author: JUSTICE NICKELS

text:
    MICHAEL P. DARROUGH, Plaintiff-Appellant, v. GLENDALE HEIGHTS COMMUNITY HOSPITAL, Defendant-Appellee.
    Second District
    No. 2—91—1390
    Opinion filed September 29, 1992.
    David J. Comeau, of Anesi, Ozmon, Rodin & Associates, Ltd., of Chicago, for appellant.

      Douglas J. Esp and Stephen R. Swofford, both of Hinshaw & Culbertson, of Chicago, and Robert G. Black and Alice Kehl Kush, both of Hinshaw & Culbertson, of Lisle, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Michael P. Darrough, appeals the circuit court’s order granting summary judgment in favor of defendant, Glendale Heights Community Hospital, on plaintiff’s negligence claim. Plaintiff asserts that the circuit court incorrectly concluded that plaintiff had failed to establish a prima facie claim of negligence as a result of the alleged malfunction of the leg rest of defendant’s wheelchair and, therefore, entered summary judgment in favor of defendant as a matter of law. We reverse and remand.

On September 14, 1986, plaintiff injured his knee during a softball game and was taken to defendant’s emergency room. The next morning, a surgeon performed reconstructive surgery and wired together the shattered fragments of plaintiff’s kneecap, which was then immobilized by placement in a closed cast.

On September 23, 1986, plaintiff was taken from his hospital room to the X-ray department for a chest X ray in an attempt to diagnose an unrelated congestion. An unidentified male candy striper placed plaintiff in a wheelchair, on which the candy striper raised and set a movable leg rest to hold plaintiff’s casted injured leg in a horizontal position parallel to the floor.

The wheelchair was manufactured by defendant, Ivancare, Inc., which was previously granted summary judgment independent of this appeal. The wheelchair was one of two models supplied to defendant, the other not having leg rests. The leg rest in question was controlled by a cam-activated lever, which was released to elevate the leg rest and which then automatically locked. The leg rest remained in the position thus set until the cam-activated lever was again released, which would cause the leg rest to immediately drop to its lowest, vertical position perpendicular to the floor.

The candy striper pushed the wheelchair containing plaintiff to the X-ray department without incident. The floor was entirely smooth, and the wheelchair never bumped any walls or doorjambs. An X-ray technician then moved plaintiff from the X-ray department reception room into the X-ray room, took plaintiff’s X rays, and returned plaintiff to the reception room, again all without incident and with plaintiff remaining in the wheelchair with his injured leg elevated. Another hospital employee, who was in charge of patient transport, then appeared and began to return plaintiff to his hospital room.

The patient transport employee released the brakes on the wheelchair in which plaintiff was seated, which had been set by the X-ray technician, and began pushing the wheelchair with both hands on the handles protruding from the rear of the wheelchair. Throughout this entire time, plaintiff had kept his hands in his lap and did not touch any part of the wheelchair. The wheelchair had moved less than a single revolution of the rear wheels when the leg support collapsed, and plaintiff’s injured leg fell to the floor. The patient transport employee lifted plaintiff’s casted injured leg, reset the leg rest, and, after checking to be sure the leg rest would hold, once again placed plaintiff’s injured leg on the leg rest. Neither plaintiff nor the patient transport employee knew what had caused the leg rest to collapse.

After returning plaintiff to his room and outside his presence, the patient transport employee inspected the wheelchair and found the leg rest to be operating correctly. Therefore, he returned the wheelchair to stock. As a result, the wheelchair in which plaintiff was sitting when the leg rest collapsed was not identified, and defendant was not able to produce the wheelchair for inspection or testing. However, all wheelchairs purchased when defendant began operations in 1980 were still in service on the date of plaintiff’s injury and at all time relevant to these proceedings. No incidents similar to that which occurred here had occurred either before or after that time.

Plaintiff filed suit and alleged that, as a result of the sudden jarring and bending of plaintiff’s knee within the cast when the leg rest of the wheelchair collapsed, the reconstruction of plaintiff’s knee failed and eventually required the total removal of his kneecap. Specifically, plaintiff’s complaint alleged that defendant “possessed, operated, managed, maintained and controlled or had a duty to possess, operate, manage, maintain and control, both directly and indirectly, individually and through [its] agents, servants, and employees, a certain wheelchair on the premises [of defendant],” and defendant had “improperly operated, managed, maintained and controlled the aforesaid wheelchair, so that as a direct and proximate result thereof, the Plaintiff was injured.”

Defendant moved for summary judgment and argued this circumstantial evidence permitted multiple inferences as to the cause of the collapse of the leg rest, and, therefore, plaintiff’s assertion that the candy striper had failed to properly set the leg rest was mere conjecture and speculation. Thus, defendant argued, plaintiff had failed to establish a prima facie claim for negligence, and summary judgment was proper. In opposition to defendant’s motion, plaintiff asserted that any multiple inferences permissible from the undisputed, although circumstantial, facts created a material question of fact precluding summary judgment.

During the hearing on defendant’s motion, defendant argued that defendant did not have exclusive control of the wheelchair because plaintiff had been left unattended for some period of time and may himself have released the leg rest control, cam-activated lever. Plaintiff responded that there was no evidence that plaintiff had done anything to cause the incident or that the wheelchair had collided with anything that could have jarred the leg rest and caused the leg rest to fall. The circuit court asked if plaintiff had a claim for res ipsa loquitur, to which defendant’s counsel responded that plaintiff’s claim sounded only in strict negligence, and defendant’s counsel again later during argument asserted that plaintiff had not claimed res ipsa loquitur. The circuit court granted defendant’s motion for summary judgment, and in its letter of opinion expressly noted:

“From the evidence taken as a whole in this case the trier of fact would be left to speculate as to why the leg support fell. Was it a defect in the chair, was it improperly set initially by the candy striper, did the plaintiff himself accidentally bump the release lever, or did it just slip due to the chair being pushed around down to and in and out of the xray [sic] department for some unknown reason. Nothing guides us to a conclusion as to any of these possibilities either directly or circumstantially. This being the case, I have no alternative but to grant defendant’s motion.”

The circuit court subsequently denied plaintiff’s motion for reconsideration, and plaintiff now appeals, asserting that the circuit court erred as a matter of law in granting defendant’s motion for summary judgment because a material issue of fact existed.

The purpose of a motion for summary judgment is not to try a question of fact, but rather to determine if a question of fact exists. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294.) Summary judgment is proper when, construing the evidence in the record strongly against the movant and liberally in favor of the opponent (In re Estate of Whittington (1985), 107 Ill. 2d 169, 177; Dockery v. Ortiz (1989), 185 Ill. App. 3d 296, 304-05), the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421; Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842). To prevent entry of summary judgment, an opponent must present a bona fide factual issue and not merely general denials and conclusions of law. (Wil-Shore Motor Sales, Inc. v. Continental Illinois National Bank & Trust Co. (1984), 130 Ill. App. 3d 167, 172.) An issue is “genuine” only if there is evidence to support the position of the non-moving party. (N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 1075.) Thus, although the party opposing summary judgment need not prove his case at this preliminary stage, he must present some factual basis that would arguably entitle him to a judgment under the applicable law. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939.

We first note that although the circuit court apparently recognized the applicability of the doctrine of res ipsa loquitur when it inquired whether plaintiff had made such a claim, both the circuit court and defendant referred to a claim of res ipsa loquitur, which claim is not necessary. Rather, res ipsa loquitur is merely a rule of evidence, which relates to the sufficiency of a plaintiff’s proof (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 274) and which involves a species of circumstantial evidence that permits the trier of fact to draw an inference of negligence when direct evidence is primarily within the control of the defendant (Taylor v. City of Beardstown (1986), 142 Ill. App. 3d 584, 592). Plaintiff’s failure to contradict defendant’s accurate, although irrelevant, assertion that no claim of res ipsa loquitur was pleaded does not prevent us from addressing this apparent confusion surrounding the pleadings necessary to support application of the evidentiary doctrine of res ipsa loquitur as a matter of law. See In re Marriage of Sutton (1990), 136 Ill. 2d 441, 446 (waiver is limitation on parties, not on court).

To state a claim for negligence, a plaintiff must allege: (1) a duty flowing to the plaintiff from the defendant and (2) breach of such duty, which (3) proximately causes (4) injury to the plaintiff. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) Although proximate cause must be established by normal manners of proof (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 304), the evidentiary doctrine of res ipsa loquitur permits evidence of a defendant’s exclusive control of the instrumentality that caused a plaintiff’s injury and the unlikelihood of such injury absent the defendant’s negligence as circumstantial evidence of negligence in lieu of direct evidence (see Dyback v. Weber (1986), 114 Ill. 2d 232, 241 (with adoption of comparative negligence, freedom from contributory negligence no longer necessary to invoke doctrine of res ipsa loquitur)). To invoke the doctrine of res ipsa loquitur, a plaintiff must allege general negligence sufficient to notify the defendant that the doctrine is applicable. (Deming v. Montgomery (1989), 180 Ill. App. 3d 527, 532; County of Du Page v. Kussel (1973), 12 Ill. App. 3d 272, 277, aff'd (1974), 57 Ill. 2d 190; Erckman v. Northern Illinois Gas Co. (1965), 61 Ill. App. 2d 137, 144.) “[0]nly general allegations charging a defendant with ‘negligently and carelessly controlling, managing and maintaining’ an instrumentality” will support application of the doctrine of res ipsa loquitur. (Erckman, 61 Ill. App. 2d at 144.) However, no special form of words is necessary to rely on the doctrine of res ipsa loquitur. (Kruger v. Newkirk (1976), 40 Ill. App. 3d 581, 585.) Because Illinois requires fact pleading (Ill. Rev. Stat. 1987, ch. 110, par. 2—603), res ipsa loquitur is often pleaded as a separate claim (see Tamura, Inc. v. Sanyo Electric, Inc. (N.D. Ill. 1986), 636 F. Supp. 1065, 1067-68) and, therefore, has sometimes been referred to as a cause of action (see, e.g., Spidle v. Steward (1980), 79 Ill. 2d 1, 7). Nevertheless, res ipsa loquitur is “simply a rule of evidence relating to the sufficiency of plaintiff’s proof.” (Lynch, 93 Ill. 2d at 274.) The determination of whether res ipsa loquitur applies is a question of law, which the court in the first instance must decide based on whether the plaintiff has pleaded facts that would ever establish that the defendant had exclusive control over the instrumentality of the plaintiff’s injury and that the injury is otherwise unexplainable absent the defendant’s negligence. (Spidle, 79 Ill. 2d at 7.) Thus, our initial inquiry is whether, as a matter of law, plaintiff offered some factual basis to establish such foundation for application of the doctrine of res ipsa loquitur.

