author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALE WILLIAMS et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1—85—1964, 1—85—2180 cons.
    Opinion filed April 4, 1990.

      Donna Finch, of State Appellate Defender’s Office, of Chicago, for appellants.
    Cecil A. Partee, State’s Attorney, of Chicago (Kenneth T. McCurry, James Fitzgerald, and Laura M. Lambur, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Following a joint jury trial, defendants Mitchell Powers and Dale Williams were convicted of the murder and armed robbery of Darryl Gaston. Defendant Powers was sentenced to serve concurrent sentences of 40 years for murder and 30 years for armed robbery. Defendant Williams was sentenced to serve concurrent sentences of 30 years on each charge.

On appeal, defendant Powers argues that (1) the trial court committed reversible error when it denied his motion to sever and ruled that his codefendant’s defense was not antagonistic and (2) the trial court erred in denying his motion to quash arrest and suppress statements. Additionally, both defendants argue that (1) they were denied their sixth amendment right of confrontation when neither defendant testified and their interlocking statements were introduced at trial; (2) they were denied their right to a fair trial when the State elicited irrelevant testimony from the victim’s mother and attempted to shift the burden of proof in closing argument; (3) the trial court erred in excluding the testimony of a defense witness; and (4) the trial court abused its discretion in sentencing. We modify and affirm.

On August 19, 1983, at approximately 4 a.m., Darryl Gaston, a clerk at a Chicago Heights White Hen Pantry store, was robbed at gunpoint and shot three times. Gaston died as a result of his injuries. Two witnesses arrived at the store shortly after the shooting. The witnesses saw a man run around the side of the building as they parked their car. After they parked, they observed another man jump over the service counter and run from the store carrying a paper bag and a gun. Both witnesses viewed photographs, but were unable to positively identify the offenders. The witnesses tentatively identified one person, who was arrested, but later released when further investigation led the police to Powers and Williams.

At trial, Officer Ted Nagorski, an evidence technician, testified that when he arrived at the crime scene, he observed cigarette packages in disarray on the floor and counter. He further testified that he recovered latent fingerprints from the counter area, cash register, a plastic counter sign and a broom handle. Nagorski also recovered a shoe impression from the top of the counter.

The victim was found lying facedown in a pool of blood on the floor behind the service counter. Dr. Barry Lifschultz, a forensic pathologist employed by the Cook County medical examiner’s office, testified that his autopsy of the victim revealed gunshot wounds to the left chest, left abdomen and right back of the head. Dr. Lifschultz opined that the gunshot wounds caused Gaston’s death. The three bullets removed from the victim’s body during the autopsy were later determined to have been fired from a .22 caliber weapon.

Detective Brian Smith testified that on August 21, 1983, the owner of a Chicago Heights store gave him two checkbooks and a social security card bearing the name of Darryl Gaston which he found in the alley behind his store. He further testified that on August 25, he received information that a phone call made to the We Tip Witness Anonymous Hotline named Lavelle Williams and Michael Mitchell as possible suspects in the White Hen Pantry murder because they were overheard discussing the crime. Smith interviewed Lavelle and learned that Mitchell Powers told him that he had committed the crime. Following the interview, Smith told youth officer Gary Miller that Mitchell Powers was a possible suspect in the White Hen Pantry murder.

At the pretrial hearing on defendant Powers’ motion to quash arrest and suppress statements, the following evidence was adduced. On August 26, 1983, at approximately 7:20 p.m., Chicago Heights police officers Fiaoni and Crescenti responded to a call of a disturbance at 447 West Hickory Street. When they arrived, they learned from Boris Princeton that he had been beaten by four youths. Princeton led the police to the offenders and identified them. The officers arrested Darryl Williams, defendant Powers, his brother Michael Powers and Ramon Cardenas for the battery of Princeton.

Youth officer Gary Miller testified that he was contacted at home and informed that defendant Powers, a juvenile, had been brought into the station. Miller arrived at the station at approximately 8 p.m. At approximately 10 p.m., Miller contacted Detective Smith at home and informed him that defendant Powers had been taken into custody for battery. Smith arrived at the station at 10:30 p.m. and talked to Darryl Williams at approximately 11 p.m. Darryl Williams informed Smith that defendant Powers told him that he shot the White Hen Pantry clerk and that his brother, defendant Dale Williams, was his accomplice. Smith also interviewed Ramon Cardenas, who told him that he gave defendant Powers a gun for use in the robbery and that both defendants later reenacted the murder while the three were at defendant Williams’ home. Cardenas related that the defendants told him that they were going to rob a Dunkin Donuts, but decided on the White Hen Pantry when they saw a security camera at the other location. Cardenas also told Smith a detailed account of the robbery and shooting which the defendants had related to him. Cardenas’ account of the crime matched the evidence obtained from police investigation of the crime scene.

At approximately midnight, Smith interviewed defendant Powers, who orally admitted his participation in the robbery and murder of Gaston and named defendant Williams as his accomplice. Powers told Smith that he borrowed a .22 caliber revolver from Cardenas and gave Williams a hunting knife. He further stated that after they entered the White Hen Pantry, he grabbed the store clerk and took him to the rear of the store while Williams went behind the counter and attempted to open the cash register. When Williams failed to open the cash register, Powers brought the victim to the cash register and demanded that he open it. When the victim appeared to be stalling, Powers fired the gun to frighten him, but the bullet struck him in the abdomen. Powers then fired two more shots, striking the victim in the chest and head. Powers grabbed some cigarettes from the counter, removed the victim’s checkbooks from his pocket, jumped over the counter and ran from the store. Powers stated that after the robbery, he and Williams went to his home. At about 9 a.m. the following morning, both defendants went to Williams’ home, where they reenacted the shooting for Lavelle Williams and burned the victim’s driver’s license in the kitchen sink. Powers later refused to give a court-reported statement.

When Smith questioned Darryl Williams, Williams told Smith that his brother, defendant Dale Williams, was at home. Thereafter, Smith, Miller and four other officers arrested defendant Williams at his home at approximately 1:45 a.m. on August 27. Defendant Williams later gave a court-reported statement admitting his participation in the armed robbery and murder of Gaston and naming defendant Powers as his co-offender.

In his statement, Williams related that on the morning of August 19, 1983, he and defendant Powers went to the White Hen Pantry store in Chicago Heights. He stated that defendant Powers was armed with a .22 caliber gun which he got from Cardenas, while he had a knife which he got from Powers. He stated that after they entered the White Hen Pantry, Powers took the clerk to the back of the store while he attempted to open the cash register. Williams further stated that Powers shot the victim three times, once in the stomach, once in the chest and, after Gaston fell on the floor, Powers fired a third shot into the back of his head. Williams stated that after the vicr tim fell to the floor, he grabbed some socks and $35 and left the store. He stated that Powers returned the gun to Cardenas at a party the following night. Following the hearing, the trial court denied defendant Powers’ motion to quash arrest and suppress statements.

Prior to trial, both defendants made motions to sever. After argument, the court denied the motions and ruled that the jury would be instructed regarding the defendants’ interlocking statements so that they would not be denied a fair trial. Thereafter, defendant Powers made an amended motion to sever and further arguments were heard. Defendant Powers argued that his defense of alibi and defendant Williams’ defense of withdrawal were antagonistic. The court denied Powers’ amended motion to sever. Both defendants’ statements were introduced into evidence at trial, and the jury was instructed that each statement should only be used as evidence against the person who made it.

At trial, the victim’s mother testified regarding her son’s academic achievements, work habits and personality. Both defendants objected, and the trial court allowed the testimony to stand. The State also called fingerprint examiner David Grieve to testify. Grieve testified that defendant Powers’ fingerprint was found on one of the victim’s checkbooks. He also testified that defendant Williams’ fingerprints were found on the White Hen Pantry store counter and on a store counter sign.

Prior to the close of their case in chief, the State made a motion in limine to bar defense witness Dr. Ira Asher’s testimony. Defendants planned to call Dr. Asher to testify that he treated Ramon Cardenas for injuries he received while in police custody. After a hearing; the court granted the State’s motion in limine and barred Asher’s testimony.

Gerriata Warr testified on behalf of Dale Williams and related that on August 19, 1983, at approximately midnight, she and defendant Williams went to the Chicago Heights White Hen Pantry store to purchase aspirin. She stated that Williams touched both the counter and a sign while they were in the store. Ms. Warr testified that after they left the store, defendant Williams walked her home, they talked for a while and then went to Williams’ home. Neither defendant testified at trial. Following instructions, the jury retired to deliberate. Both defendants were convicted of murder and armed robbery.

