author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT SILAS, Defendant-Appellant.
    First District (3rd Division)
    No. 1-86-2503
    Opinion filed June 28, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Andrea Monsees, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Vincent Silas, was charged by indictment with two counts of armed robbery, two counts of armed violence, two counts of residential burglary, and two counts of home invasion. The indictment also charged James Fletcher (Fletcher) and Tina Silas. Defendant and Fletcher were tried jointly in a bench trial. Defendant was convicted on both counts of residential burglary and two counts of robbery, a lesser included offense of the armed robbery charged. The trial court sentenced defendant to concurrent terms of eight years’ imprisonment for robbery and eight years for residential burglary.

Defendant appeals and raises the following contentions: (1) he was denied the effective assistance of counsel since his attorney failed to move to sever the trial and to redact defendant’s name from a statement given by Fletcher; (2) the trial court’s failure to grant a severance, sua sponte, constituted plain error; (3) the trial court erroneously limited the cross-examination of witness Willie Patton; (4) defendant was not proved guilty beyond a reasonable doubt since the State’s witnesses gave inherently incredible testimony; and (5) the multiple convictions entered against defendant violate State and Federal protections against double jeopardy.

For the reasons stated below, we affirm the judgment in part and vacate in part.

At trial the State called several witnesses. Willie Mae Patton, the victim, testified that she lived in an apartment at 5307 West Lake Street in Chicago. The apartment building has a locked door through which one must enter before climbing the stairs to Patton’s apartment. Defendant lived in Patton’s apartment from May or June 1985 until shortly before November 16, 1985, the date of the subject incident. John Palmore also lived in the apartment during most of that time. When defendant moved in, Palmore believed that defendant was Patton’s brother. At some point, defendant forced Palmore out of the apartment. Patton stated that at some time, Palmore told her that he did not like defendant. Patton stated the reason was that defendant was living with Patton. In May or June 1985, defendant “jumped on” her, and then “jumped on” Palmore.

Patton further stated that she knew James Fletcher four or five years prior to the subject incident. Patton also knew Fletcher’s common law wife, Willie Mae Randall. During the summer of 1985, Patton allowed Randall to store some bunk beds and other furniture in her apartment. After two months, defendant sold the beds. Patton then asked defendant to move out, which defendant did. Fletcher asked Patton about the beds, and appeared violent and called Patton names. Patton told him that she did not have the beds, and refused to pay for them. In early November 1985, Palmore moved back into Patton’s apartment. Defendant was not living there at the time.

On November 16, 1985, around 6 p.m., Patton and Palmore were home installing a kitchen floor. They heard a knock at the door, and Patton looked out the window and saw Tina Silas. Patton had known Tina Silas for approximately five years and stated that Tina Silas occasionally visited her. Patton went downstairs and let Tina Silas into the building and then into the apartment. Tina Silas asked Patton and Palmore for a quarter for a telephone call. Palmore gave her a quarter, and Tina Silas left the apartment stating that she would return.

After 10 minutes, there was another knock at the door. Patton looked out the window and saw Tina Silas alone. Patton went downstairs, and as she opened the door, she saw defendant and Fletcher with Tina Silas. Fletcher and defendant stated, “This is a stick-up.” Defendant carried a gun. Defendant and Tina Silas went upstairs to Patton’s apartment while Fletcher held Patton downstairs. Fletcher hit Patton in the eye with his fist, knocking her down. Fletcher held her down while taking $8 from a change purse in her brassiere. Fletcher then dragged Patton to her apartment and threw her to the floor. He covered her with blankets and sheets from the bed and stated that if she moved he would kill her. Fletcher “tore up” the room, took Patton’s radio and cigarettes, and left. Patton then got up and saw Palmore. She and Palmore looked around the apartment. The apartment was “tom up” and everything was pulled out of the drawers. Patton called the police. Patton admitted on cross-examination that in April 1986, she told an assistant State’s Attorney, and in May 1986, she told defense counsel, that she wanted to drop the charges against defendant.

John Palmore testified that on November 16, 1985, he lived at the Lake Street apartment with Patton. They were installing a floor in the apartment when there was a knock at the door. Patton went downstairs to answer it and then returned with Tina Silas. Palmore gave Tina Silas a quarter and she left the apartment to make a telephone call. After 10 minutes Patton went downstairs to answer another knock at the door. The next person Palmore saw was defendant, who entered the apartment with a small, dark gun that looked like a .22 caliber. Defendant took the hammer that Palmore was using in installing the floor. Defendant pushed Palmore over, grabbed his wallet and took $70 from it and then threw the wallet on the floor. Tina Silas then picked up the wallet, looked through it and then threw it on the floor. Palmore remained on the floor for a few minutes, then got up and saw that defendant and Tina Silas were gone. Palmore found Patton on the bedroom floor covered with blankets. The apartment was “tom up” and books, clothes/ and other things were on the floor.

Allen Jaglowski was called as a witness for the State. Defense counsel objected to any. testimony that might be given by Jaglowski that would tend to incriminate defendant. Counsel acknowledged that he did not move to sever at the start of trial, but stated to the trial judge, “[Sjince you are the trier of fact I am sure you can distinguish any irrelevant evidence as opposed to relevant matters.” The court responded, “I will only consider whatever evidence is offered against each defendant individually.” The court then overruled the objection and Jaglowski gave the following testimony.

Jaglowski was a detective for the Chicago police department. He and his partner, Detective Johnson, talked to James Fletcher on November 24, 1985, around 1 a.m. After being advised of his Miranda rights, Fletcher gave a statement. Jaglowski testified that Fletcher told him about Randall storing the beds in Patton’s apartment and that Fletcher believed Patton gave the beds to defendant, who sold them for “dope.” Fletcher also told police about the incident that occurred on November 16, 1985. Fletcher was with two friends, Johnnie and Nut, when he ran into defendant. Fletcher stated that defendant talked about robbing the man who lived with Patton because defendant knew that the man had recently obtained some money. Fletcher told defendant and the others that the idea was good, but the plan should be better. Fletcher, defendant, and the others planned that Tina Silas would knock on the door and claim that she left something in Patton’s apartment. Fletcher stated that they went to the apartment and Tina Silas knocked on Patton’s door. When defendant threw a jacket over Patton’s head, Fletcher, Johnnie, and Nut left.

Jaglowski told Fletcher that he did not believe him. Fletcher then told him that he had entered the apartment. Further, Fletcher and Tina Silas went upstairs and saw Palmore on the floor. Fletcher took the hammer from Palmore and threatened Palmore when he asked why Patton was moaning in the hallway. While Tina Silas looked around the apartment for something to steal, Fletcher checked the television. Since the television was broken, Fletcher took the radio and ran out the back door. Fletcher told police that neither he nor defendant had a gun.

At the close of the State’s case, defendant moved for a directed finding of not guilty. After hearing argument, the trial court denied the motion. The parties then stipulated that if Michael Black, an investigator for the Cook County public defender’s office, were called to testify, he would state that on April 17, 1986, Patton told him that the State’s Attorney told her and Palmore not to talk to anyone from the public defender’s office about the case. In addition, the parties stipulated that if called to testify, police officer Casper would state that he was one of the first officers to arrive on the scene and that in his police report, he noted that Patton was not injured. Further, the parties stipulated that if Detective Paulnitsky were called to testify, he would state that after speaking to Palmore and Patton, he wrote in his police report that the weapon used was an unknown black steel handgun. Defendant then rested. At the close of trial and sentencing, defendant filed a motion for a new trial, which the court denied.

Initially on appeal, defendant asserts that he was denied the effective assistance of counsel since his attorney failed to request severance of his trial from the trial of Fletcher and failed to move to have defendant’s name redacted from the statement given by Fletcher. Defendant asserts that codefendant Fletcher did not take the stand and thus was not subject to cross-examination.

