text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEANDRO RODRIGUEZ, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2331
    Opinion filed October 5, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Gregory Vaci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial, defendant Leandro Rodriguez was convicted of murder and attempted murder. He was sentenced to concurrent terms of 40 years and 30 years, respectively, in the Illinois Department of Corrections.

On appeal, defendant questions:

(1) whether a statement made by him at a prior court proceeding in which he admitted his gang membership was improperly admitted at trial because the prosecutor failed to disclose that statement to the defense during discovery;
(2) whether the trial court erred in excluding the statement of an unidentified police officer allegedly made at a pretrial lineup identification;
(3) whether certain comments made by the prosecution during rebuttal closing argument to the jury deprived him of a fair trial, to wit:
(a) that defendant’s exculpatory eyewitness had been intimidated by defendant’s “gang-banging brothers”;
(b) that the same witness was also a gang member;
(c) that the State chose not to call this witness because he was not “reliable”;
(d) that if the jury “feel(s)” either of the State’s witnesses were telling the truth, that is proof beyond a reasonable doubt;
(e) that defendant put on an “unrecognized defense of confusion”; and
(f) that defendant had an obligation to call a non-alibi witness;
(4) whether his sentence should be reduced or remanded to the trial court for resentencing where:
(a) the trial judge in sentencing defendant to the maximum sentence for murder, considered as the aggravating factor that the victim’s death was “the ultimate serious harm”; and
(b) the trial court allowed the prosecutor’s unsworn representation concerning a prior conviction in a juvenile adjudication at the sentencing hearing; and, finally,
(5) whether the trial court abused its discretion in sentencing him to the maximum terms for murder and attempted murder.

For the reasons that follow, we affirm. The following trial testimony is relevant to our discussion. The charges against the defendant arose out of the April 4, 1986, early morning fatal shooting of Daniel Klish (Klish) and the shooting injury to Kenneth James Thiel (Thiel) which occurred on Springfield Street in Chicago in front of a 12-unit, three-story apartment building. Gina Dobose (Gina), an acquaintance of Klish, testified for the prosecution. She stated that after returning from the racetrack with her boyfriend she went to a party given by Niva DeMartino, a resident who lived on the third floor of the apartment building. She saw both Klish and Thiel, who were former members of the “Gay Lords” street gang, at the party. At about 3 a.m., Gina and Thiel left the party, and as they walked toward their cars, two men approached them and one of the men, whom she later identified as the defendant, said “Help, we are Gay Lords. We need help.”

Gina further testified that following a conversation between defendant and Thiel, defendant stated, “I am a [Simon City] Royal and a Gay Lord killer. I am going to kill you. I am going to blow your heads off.” As defendant and Thiel struggled, Gina heard Niva yell from her apartment, “Danny [Klish] help him. He has got a gun.” The gun went off and Thiel, who suffered a gunshot wound to the left cheek, fell to the ground.

When Klish ran out of the building, defendant pursued him and chased him between two cars, at which time defendant shot Klish in the stomach. After defendant fled the scene, the police and ambulance arrived. Klish died five hours later. While at the hospital, Gina spoke with detectives and described the shooter as having slicked back, black hair, clear skin and brown eyes and he wore a black leather jacket,, jeans and a white shirt. He was slightly shorter than Gina, who was about 5 feet 8 inches tall, and spoke English clearly but with a slight accent. Gina identified defendant from a police photo book on April 5 and from a lineup consisting of five men on April 11.

Thiel’s testimony regarding the shootings substantially corroborated that of Gina. While at the hospital he told detectives that the shooter was a male Hispanic about 21 years old, 5 feet 8 inches, with black, pulled-back hair. He also identified defendant as the assailant in a lineup and in open court and also, like Gina, Thiel was unable to identify anyone from the police photo books on April 4, 1986, but chose defendant from the photo books the following day, April 5.