During defendant Williams’ sentencing hearing, the State recommended that due to the wanton cruelty associated with the victim’s death, defendant should be sentenced to natural life, consecutive sentences or an extended term. Defendant Williams recommended that based on his age and lack of prior felony convictions, he should receive a minimum sentence. At defendant Powers’ sentencing hearing, the State recommended that due to the heinous nature of defendant’s murder of the victim, he should be sentenced to either natural life or consecutive sentences. Defendant Powers argued that his youth and lack of prior criminal history were indicative of his rehabilitative potential. The court sentenced defendant Williams to concurrent-terms of 30 years for each offense and defendant Powers to 40 years on the murder charge and 30 years on the armed robbery charge, to be served concurrently. This appeal followed..

Defendant Powers first argues that the trial court committed reversible error when it denied his motion .to sever and ruled that codefendant Williams’ defense was not antagonistic. We disagree.

The general rule is that defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.) A pretrial motion to sever must demonstrate how the defendant is going to be prejudiced by proceeding with a joint trial, and mere apprehensions of prejudice are not enough. (People v. Daugherty (1984), 102 Ill. 2d 533, 541, 468 N.E.2d 969, 972.) 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. (Daugherty, 102 Ill. 2d at 541.) The decision to grant a separate trial is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. (Lee, 87 Ill. 2d at 186.) Where the codefendants’ defenses are so antagonistic to each other that one of the defendants cannot receive a fair trial jointly with the other, severance is required. (People v. Bean (1985), 109 Ill. 2d 80, 93, 485 N.E.2d 349, 355.) However, actual hostility between the two defenses is required. (Bean, 109 Ill. 2d at 93.) Actual hostility has been found where the trial becomes more of a contest between the codefendants than the State and the defendants or where one defendant proclaims his innocence while pointing to his codefendant as the true perpetrator. People v. Byron (1987), 116 Ill. 2d 81, 92-93, 506 N.E.2d 1247, 1252; Bean, 109 Ill. 2d at 94-95.

In the present case, prior to trial, defendant Williams indicated that he intended to assert the defense of reasonable doubt and/ or withdrawal. Defendant Powers asserted that his defense would be alibi. Based on these proposed defenses, defendant Powers asserted in his pretrial motion for severance that these defenses were antagonistic and that the defendants should be granted separate trials. After argument, the court denied the motion and ruled that it would instruct the jury that each defendant’s statement could only be used as evidence against its maker. During the trial, both defendants essentially relied on the defense of reasonable doubt by attacking the credibility of the State’s witnesses and evidence and pointing out the discrepancies therein. At no time during the trial did the defendants become opponents or pass the buck to their codefendant while proclaiming their own innocence. Thus, the antagonism and resultant prejudice which defendant Powers alleged in his motion to sever never manifested itself at trial. We therefore conclude that the trial court’s finding that the defendants’ defenses were not antagonistic was not erroneous and, thus, the court did not abuse its discretion in denying defendant Powers’ motion to sever.

Defendant Powers next argues that the trial court erred in denying his motion to quash arrest and suppress statements. It is his position that when he was detained and questioned regarding the White Hen Pantry murder and armed robbery, following his arrest for battery, the police lacked probable cause to arrest him for those offenses. We disagree.

Probable cause to arrest exists where the police have knowledge of facts which would lead a reasonable man to believe that a crime has occurred and that it was committed by the defendant. (People v. Wright (1985), 111 Ill. 2d 128, 145, 490 N.E.2d 640, 646.) The existence of probable cause must be determined from the totality of the circumstances. (People v. Lekas (1987), 155 Ill. App. 3d 391, 410, 508 N.E.2d 221, 234.) Further, where a defendant is initially arrested on a charge, the police are not precluded from investigating other, unrelated charges involving the defendant. (People v. Evans (1988), 125 Ill. 2d 50, 72, 530 N.E.2d 1360, 1369.) A trial court’s determination as to whether probable cause to arrest exists will not be disturbed unless it is manifestly erroneous. Evans, 125 Ill. 2d at 71.

In the present case, the Chicago Heights police force was informed via an anonymous telephone tip that Michael Mitchell and Lavelle Williams were overheard discussing the White Hen Pantry robbery and murder. Following this tip, Detective Smith talked with Williams, who informed him that defendant Powers had admitted to him that he had robbed and shot Darryl Gaston. Williams’ description of the crime scene and of some of the evidence which defendant Powers destroyed in his presence matched the evidence that the police had regarding the actual scene. After receiving this information, Smith related it to youth officer Miller, and the two agreed to pursue an arrest warrant the following day. At that time, the police officers had probable cause to arrest defendant Powers for the murder and armed robbery of Darryl Gaston.

Defendant Powers was arrested on an unrelated battery charge the following day, and youth officer Miller was summoned to the police station because defendant was a juvenile. When Officer Miller discovered that Powers was also a suspect in the White Hen Pantry robbery and murder, he contacted Detective Smith, who was in charge of the murder investigation. Smith arrived at the police station and interviewed Darryl Williams and Ramon Cardenas, who both told him that defendant Powers had told them of his involvement in the White Hen Pantry robbery and murder. After Smith interviewed defendant Powers, Powers made an oral statement admitting his involvement, but refused to give a court-reported statement.

Defendant argues that the police detention following his arrest for battery was in fact a murder arrest which lacked probable cause. However, the police were not precluded from detaining and questioning Powers about the White Hen Pantry armed robbery and murder while he was under arrest for an unrelated charge and a key suspect in the murder. Further, the policé continued to gather information about the murder and armed robbery from Darryl Williams and Ramon Cardenas while defendant Powers was in custody. Under these circumstances, the police had probable cause to detain and later arrest Powers for the armed robbery and murder of Gaston. We therefore conclude that the trial court did not err in denying defendant Powers' motion to quash arrest and suppress statements.

Both defendants argue that they were denied their sixth amendment right to confrontation when neither defendant testified and their interlocking statements were introduced at trial. We disagree.

Where a nontestifying defendant's out-of-court - statements implicating his codefendant are introduced at their joint trial, the co-defendant’s sixth amendment right of confrontation may be violated even though the jury is instructed to only consider the statement as substantive evidence against its maker. (Bruton v. United States (1968), 391 U.S. 123, 126, 20 L. Ed. 2d 476, 479, 88 S. Ct. 1620, 1622.) In order for a codefendant’s pretrial statement to be admissible as substantive evidence against a defendant at trial, it must be supported by sufficient indicia of reliability to rebut the presumption that an accomplice’s confession that incriminates a codefendant is unreliable. Lee v. Illinois (1986), 476 U.S. 530, 543, 90 L. Ed. 2d 514, 527, 106 S. Ct. 2056, 2063.

Where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, the confrontation clause bars its admission at their joint trial even if the jury is instructed not to consider it against the defendant and even if the defendant’s own confession is admitted against him. (Cruz v. New York (1987), 481 U.S. 186, 193, 95 L. Ed. 2d 162, 171-72, 107 S. Ct. 1714, 1719.) However, although a codefendant’s interlocking confession incriminating the defendant may not be admitted at trial, the defendant’s own confession may be considered in assessing whether his codefendant’s statements are supported by sufficient indicia of reliability to be directly admissible against him (assuming the unavailability of the codefendant), despite the lack of opportunity for cross-examination, and may be considered on appeal in assessing whether any confrontation clause violation was harmless. (Cruz, 481 U.S. at 193-94, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.) Further, where codefendants’ pretrial statements interlock on some points, but diverge in many important respects, such as the roles played by the two defendants in the crimes for which they were charged, without an opportunity for cross-examination, the statements are presumptively unreliable and inadmissible as substantive evidence. People v. Mahaffey (1989), 128 Ill. 2d 388, 410-11, 539 N.E.2d 1172, 1182-83.