The general rule is that defendants who are jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Bean (1985), 109 Ill. 2d 80, 92, 485 N.E.2d 349; People v. Smith (1988), 172 N.E.2d 94, 526 N.E.2d 849.) Separate trials may be appropriate, however, when one defendant, who does not testify at trial, has made statements to police, which are admitted at trial, and which inculpate the codefendant in the commission of the offense charged. People v. Nunn (1989), 184 Ill. App. 3d 253, 267, citing People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423.

Defendant cites several recent United States Supreme Court cases which have addressed a defendant’s right to confront witnesses in the context of a joint trial. In Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, the Court held that admission of a nontestifying codefendant’s confession, which inculpates the defendant, violates the defendant’s sixth and fourteenth amendment right to confront witnesses, even if the jury is instructed not to consider it against the defendant and even if the defendant’s own confession is admitted. (Cruz, 481 U.S. at 193, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.) In Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the Court dealt with the effect of limiting instructions to the jury. The Court held that the general rule that a jury will faithfully follow instructions does not apply where the confession of an accomplice which incriminates the defendant is admitted at the defendant’s trial, since the confession is “inevitably suspect” and “devastating” to the defendant. Bruton, 391 U.S. at 136, 20 L. Ed. 2d at 485, 88 S. Ct. at 1628.

Both Cruz and Bruton involved jury trials, and so dealt with possible violations of the right to confront witnesses under circumstances present when a jury is the trier of fact. The instant case, by contrast, was a bench trial. The court in People v. Vinson (1977), 49 Ill. App. 3d 602, 364 N.E.2d 364, discussed the effect of the Bruton holding in a bench trial where severance has been denied but where the court has indicated that it will consider evidence offered against each defendant individually. Vinson states that Bruton fails to discount a judge’s statement in a bench trial that he will not consider a codefendant’s confession against the other defendant, particularly where the record indicates that the judge did not consider the codeféndant’s confession against the defendant. (Vinson, 49 Ill. App. 3d at 608.) Similarly, in the instant case we do not believe that Bruton mandates severance, since the court stated it would not consider Fletcher’s statement against defendant, and since the record fails to indicate that the court did consider the statement against defendant.

Plaintiff also cites Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, in which the Court held that a codefendant’s statement which inculpated the defendant was presumptively unreliable and did not have sufficient independent “indicia of reliability” to overcome the presumption. As stated in People v. Nunn (1989), 184 Ill. App. 3d 253, however, failure to sever where a violation of the right to confront witnesses has been found is ground for reversal unless the trial court’s failure to sever was harmless beyond a reasonable doubt. Nunn, 184 Ill. App. 3d at 267, citing People v. Smith (1988), 172 Ill. App. 3d 94, 106, 526 N.E.2d 849, citing Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726. See Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714; Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

Since we find that any alleged error in the failure to sever defendant’s trial was harmless beyond a reasonable doubt, we need not address in further detail defendant’s assertions regarding violation of the right to confront witnesses. The evidence against defendant came principally through the testimony of State’s witnesses Willie Mae Patton and John Palmore. Both Patton and Palmore testified in detail regarding the events that occurred on November 16, 1985. In addition, both testified regarding the relationships among those involved in the subject incident, and regarding the selling of the furniture shortly before the subject incident occurred.

Both Patton and Palmore testified to substantially the same events. Both stated that on November 16, 1985, Tina Silas came to their apartment twice, the first time asking for a quarter for a telephone call. Approximately 10 minutes later, there was another knock at the door. Patton looked out the window and stated she saw Tina Silas alone. Patton then went downstairs to let Tina in. Patton testified that when she opened the door, defendant and Fletcher were there in addition to Tina Silas. Fletcher remained downstairs with Patton while Tina Silas and defendant went upstairs to the apartment. Palmore stated that defendant entered the apartment, knocked him down, and took money from him. Tina Silas also was present. Patton stated that Fletcher took her into the bedroom and covered her with sheets and blankets. After the offenders left, Palmore found Patton in the bedroom covered with blankets. Both witnesses stated that defendant carried a gun. Both testified that the apartment was “tom up” and that objects were strewn on the floor. The detailed testimony of each witness thus was corroborated by the testimony of the other.

In addition, the evidence entered by stipulation did not seriously impeach the testimony of Patton and Palmore. A stipulation was entered that Officer Casper wrote in his police report that Patton was not injured. Patton stated on cross-examination that she did not tell the police that her eye was injured. Further, the record does not indicate whether any injury to Patton was noticeable.

Additionally, defendant failed to call any witnesses. The only other evidence at trial came through the testimony of Detective Jaglowski, who testified regarding the statement of Fletcher. Even absent the testimony of Jaglowski, however, we find that the evidence was sufficient to support defendant’s conviction. Further, in view of the trial judge’s statement that he would consider only evidence offered against each defendant individually against that defendant, we find that any error in admitting the testimony of Jaglowski regarding Fletcher’s statement was harmless beyond a reasonable doubt. Of some importance is the presumption that a trial judge acting as a trier of fact considered only competent evidence in determining a defendant’s guilt. People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.

Further, as noted by the State, defendant has failed to show that his defense and that of codefendant Fletcher were “antagonistic” (see People v. Causey (1984), 127 Ill. App. 3d 1080, 470 N.E.2d 18), since neither defendant presented a theory of defense at trial. For the same reasons that we find admission of Fletcher’s statement through the testimony of Officer Jaglowski was harmless beyond a reasonable doubt, we find that counsel’s failure to move to redact the name of defendant from the statement of Fletcher also was harmless error beyond a reasonable doubt.

Defendant next contends that the failure of defense counsel to move to sever or redact constituted ineffective assistance of counsel. To show a violation of the sixth and fourteenth amendment right to effective assistance of counsel, a defendant must show that: (1) his attorney’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result”; and (2) there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064.) The Illinois Supreme Court, in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, adopted the standards stated in Strickland.

We find that in the instant case, the record fails to show that but for counsel’s failure to move to sever or redact defendant’s name from the statement of Fletcher, the result of defendant’s trial would have been different. We reject defendant’s assertion that counsel’s failure to object to the testimony of Detective Jaglowski, on the ground that Jaglowski was not listed as a State’s witness, constituted ineffective assistance of counsel. The State’s response to the discovery request, in addition to listing the names of specific police officers, stated that any other persons named in police or other reports may be called to testify. In any event, defendant fails to show that the defense was surprised or otherwise prejudiced when Jaglowski was called to testify. (See People v. Rice (1982), 108 Ill. App. 3d 344, 438 N.E.2d 1333.) We have found that admission of Fletcher’s statement through Officer Jaglowski was harmless error beyond a reasonable doubt. We also hold that the failure of defense counsel to move to sever or redact does not constitute ineffective assistance of counsel.

Defendant next contends that the trial court’s failure to grant a severance, sua sponte, constituted plain error. We disagree. In the instant case, defendant failed to move to sever. As a rule, failure to move to sever prior to trial precludes any claim on appeal of prejudice resulting from a joint trial. (People v. Rogers (1979), 79 Ill. App. 3d 745, 748, 398 N.E.2d 1058; People v. Williamson (1968), 101 Ill. App. 2d 199, 242 N.E.2d 313, rev’d on other grounds (1969), 43 Ill. 2d 351, 253 N.E.2d 437.) Further, since we have found that admission of Fletcher’s statement through the testimony of Jaglowski was harmless error beyond a reasonable doubt, we reject defendant’s argument that it was plain error for the trial court to fail to grant a severance, sua sponte.

