp. 738, 739, found that “[t]he bulk of the rent, however, is paid by HUD directly to the developer.” Another district court stated in its statement of facts that the payments are rent in the context of improper termination of section 8 tenancies. That court stated:

“The Section 8 private landlord receives numerous benefits from participating in the program. The monthly risk of not receiving rent from the tenant is reduced because the Housing Authority is paying the majority of the rent and the tenant is paying an amount within his means.” (Swann v. Gastonia Housing Authority (W.D.N.C. 1980), 502 F. Supp. 362, 365.)

In the context of this case, under the Federal statute, regulations, and case law, HUD monthly assistance payments are rent.

Because the lease incorporates HUD rules and regulations, the lease is subject to Federal regulations and statute. Statutes in force when a contract is made control the interpretation of that contract. (American Family Mutual Insurance Co. v. Baaske (1991), 213 Ill. App. 3d 683.) In Baaske, this court found that a statute in force when an insurance policy was issued controlled the manner in which disputes under that policy were resolved. (Baaske, 213 Ill. App. 3d at 688.) Likewise, in the present case, the lease contains language incorporating HUD rules and regulations. Thus, the statute and regulations promulgated by HUD control the interpretation of this lease. Since the statute and regulations indicate that HUD payments are rent, they prevail in the interpretation of the lease.

State trial courts of several jurisdictions have ruled that acceptance of HUD payments constitutes acceptance of rent and thus is a waiver of the right to forfeiture. Although such opinions have no precedential weight for this court, defendant cited several such opinions in his brief. See Royal American Management, Inc. v. Godfrey (Cty. Ct. 1985), 14 Fla. Supp. 2d 56; Greenwich Gardens Associates v. Pitt (1984), 126 Misc. 2d 947, 484 N.Y.S.2d 439; Central Brooklyn Urban Development Corp. v. Copeland (1984), 122 Misc. 2d 726, 471 N.Y.S.2d 989.

Plaintiff argues that even if HUD payments are considered rent, plaintiff’s acceptance of such payments does not constitute a waiver as a matter of law of defendant’s breach of the lease. Plaintiff argues that for waiver to exist, the landlord’s conduct in accepting rent from the tenant must reasonably mislead the tenant into believing that no forfeiture would be enforced and that therefore a waiver existed. He argues that, in this case, there is no way that the action of accepting HUD payments after notice of termination would reasonably mislead defendant into believing that no forfeiture would be enforced and that a waiver existed. Plaintiff cites several cases to substantiate this argument. Some of these cases may be distinguished from the present case on their facts. For instance, Shelby County Housing Authority v. Thornell (1986), 144 Ill. App. 3d 71, was a forcible entry and detainer action. In that case, defendant was served with a notice of termination of tenancy and a demand for rent. Subsequently, defendant was served with a “Landlord’s Five Day Notice” and a demand for rent. Following that, defendant received a notice to vacate. The defendant argued that he relied on the notice to vacate to reaffirm the tenancy such that landlord waived the notices to terminate contained in the two previous letters. The Shelby court found waiver did not exist. It reasoned that waiver exists where (1) there is some act by the landlord that recognizes the existence of the tenancy subsequent to the time he declared forfeiture, and (2) the tenant has been misled into believing a new date for termination has been set. Shelby, 144 Ill. App. 3d at 74.

In that case, and in several of the other cases cited by plaintiff, the action done by the landlord was merely to send out additional notices to vacate or terminate following the initial notice to terminate. The present case is distinguishable. In the present case, the plaintiff sent out one notice to terminate. He then accepted payment for most of the rent in the form of a housing assistance payment from HUD. This is a much more onerous action than the sending out of additional termination notices. It is understandable that the Shelby court did not find that waiver existed, as the first element of waiver was not present. The action of sending out a notice to vacate following a notice to terminate is not a strong indication that the landlord recognizes the existence of the tenancy subsequent to the time he declared forfeiture. In contrast, the action of accepting most of the rent for the unit in the form of assistance payments from HUD is an act by the landlord recognizing the existence of the tenancy subsequent to the time he declared forfeiture.

Furthermore, it is possible that defendant had been misled into believing a new date for termination had been set due to the plaintiff’s acceptance of HUD payments. The step of accepting HUD housing assistance payments is an action which may have been relied upon by defendant, since defendant’s lease states that HUD makes monthly payments on behalf of defendant. Defendant thus may have assumed that most of the rent would be paid on his behalf. Thus, since both elements of waiver as defined in Shelby were present, waiver existed in this case.