Res ipsa loquitur does not require absolute and conclusive proof of its foundation. (Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 688.) “Exclusive control” has been used interchangeably with “management or control” to describe the first criterion necessary for application of res ipsa loquitur. (Lynch, 93 Ill. 2d at 272.) Such control is a not a rigid standard, but a flexible one in which the key question is whether the probable cause of the plaintiff’s injury was one which the defendant was under a duty to the plaintiff to anticipate or guard against. (Lynch, 93 Ill. 2d at 274.) A defendant’s control of the instrumentality at the time of the alleged negligence is not defeated by lack of control at the time of the injury. (Kruger, 40 Ill. App. 3d at 585.) Rather, if the instrument that causes the injury was in the control or management at a time prior to the injury and there is no change in conditions or intervening act that could reasonably have caused the event resulting in the injury, sufficient control and management is established for invocation of the doctrine of res ipsa loqui tur. (Kruger, 40 Ill. App. 3d at 586.) That the acts and conduct of a defendant were reasonable does not destroy the inference of negligence, but will allow a jury to reject such inference after weighing all the evidence. (Imig v. Beck (1986), 115 Ill. 2d 18, 31.) Finally, a plaintiff’s own conduct does not defeat application of the doctrine of res ipsa loquitur, but rather is a question of the plaintiff’s own comparative negligence. Dyback, 114 Ill. 2d at 241.

In this instance, the alleged negligence occurred when the unidentified candy striper allegedly set the leg rest improperly. Although defendant asserts that plaintiff had control of the wheelchair for a short period of time when he was left to wait in the X-ray reception area for a patient transport employee to return him to his room, there is no evidence that plaintiff did anything to the chair. However, defendant’s own expert testified at his deposition that if plaintiff had released the cam-activated lever controlling the leg rest, it would have immediately fallen. Therefore, that the leg rest did not fall until the patient transport employee arrived and resumed control by pushing the wheelchair belies any tampering with the leg rest cam-activated lever by plaintiff. Additionally, plaintiff testified at his own deposition that he never touched the cam-activated lever. Thus, the circumstances supporting an inference of defendant’s negligence are not destroyed by the intervening control plaintiff may have possessed. See Kruger, 40 Ill. App. 3d at 585.

Nor do we find that this incident is of a type that normally occurs in the absence of negligence. Defendant’s own employee’s deposition indicated that no similar incident has ever happened before or since, and the deposition of codefendant Ivancare’s expert similarly identified no comparable incidents. Thus, plaintiff sufficiently pleaded facts to support application of the evidentiary doctrine of res ipsa loquitur to survive defendant’s motion for summary judgnlent.

Despite the application of the doctrine of res ipsa loquitur, we also consider defendant’s assertion that circumstantial evidence is sufficient only if it permits but one conclusion. (Kellman v. Twin Orchard Country Club (1990), 202 Ill. App. 3d 968, 974.) In support of such assertion, defendant urged both below and in its brief on appeal a line of cases concerning an owner’s negligent installation or maintenance of a floor. (See Kellman, 202 Ill. App. 3d at 974; Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813.) However, Kellman is in direct conflict with Mort v. Walter (1983), 98 Ill. 2d 391, on which it relied and which held that “the use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion. Instead, circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom.” (Emphasis added.) (98 Ill. 2d at 396.) In both Kellman and Kimbrough, the circumstantial evidence at issue concerned the plaintiffs’ falls as the result of alleged improper floor surfaces. However, in Illinois the material used or manner in which such materials were applied must also be shown to have been improper before the trier of fact will be permitted to consider the fact of a plaintiff’s fall as circumstantial evidence of negligence. (Lucker v. Arlington Park Race Track Corp. (1986), 142 Ill. App. 3d 872, 874.) Such cases are therefore distinguishable both because Kellman incorrectly weighed the circumstantial evidence presented there and because plaintiff here has not alleged negligence as a result of defendant’s negligent care of its floor, but rather has alleged injuries sustained when the wheelchair in which he was sitting and which was supplied by defendant collapsed.

Finally, the undisputed facts in this instance indicate that plaintiff’s hands remained in his lap the entire time he was in the wheelchair and that, had plaintiff released the cam-activated lever, the leg rest would have immediately fallen and not remained suspended until the patient transport employee began to push the wheelchair. It is also undisputed that the wheelchair encountered no obstacles between the time the leg rest was set and the time that it fell and that no similar incident with any wheelchair has occurred at any time before or since as a result of mere use of a wheelchair. Despite these facts, the trial court in its letter of opinion based its grant of summary judgment in favor of defendant on the possibility of multiple inferences that included plaintiff’s release of the leg rest himself and the normal use of the wheelchair causing such event. Thus, the trial court not only failed to construe the facts and inferences strongly in favor of plaintiff and against defendant as it was required to so do (In re Estate of Whittington, 107 Ill. 2d at 177), but construed them in direct contradiction to the undisputed facts. Thus, the trial court failed to consider the undisputed facts under the standard appropriate to defendant’s motion for summary judgment.

For the reasons set forth above, the order of the circuit court granting defendant’s motion for summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANIEL W. CARLILE, Defendant-Appellee.
    Fourth District
    No. 4—92—0317
    Opinion filed September 30, 1992.
    Rehearing denied October 29, 1992.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Carey J. Luckman, of Pontiac, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Defendant Daniel W. Carlile was charged with unlawful possession of a controlled substance and unlawful possession of cannabis. (Ill. Rev. Stat. 1991, ch. 56½, pars. 1402(a), 704.) On March 19, 1992, following a hearing in the circuit court of Livingston County, the court entered an order granting defendant’s motions to quash his arrest and suppress evidence of drug paraphernalia. The State appeals, pursuant to Supreme Court Rule 604(a) (134 Ill. 2d R. 604(a)), and has filed an affidavit asserting the court’s order substantially impaired its ability to prosecute the case.

We reverse the order appealed. We hold that certain items suppressed were properly received and defendant was properly arrested. We remand for further hearing in regard to other aspects of the relief requested by defendant.

At the suppression hearing, upon being called by defendant, Pontiac police officer Mike Gray testified as follows: (1) on September 8, 1991, he and Officer Bristow were dispatched to defendant’s residence on a domestic dispute; (2) when they arrived on the scene they spoke briefly to defendant in the street near the house; defendant indicated he wanted the officers to remove his former girlfriend, Arcelia Jensen, from his apartment; (3) Jensen told them to come into the apartment, where they found her sitting in a chair and crying; (4) the officers informed her that she would have to leave, but she did not immediately leave; (5) they did not try to physically remove her, because they felt they could calm her down and she would leave; (6) after Gray had asked her to leave two or three times, Bristow left, and Jensen told Gray to look behind a stereo speaker; (7) Gray asked her why he should look, but she repeatedly said only that he should “look behind the speaker”; and (8) Gray turned and looked behind the V-k-to 2-foot-tall speaker and saw a tall, plastic smoking pipe, commonly referred to as a “bong,” directly behind the speaker.

Gray further testified (1) he then told Jensen he saw what was back there, but did not do anything further except to tell her she still had to leave; (2) Jensen then got up, pulled the pipe from behind the speaker, and placed it in a bag in front of where Gray was standing; (3) she then went into a bedroom, removed a small glass smoking device covered with white residue, from a jewelry box on top of a dresser, and brought it to Gray; (4) she told Gray the objects belonged to defendant and that he should not be using them; (5) Gray allowed her to go into the bedroom, because he believed she was gathering some of her personal effects to take with her; and (6) Gray took the two pipes from her and told her she still had to leave.

Gray said that while still on the scene, he asked defendant to sit in the front seat of the squad car with him, and he told defendant what Jensen had given him. He read defendant his Miranda rights, and defendant agreed to waive his rights at approximately 12:20 a.m. At this point, the court interrupted the testimony to indicate it felt that unless the State had other contrary evidence, the defendant was entitled to suppression of the bong and the other pipe, principally because they were the fruits of an unlawful search which began when Gray looked behind the speaker at Jensen’s request. The prosecutor indicated he had no countervailing evidence on this point.