Defendant next contends that the trial court erroneously limited the cross-examination of Patton regarding her employment. In addition, questioning was limited concerning alleged prior beatings of Patton by Palmore and a prior battery charge against Palmore. Defendant asserts that the questions were designed to expose Palmore’s dominance over Patton and the bias, interest, and motive to testify falsely of Patton and Palmore. The evidence, defendant asserts, supports the defense theory that Patton and Palmore “concocted” a complaint against defendant as an extension of Palmore’s “grudge” against defendant. The ill feeling allegedly stemmed from defendant’s having had a relationship with Patton; Palmore’s wounded pride when he was pushed out of the apartment; and Palmore’s desire for retaliation for the incident in which defendant “jumped on” Palmore to intervene after Palmore “jumped on” Patton. In addition, Patton’s statement that she wanted to drop the charges supports the defense theory that the testimony of Patton and Palmore was procured by the threat that the prior battery charge against Palmore would be prosecuted or reinstated. Defendant asserts that his sixth and fourteenth amendment right to confront witnesses was violated.

We note that defendant has waived the issue by failing to raise it in his post-trial motion. (People v. Myles (1985), 131 Ill. App. 3d 1034, 476 N.E.2d 1333.) Even assuming, arguendo, that the issue was properly preserved, we find no harmful error or abuse of discretion. As stated in People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9, cross-examination to show bias, interest, or motive to testify falsely is a matter of right. (Triplett, 108 Ill. 2d at 475; see also Alford v. United States (1931), 282 U.S. 687, 691-92, 75 L. Ed. 624, 627, 51 S. Ct. 218, 219.) The trial court may not deny the defendant this right. However, the court has discretion to preclude repetitive or unduly harassing questioning regarding these matters. (Triplett, 108 Ill. 2d at 475.) In addition, where a witness is impeached by showing bias, interest, or motive, “the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony.” (People v. Phillips (1981), 95 Ill. App. 3d 1013, 1020, 420 N.E.2d 837.) Therefore, the evidence used must not be remote or uncertain. Triplett, 108 Ill. 2d at 475-76.

Regarding her income and employment, Patton testified on cross-examination that at the time of trial, she was living with Palmore and Palmore paid all the bills and helped to support Patton. Counsel then asked Patton what she did for a living. The prosecutor objected, and the trial court asked what was the relevance of the question. Defense counsel stated that he was asking for “general background.” When asked again, counsel stated that he was asking regarding the “situation” with defendant, “where the money was coming from at that time,” and regarding the financial relations among Patton, Palmore, and defendant. The court directed defense counsel to ask about Patton’s source of income and what the situation was when she was living with defendant. In response to counsel’s question regarding her source of income when she was living with defendant, Patton stated that it was general assistance.

Defendant asserts that defense counsel was unduly limited in questioning Patton regarding her source of income and employment at the time of trial. We find no abuse of discretion regarding this line of questioning. The court allowed counsel to question Patton regarding who paid the bills and provided the financial support for Patton and Palmore when they were living together. Thus, counsel was able to show that Palmore took care of the couple’s living expenses. Patton also testified that she was receiving general assistance and that she paid the rent when she was living with defendant. Counsel thus was allowed to indicate the financial relations between Patton and defendant. The trial court properly allowed counsel to question Patton regarding the areas that counsel had indicated were relevant, without unduly restricting cross-examination.

Defendant also asserts that counsel was not allowed to inquire into Palmore’s alleged beating of Patton or regarding a previous battery charge brought against Palmore. Defense counsel referenced the battery charge during an offer of proof at trial. Counsel did not set forth in any detail, however, the basis for the charge, nor does the record otherwise contain details regarding the charge. Defense counsel asserted that such questioning would have shown Palmore’s dominance over Patton and control over her testimony. The trial court stated that the fact of any alleged beating did not necessarily support defendant’s assertion that Palmore controlled Patton’s testimony.

We find no abuse of discretion. The trial court properly excluded the evidence regarding the battery charge. Such evidence would have been too remote to relate to the assertion that Patton’s testimony may have been influenced by Palmore. (See Triplett, 108 Ill. 2d at 475-76.) The State notes that a defendant may be allowed to show that a witness has been charged with a crime where the evidence would reasonably show that the witness’ testimony might be influenced by bias, interest, or a motive to lie. (People v. Mason (1963), 28 Ill. 2d 396, 401, 192 N.E.2d 835.) However, defendant has shown no basis to extend that principle to allow evidence of a charge brought against a witness other than the one who is on the stand. We also find evidence regarding any alleged beating of Patton by Palmore to be too remote to the issues in the instant case to justify extensive questioning on cross-examination. We note that Palmore testified at trial that he did not discuss the subject incident with Patton since it occurred. We find no abuse of discretion.

Defendant next asserts that he was not proved guilty beyond a reasonable doubt where the State’s witnesses provided inconsistent and inherently incredible testimony. Defendant asserts that there were inconsistencies in the testimony of Patton and Palmore, including the following: (1) they testified variously regarding when defendant and Palmore lived in her apartment; (2) Patton testified that she did not know Fletcher’s common law wife and later stated that she did; (3) Patton stated on direct examination that both defendant and Fletcher stated, “This is a stick-up,” while on cross-examination she stated that only defendant used those words; (4) Patton stated that Fletcher had a gun and then stated that he did not;'(5) Patton stated that her eye was injured, while the police report of Officer Casper indicated that she was not injured; and (6) Patton told police that the gun was a “little black thing” and at trial stated that it was a blue-steel handgun.

There is a strong presumption that the finding of the trier of fact regarding the credibility of witnesses is sound. (People v. McCarthy (1981), 102 Ill. App. 3d 519, 430 N.E.2d 135.) A reviewing court may not reverse a conviction unless the evidence is so improbable or unreasonable as to raise a reasonable doubt of the defendant’s guilt. (People v. Vandiver (1984), 127 Ill. App. 3d 63, 66-67, 468 N.E.2d 454.) Where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact. (McCarthy, 102 Ill. App. 3d at 522.) Where the record does not support the factual determinations, a reviewing court must reverse. (McCarthy, 102 Ill. App. 3d at 522.) The positive testimony of one credible witness, however, is sufficient for a conviction even though it is contradicted by the defendant. Vandiver, 127 Ill. App. 3d at 67.

We have reviewed in detail the testimony given by Patton and Palmore in addition to the other evidence admitted by way of stipulation by the parties. Our review of the record indicates that there is sufficient support for the convictions entered against defendant. Defendant fails to indicate which element or elements of the charges against defendant were not proven beyond a reasonable doubt. Rather, defendant merely states that the testimony of the witnesses was not credible. We find, however, that any inconsistencies in the testimony of Patton and Palmore are minor, and that their testimony is sufficiently clear and specific, and corroborative of the other’s testimony, so that we may not disturb the finding of the trial court. McCarthy, 102 Ill. App. 3d at 522.

Finally, defendant contends that the multiple convictions entered against him violate protections against double jeopardy. Defendant asserts that the evidence fails to support convictions on both counts of burglary and on both counts of robbery. At most, defendant asserts, the evidence would support a conviction on only one count of each offense. Further, defendant contends that sentencing was improper, as the court took into account convictions on all counts charged.

Defendant failed to object at trial to the entry of conviction on each count charged and additionally failed to raise the issue in his post-trial motion and, therefore, has waived the issue on appeal. (People v. Myles (1985), 131 Ill. App. 3d 1034, 476 N.E.2d 1333.) However, for purposes of this appeal, we will address this issue. The indictment charges defendant with armed robbery in one count based on the taking of money and a radio from the person and presence of Willie Patton, and in a second count based on the taking of money from the person and presence of John Palmore. Defendant was convicted of the lesser included offense of robbery on both counts. We find that the record supports conviction of robbery on both counts. Therefore, we will not disturb the robbery convictions.