Several police officers testified for the prosecution about their investigation of the incident and the witnesses’ identification of defendant. Detective Sanders conducted a lineup in which Gina, Thiel and Paul Mandrik, a resident, who lived on the first floor of the apartment building, each viewed the lineup separately. Both Gina and Thiel identified defendant as the shooter, while Paul Mandrik made no identification. Following expert testimony by a forensic pathologist that the cause of Klish’s death was a gunshot wound to the abdomen, the State rested its case in chief.

Defendant called Paul Mandrik to testify. Mandrik stated that on April 4, 1986, at around 3 a.m., he heard loud noises and people running down the hallways at his building. When he looked out the window he saw two people running across the street; one person ran between a parked car and slipped on the gravel, while the person in pursuit approached the first person, pointed a gun at him and shot him twice as he lay on the ground. He then observed the victim as he got up holding his stomach and walked across the street where he leaned against a car.

On April 6, 1986, Mandrik described the events to the police, and although he looked through police photo books and later viewed a lineup, he was unable to make an identification of the shooter. Mandrik further testified that the man with the gun had shoulder-length blond hair.

Defendant’s brother, Leonard Rodriguez, testified that defendant was with him on the night in question at Wee Willie’s bar until about 2:15 a.m. Upon leaving Wee Willie’s, they went to another bar in the area but found it closed. Thereafter, they walked approximately two miles to their mother’s house and arrived there close to 3 a.m. Defendant then testified in his own behalf to substantially the same events as Leonard. He denied being at the location of the shooting and shooting anyone there. On cross-examination, defendant admitted once being a member of the Simon City Royals, but stated that he was not currently a member. When asked if he remembered telling the assistant State’s Attorney that he was a member of a gang on June 1,1986, defendant responded that he did so recall.

Mrs. Rodriguez, defendant’s mother, also testified as an alibi witness in his behalf. She stated that she saw and spoke to defendant on the night in question. When defendant and his brother Leonard arrived at her home at about 2:30 a.m. their younger brother let them into the house and they remained there.

The State presented John Gallagher and Mark Sanders as rebuttal witnesses. Gallagher testified that he went to the Rodriguez home on April 5, 1988, to interview Leonard. Leonard told him that on April 4 his mother let him and defendant into the house and that his father did not live there then. Sanders stated that on April 5, 1987, while investigating the incident, he spoke with Mandrik, who described the offender as a male Hispanic with short dark hair brushed back.

Following closing arguments, the jury returned with verdicts of guilty of the murder of Klish and guilty of the attempted murder of Thiel. After the sentencing hearing, at which the State presented evidence of aggravating factors, the trial judge sentenced defendant to terms of 40 years’ and 30 years’ imprisonment to be served concurrently.

Defendant first contends that the trial court erred when it allowed the State to cross-examine defendant about a prior statement made to an assistant State’s Attorney on June 1, 1986, in another criminal proceeding that defendant was a member of the Simon City Royals as of that date. The trial judge overruled defense counsel’s objection although the statement was not disclosed by the State in its answer to discovery and the State had only informed defense counsel that he intended to use the statement as impeachment in the middle of the defense case, just before counsel called the defendant as his final witness.

Defendant asserts that the error deprived him of a fair trial where the statement that he was a member of a gang had a clear bearing on his guilt or innocence because the shooter declared himself as a “Royal,” the motive for the crime was gang related and defendant’s membership in the gang would make it more likely that he was the killer. He urges that the discovery violation mandates reversal under People v. Weaver (1982), 92 Ill. 2d 545, 560, 442 N.E.2d 255, since this was a close case.

It is well settled that failure of the prosecution to disclose a prior statement made by defendant renders that statement inadmissible at trial (Weaver, 92 Ill. 2d 545, 442 N.E.2d 255), even if the statement is used only to rebut defendant’s testimony. (People v. Bailey (1982), 103 Ill. App. 3d 503, 431 N.E.2d 723.) However, in People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838, this court found that where defendant and his counsel had knowledge of the transcript of the pretrial hearing, defendant’s claim that the statement therein should not be admitted, because it was not tendered to defendant, was without merit.