At the request of defense counsel, the court then addressed the question of the propriety of any statements the State may have taken from defendant and of the seizure of any other items which the State may have taken from defendant’s house after a subsequent search. The record is not clear as to whether any statements or confessions were taken from defendant or whether any property was seized in the subsequent search. However, during subsequent examination, then being conducted by the prosecutor, Gray indicated that he and another officer secured defendant’s apartment until a search warrant could be issued. He said he explained to defendant, who remained in the squad car, that it was taking some time to get the warrant, and at 2:30 a.m., the officer again asked if they could search his apartment. Defendant then agreed to allow the officers to search his apartment. On October 3, 1991, defendant was arrested and charged as previously indicated.

We examine first the propriety of the seizure of the bong and the other pipe. A more detailed explanation of the circuit court’s reasoning in suppressing those items is that (1) an improper search of defendant’s apartment had been made, because no consent to search had been given by anyone who had authority or legal possession of the premises; and (2) the initial search was at the request of a trespasser whom the officers were there to remove. The court concluded that the officer should not have looked behind the speaker when Jensen first told him to do so, but he should have determined why she wanted him to look, secured the residence, and then obtained a search warrant.

The State argues on appeal that the trial court erred in granting defendant’s motions, because no “search” by the police had occurred to which fourth amendment protection applied. The State maintains that the “search,” if any, was conducted by a private citizen who put the items in plain view of the officers.

The fourth amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” (U.S. Const., amend. IV.) The Illinois Constitution also prohibits unreasonable searches and seizures. (Ill. Const. 1970, art. I, §6.) A trial court’s determination on a motion to suppress evidence will not be overturned on review unless it is contrary to the manifest weight of the evidence. People v. Janis (1990), 139 Ill. 2d 300, 308, 565 N.E.2d 633, 637.

In Burdeau v. McDowell (1921), 256 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574, the Supreme Court held that the fourth amendment is a limitation only upon the government and, therefore, evidence secured by private searches need not be excluded from a criminal trial even if the search had been illegal. (1 W. La Fave, Search & Seizure §1.8, at 174 (2d ed. 1987).) Moreover, fourth amendment prohibitions do not extend to private individuals who conduct their own inspections or searches without government involvement. People v. Carini (1986), 151 Ill. App. 3d 264, 502 N.E.2d 1206.

In Carini, the manager of a facility with self-locking storage units warned defendant that if he did not eliminate a foul odor coming from a unit he was renting, the manager would do so. Defendant assured the manager he would clean the unit, but after two weeks, had not done so. The manager then cut the locks off the unit, found a “horrible smelling,” sticky amber fluid coming from the trunk of a car parked inside the unit, and called the police. (Carini, 151 Ill. App. 3d at 274, 502 N.E.2d at 1212.) The police thereafter discovered two bodies in the trunk. The court affirmed the trial court’s determination that the evidence should not be suppressed, because defendant’s failure to heed the manager’s warning to clean the unit negated any reasonable expectation of privacy defendant may have had, and the discovery of the car was not the result of a governmental search. The court concluded that the inspection by the manager was not a “search” to which the fourth amendment prohibitions would apply, and the manager put the evidence in plain view of the officers.

In United States v. Kinney (4th Cir. 1992), 953 F.2d 863, the court determined that a search of a locked closet by defendant’s girlfriend, Mary Ann Akers, who was living in the apartment but did not normally have access to the closet, was not a “search” requiring fourth amendment protection. The court noted that even though the police were present during Akers’ search of the closet, the private search was not transformed into a government search. The court held that more than the mere presence of a police officer was necessary to constitute the government action required to implicate fourth amendment concerns. Kinney, 953 F.2d at 865.

The Indiana Supreme Court has concluded that constitutional prohibitions against unreasonable searches and seizures provide protection from such acts by the government but do not apply to unauthorized acts of private citizens, even where the private citizen has no lawful right to conduct a search. In Torres v. State (Ind. 1982), 442 N.E.2d 1021, a burglar stole pornographic photographs from defendant’s apartment, depicting a defendant and his girlfriend sexually abusing a three-year-old child. After attempting to extort money from that defendant in exchange for the photographs, the burglar sent the photographs to the police. The trial court denied defendant’s motion to suppress the evidence, and the supreme court affirmed.

Here, the police officers were clearly in defendant’s house at his, at least, implied invitation to enter the house to remove Jensen. In doing so, they were performing a “community caretaking function.” (See People v. Murray (1990), 137 Ill. 2d 382, 387, 560 N.E.2d 309, 311-12; People v. Bauman (1990), 204 Ill. App. 3d 813, 817, 562 N.E.2d 336, 339.) Gray was performing such a function when he remained in the upstairs room with Jensen attempting to get her to leave peacefully. Nothing concerning the deliberation with which Gray proceeded supports the defendant’s contention that when Gray looked behind the speaker, he was performing a search. Gray’s undisputed explanation of his bodily movement when he looked behind the speaker was that he “turned and looked at it.” A natural response by a peace officer in attempting to get a person to peacefully leave a room would be to turn and look at an object if the person he was attempting to persuade asked him to do so.

Defendant maintains Gray should have been careful when Jensen did not answer after he asked her why he should look behind the speaker. We disagree. Even if he had to take several steps to look behind the speaker, we deem his actions were a natural and proper response to the situation confronting him and the performance of his duty. He might have seen something which bore upon why Jensen was reluctant to leave. Gray had no reason to believe that defendant had any substantial expectation of privacy in something which could be seen by an occupant of the room merely by turning and walking a few steps from one place in the room to another. We hold that the circuit court’s determination that Gray’s observation behind the speaker constituted a search is contrary to the manifest weight of the evidence and contrary to law.

Gray seized the “bong” only after Jensen picked it up and gave it to him. He did not ask or encourage her to do it. She was not his agent in doing so. The fact that Gray was performing a “community caretaking function” in attempting to get Jensen to leave peacefully negates any inference that his continued presence coerced her to bring the item to him. Upon seeing the nature of the bong, Gray had probable cause to seize it.

Similarly, no coercion on Jensen to go into the bedroom to obtain the pipe can be inferred from Gray’s continued presence. Clearly, Gray conducted no search to obtain that item. He made no movement to see it. Jensen brought it to him, and he had probable cause to then seize it. By that time he also had probable cause to arrest defendant. Thus, the “bong” and the other pipe should not have been suppressed, and defendant’s arrest should not have been quashed.

In attempting to handle the matter summarily and cutting off questioning because of a belief that a search for the “bong” and a seizure of the other pipe tainted all subsequent seizures by the State or the obtaining of any statements or confession, the court prevented the creation of a record sufficient for us to rule upon the propriety of any other such evidence. We determine that fairness to the parties requires remandment for a further evidentiary hearing in that regard.

The order on appeal is reversed, and the cause is remanded for the receipt of further evidence as we have directed.

Reversed and remanded with directions.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE HARRISON

text:
    MAGNA TRUST COMPANY, as Trustee, Plaintiff-Appellee, v. THE DEPARTMENT OF TRANSPORTATION, Division of Water Resources, et al., Defendants-Appellants.
    Fifth District
    No. 5—91—0418
    Opinion filed October 2, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Harry J. Sterling, of Harry J. Sterling, P.C., of Fairview Heights, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Magna Trust Company, as trustee under trust No. 6656 (hereinafter referred to as the Trustee), brought a civil rights action in the circuit court of St. Clair County pursuant to 42 U.S.C.A. §1983 (West 1981). The purpose of that action was to compel the Illinois Department of Transportation (IDOT) to specifically perform certain contractual obligations imposed by an agreement governing its temporary easement on the Trustee’s property. In addition to IDOT, the complaint named as defendants Michael P. Lane and Greg Baise, the past and present secretaries of IDOT, who were sued in their official capacities.

Following a bench trial, the circuit court found that defendants had breached the terms of the easement agreement by depositing unauthorized materials on the subject property and by failing to restore that property to its original condition once the easement was terminated. Based on this finding, the court ordered defendants to remove “all materials other than soil materials from the premises” and to restore those premises to their previous condition. The court also awarded the Trustee its reasonable costs and attorney fees. Defendants now appeal, arguing, among other things, that they are not subject to suit under 42 U.S.C.A. §1983 (West 1981). We agree.

Section 1983 (42 U.S.C.A. §1983 (West 1981)) provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.)

The United States Supreme Court has now made clear that States may not be sued under section 1983 because they do not constitute “persons” within the meaning of the statute. (Will v. Michigan Department of State Police (1989), 491 U.S. 58, 105 L. Ed. 2d 45, 109 S. Ct. 2304.) Because a suit against the Illinois Department of Transportation is considered to be a suit against the State itself (see Swope v. Northern Illinois Gas Co. (1991), 221 Ill. App. 3d 241, 242, 581 N.E.2d 819, 821), the Trustee’s action against IDOT should not have been permitted to go forward, and the circuit court’s judgment in favor of the Trustee and against IDOT cannot stand.

All that remains are the claims against Greg Baise and Michael P. Lane, the past and present heads of IDOT. From the record, it is apparent that those defendants have been sued solely in their official capacities. A suit against a State official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself (Will, 491 U.S. at 71, 105 L. Ed. 2d at 58, 109 S. Ct. at 2311) and is likewise impermissible.

An exception to this rule exists where the plaintiff seeks prospective injunctive relief from the State official. In such cases, the official is deemed to be a “person” within the meaning of section 1983 even where he is sued in his official capacity, for “ ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” (491 U.S. at 71 n.10, 105 L. Ed. 2d at 58 n.10, 109 S. Ct. at 2311 n.10, quoting Kentucky v. Graham (1985), 473 U.S. 159, 167 n.14, 87 L. Ed. 2d 114, 122 n.14, 105 S. Ct. 3099, 3106 n.14.) In this case, however, the relief sought was not prospective in nature. The Trustee was not attempting to enjoin any future actions by defendants. Indeed, there was no future action to enjoin. The easement was at an end, and the dumping of the offending “nonsoil” materials on the subject property had already ceased.