In addition, the indictment charges defendant with residential burglary in one count based on entry into the dwelling of Willie Patton and in a second count based on entry into the dwelling of John Palmore. We agree with defendant that there was only one entry made into one dwelling which could support the burglary conviction. Accordingly, entry of convictions on both counts charging residential burglary was improper. Therefore, the conviction on only one count of residential burglary may stand. (See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) We do not find, however, that remandment for resentencing is necessary, since the record fails to indicate that the trial court was influenced in sentencing by improper factors, or that the court determined the sentence based on the entry of conviction on two counts rather than a single count of the offense. (See People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48.) While we are vacating the conviction on the second count of residential burglary, we affirm the remainder of the judgment of the circuit court.

For the foregoing reasons, we affirm in part and vacate in part the judgment of the circuit court.

Judgment affirmed in part and vacated in part.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL BROOKS, Defendant-Appellant.
    First District (3rd Division)
    No. 1-87-1318
    Opinion filed June 28, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir and Karen E. Tietz, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Jane E. Loeb, and William Marback, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

The defendant, Darryl Brooks, was convicted after a jury trial for armed robbery and armed violence. The trial court vacated the armed robbery conviction and sentenced the defendant to an extended-term sentence of 50 years’ imprisonment. The defendant now appeals his conviction, contending that the trial court improperly refused his challenge for cause during voir dire and erred in failing to give two jury instructions.

On the evening of August 10, 1983, Maurice Harris was sitting in his automobile outside the Andrews Temple of God in Christ Church in Harvey, Illinois, waiting to pick up his son from choir rehearsal. The defendant entered the vehicle through the front passenger door and placed a gun in Harris’ ribs. After taking Harris’ money, the defendant ordered Harris out of the car and drove away. On August 12, Officers Joseph and Watson of the Harvey police department observed the stolen vehicle and attempted to pull the car over after which a chase ensued. Shortly thereafter, the defendant was apprehended by an Officer Wells. Maurice Harris later identified the defendant as his assailant in a lineup.

Defendant first argues on appeal that his right to a fair and impartial jury was violated when the trial court denied his motion to excuse venireperson Marsha, Bryant. During voir dire, after defense counsel accepted venireperson Marsha Bryant, the State sought further questioning regarding her opinion of police officers since her ex-husband was a police officer. New information was disclosed revealing a possible bias in favor of police officers when the following exchange occurred:

“THE COURT: Can you say to Mr. Laws and to Mr. Boyd
and, particularly, the defendant Mr. Brooks, and to Ms. Cox and Mr. Cozzi on behalf of the people that you can give a fair and impartial trial?
VENIREPERSON BRYANT: I can.
* * *
THE COURT: All right. I’ll tender now to the defense Marsha Bryant.
MR. LAWS: Thank you, your Honor. Judge, the defense finds the entire acceptable and will tender them to the State.
MR. COZZI: Thank you. Your Honor, if it please the court, Judge, I would ask that Ms. Bryant be inquired of that because of her association and experiences with her husband — her ex-husband, excuse me, would she find an officer any more or less credible because of those experiences and associations.
THE COURT: Ms. Bryant, generally, the question is asked when policemen are going to testify in a proceeding as to whether or not a person would believe a man solely because he is a policeman as opposed to the testimony of a civilian. Would they give the testimony of a policeman more credit or more weight or, however you want to phrase it, solely because the man is a policeman. Do you understand that question?
VENIREPERSON BRYANT: Well I would say-I would judge my ex-husband being an honest person would give an honest answer as far, you know, being trial or something like that.
THE COURT: Yeah. I would hope all people would tell the truth. But the thrust of the question is whether you would believe the policeman and give his credit more weight or more credibility than the testimony of a citizen like yourself solely because he is a police official.
VENIREPERSON BRYANT: I think so.
THE COURT: You think a policeman would be more apt to tell the truth than a citizen?
VENIREPERSON BRYANT: That’s really hard to say. I cannot really answer that. I really don’t know.
MR. COZZI: Your Honor, if I may. My question was that— my question was because of her personal experiences with her husband being he was an officer would she give every other officer more or less credit based on those experiences. Probably my question was aimed at less credit, being that she is the worse, being separated.
THE COURT: Did you hear Mr. Cozzi’s question?
VENIREPERSON BRYANT: Yes, but it is hard to answer.
THE COURT: Can you answer the form?
VENIREPERSON BRYANT: No I can’t.
THE COURT: It is a complicated question?
VENIREPERSON BRYANT: Yes, it is.
MR. COZZI: We’ll accept the panel at this time, Judge.
THE COURT: Very good. Thank you. Will you rise now and be sworn to be served as jurors.”

After the panel including Bryant had been sworn in, defense counsel requested a side bar and moved to have venireperson Bryant excused for cause. Defendant’s motion was denied. The State contends that the defendant waived his right to challenge because the motion was made after Bryant was sworn. The State further contends that even if the defendant has not waived his right, the trial court properly exercised its discretion in denying the motion.

A faitee to exercise a peremptory challenge or a challenge for cause during voir dire will waive any objection to that juror. (People v. Davenport (1985), 133 Ill. App. 3d 553, 559, 479 N.E.2d 15.) It is also well established that once a juror has been accepted and sworn, neither party has the right to challenge. (People v. Scheidt (1983), 113 Ill. App. 3d 632, 636-37, 447 N.E.2d 536; People v. Gamboa (1975), 30 Ill. App. 3d 242, 252, 332 N.E.2d 543.) As soon as the State accepted venireperson Bryant, the defendant could have challenged Bryant either peremptorily or for cause. The defendant stated in his brief and in oral argument that he could not have peremptorily challenged Bryant as he had previously accepted her. The defendant is only partially correct. Once a prospective juror is accepted, the accepting party no longer has the right to peremptorily challenge that juror. However, if the accepted juror has not yet been sworn, the trial court may in its discretion allow the party a peremptory challenge where the court is shown that new information has been revealed which, if it had been known prior to acceptance, would have prompted the party to exercise a peremptory challenge. (Scheidt, 113 Ill. App. 3d at 637.) The defendant, however, never attempted a peremptory challenge. The defendant did challenge for cause, but the challenge was not timely as venireperson Bryant had already been sworn. Consequently, the defendant’s right to challenge was waived.

However, even had the defendant not waived that right, it cannot be said that the trial court abused its discretion. The determination of whether a prospective juror is capable of giving a defendant a fair and impartial trial rests in the sound discretion of the trial court. (People v. Novak (1981), 94 Ill. App. 3d 1024, 1031, 419 N.E.2d 393.) When a prospective juror is challenged for cause, the prospective juror must be excused if “his state of mind is such that with him as a member of the jury a party will not receive a fair and impartial trial.” People v. Jarosiewiez (1977), 55 Ill. App. 3d 1057, 1061, 371 N.E.2d 949.

In this case, venireperson Bryant initially stated “I think so” when asked if she would give more credit to a policeman’s testimony solely because of his position. After the question was repeated, Bryant recanted and responded “I really don’t know.”

The answers Bryant gave during her examination do not rise to the level of “marked signs of prejudice” found in People v. Stone (1978), 61 Ill. App. 3d 654, 667, 378 N.E.2d 263. The trial judge is in the best position to observe and evaluate a prospective juror’s demeanor. (People v. Davis (1983), 95 Ill. 2d 1, 19, 447 N.E.2d 353.) We conclude that there was no abuse of discretion.