In the present case, the defendants’ statements were admitted at trial as substantive evidence against the defendant who made the statement. The statements were not used as substantive evidence of their co-offenders’ guilt, and the jury was so instructed. However, under Bruton the defendants’ sixth amendment right of confrontation may still have been violated. The U.S. Supreme Court decision in Cruz also prohibits the introduction of a nontestifying codefendant’s pretrial statement, even where the jury is given limiting instructions and the defendant’s own statement is introduced against him at trial. However, both decisions provide for an exception to inadmissibility where the statement is supported by sufficient indicia of reliability or the error caused by its introduction is harmless. Lee, 476 U.S. at 543, 90 L. Ed. 2d at 527, 106 S. Ct. at 2063; Cruz, 481 U.S. at 193-94, 95 L. Ed. 2d at 172,107 S. Ct. at 1719.

First, we will examine the defendants’ statements under the indicia of reliability test. Defendant Powers’ oral statement, which was introduced at trial through the testimony of Detective Smith, included the same details which defendant Williams admitted in his court-reported statement. Both defendants stated that Powers was armed with a .22 caliber weapon which he got from Cardenas, while Williams had a knife which he got from Powers. Both defendants stated that Powers took the clerk to the back of the store at gunpoint while Williams attempted to open the cash register. Both defendants stated that when Williams was unable to open the cash register, defendant Powers brought the store clerk to the front of the store and then shot the clerk three times: once in the stomach, once in the chest and once in the head. Powers stated that he removed the victim’s checkbooks from his pocket and some cigarettes from the counter, while Williams stated that he took $35 and some socks before leaving the store. In sum, the defendants’ statements do not diverge or contradict each other in any way. Because both defendants’ statements agree with respect to the roles they each played in the crimes for which they were charged and are identical in all material respects, we find that the interlocking nature of the defendants’ statements tends to rebut the presumption of unreliability. Mahaffey, 128 Ill. 2d at 410.

The defendants’ statements were further corroborated by independent evidence from the crime scene which demonstrated that (1) the victim was shot in the manner which the defendants described; (2) the body was found behind the service counter, near the cash register; (3) one of the victim’s checkbooks was found with defendant Powers’ fingerprint on it; (4) defendant Williams’ fingerprints were found on the store counter and sign; and (5) the police found cigarette packages in disarray on the floor and counter. Since a confession tending to demonstrate that the defendant committed the crime, in addition to proof of death caused by the criminal agency of another, is sufficient to justify a conviction, we find the defendants’ statements to be sufficiently corroborated. People v. Dodds (1989), 190 Ill. App. 3d 1083, 1096, 547 N.E.2d 523, 533.

The circumstances surrounding the confessions also tend to rebut the presumption that the defendants’ statements are unreliable. Both Powers and Williams gave statements soon after being questioned regarding their involvement in the murder and armed robbery. Although Powers was held in custody for four hours following his arrest for battery, he was not questioned regarding his involvement in the White Hen Pantry incident until midnight and he gave his oral statement shortly thereafter. Likewise, defendant Williams was arrested at approximately 1:45 a.m., and gave his court-reported statement at approximately 5:20 a.m. In addition, there is no evidence provided by either the defendants’ statements or otherwise that either defendant demonstrated a desire, motive or impulse to either mitigate the appearance of his own culpability by spreading the blame or overstate his codefendant’s involvement in order to retaliate. We therefore conclude that the circumstances surrounding the defendants’ confessions also tend to rebut the presumption that their statements are unreliable.

While we find the admission of the defendants’ interlocking pretrial statements in which they implicated each other, in a joint trial without opportunity for cross-examination, to have been error, after assessing the reliability of the statements and concluding that they are supported by sufficient indicia of reliability, we find the error to be harmless. We therefore conclude that the defendants were not denied their sixth amendment right of confrontation by the admission of their interlocking pretrial statements.

Defendants next argue that they were denied their right to a fair trial when the State elicited irrelevant testimony from the victim’s mother and attempted to shift the burden of proof during closing argument. We disagree.

Where testimony in a murder case respecting the fact that the deceased has left a family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury is instructed to disregard the evidence. (People v. Hope (1986), 116 Ill. 2d 265, 275, 508 N.E.2d 202, 206.) In determining whether reversal is required, several factors should be considered, such as: (1) the sufficiency of the evidence against the defendant; (2) the severity of the sentence imposed; (3) whether the evidence was presented in such a manner as to cause the jury to believe it to be material; and (4) whether the evidence was presented in an effort to relate it to defendant’s punishment. (People v. Falkner (1985), 131 Ill. App. 3d 706, 713-14, 475 N.E.2d 964, 969.) However, since murder victims often leave behind family members, every mention of a deceased’s family does not per se entitle the defendant to a new trial.

In certain instances, depending on how this evidence is introduced, such a statement can be harmless; this is particularly true when the death penalty is not imposed. (Hope, 116 Ill. 2d at 276.) In addition, the court should also consider the desirability of affirming the conviction of an obviously guilty defendant and weigh this factor against the danger of deteriorating our procedural safeguards by ignoring their breach. Falkner, 131 Ill. App. 3d at 714.

Defendants allege as error the admission of portions of the testimony of the victim’s mother, Mary Gaston. At trial, Ms. Gaston testified that in addition to his job at White Hen Pantry, her son also held two other part-time jobs. She further testified that he graduated first in his class in high school and was in his third year in college, where he was also first in his class. Ms. Gaston also testified that the last time she saw her son alive was when he dropped her off at the bus station before she left for vacation in Tulsa, Oklahoma. It is the defendants’ contention that this testimony was offered by the State to arouse the sympathies and passions of the jury and that its admission resulted in substantial prejudice to defendants.

After reviewing the applicable factors as they apply to the instant case, we conclude that the introduction of evidence that the deceased worked several part-time jobs, was academically successful, and helpful to his mother was not reversible error. Defendants have not challenged the sufficiency of the evidence against them. There is ample evidence in the record to support the defendants’ convictions for murder and armed robbery. Further, the evidence was introduced through a series of questions and only tangentially referred to in closing argument. Thus, it cannot be said that the evidence was presented in such a manner as to cause the jury to believe it to be material, or that it was presented in an effort to relate it to the defendants’ punishment. Accordingly, the introduction of this evidence was not reversible error.

Defendants further argue that their right to a fair trial was denied when the prosecution attempted to shift the burden of proof in closing argument. We disagree.

Where a prosecutor’s statements in summation are not relevant to the defendant’s guilt or innocence and can only serve to inflame the jury, the statements constitute error. (People v. Caballero (1989), 126 Ill. 2d 248, 533 N.E.2d 1089, 1097.) However, comments on the evidence and the strength of the State’s case are permissible. People v. Adams (1985), 109 Ill. 2d 102,118, 485 N.E.2d 339, 344.

Defendants complain that the prosecutor’s comment that the evidence of the defendants’ guilt was overwhelming and that their defense counsel had not argued that they were innocent was prejudicial error although the trial court sustained their objection to the statements. It is their position that these statements were an attempt on the part of the prosecution to shift the burden of proof to the defendants and that it denied them their right to a fair trial. After an examination of the record as a whole, we find that while the prosecutor’s statement regarding defense counsel’s failure to proclaim the defendants’ innocence was clearly improper, any error caused was cured by the trial court’s sustaining of the defendants’ objection and its subsequent instructions to the jury regarding the burden of proof. We therefore conclude that the defendants were not denied their right to a fair trial.

Defendants next argue that the trial court erred in excluding the testimony of a defense witness. We disagree. The trial court is given broad discretion in ruling on issues of relevancy and materiality and its decision will not be reversed absent an abuse of discretion. (People v. Anderson (1985), 134 Ill. App. 3d 80, 479 N.E.2d 1164, 1177.) Prior to trial, the court granted the State’s motion to bar the testimony of defense witness Dr. Ira Asher because it found that the proposed testimony regarding his treatment of Ramon Cardenas for injuries allegedly sustained in police custody was not relevant to the trial. After viewing the record, we find it to be devoid of any evidence of the defendants having been coerced to confess due to knowledge of Cardenas’ alleged beating or of evidence that either defendant saw or had any contact with Cardenas while they were in police custody. Under these circumstances, we find that the trial court did not err in granting the State’s motion in limine to bar the testimony of Dr. Asher.

Defendants finally argue that the trial court abused its discretion in sentencing. We agree. A sentence of not less than 20 years and not more than 40 years may be imposed for murder, while a sentence of not less than 6 years and not more than 30 years may be imposed for the offense of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, pars. 1005—8—1(a)(2)(a), (a)(3).) Pursuant to Supreme Court Rule 615(b)(4), we have the discretionary power to reduce an excessive sentence, although a trial court’s sentencing decision will not be disturbed absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883; 107 Ill. 2d R. 615(b)(4).) The Illinois Constitution requires that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) Thus, an abuse of discretion may be found even where the sentence is within statutory limitations, if it is greatly at variance with the purpose and spirit of the law. People v. Steffens (1985), 131 Ill. App. 3d 141, 151, 475 N.E.2d 606, 615.