The East Lake court also addressed the issue of waiver. (East Lake, 195 Ill. App. 3d at 202.) The East Lake court concluded that because “vacancy payments” and rent subsidies induce landlords to participate in the section 8 program, waiver should not attach when subsidies are accepted. (East Lake, 195 Ill. App. 3d at 202.) There are policy arguments to support the two bodies of law under consideration here, the Federal regulations and statutes and the Illinois waiver rule. One could infer from the East Lake court’s opinion that the Federal regulations and statutes carried more weight in that case.

While it may be necessary to induce landlords to participate in the section 8 program, such inducements should not undermine the interests of the federally assisted tenants. One interest of tenants which is satisfied by the intent of the program is the establishment of a safe and affordable place to live for section 8 tenants. (42 U.S.C.A. §1437f(a) (West Supp. 1992).) A factor which is within the interest of the tenants is that in Illinois waiver of forfeiture is favored. (Steven W. Barrick & Associates v. Witz (1986), 147 Ill. App. 3d 615.) Given these interests of the section 8 tenants, it impugns the purposes of the section 8 program to relax principles of waiver based on a speculative inducement to private landlords.

Furthermore, public policy does not favor forfeitures, especially when the result is a windfall to section 8 landlords. It is against public policy to permit a landlord to forfeit a lease and still derive the financial benefits of that lease.

As regards inducements, it is the responsibility of Congress and HUD to provide appropriate inducements for landlords to participate in the section 8 program. As already indicated, Congress and HUD have provided inducements such as guaranteed rent and vacancy payments. There is no indication in the Act that State courts should provide further inducement by relaxing established principles of waiver law. The vacancy payments regulations referred to in East Lake have no application to the waiver analysis and do not suggest that State law waiver doctrine be modified. If Congress or HUD had intended that this regulation invalidate State law principles of waiver, it would have so stated. In the absence of such a statement, section 8 tenants should be entitled to the same principles of law guiding any other tenant’s rights in a forcible entry and detainer action. Thus, acceptance of housing assistance payments from HUD constitutes a waiver of forfeiture of the lease.

In conclusion, we determine that acceptance of HUD housing assistance payments after notice of termination constitutes acceptance of rent. The lessor’s acceptance of rent, with knowledge of the breach, is a well-established waiver of the right to forfeiture based on that breach. (Barrick, 147 Ill. App. 3d at 620; Okey, 96 Ill. App. 3d at 993.) We hold that the forfeiture of the lease was clearly waived by the acceptance of the June, July and August HUD payments after notice of termination. The February 20, 1992, order of the trial court of Kane County is affirmed with respect to this issue.

DUE PROCESS

Defendant contends that he was not rendered due process because the evidence presented at trial differed from the grounds for termination stated in the termination notice. The notice stated that the termination was based on his “material noncompliance with the lease contract for failure to reimburse the landlord for damages in accordance with paragraph 11 of the lease contract.” It stated that the damages resulted from his “letting the bathtub overflow thereby destroying the floor, subfloor, tile and cove [sic] base.” At trial, plaintiff did not introduce evidence as to the overflow of the bathtub, but introduced evidence as to the leaking of water onto the floor through holes in the shower curtain. Plaintiff contends that the grounds in both the notice of termination and at trial were the same: the termination was based on the “material noncompliance” with the lease by “failure to reimburse the landlord for damages.”

It is true that the notice states that “[tjhis termination is based upon [defendant’s] material noncompliance with the lease contract for failure to reimburse the landlord for damages.” Thus, what plaintiff argues is true to some degree. Yet, implicit in that charge of material noncompliance is the necessity to show defendant caused that damage through “carelessness, misuse, or neglect” as stated in paragraph 11 of the lease. Thus, in order to render due process to defendant it was necessary for plaintiff to indicate how the damage may have occurred. In this case, this court finds that the statement the damage was caused by letting the bathtub overflow was sufficient to indicate to defendant that evidence of carelessness or misuse of water on the bathroom floor would be presented at trial.

In Wilson, this issue was addressed. (Sandefur Management Co. v. Wilson (1985), 21 Ohio App. 3d 160, 486 N.E.2d 1267.) In that case, the landlord of a federally subsidized property served the tenant with a notice of termination of tenancy, informing tenant that she was in material noncompliance with the terms of the lease by failing to pay utilities and resulting in “burst pipes.” (Wilson, 21 Ohio App. 3d at 162-63, 486 N.E.2d at 1270.) At trial, while the basis for termination was still that tenant was in material noncompliance by failing to pay utilities, the landlord proceeded on the basis that the tenant might cause the pipes to burst. The tenant objected that the evidence at trial was different from that described in the notice. The court found that tenant was sufficiently apprised of her alleged violation and not prejudiced in her defense. Wilson, 21 Ohio App. 3d at 162-63, 486 N.E.2d at 1270.