The defendant argues next that a new trial is required because a jury instruction was inadvertently omitted. In the jury instruction conference, defense counsel submitted Illinois Pattern Jury Instructions, Criminal, No. 3.11 (2d ed. 1981) (hereinafter IPI Criminal 2d) regarding impeachment by prior inconsistent statements. The trial court approved the instruction and stated that it would be given. The record reveals, however, that the instruction was never read when the trial court orally instructed the jury, and the court reporter has confirmed that IPI Criminal 2d No. 3.11 was never given to the jury. IPI Criminal 2d No. 3.11 provides:

“The believability of a witness may be challenged by evidence that on some former occasion he [(made a statement] (acted in a manner)] that was not consistent with his testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witness in this courtroom.”

The State contends, however, that the defendant waived this issue when he failed to object to the omission. The State further maintains that the omission does not constitute plain error. Alternatively, assuming arguendo that the defendant did not waive review of the issue, the State asserts that the omission constituted harmless error.

The failure to object to instructions not given waives review of the omission. (See People v. Sims (1987), 166 Ill. App. 3d 289, 301, 519 N.E.2d 921; People v. Leonard (1980), 80 Ill. App. 3d 741, 754, 400 N.E.2d 568; People v. Horton (1973), 15 Ill. App. 3d 51, 55, 303 N.E.2d 534.) The defendant argues that both he and the trial judge were unaware of the omission and that one cannot be required to object to that which he has no knowledge of. However, the jury instructions were read to the jury before the jury retired. The defendant should have been aware of the omission and could have objected after completion of the oral instructions. In fact, the defendant could have objected at any time prior to the jury’s returning its verdict at which time the judge could have corrected the error. (See, e.g., People v. Deacon (1985), 130 Ill. App. 3d 280, 288-89, 473 N.E.2d 1354.) The defendant also failed to object in his post-trial motion. Consequently, the defendant has waived this issue.

The court further finds that the inadvertent omission does not constitute plain error. Ordinarily, errors not brought to the trial court’s attention are waived for review. (People v. Greene (1987), 160 Ill. App. 3d 1089, 1094, 513 N.E.2d 1092.) However, Supreme Court Rule 615(a) permits a court to take notice of errors not properly reserved for review where substantial rights are affected. (87 Ill. 2d R. 615(a).) The plain error rule ensures the fundamental fairness of the trial and is invoked when the evidence is closely balanced or the error is of such magnitude that the accused is denied a fair trial. (People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861; Greene, 160 Ill. App. 3d at 1094.) In the case before us, the evidence was not closely balanced so as to warrant application of the plain error rule. The court further finds that the error was not of such magnitude that the defendant was denied a fair trial.

A fair trial has been held to require, among other things, that a jury be instructed as to the elements of the crime charged. (Ogunsola, 87 Ill. 2d at 222.) It has also been held that instructions regarding presumption of innocence and burden of proof are required. (People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487.) On the other hand, our supreme court held in People v. Underwood (1978), 72 Ill. 2d 124, 130-31, 378 N.E.2d 513, that the omission of an instruction defining the term “reasonably believes” which had been part of a self-defense instruction was not a substantial defect sufficient to invoke the plain error rule. The supreme court also held in People v. Parks that the failure to instruct the jury about the testimony of an accomplice witness did not deny the defendant a fair trial. (Parks, 65 Ill. 2d at 138.) The Parks court explained:

“Although the jury was not instructed specifically that the credibility of an accomplice was subject to suspicion, it was instructed on its duty to judge the credibility of witnesses generally and on the proper consideration of prior inconsistent statements of a witness. Although these general instructions were not as absolute an admonition as the more particularized accomplice instruction would have been, nonetheless, they provided the jury with sufficient direction.” (Parks, 65 Ill. 2d at 138.)

Similarly, the jury here was not instructed on the proper consideration of prior inconsistent statements. However, the jury was instructed on the credibility of witnesses generally. The jury was thus instructed:

“You are the sole judges of the believability of the witnesses and of the weight to be given the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.” (IPI Criminal 2d No. 1.02.)

The defendant’s use of prior inconsistent statements to impeach during cross-examination focused upon the memories of the witnesses and their opportunity to observe. Thus, the inadvertent omission of IPI Criminal 2d No. 3.11 was not of such magnitude that the defendant was denied a fair trial.

Finally, the defendant argues that the trial court erred in refusing his tendered non-IPI instruction on identification. Defense counsel had tendered Federal Criminal Instruction No. 3.06 dealing with eyewitness identification testimony. The trial court, however, refused to give this instruction. The general rule is that applicable IPI instructions are preferred over non-IPI instructions. (People v. Santiago (1987), 161 Ill. App. 3d 634, 639, 515 N.E.2d 228).) Supreme Court Rule 451(a) (107 Ill. 2d R. 451(a)) provides that non-IPI criminal instructions may be given when no applicable IPI instructions are available. The decision to give non-IPI instructions is therefore within the sound discretion of the trial court. (Santiago, 161 Ill. App. 3d at 639.) Refusal to give a tendered non-IPI instruction is an abuse of discretion only when such refusal results in the jury not being instructed as to the defense’s theory of the case which is supported by some evidence. People v. Hanson (1985), 138 Ill. App. 3d 530, 540, 485 N.E.2d 1144.

The defendant maintains that his theory of mistaken identity entitles him to have the jury instructed on identification testimony. Our supreme court has held, however, that instructions given together on the credibility of witnesses generally, the presumption of innocence, and the burden of proof adequately protect a defendant’s right to a fair trial. (See People v. Kubat (1983), 94 Ill. 2d 437, 475, 447 N.E.2d 247; People v. Stringer (1972), 52 Ill. 2d 564, 570, 289 N.E.2d 631; People v. Fox (1971), 48 Ill. 2d 239, 249, 269 N.E.2d 720.) Thus, the trial court did not abuse its discretion. Furthermore, IPI Criminal 2d No. 3.15 states, on the subject of identification: “The committee recommends that no instruction be given on this subject.”

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.


text:
    MICHAEL F. SCHULTZ et al., Plaintiffs-Appellees, v. TIMOTHY G. GOTLUND et al., Defendants-Appellees (Loretto Hospital, Intervening Petitioner-Appellant).
    First District (3rd Division)
    No. 1-88-0378
    Opinion filed June 28, 1989.

      Hayt, Hayt & Landau, of Evanston (Eric S. Lundahl, of counsel), for appellant.
    Joseph L. Goldberg, of Chicago, for appellees Michael F. Schultz and Joyce J. Schultz.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

On June 9, 1986, plaintiffs, Michael and Joyce Schultz, filed suit to recover for, inter alia, personal injuries sustained when Michael was struck by a car driven by defendant Timothy Gotlund and owned by defendant Richard Gotlund. The accident occurred after Michael, in a state of intoxication, left defendant Guy’s Steak House, Ltd., which was owned by defendant DDE Investors, Inc. Thereafter, petitioner, Loretto Hospital, which had paid $60,885.19 in medical expenses for Michael under an employee group health insurance policy issued to Joyce, filed a petition to intervene in the action under section 2 — 408 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 408). Petitioner appeals the trial court’s denial of the petition.

In attempting to intervene in plaintiffs’ action, petitioner relied on the common-law right of subrogation since the group insurance policy it issued to Joyce did not contain an express subrogation provision. In denying the petition, the trial court ruled that, petitioner having failed to expressly contract for a right of subrogation, it would not imply such a term in the policy. Upon petitioner’s motion, the trial court found that there was no just reason to delay enforcement or appeal of its order, as provided in Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). See Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1978), 63 Ill. App. 3d 1012, 380 N.E.2d 835.