What the Trustee sought here was simply to hold defendants accountable for their past breach of the easement agreement. Such a claim was no more “prospective” than a conventional damage action would have been. All that differentiated it from such a claim was the particulars of the relief requested. Instead of a cash award to compensate it for the diminution in the property’s value or to cover the expense of restoring the property, the Trustee asked that defendants be compelled to perform the cleanup and restoration work themselves as the easement agreement had specifically required. For the purposes of determining what constitutes a “person” within the meaning of section 1983, we fail to see, and the Trustee has not explained, why this difference should be given any significance. The effect on the State of granting specific performance is no less direct or adverse than an award of money damages, and in either case the object is the same: to make the Trustee whole for a loss it has already sustained. Protection from future injury is not a consideration.

In an attempt to find some alternative basis for sustaining the circuit court’s judgment, the Trustee argues that even if it does not have a cognizable claim under 42 U.S.C.A. §1983 (West 1981), it was still entitled to recover based on common law principles of breach of contract. IDOT correctly observes, however, that because of sovereign immunity, the State or a department of the State can never be a proper party defendant in a common law action brought directly in the circuit court. (Smith v. Jones (1986), 113 Ill. 2d 126, 132, 497 N.E.2d 738, 740.) Exclusive jurisdiction over claims against the State is vested in the Court of Claims. Patzner v. Baise (1990), 133 Ill. 2d 540, 545, 552 N.E.2d 714, 716.

The Trustee cannot avoid this limitation through its inclusion of Lane and Baise as defendants. Although sovereign immunity will afford no protection where an agent of the State has acted in violation of statutory or constitutional law or in excess of his authority (Henderson v. Beckman Texaco (1991), 213 Ill. App. 3d 1054, 1058, 573 N.E.2d 369, 371), the only impropriety charged against Lane and Baise is that they violated the terms of the easement agreement. Such allegations of breach of contract are not sufficient to deprive State officials of the protection of the bar of sovereign immunity. Smith v. Jones, 113 Ill. 2d at 132-33, 497 N.E.2d at 741.

The Trustee protests that it should nevertheless be allowed to proceed in circuit court because the Court of Claims has no authority to grant the remedy of specific performance, which is what it seeks. A similar argument was expressly considered and rejected by our supreme court in Ellis v. Board of Governors (1984), 102 Ill. 2d 387, 395, 466 N.E.2d 202, 206-07. In that case, the court held that where, as here, a plaintiff seeks redress from the State for a wrong which has already occurred, he will only be permitted to proceed in the Court of Claims, even if he will thereby lose the option of obtaining injunctive relief. While the Trustee may regard this limitation as unfair, we can only refer to our supreme court’s observation that “ ‘[i]f the inequities inherent in the doctrine of sovereign immunity are to be remedied, it is for the legislature and not this court to act.’ ” Patzner v. Baise (1990), 133 Ill. 2d 540, 548, 552 N.E.2d 714, 718, quoting S.J. Groves & Sons Co. v. State (1982), 93 Ill. 2d 397, 407, 444 N.E.2d 131,136.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed.

Reversed.

CHAPMAN and RARICK, JJ., concur.


author: PRESIDING JUSTICE GREEN PRESIDING JUSTICE GREEN

text:
    PRAIRIE PRODUCTION CREDIT ASSOCIATION, Plaintiff-Appellee, v. HENRI J. BIANUCCI et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0201
    Opinion filed September 24, 1992.
    Supplemental opinion filed on denial of rehearing October 14,1992.

      Phillip R. Lamkin, of Lamkin & Lamkin, P.C., and Ray Moss, of Ray Moss & Associates, both of Clinton, for appellants.
    Tietz & Richardson, of Decatur (Jeffrey D. Richardson, of counsel), for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Section 12 — 101 of the Code of Civil Procedure (Code) states that “[a] judgment is not a lien on real estate for longer than 7 years from the time it is entered or revived” (emphasis added) (Ill. Rev. Stat. 1989, ch. 110, par. 12—101). At common law, the method for reviving judgments was through a proceeding in scire facias (see Smith v. Carlson (1956), 8 Ill. 2d 74, 132 N.E.2d 513). Section 2-1601 of the Code abolished that procedure and states that relief formerly obtained in such a proceeding may be granted through “a petition filed in the case in which the original judgment was entered.” Ill. Rev. Stat. 1989, ch. 110, par. 2—1601.

This case involves a proceeding on a motion to revive a judgment brought by a judgment creditor against judgment debtors who had been discharged in bankruptcy after the lien of the judgment had attached to defendants’ residential property. That property was later abandoned by the bankruptcy trustee. The principal questions are (1) whether a motion to revive a judgment ever lies after the judgment debtors have, subsequent to the judgment, been discharged in bankruptcy; (2) if the motion is permissible, what issues are to be considered; and (3) whether, in any event, the judgment lien involved here was defeated or rendered void by the laws of bankruptcy or State property laws. We hold: (1) such a motion does lie where the lien of the judgment is preserved; (2) the issues presented on the motion are somewhat limited but included consideration of the enforceability of the judgment lien involved, i.e., whether execution can be obtained thereon; and (3) under the facts alleged here, State laws did not defeat or void the judgment lien. We defer to a proceeding in the Federal courts to first determine the operation of bankruptcy law upon plaintiff’s judgment lien.

On December 10, 1984, plaintiff Prairie Production Credit Association (PCA) obtained a judgment by confession on a note against defendants Henri J. and Barbara J. Bianucci in the circuit court of De Witt County. The judgment was in the sum of $67,864.14 plus costs which included a $1,400 attorney fee. Ten days thereafter, on December 20, 1984, defendants filed a voluntary bankruptcy petition in the United States District Court for the Central District of Illinois, and on October 28, 1985, they were discharged from the bankruptcy. On September 19, 1991, proceeding pursuant to section 2 — 1601 of the Code, plaintiff filed a motion in the case in which the judgment was entered seeking to revive the December 10, 1984, judgment.

Defendants filed a response to plaintiff’s motion to revive the judgment. They contended (1) the stated amount of the judgment was inaccurate; (2) various payments further reduced the amount owed; (3) an unsecured claim filed in the bankruptcy by plaintiff had been allowed; (4) all of defendants’ real estate had been liquidated in the bankruptcy except for the residential property; (5) at the time of the bankruptcy, no equity existed in the residential property over and above (a) the amount due on a mortgage which was prior to plaintiff’s judgment, (b) the lien for taxes, and (c) defendants’ homestead exemption. The response also stated that the residential premises had been sold.

The response was supported by the affidavit of the trustee in bankruptcy, who stated he had abandoned the residential property, and at the time of the bankruptcy, that property had no value “exceeding the enforceable encumbrances and the homestead exemption.” In regard to the latter statement, the affidavit differed from the response in that the response stated the residential property had no value after considering various liens prior to plaintiff’s lien while the affidavit said that the lack of equity existed after considering all “enforceable encumbrances,” which could have included plaintiff’s judgment lien.

A hearing was held at which no evidence was introduced. The circuit court concluded it could not properly consider the potential enforceability of the judgment sought to be revived in determining whether to allow revival. On February 11, 1992, the circuit court entered an order which found the judgment was “still in force and effect, [had] not [been] reversed or set aside and [had] not been paid by defendants.” The court then ordered the judgment revived and ordered execution to issue.

Defendants have appealed, contending, as we have indicated, that (1) their discharge in bankruptcy was, of itself, sufficient to prohibit the circuit court from reviving the judgment; (2) even if the judgment could be revived on an in rem basis in order to enforce the lien of the judgment, the court erred in refusing to consider the enforceability of the judgment lien; and (3) the laws of bankruptcy and Illinois property law rendered the judgment lien unenforceable.

Plaintiff agrees that defendants’ discharge in bankruptcy discharged them from any personal liability on the judgment but contends that the existence of a judgment lien against defendants’ residential real estate permitted the court to revive the judgment as far as the lien was concerned. Plaintiff maintains the court correctly refused to consider the enforceability of the judgment lien and contends that, in any event, the question of the validity of the lien under bankruptcy law should not be considered, because defendants have attempted to open up the bankruptcy proceedings to get the bankruptcy court to consider the validity of the lien. Although the bankruptcy court has refused to reopen the proceeding, plaintiff maintains that since that order is still subject to the Federal appeals process, neither the trial court nor this court should consider that matter.

In support of their position that the discharge in bankruptcy prevents any revival of the pre-bankruptcy judgment, defendants rely upon Trustees of Schools of Township No. 20, Range No. 5 v. Chamberlain (1948), 334 Ill. App. 83, 78 N.E.2d 525, and Martinez v. Cogan (1943), 320 Ill. App. 468, 51 N.E.2d 595. Neither case gives strong support to defendants’ theory. Rather, we conclude the proper rule is that set forth in Farmers State Bank v. Hansen (1990), 196 Ill. App. 3d 295, 553 N.E.2d 751, Rochelle State Bank v. Gavic (1979), 70 Ill. App. 3d 42, 388 N.E.2d 436, and Avco Finance Co. v. Erickson (1971), 132 Ill. App. 2d 868, 270 N.E.2d Ill.