Defendants argue that the trial court abused its discretion by not taking into consideration their ages, lack of substantial criminal histories and rehabilitative potential. We agree. The record reveals that when the offenses were committed, defendant Williams was a 17-year-old high school student with no prior felony convictions whose only prior arrests had been for misdemeanor shoplifting. Williams’ presentence report further revealed that (1) he was one of seven children raised by his widowed mother and grandparents; (2) he was pursuing his GED certificate while in jail; (3) he participated in sports activities while attending high school and received an award for most improved student; and (4) he expressed a desire to return to school and become an auto mechanic. In short, the record reveals a young man with substantial rehabilitative potential.

In addition, an examination of the nature and circumstances of the offense as well as the history and character of the defendant are governing factors. (People v. Gibbs (1977), 49 Ill. App. 3d 644, 649, 364 N.E.2d 491, 494.) With respect to the nature and circumstances of the particular offense, we note that while defendant Williams was found legally accountable for the acts of his co-offender, the evidence demonstrated that he did not fire the weapon which resulted in the victim’s death. In light of the circumstances surrounding the offense and Williams’ participation as an accomplice, we believe that the defendant’s rehabilitative potential was not given sufficient consideration. We therefore find the trial court’s sentence of 30 years for murder and 30 years for armed robbery to be excessive. Accordingly, under the authority of Supreme Court Rule 615(b)(4), we reduce defendant Williams’ sentence for murder and armed robbery to 20 years on each count to be served concurrently.

As to defendant Powers, the record reveals that at the time the offenses were committed he was a 15-year-old high school student who lived at home with his mother and two other siblings and was active in school track and field sports activities. Powers had no prior criminal history other than the juvenile arrest for battery which occurred on the date of his murder and armed robbery arrest. Although the evidence demonstrated that Powers fired the weapon which resulted in the victim’s death, his statement indicates that he initially fired the gun in order to “scare” the victim, but instead shot him. In light of these circumstances and Powers’ youth and lack of prior criminal history, we find that the trial court failed to give proper consideration to his rehabilitative potential and that the sentence of 40 years for the offense of murder is excessive. Accordingly, pursuant to Supreme Court Rule 615(b)(4), we reduce defendant Powers’ sentence for murder to 30 years to be served concurrently with his 30-year armed robbery sentence.

Accordingly, the judgment of the circuit court of Cook County is affirmed as modified.

Affirmed as modified.

CERDA, P.J., and FREEMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
      In re ESTELLE S. ZARZYCKI, a Disabled Person.
    First District (5th Division)
    No. 1—88—2775
    Opinion filed April 6, 1990.
    Rehearing denied August 23, 1990.

      Steven J. Rosenberg, P.C., of Chicago, for appellant.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Richard E Zehnle, of counsel), for appellee Richard C. Zarzycki.
    Wildman, Harrold, Allen & Dixon, of Chicago (Joseph P. Switzer, of counsel), for appellee Shirley M. Hunter.
   JUSTICE LORENZ

delivered the opinion of the court:

This is an appeal from the award of attorney fees and costs, pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-611).

We affirm.

Alice Quail (Alice), Richard Zarzycki (Richard), and.Shirley Hunter (Shirley) are the children of Estelle S. Zarzycki (Zarzycki).

On September 9, 1983, at Alice’s urgings, Zarzycki executed a trust and pour-over will. Chicago Title & Trust Company (Chicago Title) was named trustee in the trust and executor of the will.

Thirteen days later, on September 22, 1983, Zarzycki revoked the September 9, 1983, trust agreement and will and executed, instead, a self-declaration of trust and new pour-over will. She also executed, on September 24, 1983, a document giving Richard durable power of attorney. Richard and Shirley (together, respondents) were named successor co-trustees of the new trust and executors of the new will.

On January 27, 1986, Alice filed an action in the probate division of the circuit court to appoint a guardian for Zarzycki because Zarzycki suffered from Alzheimer’s disease. Following a hearing, on October 6, 1986, the circuit court appointed Richard plenary guardian of Zarzycki’s estate and Alice guardian of her person.

On September 9, 1987, Alice filed a petition to set aside the September 22, 1983, trust and power of attorney, alleging Zarzycki was incompetent by reason of Alzheimer’s disease and was induced by respondents to execute the documents.

Trial on the petition commenced in March 1988. At the conclusion of Alice’s case in chief, respondents moved for, and were granted, a directed verdict.

Subsequently, respondents moved for sanctions against Alice pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611) and were awarded $16,988.60 for attorney fees and costs. The record indicates the trial judge based the award of sanctions on the determination that no evidence was presented that Zarzycki was mentally incapable of executing the September 22, 1983, trust and the power of attorney, or that she was induced to do so.

This appeal followed.

Opinion

Under the operative language of section 2 — 611, an attorney’s signature on a pleading “constitutes a certificate by him that he has read the pleading *** [and] to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose[.]” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

We note the contentions raised by Alice on appeal relate to the “well grounded in fact and is warranted by existing law” clause of section 2 — 611. Essentially, Alice argues the trial judge awarded sanctions as punishment for Alice’s, failure to present sufficient evidence to persuade the court. Alice concedes she presented no direct evidence at trial of Zarzycki’s mental condition at the time the second trust and power of attorney were executed. However, Alice argues evidence in the record of other events, near in time to execution of the documents, indicated Zarzycki lacked the requisite mental capacity. Specifically, Alice notes testimony, at trial, of Dr. Edward John Herba and the testimony of Dr. Steven Alan Berman, during the 1986 guardianship proceeding. Alice also points to a letter dated May 13, 1988, from Dr. Bruce Naughton, which was not part of the evidence presented at trial. Alice also argues Zarzycki executed the power of attorney two days after the trust was executed, apparently suggesting that act evinces respondents’ own concern for Zarzycki’s mental condition. Finally, Alice argues the trial judge, himself, precluded evidence of the ultimate fact issue by precluding Alice from testifying as to her opinion of Zarzycki’s mental condition.

In Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595, the appellate court, in a detailed discussion, set out considerations underlying imposition of sanctions relative to whether pleadings are “well grounded in fact,” citing comments concerning Rule 11 of the Federal Rules of Civil Procedure, the counterpart of section 2 — 611. In explaining what is required by the obligation of reasonable inquiry into the facts to support a legal claim or defense, the court noted the following observation:

“ ‘If the rule is to have meaning, those facts must consist of admissible evidence or at least be calculated to lead to such evidence. They need not be undisputed or indisputable but they must be sufficiently substantial to support a reasonable belief in the existence of a factual basis for the paper.’ ” (Anderson, 177 Ill. App. 3d at 624, 532 N.E.2d at 601, quoting Schwarzer, Sanctions Under the New Federal Rule 11 — A Closer Look, 104 F.R.D. 181, 186-87 (1985).)

We note that once a trial judge has made a determination that sanctions are proper, courts of review are constrained to affirm that determination absent a showing that the trial judge abused his discretion. Anderson, 177 Ill. App. 3d 615, 532 N.E.2d 595.

After examining the record and reviewing Alice’s contentions on appeal, we cannot conclude imposition of sanctions constituted an abuse of discretion.

At trial, Alice stated she arranged for Zarzycki to execute the initial trust with Chicago Title as trustee because Zarzycki “did not want any of her children to be trustees.” However, two days after establishing the trust, Zarzycki indicated she was upset by the arrangement because she did not have control of her money. The second trust was established thereafter.

Alice admitted that in August 1983, Shirley had planned to travel to Chicago from Arizona to accompany Alice in arranging an estate plan. Alice admitted, however, she tried to have Zarzycki execute a plan before Shirley arrived. Alice also admitted that her discussions with Zarzycki in 1983 regarding an estate plan were done deliberately without Richard’s knowledge. Alice further acknowledged that on September 9, 1983, without telling Richard and against Shirley’s wishes, she had Zarzycki execute the plan. Alice admitted she did not tell Zarzycki Richard had not been informed and never informed Raymond Groble, the attorney who assisted in the execution of both trusts, that Richard was not told of her efforts to set up the plan or of Shirley's objection. After the plan had been executed, Shirley had asked Alice to return to Groble’s office to execute another estate plan, but Alice had refused. Alice also declined Groble’s request to be present at his office when the second plan was discussed. Last, Alice admitted she did not want Richard to be the trustee of Zarzycki’s trust.