On appeal, petitioner contends that it is entitled to intervene in plaintiff’s action under either section 2 — 408(a)(2) or 2 — 408(b)(2) of the Civil Practice Law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 408.) Petitioner predicates its argument on the ground that it has a common-law right to subrogation to plaintiffs’ rights against defendants to the extent of the hospital and medical bills it paid for Michael as beneficiary of the policy issued to Joyce. In support, petitioner cites Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill. 2d 273, 122 N.E.2d 540, and Dworak v. Tempel (1959), 17 Ill. 2d 181, 161 N.E.2d 258. Plaintiffs contend that petitioner is not entitled to intervene in their action under either provision because it does not have a common-law right of subrogation to their rights against defendants.

Section 2 — 408(a)(2) allows intervention, as a matter of right, upon timely application when representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action. Section 2— 408(b)(2) provides for permissive intervention upon timely application when the applicant’s claim or defense and the main action have a question of law or fact in common. We find that, if defendants do have a common-law right of subrogation here, they would be entitled to intervene in plaintiffs’ action as a matter of right under section 2— 408(a)(2). We thus turn to the dispositive issue.

Prior to the decision in Geneva Construction Co., the portion of the Workmen’s Compensation Act subrogating employers who, under the Act, compensated employees injured by certain third parties to the employees’ rights against such parties was declared unconstitutional. The court in Geneva Construction Co. held that employers nevertheless had a common-law right of subrogation to the employees’ rights against such third parties.

Plaintiffs attempt to distinguish Geneva Construction Co. on several grounds. They first assert that it involved a statutory right of subrogation and that a chief concern therein was the double recovery an employee would realize if his employer had no right of subrogation to his rights against the third-party tortfeasor. Here, in contrast, they argue, it would be difficult or impossible to separate any recovery by them into its various components because they seek to recover for losses beyond their medical expenses, including Michael’s pain and suffering and lost wages and Joyce’s loss of consortium. (See Ridge Tool Co. v. Silva (1986), 33 Ohio App. 3d 260, 515 N.E.2d 945.) They conclude that double recovery would be a relevant concern here only if the damages they were seeking against defendants were limited to the medical expenses paid by petitioner.

Dworak held that an insurer, which had indemnified an insured for property damage caused by a collision with an intoxicated driver, had a right of subrogation under the Liquor Control Act to the rights of its insured against the tortfeasor, notwithstanding that it did not have a claim in its own right under the Act against the tortfeasor.

Plaintiffs distinguish Dworak simply on the ground that, while courts routinely find a right of subrogation under property and casualty insurance policies (3 J. Appleman & J. Appleman, Insurance Law & Practice §1675, at 495 (1967 & Supp. 1988)), they have not implied such a right in the area of personal insurance, which includes medical expense benefits (Frost v. Porter Leasing Corp. (1982), 386 Mass. 425, 436 N.E.2d 387).

We agree with plaintiffs that Geneva Construction Co. and Dworak are distinguishable on their facts. However, we cannot agree that the reasoning of our supreme court therein does not support or, more importantly, require the recognition of a right of subrogation in petitioner, regardless what other jurisdictions have concluded on this issue. See generally Annot. 73 A.L.R.Sd 1140, §3 (1976 & Supp. 1988).

The Geneva Construction Co. case turned on the common-law right of subrogation because the statutory grant of that right had previously been declared unconstitutional. The statutory grant was to employers whose employees had been injured by tortfeasors, who, like defendant, were also subject to the Workmen’s Compensation Act.

In finding that employers did not have a common-law right of subrogation under the facts of that case, the supreme court rejected the reasoning of a Federal court that workmen’s compensation statutes were analogous to life insurance contracts, under which insurers were denied a common-law right of subrogation. In rejecting that reasoning, the court stated:

“[Ijnasmuch as the object of workmen’s compensation acts is in reality to indemnify the injured employee for pecuniary loss sustained, since his average weekly earnings are commonly made the basis on which benefits are computed, the status of the employer is more comparable to that of an insurer in fire and marine policies than under life and accident insurance policies, which are essentially legally permissible wagers on the duration of life or the happening of an accident. [Citations.] Although the compensation granted under the act may not be full indemnity for every form of injury, neither is the sum paid under a fire or other indemnity policy necessarily full indemnity, since the amount payable is limited by the terms of the policy ***, just as a fire insurance policy may provide against only certain kinds of loss. Furthermore, the fact that the measure of damage may be different in the common-law action and in the claim for compensation should not render the principle of subrogation inapplicable, for the measure of damages in an action on a fire insurance policy may be different from the measure of damages against the tort-feasor who caused the fire, yet subrogation is permitted in those cases. Therefore, if [a] fire or marine insurance company *** is *** subrogated pro tanto to the rights of the insured against the tort-feasor, by parity of reasoning, the employer who pays the injured employee compensation should likewise be subrogated pro tanto to the rights of the employee against such wrongdoer.” Geneva Construction Co., 4 Ill. 2d at 281-82.

Pursuant to the reasoning of the court in Geneva Construction Co., we find that the purpose of the medical payments coverage, of petitioner’s employee group health insurance policy, is to indemnify the injured employee or other beneficiary from pecuniary loss resulting from the expenses of medical care rather than the payment of a sum certain on the happening of a given event, such as death or accident.

Similarly to this conclusion, it was held in Damhesel v. Hardware Dealers Mutual Fire Insurance Co. (1965), 60 Ill. App. 2d 279, 209 N.E.2d 876, that an automobile liability insurance policy providing that the insurer would pay the reasonable medical expenses of insureds up to $500 was an indemnity contract. The court reasoned that the contract was to indemnify insureds for medical expenses rather than pay certain amounts for certain injuries. (Damhesel, 60 Ill. App. 2d at 281-82. See also Bernardini v. Home & Automobile Insurance Co. (1965), 64 Ill. App. 2d 465, 212 N.E.2d 499.) Moreover, the fact that there was an express subrogation clause in the insurance policy at issue in Damhesel, on which plaintiffs rely to distinguish that case, is utterly unavailing. That fact was immaterial to the court’s construction of the medical payments provision.

In view of the foregoing, we find the coverage provided plaintiffs by petitioner, like the workmen’s compensation involved in Geneva Construction Co., more comparable to that of fire and marine policies, under which there is a right of subrogation, than to life and accident insurance coverage.

Moreover, under the reasoning of Geneva Construction Co., the fact that petitioner may not provide full indemnity for every form of injury is irrelevant. Geneva Construction Co. also requires rejection of plaintiff’s attempt to defeat petitioner’s right of subrogation on the ground that the damages they seek in the common-law action are different from and greater than the recovery sought by petitioner. In this regard, we disagree with plaintiffs that the possibility of a double recovery by them for the medical expenses resulting from defendant’s culpable conduct is irrelevant simply because they sought or are seeking other damages. Likewise, we see no logic in their argument that a concern with a double recovery would be relevant here only if the damages they were seeking were limited to the medical expenses paid by petitioner. Ultimately, the reasoning of the court in Geneva Construction Co. requires that, like the employer involved therein and the fire and marine insurers to which the court compared it, a provider of medical expenses coverage be subrogated pro tanto to the rights of its insured against the tortfeasor whose conduct resulted in the medical expenses the provider paid.