In Chamberlain, a suit was brought to revive a judgment against joint judgment debtors, one of whom had been discharged in bankruptcy. The circuit court revived the judgment only against the non-bankrupt defendant. The latter appealed contending that the court erred in not also entering a judgment of revival against the bankrupt. The appellate court affirmed, holding: (1) under bankruptcy law one joint debtor was liable for the whole debt when the other goes bankrupt; and (2) whether the judgment of revival was in error because the judgment was not revived as to the bankrupt with a stay against enforcement as to the bankrupt did not need to be decided as the bankrupt was not complaining. The Chamberlain court did indicate that little good would have resulted from reviving a judgment against both defendants accompanied by a perpetual injunction prohibiting enforcement against the debtor discharged in bankruptcy.

In Martinez, the circuit court struck a motion for revival of a judgment against two judgment debtors who had been discharged in bankruptcy subsequent to entry of the judgment. The appellate court affirmed, noting that the judgment creditors’ contention that liens arising from the judgment might not have been discharged by the bankruptcy was raised for the first time on appeal and would not be considered.

In Hansen, the circuit court entered an order of revival in regard to a judgment against a judgment debtor subsequently discharged in bankruptcy. The order of revival stated it was an in rem order reviving the lien of the judgment to be enforceable only against real estate owned by the judgment debtors at the time of their bankruptcy. The record showed that all real estate of the bankrupts had been abandoned by the trustee. The appellate court affirmed, noting that a discharge in bankruptcy does not necessarily release liens against property owned by the bankrupt (citing Gavie), and the revival of the judgment was merely a continuation of the previous judgment and not a new judgment.

In Gavie, the following chain of events occurred. On May 20, 1974, a judgment by confession on a promissory note was obtained by that plaintiff against that defendant and memorandum of that judgment was filed with the recorder of deeds in the county where that defendant’s real estate was located on May 24, 1974. On July 1, 1974, that plaintiff filed a voluntary petition in bankruptcy in a Federal district court listing the debt of the note as an unsecured debt. The petition in bankruptcy did not list the confessed judgment as a lien. On September 25, 1974, that defendant was discharged in bankruptcy, and his residential real estate was determined to be exempt and set apart to him.

On April 11, 1977, the Gavie defendant filed a motion in the circuit court to set aside the judgment by confession on the basis that the underlying debt had been discharged in bankruptcy. The circuit court opened the judgment by confession and held the underlying debt had been discharged in the bankruptcy. That court then entered an order releasing the lien of the judgment.

On appeal in Gavie, the appellate court reversed and remanded with directions to restore the lien of the judgment by confession. The court held that the general rule that a discharge in bankruptcy is personal to the bankrupt and does not release against the property of the bankrupt controlled. Avco Finance Co., 1A Collier on Bankruptcy §17.29 (14th ed. 1978), and 9 Am. Jur. 2d Bankruptcy §753 (1963), were cited in support of the decision. In Avco Finance Co., a suit for conversion was held to lie to recover a chattel upon which the plaintiff had a lien to secure a note, even though the owner-debtor on the note had been discharged in bankruptcy. No bankruptcy trustee or other court official had ever taken possession of the chattel.

Here, the existence of defendants’ discharge in bankruptcy did not prevent the circuit court from entering an order of revival, but even if revival was otherwise permitted, the court was in error in not limiting the revival to operating in rem only. Under the language of the February 11, 1991, order of revival on appeal, a strong argument could be made that the revived judgment created personal liability.

The circuit court’s determination that it could not consider the enforceability of the judgment lien at the hearing on the motion to revive was based on the decision in Bank of Eau Claire v. Reed (1908), 232 Ill. 238, 241, 83 N.E. 820, 821, where the court stated that “[t]he judgment under a scire facias to revive a judgment is not quod recuperet [(one granting a right to recover)] for the amount due, but its object is to revive the judgment just as it formerly existed and to reinvest it with the same attributes and conditions which originally belonged to it.” (Emphasis added.) The major thrust of the decision was set forth in the following language:

“The only question to be determined in a proceeding by scire facias to revive a judgment is whether the plaintiff has a right, as against the defendant, to have the judgment executed. That rule was stated in Smith v. Stevens, 133 Ill. 183[, 24 N.E. 511], and in connection with the rule the court quoted from Dowling v. McGregor, 91 Pa. St. 410, as follows: ‘The only defense in the trial of the scire facias on a judgment is a denial of the existence of the judgment or proof of a subsequent satisfaction or discharge thereof.’ The defenses available, and which go to the plaintiff’s right, as against the defendant, to have the judgment executed, are, that there is no such record, or that the judgment has been paid or released, or there has been an accord and satisfaction.” (Emphasis added.) (Bank of Eau Claire, 232 Ill. at 240, 83 N.E. at 821.)

The Bank of Eau Claire defendant attempted to raise the issue that, contrary to the record, he was never served with process before judgment was entered, but the supreme court agreed that the circuit court properly refused to permit him to collaterally attack the underlying judgment.

More recently, in J.D. Court, Inc. v. Investors Unlimited, Inc. (1980), 81 Ill. App. 3d 131, 400 N.E .2d 1083, this court agreed with the general concept that the scope of a proceeding to revive a judgment was narrow. However, as the Bank of Eau Claire court indicated, the underlying question involved in a proceeding of this nature is whether the plaintiff has a right against a defendant to have execution on the judgment sought to be revived. Here, at most, that execution could have been obtained only against the real estate abandoned by the trustee. Plaintiff does not dispute that defendants’ discharge in bankruptcy would have prevented full revival of the judgment here even if that discharge is shown by introduction of information outside the record. If that is so, logic requires that in a proceeding to revive the in rem effect of a judgment arising from the existence of one or more liens, the question of the discharge of those liens must be considered even if information outside the record is required to do so. The trial court should have considered defendants’ assertion that the lien of the underlying judgment on the abandoned residential property had been discharged. Under the format of the pleadings here, upon defendants’ showing of a valid discharge in bankruptcy, the burden of proof was on plaintiff to show the existence of a valid lien to support the in rem revival sought.

The defendants maintained no such valid lien existed. The basis of their theory is that under both bankruptcy law and State law, no lien existed in the residential property because, at the time of the bankruptcy decree, plaintiff’s judgment lien was inferior to a mortgage on the premises, a lien against those premises for real estate taxes, and defendants’ combined homestead exemptions of $15,000, and the value of the property was less than the amount of those prior items. They contend that plaintiff’s judgment lien is destroyed under these circumstances. Defendants’ response to plaintiff’s motion indicated this situation existed while the affidavit in support of the motion only set forth that when plaintiff’s encumbrance was included, the value of the encumbrances against the residential property equaled or exceeded the value of the property.

One aspect of defendants’ foregoing contentions arises from the following provisions of section 506 of title 11 of the United States Code (11 U.S.C. §506 (1988)) (hereinafter Bankruptcy Code). Section 506(a) of the Bankruptcy Code states:

“An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to set-off, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.” (11 U.S.C. §506(a) (1988).)

Section 506(d) of the Bankruptcy Code states:

“To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void, unless—
(1) such claim was disallowed only under section 502(bX5) or 502(e) of this title; or
(2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title.”

11 U.S.C. §506(d) (1988).

Defendants maintain that under section 506(a) of the Bankruptcy Code, plaintiff’s judgment is a secured claim only to the extent of the value of the bankrupt estate’s interest in the residential property— which is zero — and that, therefore, plaintiff’s lien is not a secured claim and is thus void under section 506(d) of the Bankruptcy Code.

An interpretation of those statutory provisions was given by the United States Supreme Court recently in Dewsnup v. Timm (1992), 502 U.S. 410, 116 L. Ed. 2d 903, 112 S. Ct. 773. The situation there was very similar to the situation of the lien claimed by plaintiff, except that there, the plaintiff’s lien was a bargained-for mortgage and not a judicial lien, and the issue arose before a bankruptcy court rather than in a proceeding to revive a judgment. The lower tribunals had determined that because the liened properties there were abandoned by the trustee, and the bankruptcy estate had no interest in the mortgaged property, the provisions of sections 506(a) and (d) of the Bankruptcy Code were not applicable.

The Dewsnwp Court did not discuss the effect of abandonment. Rather, that Court concluded that the language of section 506 of the Bankruptcy Code was sufficiently ambiguous that the Court could not determine the enacting Congress intended to depart from the rule that liens pass through bankruptcy in full force and little precedent existed for reducing the secured indebtedness to the value of the property. As the Dewsnwp Court emphasized that the lien being protected there was a mortgage concerning which the parties had negotiated, uncertainty exists as to whether a judicial lien such as that here would be treated under section 506 of the Bankruptcy Code in the same manner as that mortgage.

As has been stated, defendants have presented a motion to the bankruptcy court seeking to reopen the proceedings to have plaintiff’s judgment lien declared void pursuant to sections 506(a) and (d) of the Bankruptcy Code and set aside for other reasons. The bankruptcy court denied the relief, and appeal has been taken. The question of the operation of section 506 of the Bankruptcy Code is technical and complicated. We deem the appropriate position to take on this issue is to defer to the Federal courts.

Accordingly, we will direct that, on remand, the circuit court refrain from ruling on the motion to revive the judgment until a final determination has been made on the issue defendants seek to have the Federal courts decide. If the Federal courts uphold the bankruptcy court’s refusal to reopen the case, the circuit court will then have to decide that issue. Notably, section 506(d) of the Bankruptcy Code speaks in terms of the lien involved being “void” where the lien secures a claim which is not an allowed claim. Since a “void” instrument created by a judgment can be attacked at any time, the circuit court would not exceed its jurisdiction if it should eventually declare the lien void, thus eliminating any basis for revival of the judgment.