Regarding indication of Zarzycki’s mental condition, Alice stated that Zarzycki had renewed her driver’s license in 1983 and 1985, and that, in 1984, Alice and her husband had given Zarzycki a car. Further, in 1983, Zarzycki sold a building she owned and, in 1984, Zarzycki had asked Alice to repay a personal loan given in 1980.

Dr. Edward John Herba, a neurologist, testified that on July 7, 1983, he examined Zarzycki at Presbyterian-St. Luke’s Hospital, where Zarzycki was hospitalized after falling from a ladder. Based on his examination and Zarzycki’s patient history, which indicated Zarzycki had experienced an “episode” of confusion approximately one month prior to her admission into the hospital, he believed Zarzycki might have had a “paroxysmal central nervous system disorder.” Herba explained that disorder as “an episodic sudden onset period where there is compromise of the central nervous system.” Herba testified he also believed Zarzycki might have “had a seizure disorder to account for the paroxysmal condition” or “a circulatory deficit, which is sometimes aecompanie[d] by paroxysmal disorders.”

On cross-examination, Herba testified that Zarzycki’s patient history disclosed that, two years prior to admission, Zarzycki received medication for a “left carotid bruise.” From then until she suffered the episode of confusion, Zarzycki’s neurological condition was normal. The history also reported that, upon admission at the hospital, Zarzycki was alert, knew what time it was, knew where she was, knew who she was, and her behavior was otherwise appropriate. Herba testified he found Zarzycki to be alert and of appropriate orientation. Herba also testified Zarzycki signed a consent form to allow a “carotid angiogram procedure” after Zarzycki had been informed of attendant complications. Herba admitted he had no opinion as to what Zarzycki’s condition might have been in September 1983.

Dr. Steven Alan Berman, another neurologist, testified during the 1986 guardianship proceeding that he examined Zarzycki on June 4, 1986. Based on that examination, as well as Zarzycki’s prior patient history, he reached a conclusion that Zarzycki probably suffered from Alzheimer’s disease. However, Berman testified that, in his opinion, Zarzycki, at that time, was “partially capable” of making personal and financial decisions and was able to form “broad preferences as to how she wish[ed] to conduct her life.” Berman admitted he could not say that “three years before[,] [Zarzycki] would be incapable of doing anything for herself.”

The above evidence does not support Alice’s argument that the petition was well grounded in fact. As conceded, no direct evidence was presented to establish Zarzycki’s mental state on September 9, 1983. Further, no basis exists in the record to infer from circumstantial evidence presented that the petition’s allegations, in that respect, were well grounded in fact. Neither Herba nor Berman stated any conclusion about Zarzycki’s mental condition as of September 1983. Alice’s own testimony similarly failed in that respect. More significantly, Alice’s testimony is indicative of Alice’s personal displeasure in Richard’s involvement in Zarzycki’s financial affairs, rather than of concern regarding validity of the second trust and power of attorney. In fact, Alice admitted that, only 13 days prior to execution of the trust, she, herself, had arranged for Zarzycki to execute a trust and pour-over will without Richard’s knowledge and against Shirley’s wishes.

Nor are we persuaded by the other contentions raised by Alice regarding the May 13, 1988, letter of Dr. Bruce Naughton, the trial judge’s preclusion of Alice’s opinion testimony, or the fact that the power of attorney was executed two days following creation of the self-directed trust.

As to the letter, Alice concedes it was not evidence presented at trial. However, even considering its contents as such, the letter merely cites the “continuing decline” of Zarzycki’s mental state “for at least five years,” and, at best, is no more helpful to Alice than the testimony of Herba and Berman, above.

We find Alice’s argument regarding preclusion of opportunity to testify concerning her opinion of Zarzycki’s mental condition irrelevant regardless of whether preclusion of that testimony was legally proper. The allegations of the petition itself indicate what Alice’s opinion was. Here, precluding opportunity to state the obvious can provide little foundation to assert the petition’s allegations were well grounded in fact when, with opportunity at trial to establish such facts directly or circumstantially, Alice failed to do so.

We consider Alice’s argument pertaining to the motive behind execution of the power of attorney two days after creation of the second trust mere speculation.

Finally, we note no evidence in the record exists respecting exercise of undue influence on the part of respondents.

Therefore, while we understand section 2 — 611 is not intended to provide means to penalize unsuccessful litigants (Prevender v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374), where, as here, the record contains no basis to conclude the trial judge abused his discretion in awarding sanctions, we must affirm.

Affirmed.

MURRAY and GORDON, JJ., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    FORD MOTOR CREDIT COMPANY, Plaintiff, v. JUAN MANZO, Defendant and Counterplaintiff-Appellee (Safeway Insurance Company, Defendant and Counterdefendant-Appellant).
    First District (6th Division)
    No. 1—88—3275
    Opinion filed April 6, 1990.

      Parillo, Weiss & Moss, of Chicago (Keely Truax, of counsel), for appellant.
    Michael J. Dudek, of Chicago, for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

This is an appeal seeking vacation or reversal with or without remand of certain post-judgment orders entered by the trial judge on March 4, March 8, April 13, May 10, and May 20, 1988, and the orders entered August 19, 1988, and October 6, 1988, by Judge McCormick.

On November 16, 1979, Juan Manzo (Manzo) purchased a new 1980 Ford Super Cab pickup truck from a Ford dealer. The total purchase price was $11,463.05, paid by trade-in of Manzo’s 1979 Ford Bronco and a $1,455 cash down payment with the balance of the price ($9,634.96) financed through Ford Motor Credit Company (Ford), the plaintiff. Part 16 of the contract provides in part that the purchaser “shall not remove the Property from the country of his residence without the written permission of Seller.” Manzo requested permission to take the truck on a visit to see his family in Mexico for Christmas, but permission was denied by Ford. Manzo left the truck in Chicago, in the care of his wife, and on February 13, 1980, the truck was stolen. At the time the truck was stolen, the mileage registered was approximately 400 miles. When the truck was later recovered it had been burned and was determined to be a total loss.

Safeway had issued automobile insurance to Manzo on the Bronco he traded in as part of the purchase price. The policy specified that it would cover any vehicle purchased to replace the vehicle named in the policy. Safeway did not dispute coverage on this vehicle nor that its policy included Ford as an additional insured. Upon proof of the loss, on February 23, 1980, Safeway offered Manzo $6,750 as a cash settlement for the destroyed Ford truck. Manzo refused to accept this amount. The record contains no information about the specifics of these negotiations with Manzo. The record discloses that Safeway then began to negotiate directly with Ford. Ford agreed to accept $6,750 in settlement of its claim on May 28, 1980. The settlement was not completed because Manzo would not agree to the amount offered by Safeway.

Ford filed suit against Manzo on December 11, 1980, alleging he was in default under his purchase contract and against Safeway because it was liable under the insurance contract to pay for the destroyed truck. Manzo filed a counterclaim against Safeway on the grounds that the settlement offered was too low and sought recovery of the price of the truck under the terms of the insurance policy. Manzo filed a counterclaim against Ford, subsequently amended, alleging that Ford had violated his civil rights by refusing permission to take the truck to Mexico and that as a result the truck was stolen and destroyed. The case went to trial on Ford’s complaint, on Manzo’s ninth amended counterclaim filed December 8, 1986, and on the respective responses to these pleadings.

The case was assigned to Judge Lipnick for immediate jury trial on July 20, 1987. At the close of all evidence on July 28, the trial judge directed a verdict in favor of plaintiff Ford against defendant Manzo and instructed the jury to find in favor of Ford and to assess damages in the amount of $9,157.81 plus expenses as provided “in the contract” plus costs and charges expended. The court also entered judgment in favor of Ford as counterdefendant and against Manzo as counterplaintiff on the countercomplaint.

The jury found in favor of plaintiff Ford against defendant Safeway on the complaint assessing damages in the sum of $9,157. The jury found in favor of counterplaintiff Manzo against counterdefendant Safeway on Manzo’s countercomplaint, assessing damages in the sum of $1,350. No appeal is taken from the judgments in favor of Ford in the underlying suit.