Defendant relies on Escalera to state that notice must effectively inform the tenant so that he could rebut the evidence at trial. (Escalera v. New York City Housing Authority (2d Cir. 1970), 425 F.2d 853.) We distinguish Escalera. Although that is a public housing case, in that case notice preceded an administrative hearing, not a judicial hearing, and the tenant’s benefits had been terminated. In such a case, the requirements of notice may be different from those in a case which is coming before a judicial court and benefits have not been previously terminated. The Illinois Appellate Court has distinguished Escalera on the basis of the peculiar nature of the leases involved and the lack of remedy available to the tenant in the New York State courts. (Housing Authority v. Moore (1972), 5 Ill. App. 3d 883.) The court stated, “[w]e do not consider the holding in Escalara [sic] to be applicable to an action brought under the Illinois Forcible Entry and Detainer Act, in a case in which the benefits have not been previously terminated.” (Moore, 5 Ill. App. 3d at 889.) This court further notes that some of the protections called for in Escalera were subsequently-codified in New York statute, as noted in Vialez v. New York City Housing Authority (S.D.N.Y. 1991), 783 F. Supp. 109.

To address whether defendant was properly notified of his termination and the reasons for it, this court looks to the wording of the lease and the Federal regulations which prevail over termination of federally assisted tenancies. Paragraph 23(c) of the lease states that the notice must “state the grounds for termination with enough detail for the [t]enant to prepare a defense.” The Federal regulations, too, require that plaintiff serve its tenant a written notice of termination stating the grounds for the termination with enough specificity to enable the tenant to prepare a defense. 24 C.F.R. §247.4(a)(2) (1992).

We determine that defendant was sufficiently apprised that the cause of the damage was careless leakage of water over the bathroom floor. Whether the leakage was caused by overflowing of the tub, or through holes in the shower curtain, defendant should have known that the type of evidence he would have to defend against at trial would be evidence of carelessness or misuse of water on the bathroom floor.

Furthermore, defendant cannot claim prejudice because he introduced his own evidence regarding the shower curtain at trial. A party cannot complain that evidence which he put into the record is prejudicial to him. (Casson v. Nash (1978), 74 Ill. 2d 164, 172.) In this case, defendant himself introduced evidence as to the condition of the shower curtain. Thus, he cannot object to the prejudicial nature of that evidence.

Plaintiff argues that defendant waived his right to object to this evidence because an objection was not raised at trial. However, defendant argues that the issue was raised by the trial court on its own motion. This court finds that, while defendant did raise the issue of insufficient notice in his post-trial motion, it was in the context of the denial of defendant’s motion for a continuance. Thus, the trial court addressed a lack of due process brought about by the issue of insufficient notice on its own motion. A trial court may act on its own motion to correct errors at trial. (Freeman v. Chicago Transit Authority (1965), 33 Ill. 2d 103.) Thus, in this case, the trial court raised the issue of lack of due process in its opinion entered February 20, 1992. Despite the fact that this issue was raised by the trial court, this court does not agree with the trial court’s ruling. We determine that the notice was adequate to permit defendant to prepare a defense for trial.

Defendant puts forth a largely unsubstantiated argument that the violation was not a “substantial” violation of the lease and therefore plaintiff had insufficient cause to terminate defendant’s tenancy. Notwithstanding the difficulty a tenant in federally assisted housing may have in paying a demand for reimbursement as we have in this case, the defendant entered into the rental agreement knowingly. Paragraph 11 of the lease states in pertinent part:

“Whenever damage is caused by carelessness, misuse, or neglect on the part of the [tjenant, *** the [tjenant agrees to pay: the cost of all repairs and do so within 30 days after receipt of the [ljandlord’s demand.”

Thus, defendant should have been on notice that this was a substantial violation of the lease. We conclude that this constituted a “substantial” violation of the lease and that the termination of tenancy had proper grounds.

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

Affirmed.

INGLIS, P.J., and McLAREN, J., concur.


author: JUSTICE KNECHT

text:
    BOARD OF TRUSTEES OF COMMUNITY COLLEGE DISTRICT No. 502, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4—92—0082
    Opinion filed February 11,1993.