We then move to defendants’ assertion that under Illinois law plaintiff’s lien has been destroyed under the allegations of defendants’ response. They rely upon the reasoning of the Second District Appellate Court in Cochran v. Cutler (1976), 39 Ill. App. 3d 602, 350 N.E.2d 59. The opinion in that case recognized a rule that when a party holds a lien on property subject to a homestead exemption, and that property is sold by the owner having the homestead exemption, that lien is destroyed if the value of the property on the day of sale is not sufficient to cover the sum of the value of all prior liens and the homestead exemption. The stated purpose of the rule is to protect the homesteader’s interest in the property. After setting forth the forgoing rules, the Cochran court then determined that some equity existed beyond the homesteader’s exemption and held the rule stated above was not appropriate to that case.

The Cochran court spoke of a rule somewhat similar to that in section 506(d) of the Bankruptcy Code. However, that rule does not operate unless a homestead interest is involved and until the homestead interest is, in effect, being sold. Moreover, the value of the property subject to the lien which is being sold is determined at the time of sale and not before. Although defendants allege in their response that the residential premises have been sold, they make no other allegation which would bring the rule set forth in Cochran into play.

Accordingly, we reverse the order of revival and remand the cause to the circuit court of De Witt County. That court shall forbear until the proceeding in the Federal courts concerning defendants’ request for relief is finally determined. The circuit court shall then determine the validity of plaintiff’s judgment lien. If the Federal courts have resolved the question of whether plaintiff’s judgment lien remained in force, the circuit court shall follow that determination in ruling on the validity of plaintiff’s lien. If the Federal courts do not resolve that question in that proceeding, the circuit court must then make that decision. Any order of revival found to be appropriate can only have in rem effect and must so state.

Reversed, and cause remanded with directions.

STEIGMANN and McCULLOUGH, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

PRESIDING JUSTICE GREEN

delivered the opinion of the court:

At the request of plaintiff in its petition for rehearing and upon denial of that petition, we modify that opinion by making the following finding. Pursuant to our power under section 12 — 104 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 104), we find that the period of time between the circuit court’s February 11, 1992, order of revival and the final decision of the circuit court acting pursuant to the mandate issued from this decision is and will be a time of restraint within the meaning of section 12 — 104 of the Code.

STEIGMANN and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAVERT JONES, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2346
    Opinion filed September 16, 1992.

      Rita A. Fry, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Noreen M. Daly, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

Defendant Lavert Jones was found guilty of attempted armed robbery, conspiracy to commit armed robbery and the murder of St. Clair Haywood, and was sentenced to concurrent terms of 10 years, 3 years and 40 years, respectively.

Defendant contends on appeal that (1) there was no probable cause for his arrest; (2) the trial court should have granted his motion to suppress statements to police since the State failed to produce one of the police officers he alleges took part in coercing his statement; (3) prior consistent statements of a crucial prosecution witness were improperly admitted; (4) testimony regarding incriminating statements by the nontestifying codefendants was admitted; (5) defendant’s conviction and sentence for conspiracy to commit armed robbery should be vacated since they are based on the same act or acts as defendant’s conviction and sentence for attempted armed robbery; and (6) the trial court abused its discretion in sentencing defendant to the maximum nonextended term of 40 years for the offense of murder.

In a pro se supplemental brief, defendant also contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court failed to properly instruct the jury as to self-defense and voluntary manslaughter; (3) defense counsel was ineffective in failing to tender an instruction on self-defense or voluntary manslaughter; (4) it was error when the State failed to produce the murder weapon; and (5) he was denied a fair trial by improper comments made by the prosecution in closing argument.

We affirm defendant’s conviction and sentence on the issues presented, but remand to reopen the suppression hearing so that a material witness may testify.

At approximately 6 a.m. on December 20, 1983, St. Clair Haywood was found slumped over the steering wheel of his car across the street from his home, a victim of multiple gunshot wounds.

A neighbor of the victim, Venus Harris, testified that she heard gunfire and looked out her window to see two cars on the street. Ms. Harris stated that a young black male in his early twenties walked from the victim’s car to an older, two-door gray Chevrolet, while the victim’s car slowly moved forward to rest against a tree.

While police investigated the murder, James Young was arrested several weeks later for unlawful possession of a .25 caliber handgun, and tests performed on the weapon revealed that it had fired the bullets recovered in the Haywood shooting.

When police questioned Young, he told them he had purchased the gun from defendant in the week between Christmas and New Year’s Day, paying $25 for it. The officers then informed Young that the gun had been used to commit a homicide, and when asked if he had any information about it, he acknowledged that he did.

Young testified at trial that he had known defendant for at least 11 years, they had socialized together but were not close friends. On December 19, 1983, at approximately 10 a.m., Young was at a local game room when defendant and Craft engaged him in conversation and defendant told Young that he needed a gun so they could “stickup some guy around fifty-something and State” Streets to “make some money.” When defendant asked Young if he knew where defendant might obtain a gun, Young replied that he did not know and did not wish to be involved in a holdup.

At approximately 7 p.m. that evening, Young again saw defendant and Craft at the game room and defendant again stated that they were going to “fifty-something and State to make some money” and Young again declined to accompany them. Later that evening, at approximately 10 p.m., Young and Mark Nunley saw defendant and Craft on the comer of 93rd and Marshfield Streets, and defendant confirmed to Young that he was “on his way” as he climbed into his gray Chevrolet with a black top.

The next morning, at approximately 6:30 a.m., Young encountered defendant and Craft getting out of defendant’s car in front of defendant’s house. Defendant then told Young that he, Craft and Alex Moore followed the victim home, that defendant shot the man, but that the other two were too frightened to get out of the car, so defendant got back into the car and they drove back to defendant's house.

Young stated that he was not aware that the. gun he purchased from defendant was the gun used in the December 20 incident and that he was not aware of the victim’s death.

Based upon the information received from Young, which correlated with the Harris statement, police arrested defendant at his grandparents’ house, where he lived much of the time.

Shortly after defendant arrived at the police station at about 2 a.m., Detectives Peter Dignan and John Yucaitis talked with defendant.

Detective Dignan testified that defendant was handcuffed to the wall of an interview room, read his rights and told of the charges against him. When defendant denied his involvement, the detectives informed him of what Young had told them and defendant immediately stated “Man, you know it. I will tell you.”

Dignan testified that defendant then told him that Craft approached him before Christmas in 1983 and told him of a drug dealer who was “an easy knock,” but that he needed a gun. Defendant told Craft that Alex Moore, the third codefendant, had one.

Dignan stated that defendant told him that on the evening of December 19, 1983, the three defendants went to 59th Street and Indiana Avenue and followed the victim out of the lounge to a downtown hotel where he stayed for quite a while. After the victim exited the hotel, they followed him to his home and pulled up near where he had parked at the curb.

The defendant told Dignan that when he walked up to the victim’s car and asked him if he had any drugs, defendant said it looked as if Haywood was reaching for a gun. Defendant started shooting, but could not recall how many shots he fired. Defendant then ran to the car and they left the area. Defendant admitted he sold the gun to James Young one week later.

On cross-examination, Dignan testified that Young indicated that the hold-up was Craft’s idea and that Young was never asked to sign a statement. Dignan’s police report indicated that prior to his initial interview with defendant, Detective Kushner spoke with defendant and defendant denied any knowledge of or involvement in Haywood’s murder. Prior to making a court-reported statement to Assistant State’s Attorney John Lerner, Dignan arranged for defendant to telephone his mother. Dignan denied that either he or Detective Yucaitis ever struck defendant at any time.

Assistant State’s Attorney John Lerner testified that he was at the police station at 9 a.m. on January 28, 1984, and spoke with James Young and the three defendants. At approximately 11 a.m., Lerner attempted to begin a court-reported statement of defendant’s which he had agreed to give, but defendant then stated that he wanted additional time to think about it and asked him to come back later. After defendant made a phone call to his mother and Lerner had again advised him of his rights, he gave a court-reported statement at approximately 1:15 p.m. with Lemer, Dignan and the court reporter present.

Lemer testified that the statement was substantially the same as that related to Detective Dignan, but with some additional information: that defendant met Craft through Young; and that Craft told him that he knew of an old man who sold dmgs and carried a lot of money; and that Craft drove defendant’s car that night.

The statement revealed that when defendant approached the victim’s car, the victim rolled down his window and defendant asked if he had any dope. Defendant stated that the victim looked surprised and said yes at first but then asked defendant’s identity. Defendant then stated that when the victim reached for a pistol on the seat next to him, defendant “got hysterical” and started firing at the victim. While defendant could not recall exactly how many times he fired the gun, he did recall that it was more than once. Defendant then ran to his car, jumped in and Craft drove away. Defendant admitted that he later sold the gun to Young.

Lemer further testified that after defendant gave the statement, defendant reviewed, edited and signed it, and a photograph of him was taken. Defendant also acknowledged in his statement that he had made a phone call, been fed, given cigarettes and was not mistreated at the station. Defendant never told Lemer that he had been hit by anyone while he was at the station, he never asked for any medical treatment, nor did Lemer observe any injuries to defendant when he spoke with him.

Defendant testified that he did not shoot or kill anyone; that he did not know Craft; that he had not seen Young in over a year; and that the pictures taken of him at the time of his statement and when he arrived at the county jail showed injuries he sustained.

Defendant stated that between the time of his arrest and the court-reported statement, he was beaten and kicked by three detectives whose names he could not recall. He estimated that he was hit in the head approximately 1,000 times and stated that he vomited from the beatings. Defendant testified that when he asked to call his mother and a lawyer, the detectives left the room, returned a short while later and beat defendant until he passed out.