The entry of these judgments did not dispose of that part of Manzo’s cross-complaint against Safeway for prejudgment interest, penalties and attorney fees based on Safeway’s allegedly improper settlement practices.

On August 2, within 30 days of the entry of the judgments in favor of Ford and Manzo against Safeway, counterdefendant Safeway moved to vacate any and all rulings and orders entered by Judge Lip-nick on Manzo’s counterclaim against Safeway on the basis that the judge’s failure to recuse himself violated Supreme Court Rules 61 through 76 and therefore the judgments are void. However, Safeway raised no such challenge to the judgments entered in favor of Ford although the trial judge was the same and the judgments in Ford’s favor were part of the same litigation.

Safeway moved for a jury trial or plenary evidentiary hearing on the question of Safeway’s alleged vexatious, unreasonable conduct in violation of section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767) and on all other outstanding matters.

On August 3, Manzo petitioned the court for judgment against Safeway in the sum of $15,874.67 for penalties for improper settlement procedures in violation of section 155, for prejudgment interest, for Manzo’s pretrial, trial and post-trial attorney fees and for reimbursement of $2,500 attorney fees paid to Ford. Judge Lipnick denied Safeway’s request for a jury trial but granted the motion for plenary evidentiary hearing on the question of Safeway’s conduct.

The hearing on all pending matters was continued from time to time until March 4, 1988, when, following a bench trial on the propriety of Safeway’s conduct, Judge Lipnick entered an order finding Safeway’s conduct on the settlement of Manzo’s claim was capricious, vexatious and unreasonable, based on the holdings in the cases of Watson v. State Farm Fire & Casualty Co. (1984), 122 Ill. App. 3d 559, and Songer v. State Farm Fire & Casualty Co. (1982), 106 Ill. App. 3d 141. On Manzo’s post-trial petitions the court awarded Manzo a judgment against Safeway in the sums of $337.59 for statutory penalties, $475.50 for costs, $2,500 for reimbursement of attorney fees paid by Manzo to Ford, and $8,625 for Manzo’s pretrial, trial and post-trial attorney fees.

On March 8, Safeway moved to vacate the trial judge's order of March 4. The motion was taken under advisement. Thereafter on April 14 and May 10, the matter was continued for future determination. On May 20, Safeway moved for a change of venue alleging prejudice of the trial judge, Judge Lipnick. The motion was granted and the case was transferred to Judge McCormick.

Following a hearing on the question of the trial judge’s bias, Judge McCormick entered a memorandum order on August 19, 1988, which granted Safeway’s motion to strike a certain affidavit of Manzo’s attorney and denied Safeway’s motion to vacate “all orders entered by Judge Lipnick.” In the memorandum order Judge McCormick stated that the burden of showing actual prejudice of the trial judge rested on the movant and concluded that the transcripts of proceedings submitted in support of Safeway’s motion were incomplete and did not support Safeway’s allegation of prejudice. The court found that" “[a] review of the issue presented herein indicates that Judge Lipnick presided over the proceedings in a fair and just manner,” and ordered the case transferred back to Judge Lipnick for further proceedings on Safeway’s motion to vacate the judgment in favor of Manzo on the counterclaim and to vacate the award in favor of Manzo for prejudgment interest, costs, penalties and attorney fees. On October 6, Judge McCormick denied Safeway’s petition for rehearing.

Safeway filed its notice of appeal on November 4, 1988, seeking vacation or reversal with or without remand of the orders of March 4, March 8, April 13, May 10, and May 20, 1988, entered by Judge Lip-nick and the orders of August 19, and October 6, 1988, entered by Judge McCormick.

Safeway raises two issues on appeal: (1) whether the trial judge was actually prejudiced against Safeway or its attorney or whether his impartiality might reasonably be questioned; and (2) whether the award of attorney fees, costs and penalty was unwarranted and excessive.

While this appeal does not challenge the jury verdict or judgment in favor of Ford in the sum of $9,157, Safeway’s motion of August 2, 1987, continued from time to time, did challenge the judgment in favor of Manzo on his counterclaim in the sum of $1,350 based on the jury verdict against Safeway. Because the post-trial petition for penalties, interest, costs and attorney fees alleged improper settlement procedures by Safeway, we must discuss briefly the trial testimony pertinent to the arguments made in this appeal.

Safeway first argues that it did not act capriciously or vexatiously nor did it unreasonably delay the settlement of Manzo’s claim. Safeway further argues, in the alternative, that if its actions are found to be vexatious or unreasonable, the amount of attorney fees assessed is unwarranted and extreme.

Safeway presented evidence to show that to calculate the offered settlement of $6,750, its claims adjuster called Leonard Weisberg, who specialized in automobile replacement services for insurance companies, for his recommendation to determine an appropriate settlement offer. Weisberg testified that he gave some general advice to the claims adjuster for calculating the amount of the settlement offer. Weisberg refused to answer directly whether he could have found a replacement vehicle for the amount Safeway offered and could not provide any supporting material for his recommendation to the claims adjuster.

Safeway’s claims adjuster, William W. Rice, testified that he began his calculations with the $10,867 price given by Ford and subtracted $1,600 for a special package which Safeway claimed was not covered by the insurance policy. From the base price of $9,268, Rice deducted 21% which represented the dealer’s markup, which he testified was based upon the conversation with Weisberg. Then Rice added $100, resulting in a $7,400 replacement price for the truck.

The “Release and Subrogation Receipt” sent with the check to Ford indicated that from the $7,400 replacement price, $400 was deducted for depreciation on the truck, and $250 was deducted as the policy deductible. This computation resulted in the final settlement offer of $6,750.

The Illinois Insurance Department has promulgated regulations for determining the amount of a cash settlement for a totally destroyed vehicle. “A cash settlement must be based upon the retail value of the automobile as published in a generally recognized source that is uniformly and regularly used by the company. Any deviation from this procedure must be supported by documentation that gives detailed information about the automobile’s condition. Any deduction^] from retail valuations must be measurable, discernible, itemized, and specified concerning dollar amount, and they shall be appropriate in amount. If the retail value of the specific automobile is not published in a generally recognized source, which is used uniformly and regularly by the company, the company must secure at least two written retail value dealer quotations and base the settlement upon them. Any deviation from this practice must be supported by documentation giving particular information about the automobile’s condition.” Illinois Department of Insurance Regulation 9.9 §6B9(ii)(a); Fassola v. Montgomery Ward Insurance Co. (1982), 104 Ill. App. 3d 825, 827-28, 433 N.E.2d 378, 380; Deverman v. Country Mutual Insurance Co. (1978), 56 Ill. App. 3d 122, 124, 371 N.E.2d 1147-48.

The evidence discloses that Safeway did not base its offer on any “generally recognized source.” The record does not disclose any documentation to support its offer beyond the “Release and Subrogation Receipt.” The court found that in doing so, Safeway failed to follow the regulation guidelines.

Under sections 154.5 and 154.6 of the Illinois Insurance Code, an improper claims practice is “committed knowingly in violation of this Act or any rules promulgated hereunder” (Ill. Rev. Stat. 1987, ch. 73, par. 766.5(a)) and includes “[n]ot attempting in good faith to effectuate prompt, fair and equitable settlement of claims submitted in which liability has become reasonably clear” and “[c]ompelling policyholders to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them” (Ill. Rev. Stat. 1987, ch. 73, pars. 766.6(d), (e)).

The trial record supports the court’s conclusion that the defendant insurance company did not follow the Illinois Department of Insurance regulations for determining the amount of a cash settlement. Safeway refused to change its offer at any time during the course of the suit, still insisting even on appeal that its offered amount is correct. Safeway’s continued refusal to negotiate with Manzo was the reason for the filing of this law suit. The jury verdict which held Safeway responsible for a total of $10,507, an amount well over the sum it offered, further confirms that the court’s finding that Safeway’s behavior was vexatious, capricious and unreasonable had adequate support in the record.

There is no evidence in the record to indicate that Safeway engaged in fair negotiations with Manzo. There is indication that Safeway negotiated a settlement with Ford without Manzo’s consent or participation and in contradiction to its contractual responsibilities. Without a record of the negotiations between Manzo and Safeway, we cannot say whether they were prompt and fair. (Gille v. Winnebago County Housing Authority (1970), 44 Ill. 2d 419, 427, 255 N.E.2d 904, 908 (“matters not properly in the record will not be considered *** by this court”).) Because the record lacks sufficient information upon which a reversal on review can be based, we rely on the lower court’s conclusion that Safeway acted improperly. Student Transit Corp. v. Board of Education (1979), 76 Ill. App. 3d 366, 370, 395 N.E.2d 69, 72.