While plaintiffs distinguish Geneva Construction Co. and Dworak on the facts, they fail to address the language of the supreme court therein regarding the nature and scope of the common-law right of subrogation. It is that language which ultimately reveals that plaintiff’s position is untenable. In Geneva Construction Co., the court reasoned that, ultimately, the issue had to be “determined in terms of the essential elements of the doctrine of subrogation[ ]” and then stated:

“This legal concept originated in equity, but is presently an integral part of the common law, and is designed to place the ultimate responsibility for a loss upon the one on whom in good conscience it ought to fall, and to reimburse the innocent party who is compelled to pay. Under this doctrine, a person who, pursuant to a legal liability, has paid for a loss or injury resulting from the negligence or wrongful act of another, will be subrogated to the rights of the injured person against such wrongdoer. [Citations.]
* * *
In workmen’s compensation cases, where the non-negligent employer has been required to pay compensation under the terms of the statute to an employee injured by a third-party tort-feasor, that loss should fall ultimately upon the wrongdoers responsible for it. If the non-negligent employer is deprived of his right of subrogation, it would result in the unjust enrichment of the employee, who could retain both compensation and damages, thereby violating a basic tenet of the common law that there may not be a double satisfaction for the same wrong. *** If the employer is allowed a right of subrogation, all parties will have been duly paid, no one paid twice or imposed with double liability, and the loss will fall upon the only party at fault, in accordance with the equitable objectives of the doctrine.” Geneva Construction Co., 4 Ill. 2d at 283-84.

Like the Geneva Construction Co. court’s recognition of an employer’s right of subrogation under the common law at a time when the employer had no valid statutory right thereto, the recognition of the same right in a provider of medical expenses coverage under an employee group health insurance, not providing therefor, ensures that the loss falls ultimately on the party responsible for it, and that no one will receive a double recovery or be subjected to a double liability, all in accordance with the equitable objectives of the doctrine.

In Dworak, the supreme court approved the appellate court’s recognition, in an earlier case, of an insurer’s right of subrogation under the Liquor Control Act by stating:

“That interpretation and approach is clearly consistent with the policy of this court to apply the expanding doctrine of subrogation, which originated in equity, and is now an integral part of the common law, in all cases where its essential elements are present, and where it effectuates a just resolution of the rights of the parties, irrespective of whether the doctrine has previously been invoked in the particular situation.” Dworak v. Terrvpel (1959), 17 Ill. 2d 181,190,161 N.E.2d 258.

As in Dworak, we believe that the recognition of a common-law right of subrogation in a provider of medical expense coverage under an employee group health insurance policy is consistent with the stated policy of our supreme court to apply “the expanding doctrine of subrogation.” Moreover, the essential elements of the doctrine are present here and it would effectuate a just resolution of all the parties’ rights. The fact that it has not been previously applied in this exact factual situation is irrelevant.

In summary, we abide by the rule that, “[i]f an insurer pays a loss which is due to the wrongfvd act of another, [it] is subrogated to the rights of the insured ***. This is a rule independent of contract.” Central National Bank & Trust Co. v. Central Illinois Light Co. (1966), 65 Ill. App. 2d 287, 294, 212 N.E.2d 489. See also American National Bank & Trust Co. v. Weyerhaeuser Co. (7th Cir. 1982), 692 E2d 455, 460 n.12 (noting difference recognized in Illinois between “legal” subrogation, which is grounded in equity and applied as a matter of law, and “conventional” subrogation, which is founded upon an express or implied agreement).

Lastly, we must address the issue of the ramification of Michael’s settlement, and the trial court’s dismissal, of the claims asserted against defendants Timothy and Richard Gotlund in counts I (negligence) and III (wilful and wanton conduct) of plaintiffs’ complaint.

Relying on Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69, petitioner asserts that a hearing could be had to determine how any settlement was allocated amongst the various elements of damage for which Michael sought a recovery, which included medical and hospital expenses, in order to determine the portion of the settlement to which petitioner’s right of subrogation would attach. However, before we may agree with petitioner, we must determine whether, in view of the settlement of counts II and III, petitioner still has a viable right of subrogation to the rights of plaintiff Michael against the Gotlunds for medical and hospital expenses paid by it.

A corollary of an insurer’s subrogation to its insured’s right of action against a tortfeasor is that the right of subrogation is extinguished if the insured settles with the tortfeasor and releases him from all liability. (Tarzian v. West Bend Mutual Fire Insurance Co. (1966), 74 Ill. App. 2d 314, 221 N.E.2d 293; Sears, Sucsy & Co. v. Insurance Co. of North America (N.D. Ill. 1974), 392 F. Supp. 398.) However, that rule obtains only where the tortfeasor or his insurance carrier had no knowledge of the insurer-subrogee’s interest prior to the release. (Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210, 375 N.E.2d 115.) The record before us, which does not contain plaintiffs’ settlement with the Gotlunds, does not permit resolution of this question. Given the equitable nature and purposes of the common-law right of subrogation, we believe it is in the interests of justice to remand this cause for a hearing to determine whether defendants or their insurer, if they had one, knew of petitioner’s interest prior to their settlement with and release by plaintiffs. If they did not, petitioner has no viable right of subrogation to Michael’s rights against them.

However, if the trial court determines that the Gotlunds did know of petitioner’s claim, we order that it then hold a hearing to determine what portion of the settlement was allocated or is allocable to Michael’s medical and hospital expenses and if that allocation was proper. (Cf. Page v. Hibbard (1987), 119 Ill. 2d 41, 518 N.E.2d 69 (cause remanded for trial court’s determination whether settlement amount allocated to plaintiff wife’s loss of consortium claim, to which plaintiff husband’s employer’s statutory right of reimbursement did not attach, was proper).) Of course, petitioner’s right of subrogation to Joyce’s claim under the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135) for Michael’s medical and hospital expenses, in count IV of the complaint, is still viable.

For all of the foregoing reasons, the order denying the petition to intervene of Loretto Hospital is reversed and the cause is remanded with instructions.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.

      As to the timeliness of petitioner’s application, it asserts, and the record reflects, that it was made when discovery between the parties was ongoing. We will thus assume from that fact that plaintiffs had not settled with defendants Timothy and Richard Gotlund (see below) when the petition was filed.


author: JUSTICE WHITE

text:
    JAMES PAUL DELANEY, Plaintiff, v. JAMES V. HAPPEL, Defendant (William Earl Harp et al., Interveners and Third-Party Plaintiffs-Appellants; Carl Stacey, Third-Party Defendant-Appellee).
    First District (3rd Division)
    No. 1-88-1039
    Opinion filed June 28, 1989.

      Regas, Frezados & Harp, of Chicago (R. Kymn Harp, of counsel), for appellants.
    Richard A. Wohlleber and Stacy J. Krebs, both of Chapman & Cutler, of Chicago, and Jeffrey S. Nickloy, of Campbell Kyle Proffitt, of Carmel, Indiana, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

This is an appeal from a summary judgment entered in favor of the appellee.

In July 1982, plaintiff James Paul DeLaney entered into an “Intercreditor and Security Agreement” with defendant James Happel, appellee Carl Stacey, and several other individuals, granting each a security interest in DeLaney’s art collection. The “Intercreditor and Security Agreement” stated that DeLaney was indebted to Stacy in the amount of $375,000, that part of this indebtedness was represented by a reimbursement agreement executed by DeLaney and Stacy, and that pursuant to the reimbursement agreement, Stacy would be repaid upon the sale of DeLaney’s art collection.

On May 12, 1983, DeLaney filed suit against Happel seeking to cancel the contracts and agreements between them. DeLaney also sought to enjoin Happel from any action involving the art collection in which Happel purported to act as DeLaney’s agent.

On May 23, the appellants, William Earl Harp and R.K. Harp Investment Corp. (Harps), filed a petition to intervene in DeLaney’s action. They alleged that in November 1982, Stacy transferred his rights under the reimbursement agreement to Karen S. Hettenbach for $200,000, and that Hettenbach in turn assigned that interest to the Harps as collateral for a $200,000 debt she owed them.

The Harps were granted leave to intervene, and on September 30, 1983, they filed a third-party complaint against Stacy, James McQuade, and Donald Cobb. Several months earlier, the Harps had filed another action against Cobb and McQuade in the United District Court for the Northern District of Illinois. A default judgment for $200,000 was entered against Cobb in the Federal action on September 6, 1983, and the Harps attempted to collect this judgment in a garnishment action against Stacy in which they alleged that Stacy had in his possession property belonging to Cobb.