While defendant acknowledged that he was asked some questions that night, he could not remember answering any of them or remember whether an assistant State’s Attorney was in the room. He also admitted that he signed every page of the statement, but denied giving any of the information in it. Defendant stated that he never requested medical treatment at any time nor did he tell anyone he was beaten. While defendant also denied he was advised of his constitutional rights, his court-reported statement contained his acknowledgement of having been so advised.

Upon rebuttal, Detective Yucaitis stated that he never beat defendant, that he never saw defendant being beaten, and that he never saw defendant vomit or show any signs of injuries. Detective Yucaitis also testified that defendant told him that he was unemployed, contrary to defendant’s testimony that he was employed by Christ Hospital.

The State also called Almaz Ayodele, who was the medical technician at the Cook County Department of Corrections when defendant was first transported to the jail after leaving the police station. She examined defendant from the waist up and found no cuts, bruises, swelling or other marks of recent physical abuse. She stated that it was the duty of the “G.C.” room to first examine defendant’s lower body, and to note on defendant’s chart if any bruises, scars or other marks are evident. Ms. Ayodele stated that no such notations were on defendant’s chart when she received it.

Further, in the course of her examination, she asked defendant many questions regarding his health, including whether or not he had sustained any head or chest injuries, to which defendant replied he had not. Ms. Ayodele testified that the only problems of which defendant complained were sinus and asthma irritations for which he was taking medication.

Defense counsel first argues that the trial court erred in denying defendant’s motion to quash arrest and suppress evidence because the police did not have probable cause to arrest him. Defendant contends that the information Young provided police was not reliable because Young was a suspect in the murder.

However, before the police spoke to Young, they were aware that the victim was an older man, known to traffic in drugs, who died of gunshot wounds in the early morning hours. They also had information from Ms. Harris that placed at the scene a gray, two-door Chevrolet with three occupants, at least one of whom was a young African-American male, in his early twenties and matching defendant’s description, who entered the car after gunshots were fired.

Young provided police information to corroborate their evidence: defendant told Young that he intended to rob an old dope dealer who carried large sums of money; defendant also told Young on the morning of the murder that he and two others were involved in the shooting; Young described defendant’s car as a two-door Chevrolet with gray primer and a black top.

We find that the totality of the circumstances supports a finding of probable cause to arrest defendant.

To determine probable cause in cases involving an informant’s information, Illinois adopted the totality-of-the-circumstances test of Illinois v. Gates (1983), 462 U.S. 213, 230-31, 76 L. Ed. 2d 527, 543-44, 103 S. Ct. 2317, 2328. (People v. Tisler (1984), 103 Ill. 2d 226, 245-46, 469 N.E.2d 147.) The test is whether by application of factual and practical commonsense considerations, a reasonable and prudent person would believe that the person arrested has committed the offense. People v. Adams (1989), 131 Ill. 2d 387, 396-97, 546 N.E.2d 561; People v. Smith (1991), 222 Ill. App. 3d 473, 478, 584 N.E.2d 211.

An informant’s “veracity” or “reliability” and his “basis of knowledge” are examined and a deficiency in one may be compensated for, in determining the overall reliability of a statement, by a strong showing as to the other, or by some indicia of reliability. Gates, 462 U.S. at 233, 76 L. Ed. 2d at 545,103 S. Ct. at 2329.

Therefore, we affirm the trial court’s holding that the police had probable cause since we find Young’s basis of knowledge, that is, his detailed conversations with defendant, credible and his reliability sufficiently established by independent corroboration with information that the police already knew prior to talking with him. For purposes of review, we consider the information available to police prior to arrest. Adams, 131 Ill. 2d at 398; People v. Miller (1991), 212 Ill. App. 3d 195, 201, 570 N.E.2d 1202.

Defendant next argues that the court erred in denying defendant’s motion to suppress his statements since the State failed to produce without explanation one of the police officers defendant alleged beat him.

Defendant contends that the incriminating oral and written statements that he made at the police station should be suppressed because he was beaten into making them by Sergeant Byrne and Detectives Dignan and Yucaitis. Although Dignan and Yucaitis testified, defendant claims Sergeant Byrne is a material witness who did not testify at the pretrial hearing, thus violating the material witness rule.

Defendant testified at the pretrial hearing that although he could not remember the names of the three detectives who beat him, he could remember their faces. Defense counsel supplied the names “Dignan,” “Yucaitis” and “Byrne” to defendant and he confirmed that they were the detectives who coerced him into making his statements by beating him.

Time and again on direct and cross, defendant confirmed that “three” policemen took part in the beatings that led to his statements. On cross-examination, the State failed to question defendant as to Byrne’s appearance or any other matters that would touch upon Byrne’s identity.

Detective Dignan testified that he and his partner, Detective Yucaitis, informed Sergeant Byrne, their superior, of the content of their initial interview with defendant. Sergeant Byrne accompanied the two detectives and defendant in the squad car to arrest codefendant Craft. However, defense counsel never cross-examined Dignan regarding Sergeant Byrne’s role in the investigation or even inquired whether the sergeant had ever entered the interview room at any time.

Detective Yucaitis testified in rebuttal that neither he nor Detective Dignan ever beat the defendant and that Sergeant Byrne was not present for any interview with defendant.

The purpose of the material witness rule is to compel the State to produce those officers who were witnesses to or who had a role in procuring the controverted statement. People v. Terrell (1989), 132 Ill. 2d 178, 202, 547 N.E.2d 145; People v. Ralon (1991), 211 Ill. App. 3d 927, 944, 570 N.E.2d 742; People v. Jones (1990), 196 Ill. App. 3d 937, 958, 554 N.E.2d 516.

Where .a police officer is alleged to have beaten a defendant prior to the defendant’s confession, the officer’s testimony is material to the issue of the voluntariness of the confession, regardless of whether the officer was actually present at the time the confession was made. People v. Armstrong (1972), 51 Ill. 2d 471, 476, 282 N.E.2d 712; Ralon, 211 Ill. App. 3d at 944-45; People v. Lumpp (1983), 113 Ill. App. 3d 694, 699, 447 N.E.2d 963; People v. Lewis (1979), 75 Ill. App. 3d 259, 279, 393 N.E.2d 1098; People v. Delk (1976), 36 Ill. App. 3d 1027, 1035, 345 N.E.2d 197.

In the present case, defendant’s testimony at the suppression hearing that Sergeant Byrne beat him made Sergeant Byrne a material witness. While the State argues that defense counsel’s questions for the defendant as to the officers’ identities were leading, the State failed to object to such questions. Although Detective Dignan testified that Sergeant Byrne was never present while defendant was being questioned, we find that testimony incomplete in describing Byrne’s involvement in the case as the supervisor on duty at the time of the alleged beatings.

The material witness rule is intended as a safeguard against improperly induced confessions. (Ralon, 211 Ill. App. 3d at 944.) While the trial judge found defendant’s charges of coercion so “preposterous as to be an insult,” such charges of coerced statements and brutality threaten the integrity of our judicial system, and we believe that a trial court, in admitting evidence as to such charges, should be overinclusive and not underinclusive.

Since we find the State failed to carry its burden to call all material witnesses, we remand to reopen the suppression hearing so that Sergeant Byrne may testify. Since defendant failed to raise any issue as to other possible material witnesses who should have testified, the reopened hearing is limited to Sergeant Byrne’s testimony. The testimony of the other witnesses has been heard and weighed by the trial court and unless Sergeant Byrne’s testimony overcomes the prior finding of voluntariness, that finding shall stand and no new trial shall be granted defendant. Ralon, 211 Ill. App. 3d at 949; see People v. Carr (1987), 168 Ill. App. 3d 669, 672, 523 N.E.2d 393; People v. Feagans (1985), 134 Ill. App. 3d 252, 256-57, 480 N.E.2d 153.

Defendant next argues that Young’s prior consistent statements contained in the testimony of Young and Detective Ryan were improperly admitted and were used only to bolster Young’s credibility.

Defendant admits that his trial counsel failed to properly preserve the issue by objecting at trial and raising it in the post-trial motion. We agree and find this issue waived, having determined there is no plain error since the record does not clearly reflect an error affecting defendant’s substantive rights. People v. Palmer (1989), 188 Ill. App. 3d 414, 422, 545 N.E.2d 743.

However, it is clear from the record that these statements to police simply demonstrated how Young was integral to the investigation and that the investigation was thorough, contrary to defendant’s contentions. Further, the statements which defendant disputes lack the details of Young’s earlier testimony and, even if the statements had been found improper, they would not have prejudiced defendant’s right to a fair trial. We find no error in the admission of this testimony.

Defendant next argues that the trial court erroneously admitted incriminating hearsay testimony of his codefendants which violated the hearsay rule and defendant’s right to cross-examine and confront witnesses.

On redirect, the prosecution asked Assistant State’s Attorney John Lemer, who took defendant’s court-reported statement, how he knew that defendant had taken a specific route in following the victim to his house. Mr. Lerner stated that he had already talked to defendant about it in his first oral statement and “had also talked to Moore and Craft,” codefendants in the case.

Defendant here charges a Bruton violation, where admission into evidence of a nontestifying codefendant’s statement violates a defendant’s rights to confront and cross-examine the witnesses against him when the statement inculpates the defendant. Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.