      Timothy A. Bridge, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago (Everett Nicholas, Jr., and John T. Taylor, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Cotton, Watt, Jones & King, of Chicago (Michael H. Slutsky, of counsel), for respondent College of Du Page Faculty Association.
   JUSTICE KNECHT

delivered the opinion of the court:

Petitioner Board of Trustees of Community College District No. 502 seeks direct administrative review of the opinion and order of the Illinois Educational Labor Relations Board (Board) dismissing the unfair labor practice charge filed against respondent College of Du Page Faculty Association, IEA-NEA (Association), in its entirety for failure to establish a prima facie violation of either section 14(b)(3) or (b)(6) of the Illinois Educational Labor Relations Act (Act) (Ill. Rev. Stat. 1991, ch. 48, pars. 1714(b)(3), (b)(6)). (Board of Trustees of Community College District No. 502, 8 Pub. Employee Rep. (Ill.) par. 1010, No. 91 — CB—0021—C (Illinois Educational Labor Relations Board, Dec. 27,1991).) We affirm the Board’s order.

The facts of the case are set forth in the Board’s order, and we therefore will recite only those facts necessary to the resolution of the issue presented. Petitioner filed an unfair labor practice charge against the Association, alleging it violated section 14(b)(3) of the Act by grieving and demanding to arbitrate a matter expressly excluded from review under the grievance-arbitration procedure contained in the collective-bargaining agreement. The complaint also alleged the Association violated section 14(b)(6) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 1714(b)(6)) by “refusing to comply with the provisions of a final and binding decision of the Faculty/Administration Review Board (FARE).”

The Executive Director of the Board dismissed the charge in its entirety for failure to establish a prima facie violation of either section 14(b)(3) or (b)(6) of the Act. (Board of Trustees of Community College District No. 502, 7 Pub. Employee Rep. (Ill.) par. 1090, No. 91 — CB—0021—C (Illinois Educational Labor Relations Board, Executive Director’s recommended decision and order, July 16, 1991).) Following the filing of exceptions, the Board affirmed the Executive Director’s dismissal of the section 14(b)(3) charge based on its previous holding in Alton Community Unit School District No. 11, 7 Pub. Employee Rep. (Ill.) par. 1013, No. 89 — CB—0007—S (Illinois Educational Labor Relations Board, Dec. 18, 1990) (hereinafter 7 Pub. Employee Rep. (Ill.) par. 1013).

In Alton, the Board reversed the position it had previously taken in Brookfield-LaGrange Park School District No. 95, 3 Pub. Employee Rep. (Ill.) par. 1117, Nos. 86 — CB—0019—C, 86 — CA—0112—C (Illinois Educational Labor Relations Board, Nov. 2, 1987) — i.e., that under certain circumstances an employee organization could violate section 14(b)(3) of the Act by improperly demanding arbitration — and held, based on its “administrative experience since Brookfield-LaGrange Park” (7 Pub. Employee Rep. (Ill.) par. 1013, at IX-66), an exclusive representative’s demand to arbitrate an inarbitrable matter would not be regarded as a violation of section 14(b)(3). The Board also affirmed the dismissal of the section 14(b)(6) charge, finding the FARE decision was not binding on the parties.

On appeal, petitioner argues Alton was wrongly decided as it contravenes existing case law vesting the Board with exclusive jurisdiction to resolve arbitrability disputes, impedes an employer’s ability to enforce negotiated waivers, insulates an exclusive representative from liability for arbitrating inarbitrable matters, and causes an employer to incur needless costs and expenses related to the arbitration. It further argues the Board erred in concluding the FARE decision was not a final and binding order.

As a general rule, courts will accord deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. (Central City Education Association v. Illinois Educational Labor Relations Board (1992), 149 Ill. 2d 496, 510, 599 N.E.2d 892, 898; City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345, 538 N.E.2d 1146, 1149.) An administrative agency’s interpretation is, however, not binding and will be rejected when it is erroneous as a matter of law. (Board of Education of Harrisburg Community Unit School District No. 3 v. Illinois Educational Labor Relations Board (1992), 227 Ill. App. 3d 208, 211, 591 N.E.2d 85, 87; Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 174, 528 N.E.2d 737, 740.) This court has further held considerable deference must be given to the Board because of its expertise in educational labor matters. (Decatur Federation of Teachers v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 190, 197, 556 N.E.2d 780, 784; Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 775, 536 N.E.2d 743, 746.) To do otherwise would transform appellate review into trial de novo. Such a result would substitute the court’s general knowledge for the expertise required of Board members by section 5 of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 1705). Decatur Board of Education, 180 Ill. App. 3d at 775, 536 N.E.2d at 746.