Safeway argues that if its actions are found vexatious and unreasonable, the $8,625 in attorney fees awarded to Manzo are excessive. Section 155 of the Illinois Insurance Code provides that “the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus ***” and an amount in addition thereto for specified penalties. Ill. Rev. Stat. 1987, ch. 73, par. 767.

Manzo’s attorney petitioned for fees of $11,350 and was awarded $8,625. Safeway points out that Manzo agreed to pay his attorney one-third of the recovery or $75 per hour, but argues that the judge based his calculations on the attorney’s current rates of $100 and $125 per hour. Safeway also contends that the award is based upon an unreasonable amount of attorney time, including time required to amend the civil complaints.

In support of its argument that the award of attorney fees to Manzo was excessive, Safeway relies primarily on the decision in Brosam v. Employer’s Mutual Casualty Co. (1965), 61 Ill. App. 2d 183, 209 N.E.2d 350. In that case, however, there was no finding of vexatious delay by the insurer and there was no adequate proof given for the costs incurred. Here Manzo’s attorney presented a detailed time record document supporting his claim for fees. Manzo’s attorney noted that in an effort to reflect a lower hourly rate then current at the beginning of the litigation from rates he charged as of the date of trial, he adjusted his claim by reducing the number of total hours in his representation of Manzo’s interests.

The trial judge considered the attorney’s time records and the trial record from which the jury reached its verdicts and found that because of Safeway’s capricious, vexatious and unreasonable conduct, Manzo was required to proceed to litigation to recover under his insurance policy with Safeway. The record here does not support a finding that the trial court’s determination of attorney fees in the amount awarded was improper or excessive where the evidence clearly supports the conclusions reached by the court. We find no error.

We next consider Safeway’s arguments that Judge Lipnick should have recused himself from the case. The argument is based solely on the fact that the judge was a member of the law firm shown as the attorney of record for plaintiff in a different case against Safeway filed on June 4, 1981. That litigation was filed by Judge Lipnick’s then-law firm prior to the judge beginning his judicial service on July 1, 1983, and during the time that he was engaged in the practice of law. The complaint, trial attorney designation and affidavit of compliance were signed by “Clarence Lipnick” on behalf of the plaintiff’s law firm. The defendant there was Safeway.

Safeway contends, but offers no proof, that because of this association Judge Lipnick has recused himself in the past from other cases where Safeway was a party and that he should have done so here. We note that no motion for a change of venue from this judge was made prior to trial although the record discloses that during the life of this litigation Safeway moved for changes of venue from other judges at least twice. In fact, judgments were entered on the jury verdicts and a number of post-trial motions were ruled on and the hearing on Manzo’s petition for interest, penalties, costs and fees had taken place and an award made before Safeway raised the issue of the trial judge’s alleged bias for the first time.

Illinois Supreme Court Rule 63, at subsection C, states in pertinent part:

“(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where
(a) he has a personal bias or prejudice concerning a party or his lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(c) he was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy (provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subsection) or, for a period of seven years following the last date on which he represented *** any party to the controversy while he was an attorney engaged in the private practice of law.” 113 Ill. 2d R. 63(C).

While the rule requires disqualification where the judge has a personal bias or prejudice, the partial record presented by Safeway is not sufficient to support a finding of personal bias, prejudice, or partiality of Judge Lipnick, nor does it support a finding that he had personal knowledge of disputed evidentiary facts. Safeway’s motion to vacate all orders entered by Judge Lipnick had a full hearing before Judge Carl McCormick and was denied. Judge McCormick found that “[a] review of the issues presented herein indicates that Judge Lip-nick presided over the proceedings in a fair and just manner.” We note that Judge McCormick also stated that Safeway provided the court with four transcripts representing incomplete reports of the proceedings before Judge Lipnick.

It is the responsibility of the party alleging grounds for disqualification of a judge to make a sufficient record in the trial court to establish reversible error on appeal. (Schranz v. I.L. Grossman, Inc. (1980), 90 Ill. App. 3d 507, 511, 412 N.E.2d 1378, 1383.) Judge McCormick considered the record of proceedings before Judge Lipnick and concluded that no impropriety had occurred. We find that the record presented does not support a contrary conclusion.

Safeway argues that Judge Lipnick was required to recuse himself from this litigation because in 1980 the law firm with which he was then associated filed a similar cause of action for a totally different plaintiff, Borowski, against Safeway. The judge, who was then a practicing attorney, signed certain court documents as part of the firm’s representation. Safeway offered no evidence to show that Judge Lipnick represented Safeway, Ford or Manzo within the seven years preceding this trial nor does the record show that his former law firm now or at any other time ever represented any party to this litigation. Because he has been on the bench since 1983, and is prohibited as a judge from practicing law, we find that the record is devoid of any proof that Judge Lipnick was associated in the practice of law with any of the lawyers of record in this case within three years preceding this trial. The record discloses that this case was assigned to Judge Lipnick on July 20, and that a six-person jury entered judgment following trial on July 28, 1987. Thereafter, Manzo filed the petition for prejudgment interest, penalties, costs and attorney fees which resulted in the orders now being appealed.

Judge Lipnick began his judicial service well before the three-year limitation of Rule 63. No proof was offered in support of Safeway’s motion to suggest that Judge Lipnick has ever served as the attorney for any other party in this litigation. Not only had the judge at no time represented any party to this controversy, the date on which the Borowski case was filed and the date on which this case was assigned to Judge Lipnick are more than seven years apart.

Judge McCormick found Safeway’s allegations of bias and impropriety to be unsupported by the record and found that Safeway had failed to meet its burden of establishing bias or prejudice of the trial judge against Safeway. We find Safeway’s allegations to be groundless and find Judge McCormick’s order appropriate on this record.

The key order entered by Judge Lipnick on March 4, 1988, found Safeway’s conduct to be capricious, vexatious and unreasonable and entered judgment in Manzo’s favor for interest, penalties, costs and attorney fees. The order of March 8, 1988, on Safeway’s subsequent emergency motion to vacate the March 4 order recited that the court took the motion under advisement. No subsequent ruling was entered by Judge Lipnick on Safeway’s emergency motion to vacate the March 4 order. Judge McCormick’s ruling addressed and denied Safeway’s challenge to Judge Lipnick’s entry of any court orders and transferred the case back to the trial judge for ruling on Safeway’s motion to vacate the March 4 order. On November 28, 1988, Judge Lichenstein entered an order to stay enforcement of judgment pending the determination of the appeal. Because Judge Lipnick did not rule on Safeway’s emergency motion to vacate the March 4 order for interest, penalties, costs and attorney fees, this cause is remanded back to Judge Lipnick for ruling on that narrow question only.

For all of the foregoing reasons, we affirm the orders of Judge McCormick entered on August 19, and October 6, 1988, and we affirm the orders of Judge Lipnick entered on March 4, March 8, April 14, May 10, and May 20, 1988, and remand this cause to Judge Lip-nick for ruling consistent with this opinion.

Judgment affirmed in part, remanded in part.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAAC ASTERI, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—3596
    Opinion filed April 9, 1990.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Northwestern University Legal Clinic, both of Chicago (Leslie Ann Jones, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Isaac Asteri was charged and convicted of the murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1—(a)(1)) of George Martinez and sentenced to 30 years’ imprisonment: He appeals.

Isaac Asteri, George Martinez and Larry Bell lived in separate apartments at 5433 North Kenmore in Chicago. Asteri and Martinez had been friends since they were boys. Asteri, Martinez, and Oscar Monterroso were business associates in an illegal narcotics selling venture.

On October 8, 1985, Asteri had already been at Martinez’ apartment when Monterroso arrived around 5:30 p.m. Later, about 10 p.m., Martinez arrived. Sometime after 10 p.m., Martinez left and said he would be back soon. At approximately 10:40 p.m., Asteri left the apartment. Later that night, Bell opened his apartment door when he heard a fight in the hallway and “no, no” in Spanish. When he opened his door, he saw Asteri’s left arm around Martinez’ neck and saw Asteri push Martinez down the stairs. Because Bell was scared he closed his door, but he continued to hear a scuffle and then gunshots. Bell sat for 20 or 25 minutes and did not call the police.