Where the substance of a conversation with a nontestifying third party is not revealed, a police officer may properly testify concerning investigatory procedures, even though the jury could reasonably infer that the accomplice implicated the defendant. People v. Morgan (1991), 142 Ill. 2d 410, 446-47, 568 N.E.2d 755. People v. Gacho (1988), 122 Ill. 2d 221, 248, 522 N.E.2d 1146; People v. Moman (1990), 201 Ill. App. 3d 293, 303, 558 N.E.2d 1231.

Here, we need not make that determination. The assistant State’s Attorney acted in conjunction with police to take defendant’s statement and to investigate the details of defendant’s confession. However, we find no Bruton violation since the record demonstrates that the assistant State’s Attorney’s testimony was intended to rebut defendant’s inference during cross-examination that the assistant State’s Attorney had supplied defendant with the information as to the route taken in following the victim. Therefore, the testimony was not offered for the truth of the matter asserted, but rather, to rebut defendant’s inference of a manufactured confession.

Defendant next contends that his conviction and sentence for conspiracy to commit armed robbery should be vacated since they are based upon the same act or acts as defendant’s conviction and sentence for attempted armed robbery.

Although the record indicates that defendant has waived this issue by failing to raise it in the trial court or in his post-trial motion, we consider it under the plain error doctrine.

An accused cannot be convicted and sentenced for multiple crimes based upon the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838; People v. Boulrece (1990), 195 Ill. App. 3d 666, 552 N.E.2d 1166.) While a defendant may not be convicted of both a principal and inchoate offense, there is no bar against multiple convictions for the inchoate offenses of attempted armed robbery and conspiracy to commit armed robbery.

We find here that the acts in furtherance of the conspiracy to commit armed robbery and the substantial step towards the commission of armed robbery were separate and distinct and thus proper.

Defendant conspired with codefendants Craft and Moore to rob St. Clair Haywood. The three obtained a gun prior to Haywood’s death, solicited Young to participate, waited outside" the lounge the victim frequented until he exited, followed him to a hotel and waited again for him to emerge. After several hours of stalking the victim, they followed him to his home. All of these activities constitute a conspiracy to commit armed robbery.

The substantial step toward armed robbery occurred as defendant stepped from his car with a loaded gun, approached Haywood and feigned an interest in obtaining drugs so as to create an opportunity to rob him. The jury could have reasonably inferred that if defendant was only interested in buying drugs, a loaded pistol was not necessary.

A similar case is People v. Del Percio (1985), 105 Ill. 2d 372, 475 N.E.2d 528, where the court upheld defendant’s conviction for conspiracy to commit armed robbery and attempted armed robbery, finding that each offense had a different factual basis. The acts in furtherance of the conspiracy to rob a jewelry salesman were procuring a shotgun and tape and knocking on the door of the victim’s apartment. The substantial step toward attempted armed robbery was “the threat of the imminent use of force and pointing the shotgun” at the victim. Del Percio, 105 Ill. 2d at 384.

Defendant next argues that the trial court abused its discretion in sentencing defendant for the offense of murder to 40 years.

Defendant contends that the trial court failed to properly consider several factors in mitigation: (1) provocation where it appeared Haywood was drawing a gun; (2) defendant’s panic, which, although not a defense, might be a justification for his criminal conduct; and (3) the idea that his conduct was induced or facilitated by Thomas Graft, who approached him with the scheme.

At the time of the offense, the sentence for murder was a determinate period of not less than 20 years and not more than 40 years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—5—3(c)(2).) Further, defendant was eligible for an extended term of not more than 80 years since Haywood was 75 years old at the time of the shooting. (Ill. Rev. Stat. 1983, ch. 38, par. 1005—3—3.2(b)(3).) Defendant’s contention that he received the maximum number of years under the nonextended statute is uncertain since the record fails to demonstrate that the trial judge declined to apply the nonextended statute.

There is a rebuttable presumption that a sentence is proper and the presumption can be overcome only by an affirmative showing that the sentence is at substantial variance from the proposes and spirit of the law, or is manifestly violative of constitutional guidelines. (People v. Fletcher (1987), 156 Ill. App. 3d 405, 509 N.E.2d 625.) It is presumed that the trial judge has a superior opportunity to consider the particular circumstances and defendant’s credibility, demeanor, general moral character, mentality, social environment, habits and age. People v. Escobar (1988), 168 Ill. App. 3d 30, 522 N.E.2d 191.

Defendant’s argument that he was provoked into shooting Haywood, or that he panicked or that his conduct was facilitated by Craft, is inapposite to his trial defense that he was not involved in the crime and that his confession was coerced. Defendant cannot now rely on his allegedly coerced confession in which he stated that he acted in self-defense.

The trial judge discussed in detail the aggravating and mitigating factors. The court found aggravating the perjurious nature of defendant’s trial testimony regarding the police beatings and the need for deterrence of such crimes; the age of the victim; and the fact that defendant had coldly stalked an “easy mark,” following his victim for hours with a loaded pistol, planning to rob him and approaching him when the victim was finally alone.

The court found mitigating the fact that defendant was 19 years old with no previous criminal record, but did not believe, based upon his observations of defendant’s character and attitude, that defendant was unlikely to commit such a crime again.

We find that the trial court’s sentence for murder is not improperly at variance with the purposes and spirit of the law or violative of constitutional guidelines. The trial court reasonably weighed the aggravating and mitigating factors, and because the extended-term sentence could apply in this case, we affirm defendant’s sentence for the offense of murder.

We now address the issues raised in defendant’s pro se supplemental brief.

Defendant first argues that he was not proved guilty beyond a reasonable doubt of either murder, attempted armed robbery or conspiracy to commit armed robbery.

A jury’s verdict will not be disturbed on review unless the evidence is so contrary to the verdict or so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.) The trier of fact is in the unique position to observe the demeanor of the witnesses, assess their credibility and examine a witness’ testimony for any motivational factor which would bear on its truthfulness, and a reviewing court, viewing the evidence in a light most favorable to the prosecution, should not substitute its judgment for that of the trial court unless its determination is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. Young, 128 Ill. 2d at 48-49; People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.

Upon a review of the evidence, we find that the jury could easily have found the defendant guilty beyond a reasonable doubt.

We also reject defendant’s next contention that it was error when the trial court failed to instruct the jury on self-defense or voluntary manslaughter.

The parties are usually responsible for preparing jury instructions, and a party generally may not raise on appeal a failure to give an instruction unless he tendered it. (.People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) When neither constitutional rights nor plain error is involved, a defendant must either object at the instruction conference to the instructions given, or tender those instructions which he desires, or he cannot claim error on appeal. Young, 128 Ill. 2d at 57-58.

We find no constitutional rights here in question nor is there cause for examination under the plain error rule. Defendant failed to preserve this issue for review since the affirmative defense of self-defense was never advanced nor such an instruction requested nor was any instruction for voluntary manslaughter requested.

Also, the record demonstrates that defendant’s desired instructions were neither legally nor factually consistent with his defense theory. Because defendant was convicted under the felony murder doctrine, the jury was not required to find defendant intended to kill Haywood; therefore, self-defense cannot be an affirmative defense to this charge. (People v. Moore (1983), 95 Ill. 2d 404, 411, 447 N.E.2d 1327.) The jury was properly instructed as to all elements of the crimes charged and the State’s burden of proof as to each, and the evidence is not so closely balanced that the lack of the desired instruction would, in any event, have deprived defendant of a fair trial.

Defendant next argues that he received ineffective assistance of counsel when his trial attorney failed to argue self-defense and failed to tender instructions on either self-defense or voluntary manslaughter.

We find that defendant’s contention fails to meet the two-pronged test of Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, as adopted by our supreme court in People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, requiring a defendant to establish (1) that his attorney’s representation fell below an objective standard of reasonableness and (2) that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different.

A reviewing court evaluates the reasonableness of trial counsel’s actions from trial counsel's perspective at the time of the alleged errors, not in hindsight, in light of the totality of the circumstances. People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.

A reviewing court will not examine an attorney’s trial conduct where it involves the exercise of judgment, discretion, trial tactics or strategy. People v. Peterson (1989), 182 Ill. App. 3d 756, 761, 538 N.E.2d 685.

In the present case, counsel’s decision was a matter of trial strategy. Had defendant’s counsel requested those jury instructions, defendant’s credibility would have been greatly damaged since the theory of self-defense is inconsistent with the theory put forth at trial that defendant was not involved in the shooting and his confession was coerced.

Counsel’s choice of trial strategy is virtually unchallengeable if such choice was made after a thorough investigation of the law and facts relevant to plausible options. (Strickland, 668 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) The record here establishes that defense counsel thoroughly investigated and prepared defendant’s case and reasonably chose to argue defendant’s complete innocence in the shooting, rather than a justification for it.

Defendant also argues that it was reversible error when the State failed to produce at trial the gun used in the murder. Because defendant failed to raise this issue in the trial court or in a post-trial motion, and because we find the evidence is not closely balanced and that defendant received a fair and impartial trial (Young, 128 Ill. 2d at 47), we find this issue waived.

Finally, defendant argues that portions of the State’s closing argument were improper and denied him a fair trial. However, defendant failed to raise this issue either at trial or in his post-trial motion (People v. Enoch (1988), 122 Ill. 2d 176, 186-88, 522 N.E.2d 1124), and the waiver rule is applicable even in cases where prosecutorial misconduct in closing argument is alleged. People v. Franklin (1990), 135 Ill. 2d 78, 100, 552 N.E.2d 743.

For all of the foregoing reasons, we affirm in part and remand for a reopened suppression hearing wherein only Sergeant Byrne shall testify.

Affirmed in part; remanded in part.

TULLY and CERDA, JJ., concur.