The conduct in the present case is the exact conduct which the Board in Alton held did not constitute a section 14(b)(3) violation. Whether an exclusive representative can violate section 14(b)(3) by demanding arbitration of an inarbitrable matter is a question of policy uniquely within the expertise of the Board. Based on its expertise and experience to date, it has concluded a section 14(b)(3) violation is not committed by a union’s demand to arbitrate an inarbitrable grievance. We find no reason to reverse the Board’s ruling, which represents a single change in policy particularly because it promotes arbitration and is within the realm of expertise of the Board. (See, e.g., N L R B v. Transportation Management Corp. (1983), 462 U.S. 393, 402-03, 76 L. Ed. 2d 667, 675-76, 103 S. Ct. 2469, 2474-75.) Similarly, we affirm the Board’s dismissal of the section 14(b)(6) charge.

For the foregoing reasons, the order of the Board is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY MURPHY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—2851
    Opinion filed December 30,1992.
    Rehearing denied March 9,1993.

      Rita A. Fry, Public Defender, of Chicago (Janet Stewart, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Veronica X. Calderon, and Michelle R. Martone, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

After a jury trial, defendant, Anthony Murphy, was convicted of murder and armed robbery. He received concurrent sentences of 55 years’ imprisonment for felony murder and 30 years’ imprisonment for armed robbery. On appeal, defendant asserts that (1) the State did not meet its burden of rebutting the presumption that conversations between him and his wife were privileged; (2) the trial court erred by allowing the State to improperly cross-examine a defense witness; (3) the State’s improper closing argument remarks denied him a fair trial; and (4) the 55-year sentence for murder was excessive. We affirm.

At issue is whether the admission of testimony of the defendant’s wife in violation of the statutory marital privilege was prejudicial error.

Prior to the trial, there was a motion to quash arrest and suppress evidence. During those proceedings, Detective James Butler testified that he was contacted by Coretta Murphy on January 18, 1988. She told him that she had information concerning a murder that had occurred in 1986 at 3:30 or 4 a.m. at 77th and Halsted Streets in a vacant lot. Ms. Murphy told Butler that defendant, who is her husband, and his co-worker, Boo, came to her home one night about 4 a.m. They were both covered with blood and were very nervous. When she asked what had happened, defendant answered that they had just killed a man.

After speaking with Ms. Murphy, Butler located the police reports for a homicide that had occurred at a vacant lot at 7726 South Halsted Street at 4:45 a.m. on March 3, 1986. The report indicated that there were wine bottles found at the scene; the motive appeared to be robbery; no money was found on the victim; no weapon was recovered; and the cause of death was multiple stab wounds and a slashed throat.

Through employment records at Catfish Digby’s Restaurant, Butler learned that Boo was Henry Chamblis. On April 7, 1988, Butler showed Ms. Murphy a photo array. She identified Chamblis as Boo. Fingerprints taken from wine bottles recovered from the scene were compared to those of defendant and Chamblis. Fingerprints belonging to Chamblis and Charles Jones, but not defendant, were found on the bottles.

On April 9, 1988, at 5:45 p.m., Butler arrested Chamblis. Initially, Chamblis denied any knowledge of the murder, but after Butler told him about his fingerprint being on the bottle, he named defendant as the killer. Later that evening, defendant was arrested at Catfish Digby’s.

During the hearing on the motion to suppress defendant’s statements, Butler testified that he advised defendant of his Miranda rights after arresting him on April 9, 1988, and again at the Area Two police station, where Butler put defendant into an interview room. Both times defendant stated that he understood his rights.

Butler asked defendant if he wanted to talk to him. After defendant said that he did, Butler had a half-hour conversation with defendant, who then spoke to Assistant State’s Attorney Edward McCarthy.

Assistant State’s Attorney McCarthy testified that he arrived at the Area Two police station around 11 p.m. on April 9, 1988. There, he spoke with Butler, Higgins, and Ms. Murphy. At 1:30 a.m., McCarthy spoke to defendant and read him his Miranda rights. After defendant agreed to talk with McCarthy about the investigation, he gave an oral statement and then a written statement. Later, a court-reported statement was taken from defendant.

The trial court denied the motion to suppress statements, finding that defendant voluntarily gave the statements after he was given his Miranda rights.

A pretrial motion in limine was made to bar the admission of any spousal conversation between defendant and his wife related to the pending charges. The trial court denied the motion as to those conversations that were in the presence of a third party.

Officer Marilyn Henderson testified that she responded to a call at 5 a.m. on March 3, 1986. When she arrived at 7726 South Halsted Street, she saw a man lying in the middle of a debris-filled vacant lot. The mud around the victim had been disturbed by footprints.