In their third-party action against Stacy, Cobb, and McQuade, the Harps alleged that Stacy’s interest in the reimbursement agreement was a security within the meaning of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1981, ch. 12V-h, par. 137.1 et seq.), which applies to all securities, including the transfer of any evidence of indebtedness, and that the transfer of Stacy’s interest in the reimbursement agreement to Hettenbach was in violation of the Securities Law. The Harps alleged that the transfer to Hettenbach was voidable under section 13 of the Securities Law (Ill. Rev. Stat. 1981, ch. 1211/2, par. 137.13), because Stacy did not register the security, or deliver a prospectus describing it, prior to the sale. The Harps requested that the sale to Hettenbach be rescinded and that Stacy be required to pay them $200,000, plus interest.

Subsequently, Stacy moved for summary judgment on the Harps’ third-party complaint. Stacy alleged that by filing their Federal court action against Cobb and McQuade, the Harps had made an election to sue as assignees of the. reimbursement agreement and, therefore, they had lost the right and ability to seek rescission of the transfer of the agreement to Hettenbach. Stacy also alleged that the Harps had no standing -under section 13 to sue for rescission of the transfer to Hettenbach.

The trial court found that by filing suit against Cobb and McQuade in Federal court, the Harps had made a binding election of remedies and, therefore, granted Stacy’s motion for summary judgment.

In their appeal from the trial court’s order granting summary judgment in favor of Stacy, the Harps argue that the trial court erred in ruling that the election of remedies doctrine was applicable. Stacy argues that the doctrine of election of remedies was properly applied and that the trial court correctly concluded that the Harps’ attempt to rescind the transfer to Hettenbach was inconsistent with their reliance upon the transfer to obtain judgments in Federal court against Cobb and McQuade. In addition, Stacy reasserts his contention that the Harps lack standing under the Securities Law to bring an action seeking rescission of the transfer from Stacy to Hettenbach.

Section 5 of the Securities Law of 1953 provides that, with certain exceptions not appliable to the present case, all securities shall be registered prior to sale in this State. (Ill. Rev. Stat. 1981, ch. 121V2, par. 137.5.) Section 12 provides that it is a violation of the Securities Law to deliver to a purchaser any security required to be registered under section 5, unless accompanied or preceded by a prospectus describing the securities sold. (Ill. Rev. Stat. 1981, ch. Y2V-k, par. 137.12.) Section 13(A) provides that any sale made in violation of the Securities Law shall be voidable at the election of the purchaser. (Ill. Rev. Stat. 1981, ch. 1211/2, par. 13(A).) Section 13(E) provides that the term “purchaser,” as used in section 13, shall include the personal representative or representatives of the purchaser. Ill. Rev. Stat. 1981, ch. 121V2, par. 13(E).

Stacy points out that the transaction which the Harps allege was in violation of sections 5 and 12 of the Securities Law is the transfer between Stacy and Hettenbach. Stacy argues that because the Harps themselves did not purchase the interest from Stacy, they have no standing under section 13(A) to seek rescission of the transfer to Hettenbach. We agree.

Section 13(A) of the Illinois Securities Law of 1953 creates a right of action for rescission that was not previously available at common law. When a statute is in derogation of common law (i.e., when it imposes duties and burdens or establishes rights or benefits not recognized by the common law), it must be strictly construed. (In re W.W. (1983), 97 Ill. 2d 53, 454 N.E.2d 207; In re Prior (1983), 116 Ill. App. 3d 666, 452 N.E.2d 676; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118.) This principle of statutory construction applies even when the statute is remedial in nature. (In re Prior (1983), 116 Ill. App. 3d 666, 452 N.E.2d 676.) Where a statute is remedial in nature and is at the same time in derogation of common law, it will be strictly construed when determining what persons come within it. Cedar Park Cemetery Association, Inc. v. Cooper (1951), 408 Ill. 79, 96 N.E.2d 482; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118.

The Securities Law regulates the conduct of dealers in, and issuers, underwriters, and sellers of, securities. The Securities Law seeks to protect those who purchase securities from such dealers and sellers by imposing on the dealers and sellers certain requirements that must be complied with prior to a sale of securities. The Securities Law provides that when a dealer or seller fails to comply with the statutory requirements, the “purchaser” may elect to rescind the sale.

There is nothing in the Securities Law that indicates that the legislature intended to extend the right of rescission to assignees or transferees of the purchaser, and we believe that a strict reading of the statute requires the conclusion that an assignee of a purchaser has no standing to sue for rescission under section 13(A).

Further support for this conclusion is found in the language of section 13(E) of the Securities Law. This section provides that the term “purchaser” as used in section 13 shall include the personal representative or representatives of the purchaser.

It is a fundamental principle of statutory construction that the enumeration of certain things in a statute implies the exclusion of all others. (People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731; In re Estate of Orzoff (1983), 116 Ill. App. 3d 265, 452 N.E.2d 82.) Thus we find that the inclusion of section 13(E), specifying that the term “purchaser” includes personal representatives of the purchaser, implies an intent to limit the right to rescind to purchasers and their personal representatives.

The Harps contend, however, that the inclusion of section 13(E) supports a conclusion that a purchaser’s rights under section 13(A) are assignable. The Harps , note that the Illinois legislature is presumed to have been aware of the case law, regarding assignability of causes of actions, that was in existence when section 13 was enacted. (See Nardi v. Segal (1967), 90 Ill. App. 2d 432, 234 N.E.2d 805.) The Harps claim that in 1953, Illinois case law provided that actions which passed to the personal representative of a decedent creditor were assignable, and they argue that, therefore, the legislature’s inclusion of section 13(E) indicates its intention to make section 13(A) actions for rescission assignable. This argument is without merit.

The Harps assert that the rule that causes of action which pass to a creditor’s personal representative are assignable is found in North Chicago Street R.R. Co. v. Ackley (1897), 171 Ill. 100, 49 N.E. 222. The Harps’ reliance on this case is misplaced.

The holding of the Illinois Supreme Court in North Chicago Street R.R. Co. v. Ackley was that causes of action for personal injury are not assignable. No question was raised concerning the assignability of actions that may be maintained by a personal representative, and we have been unable to find any Illinois case in which it was held that any action that passes to a personal representative is an assignable action.

In Soderberg v. Gens (N.D. Ill. 1987), 652 F. Supp. 560, the United States District Court for the Northern District of Illinois considered an issue similar to the one before this court. There, a corporation sold certain stock it had purchased in 1984 to the widow of its principal shareholder. The corporation also assigned to the widow all claims and causes of actions arising out of the negotiation, purchase, acquisition, or retention of the stock. Subsequently, the widow filed suit under the Securities Exchange Act of 1934 and the Securities Act of 1933 seeking rescission of the corporation’s 1984 purchase of the stock. The district court granted defendants’ motion for summary judgment. The court noted that as a general rule the right to sue for rescission is a personal right which ordinarily is not assignable. The court found that there was no reason to think that Federal securities fraud actions should be an exception to the general rule.

Similarly, in the present case we see no reason to except actions brought under the Illinois Securities Law of 1953 from the general rule that the right to sue for rescission is not assignable. Accordingly, we find that the Harps were not the “purchasers” of the securities in question, and, therefore, they lack standing to bring an action for rescission under section 13(A) of the Securities Law. Because of our disposition of this issue, we need not reach the Harps’ arguments concerning the applicability of the election of remedies doctrine.

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

Affirmed.

RIZZI and CERDA, JJ., concur.