Around 10:45 p.m., Asteri returned to Martinez’ apartment and told Monterosso to call the police because Martinez had been shot. Then, they went downstairs to meet the police. Detective Villardita arrived between 11 and 11:15 p.m. at the apartment building and saw Martinez standing hunched over against the wall. Martinez later died of multiple gunshot wounds. The detective had observed Martinez’ dentures in the hallway and asked Asteri and Monterroso if they recognized the dentures. Asteri had told Monterroso in Spanish to keep quiet.

Later, Asteri told Detective Villardita that from Martinez’ apartment window he saw someone run from the scene, and Asteri gave a description of the suspect. At this point, the police asked Asteri and Monterroso if they were willing to go to the police station to look at photos and to give a more detailed account of what happened. Asteri agreed. While Asteri and Monterroso waited for transportation to the police station, the police saw and interviewed Bell. Bell denied any knowledge of the incident. About midnight Asteri, Monterroso, and Bell were driven without handcuffs to the police station. At about 3:30 to 4 a.m. October 9, Detective Villardita arrived at the police station, where he saw Asteri, Monterroso, and Bell sitting on a bench without handcuffs. After the three men were all interviewed, Asteri and Bell looked through photo albums.

Early in the morning of October 9, Asteri, Monterroso, and Bell were asked to take gun powder residue and lie detector tests. At 9 a.m. Asteri had the gun powder residue test but not the lie detector test. Also at 9 a.m., a new shift of detectives was advised to assist Asteri in locating the suspect, and Asteri spent the day at the police station. However, sometime after 9 a.m., Bell and Monterroso left the police station. By 4:30 p.m., a handgun with three spent shells had been found near the murder scene.

At approximately 7 p.m. on October 9, Bell spoke with Detective Villardita and said that he was extremely scared. Bell had lied to the police when he said he did not see anything the night Martinez was killed because Asteri threatened to kill him. Then, Bell told Detective Villardita what he saw. After hearing Bell’s story, the police confronted Asteri, but he denied the accusations. Around 7 p.m., Asteri was placed in an interview room with a sergeant outside the room. Detective Villardita informed the sergeant that Asteri was now a suspect and not free to leave. Detective Villardita did not call a prosecutor or take Asteri to a courtroom because he was still gathering evidence. Around 8 p.m., Asteri was handcuffed. Sometime between midnight on October 10 and 4:30 p.m., Asteri was placed in a lineup. During that time, Asteri was taken to a second police station at 11th and State for investigation concerning Martinez’ death.

On October 10, around 6 p.m., Asteri was interrogated, and at 10 p.m. he gave a statement. Asteri stated that he and Martinez had fought in the hallway and Martinez pulled a gun. Asteri got nervous, grabbed the gun, and hit Martinez in the face, causing his dentures to fall out. Martinez ran down the hall. Asteri chased him and fired two shots at him. Asteri threw the gun in the back of a pickup truck and ran to the apartment.

Before the trial began, Asteri moved to quash his arrest and suppress his statement to the police, but the motion was denied. At trial, Asteri’s attorney asked a prospective juror, Ms. Schneiderbaur, if she would favor one side more than the other. After hearing her respond perhaps, defense counsel moved to have Ms. Schneiderbaur removed for cause. The trial court denied the motion. The attorney, however, did not use a peremptory challenge and ultimately used only five peremptory challenges. During closing arguments, the prosecution argued that Bell was afraid and had not wanted to cooperate since “the defendant has friends, the defendant has fellow drug members that he — .” Defense counsel’s objection was sustained. The prosecution then argued that “the defendant has other associates out on the street. They’re still out there. He [Bell] doesn’t want to have anything to do with that. He wasn’t going to tell the police at first.”

The jury returned a verdict of guilty, and the trial court, as stated, sentenced Asteri to 30 years’ imprisonment.

Initially, Asteri argues that he was seized before 7 p.m., contending that the trial court applied the wrong legal standard in determining when he was seized. The record, however, shows that the trial court correctly considered all of the circumstances surrounding the incident in determining whether a reasonable man, innocent of any crime, would have considered himself under arrest. (People v. Hardy (1986), 142 Ill. App. 3d 108, 117.) Asteri contends that he was under arrest before 7 p.m. on October 9 by citing numerous cases as authority; however, those cases are all distinguishable based on a totality of the circumstances since those defendants were all “picked up” or “brought in” without probable cause as suspects for questioning rather than as witnesses to a crime. (Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. McGhee (1987), 154 Ill. App. 3d 232; People v. Ealy (1986), 146 Ill. App. 3d 557; People v. Travis (1984), 122 Ill. App. 3d 671; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876.) Here, the trial court correctly determined that Asteri was not seized before 7 p.m. since Asteri voluntarily went to the police station as a witness, not a suspect, answered questions as a result of allegedly witnessing the assailant flee the scene, looked through photo albums trying to identify the assailant, was not given Miranda warnings, never asked if he could leave, never tried to leave, and was never told nor indicated that he was not free to leave before 7 p.m. Therefore, no custodial interrogation took place.

Next Asteri contends that the police lacked probable cause when Asteri was arrested at 7 p.m. But the totality of circumstances shows that the police officers had probable cause to arrest Asteri at 7 p.m. on October 9 because they knew that Martinez was found murdered in the building that Asteri lived in, that a gun was found within a block and a half of the murder scene, and that Bell saw Asteri and Martinez fighting. Asteri contends that Bell was an informant and that his accusations lacked reliability; but, persons who supply information after being interviewed by police officers, or who give information as witnesses during the course of an investigation, are not “informers.” (People v. Jones (1983), 119 Ill. App. 3d 615, 623, citing United States v. LaFond (E.D.Wis. 1980), 482 F. Supp. 1379, 1384.) Bell cannot be characterized as an informant simply because he supplied information as a witness and after a police interview.

Then, Asteri argues that his confession should have been suppressed since his detention from October 9 at 7 p.m. until the next day violated his constitutional and statutory rights of prompt presentment to a judicial officer for a probable cause determination for detainment. (Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854; Ill. Rev. Stat. 1983, ch. 38, par. 109—1.) We disagree because the length of the detention is only one factor to be considered when determining whether the confession was voluntary, rather than as grounds to suppress a voluntary confession. (People v. Goree (1983), 115 Ill. App. 3d 157.) Asteri, also, misquotes the trial court as stating that the delay in presentment was excused because the custody occurred over the weekend. In fact, the trial court applied the correct standard and was merely reciting the facts in People v. Taylor (1968), 40 Ill. 2d 569.

Next, Asteri argues that he was denied a fair trial when the court did not excuse Ms. Schneiderbaur for cause and that he was denied effective assistance of counsel because defense counsel did not use a peremptory challenge to excuse her. The record, however, shows that the trial court was acting within its discretion by keeping Ms. Schneiderbaur on the panel because voir dire was extensive enough to expose any potential bias. Further, Asteri was not denied effective assistance of counsel by his attorney’s failure to exercise a peremptory challenge against Ms. Schneiderbaur because defense counsel appropriately argued and objected to her presence. Accordingly, defense counsel’s failure to use a peremptory challenge is characterized as a strategic decision which this court will not reverse. (Strickland v. Washington (1984), 466 U.S. 668, 680-91, 80 L. Ed. 2d 674, 688-96, 104 S. Ct. 2052, 2060-66.) Moreover, there is no indication that, absent the claimed error, the fact finder would have had a reasonable doubt respecting Asteri’s guilt. The trial court properly denied removing Ms. Schneiderbaur for cause, and Asteri was neither denied effective assistance of counsel nor prejudiced by counsel’s decisions.

Lastly, Asteri argues that the prosecution’s closing argument was so inflammatory as to deny him a fair trial. We disagree. Although the issue was not waived, because the defense attorney did object to the prosecutor’s comment during trial as well as in his post-trial motion, the prosecutor’s argument was not improper because it was based on the evidence. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315.) Bell testified that he knew defendant (Asteri) and the victim (Martinez) as the “coke dealers from upstairs”; that Asteri threatened to kill Bell if he said anything; and that Bell asked the police for protection. Moreover, defense counsel’s argument had invited rebuttal because he asked the jury to consider why Bell waited to tell the police what he saw. Asteri was not denied a fair trial.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.