Officer Frank DeMarco testified that he went to the scene at 5:55 a.m. on March 3, 1986. In the vacant lot, he saw two wine bottles next to the victim. DeMarco dusted the bottles for fingerprints. The parties stipulated that the fingerprint examiner would testify that a fingerprint recovered from a bottle belonged to Chamblis.

Coretta Murphy, who married defendant on October 31, 1985, testified that on March 3, 1986, she lived at 7829 South Emerald Street with defendant and her three children. In the early morning, there was a loud knock on the door and the sound of keys turning. When Ms. Murphy opened the door, defendant and Chamblis, whom she knew only as Boo, came in. Both men had bloodstains on their clothes.

According to Ms. Murphy, defendant told her that he thought they had killed someone. When Ms. Murphy asked who the person was, defendant said he did not want to discuss it. Defendant and his wife then went into the kitchen while Boo stood in the living room near the front door. In the kitchen, defendant told Ms. Murphy that he thought he killed a man in a vacant lot near a liquor store at 77th and Halsted Streets, which was a block from their apartment. Defendant said that they attempted to rob the man but he resisted.

According to Ms. Murphy, defendant then showed her a folded hunting knife with a five- or six-inch blade. Defendant asked her to get rid of the knife, which was covered with blood and mud. She handed him some newspaper and told him to dispose of it himself. Defendant broke the knife, wrapped it in the newspaper, and threw it in a dumpster. Then, he changed his clothes and asked his wife to burn them. When she said she was not going to touch anything, defendant put his clothes in a brown plastic garbage bag. Months later, Ms. Murphy took the clothes to the cleaners.

After defendant changed his clothes, Ms. Murphy heard him tell Boo to leave and not to mention anything to anyone. Five to fifteen minutes later, defendant left without telling his wife where he was going.

Months later, defendant told his wife that there was a $5,000 reward for information leading to the conviction of anyone involved in the murder of Brawner, who was a popular entertainer. Defendant told Ms. Murphy and later his sister, “I hope you don’t try to turn me in to collect the money.” Ms. Murphy testified that she never made any effort to collect the reward and had no intentions of doing so.

On January 18, 1988, Ms. Murphy called the police to report a homicide. She went to the Area Two police station and spoke with Butler. She told Butler that she had information concerning a murder that took place in February or March of 1986 somewhere between 77th and 78th Streets on Halsted Street. She named defendant and Boo as the killers.

On February 24, 1988, Ms. Murphy again spoke with Butler at the police station. On April 7, 1988, Butler went to Ms. Murphy’s home with five photographs. From the photo array, Ms. Murphy identified Boo’s picture. At that time, she learned that Boo’s name was Henry Chamblis.

Dr. Timothy Chambliss, a forensic pathologist and a deputy medical examiner for Cook County, testified that he performed an autopsy on Brawner’s body. Brawner had suffered four stab wounds. All four stab wounds to the left chest perforated organs through the chest wall and the lungs. In Dr. Chambliss’ opinion, a four-, five- or six-inch knifeblade could produce these injuries. The cause of death was multiple stab and incision wounds.

At trial, the testimony of Detectives Butler and Higgins was substantially the same as it was during the motion to quash arrest.

Assistant State’s Attorney McCarthy testified about defendant’s court-reported statement. Defendant stated that he grabbed Brawner from behind and had him in a “Nelson.” Chamblis took the money out of Brawner’s pants’ pockets. Brawner then lifted defendant off his feet. Defendant rocked back on his feet and threw Brawner to the ground. Brawner got up and threw a bottle at defendant, but missed. Chamblis then fell down and Brawner took a poke at him, saying, “It ain’t over.”

Brawner then swung at defendant, but defendant ducked and pushed him. Defendant said it appeared that Brawner was looking for something with which to fight, but he did not actually see anything in Brawner’s hands. Defendant took out his knife, opened it, and ran into Brawner while holding the knife with both hands. He jabbed at Brawner several times as he tried to keep Brawner back. Defendant stated that Brawner was pulling him down by his coat collar. As Brawner pulled defendant down, defendant jabbed him with the knife. Defendant slipped on the mud and both men fell.

As Brawner lay on the ground bleeding, defendant picked up his bag and ran across the street. Chamblis followed, then got on a bus, telling defendant that he would see him at work.

In his own behalf, defendant testified that he is married to Coretta Murphy, and they have one child of their own. Defendant stated that he has a ninth-grade education and had never been previously convicted of any crime. Since 1981, he worked as a cook at Catfish Digby’s.

Defendant testified that he did not know where he was on the night of March 3, 1986, but that he was not with Chamblis. He knew Chamblis because they worked together, but they never socialized together. Defendant stated that he did not know, rob, stab, or kill Brawner, but the police made him admit to participating in the incident. Defendant denied telling his wife that he killed someone, ever going home with blood on his clothes, and ever destroying a knife with blood on it.

On cross-examination, defendant testified that his wife never saw Boo at their apartment because defendant never brought him home.

Defendant denied telling the police what happened in the vacant lot on March 3, 1986. Instead, defendant claims that the police fed him the information. Defendant stated that he could write, but could not read very well. He claimed he was not able to read the statement’s printed words aloud. He said that he learned to read in grammar school, but could not read certain things.

Defendant did admit, however, that he orally waived his rights before his court-reported statement. Defendant stated that he was not threatened or handcuffed in front of the court reporter. He also stated that the handcuffs were taken off earlier so that he could sign the written statement.

Willie Digby testified on defendant’s behalf. He stated that defendant was employed as a cook at one of his restaurants. Defendant began working for him in the early 1980’s and left in 1988. On cross-examination, Digby stated that defendant filled out an employment application form when he was hired. To Digby's knowledge, defendant could read and write English.

After deliberating, the jury found defendant guilty of murder and armed robbery. At the sentencing hearing, defendant was sentenced to 55 years’ imprisonment for felony murder concurrent with 30 years’ imprisonment for armed robbery.

On appeal, defendant asserts that the State did not meet its burden of rebutting the presumption that conversations between him and his wife were privileged. Defendant filed a motion in limine to prohibit the State from eliciting testimony from his wife about conversations between them during their marriage. After the State represented to the trial court that the conversations took place in the presence of a third person, the trial court denied the motion.

Defendant contends that the testimony was particularly prejudicial because there was no physical evidence linking him to the murder. Defendant had never been a suspect prior to the time Ms. Murphy went to the police with the information. Thus, defendant maintains that her testimony, which was crucial, contributed to his conviction.

The State responds that the trial court did not abuse its discretion when it denied the motion. To show that the trial court was cognizant of the nature of the conversation between defendant and his wife, the State quotes its offer of proof at the hearing on defendant’s motion in limine. In that offer of proof, the State told the trial judge:

“There are some statements made subsequently out of the presence of the third person. As we have indicated to the Court before, as an offer of proof, we did intend to elicit those statements, but we will abide by the Court’s ruling that those statements are not admissible at this point.”

In its ruling, the trial court stated:

“Under all the intended circumstances, there is a third party present. It appears that the prohibition against receiving that type of evidence does not apply ***. There was no intent of privacy. It was not a communication between husband and wife, since the third party was in fact present. I, therefore, find that that does not apply, and the State may use that. *** It is based on the representations that the witnesses would be so testifying *** that there was a third party present when said statement— the State intends to offer presently.”

In Illinois, a husband and wife cannot testify about confidential communications, admissions, and conversations that occur during marriage. (People v. Simpson (1977), 68 Ill. 2d 276, 279; People v. Burton (1972), 6 Ill. App. 3d 879; Ill. Rev. Stat. 1987, ch. 38, par. 155 — 1.) There is a presumption that interspousal communications are intended to be confidential. (People v. Sanders (1983), 99 Ill. 2d 262, 267.) If it appears from the circumstances that confidentiality was not intended, the communication will not be regarded as privileged. (Sanders, 99 Ill. 2d at 267.) Communications made in the presence and hearing of a third person are generally not considered to be confidential. Simpson, 68 Ill. 2d at 280.

An act, as well as a statement, can constitute communication. (Burton, 6 Ill. App. 3d at 887.) Depending on the nature of the act, it may or may not be confidential. Burton, 6 Ill. App. 3d at 887.

While any statement made in the presence of Boo does not come within the marital privilege, any confidential statements made by defendant to his wife while they were alone in the kitchen are privileged. At trial, Ms. Murphy testified that defendant told her in front of Boo that he thought they killed someone. When Ms. Murphy asked who the person was, defendant said he did not want to discuss it.

Defendant and his wife then went into the kitchen while Boo stood in the living room near the front door. In the kitchen, defendant told Ms. Murphy that he thought he killed a man in a vacant lot near a liquor store at 77th and Halsted Streets. Defendant said that they attempted to rob the man and he resisted.

It was improper for the trial court to allow testimony regarding any confidential communications between defendant and his wife made while they were alone in the kitchen. The communications in the kitchen were intended to be confidential and were therefore privileged. There was no evidence Boo was in the kitchen during this conversation. Consequently, the trial court abused its discretion in denying the motion in limine. People v. Williams (1990), 205 Ill. App. 3d 715, 724.

In contrast, the statements made in Boo’s presence and those regarding the reward money were not intended to be confidential because a third person was present. Since they are not privileged, there was no error in allowing those statements into evidence.

Generally, admission of evidence in violation of the marital privilege that contributes to a guilty verdict constitutes a denial of a fair trial and requires reversal. (People v. Muzard (1991), 210 Ill. App. 3d 200, 212.) Where the record shows, however, that the errors complained of did not reasonably affect the result of the trial, the judgment should be affirmed. Muzard, 210 Ill. App. 3d at 212.

Ms. Murphy’s statements regarding her confidential communications with defendant are harmless error. Without those statements, there was still evidence that he told her on March 3, 1986, that he thought that he and Boo had killed someone. She observed both men were nervous and covered with blood. Ms. Murphy saw defendant with a bloody and muddy knife, which he threw away. Defendant stated to both his wife and his sister that he hoped that they would not turn him in to the police for the reward. In addition, defendant made a statement admitting his guilt. Given this evidence, there was sufficient proof that defendant committed murder beyond a reasonable doubt. The trial court error did not reasonably affect the trial’s result.

Next, defendant waived his argument that the trial court erred by allowing the State to go beyond the scope of direct examination when it cross-examined Digby about defendant’s ability to read and write English. Defendant’s failure to raise the alleged error in his post-trial motion constitutes a waiver of that issue. People v. Enoch (1988), 122 Ill. 2d 176, 188.

Next, defendant asserts that he was denied a fair trial by the State’s improper closing argument remarks that there were no other suspects. The State argued that the case was not solved for almost two years, and only after defendant’s wife went to the police.

At the end of the State’s closing argument remarks, defendant moved for a mistrial based on those remarks. Although the trial judge denied the motion, he advised the jury that there were other suspects in the case. Defendant contends that the trial court’s advisement to the jury was not sufficient to cure the prejudice created by the State’s argument. In addition, defendant argues, the error was compounded because he was not allowed to present evidence that there were other suspects and that the case had been closed prior to defendant’s arrest.

Although admitting that an error occurred during the closing argument, the State asserts that it was cured by the trial court’s admonishment to the jury and was harmless in light of the overwhelming evidence of defendant’s guilt. We agree.

Although the State cannot argue facts not based on the evidence (People v. Smith (1990), 141 Ill. 2d 40, 60), those improper remarks will not merit reversal unless they result in substantial prejudice to the defendant, considering the context of the language used, its relationship to the evidence, and its effect on the defendant’s right to a fair and impartial trial. (Smith, 141 Ill. 2d at 60.) A mistrial should generally be declared only as the result of some occurrence at trial of such character and magnitude that the party seeking it is deprived of his right to a fair trial. People v. Redd (1990), 135 Ill. 2d 252, 323.

Finally, defendant asserts that his extended term sentence of 55 years’ imprisonment was excessive and improperly based on the statute in effect at the time of sentencing, not at the time of the offense. Defendant maintains that he was not advised of his right to elect to be sentenced under the former law. In 1986, when the murder occurred, the sentencing range for murder was 20 to 40 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1).) At the time of sentencing, the range for first degree murder was 20 to 60 years. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(1).

Defendant’s argument has no merit because the record clearly shows that defendant was in fact sentenced under the former law. Before trial, the trial court advised defendant that he would be sentenced under the former law, which carried a possible sentence of 20 to 40 years’ imprisonment. The trial court also informed defendant that under certain circumstances, such as felony murder, the death penalty or natural life in prison was a possible sentence.

After his convictions for murder and armed robbery, defendant waived a jury for the death penalty hearing. During the first phase of the death penalty hearing based on felony murder, the trial court found that defendant qualified for the death penalty because he was the perpetrator of the acts that caused Brawner’s death, which occurred during the course of an armed robbery in which defendant assisted by holding Brawner while Chamblis went through his pockets. In addition, the trial court stated, defendant was armed at the time of the offense.

During the second phase of the sentencing hearing, witnesses were presented and arguments in aggravation and mitigation were heard. During its argument, the State remarked that the murder conviction carried a regular term of 20 to 40 years’ imprisonment, and an extended term of 40 to 80 years’ imprisonment for exceptionally brutal and heinous behavior and/or felony murder.

The trial court sentenced defendant to 55 years’ imprisonment for the felony murder conviction, which was committed during an armed robbery, concurrent with 30 years’ imprisonment for the armed robbery conviction. In addition, the trial court stated that it considered the death penalty and natural life imprisonment, but found sufficient mitigating circumstances to preclude those sentences.

Based on the foregoing, the circuit court’s judgment is affirmed.

Affirmed.

R1ZZI and TULLY, JJ., concur.