In the case at bar, the trial court allowed the use of the statement to impeach defendant since defendant made the prior statement at a former court proceeding under oath and, like People v. Davis, both defendant here and his defense counsel were aware of the existence of the prior statement. The trial court’s decision should not be overturned on review absent a clear showing of abuse of discretion. (People v. Wilken (1980), 89 Ill. App. 3d 1124, 412 N.E.2d 1071.) Assuming error by the trial court in allowing the statement, we find that any error was harmless in light of the eyewitness testimony against defendant. We do not perceive the evidence of defendant’s guilt to be closely balanced.

Defendant next asserts that the trial court committed several evidentiary errors when it sustained the prosecutor’s objections and repeatedly denied defense counsel an opportunity to question witness Paul Mandrik about his conversations with and the conduct of the police officers during the identification procedures. Specifically, he assigns error to the trial court’s exclusion of Mandrik’s testimony that a police officer present at a pretrial lineup told him to “just pick out somebody,” and that such error denied his constitutional right to present evidence in his own defense. (See Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920.) He urges that evidence about defects in identification procedures (People v. Carter (1979), 73 Ill. App. 3d 406, 409, 392 N.E.2d 188), i.e., the police statements to Mandrik, was relevant to establish that the police used unfairly suggestive identification procedures with respect to all of the witnesses to the shooting; therefore, the identifications by Gina and Thiel were unreliable.

Questions concerning characterization and presentation of evidence are within the sound discretion of the trial court, and its exercise of discretion will not be disturbed on review absent an abuse of discretion resulting in prejudice to the defendant. (People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733.) Where the record indicates a sufficient basis for a trial court’s ruling on evidentiary matters, the decision will not be disturbed where there is no abuse of discretion. People v. Rogers (1985), 135 Ill. App. 3d 608, 482 N.E.2d 639.

In the case at bar, the record supports the trial court’s decision to exclude Paul Mandrik’s proffered testimony, which constituted unreliable hearsay and improper impeachment. Assuming, arguendo, exclusion of this testimony constituted error, it was harmless error in light of the identification testimony of the two eyewitnesses. Moreover, there was never an allegation that the lineups conducted for Gina and Thiel were suggestive and unfair. In People v. Camel (1974), 59 Ill. 2d 422, 322 N.E.2d 36, the Illinois Supreme Court held that, where under the totality of circumstances there was no substantial likelihood of misidentification, refusal of an offer of proof which might have been supportive of the contention that identification at preliminary hearing was conducted under suggestive circumstances was not reversible error. Accordingly, we find no reversible error here.

Defendant next maintains that the trial court’s failure to sustain defense counsel’s objection to the prosecutor’s statements made during rebuttal closing argument that defendant’s “gang-banging” brothers intimidated witness Paul Mandrik without any evidence to support such an accusation mandates reversal. He contends that the prosecutor’s questions to defense witnesses concerning gang affiliation and the remarks in closing argument involving gang criminality toward witnesses were so prejudicial as to require reversal. People v. Rivera (1986), 145 Ill. App. 3d 609, 622, 495 N.E.2d 1088.

The State initially responds that defendant has waived review of the prosecutor’s remarks since he failed to specifically raise them in his motion for a new trial thereby precluding the trial judge from reconsideration of his rulings concerning these comments. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) They rely upon People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77, wherein this court determined that defendant’s post-trial motion, which stated the prosecutor’s closing argument contained “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudices of the jury,” did not preserve the issue for review because of the lack of specificity. The State contends alternatively that each of the complained-of comments was proper argument supported by the evidence and therefore well within the latitude afforded to the prosecution in closing argument.

While we find the defendant has waived review of the prosecutor’s remarks by failing to specifically raise them in the post-trial motion, assuming, arguendo, we were to review the issue, we believe the comments about gang involvement were proper since a prosecutor may comment on the evidence- and all legitimate inferences deducible from the evidence, even if those inferences are unfavorable to defendant. (People v. Harris (1989), 187 Ill. App. 3d 832, 543 N.E.2d 859.) Further, although defense witness Leonard Rodriguez denied any involvement in or knowledge of gangs in general, he went on to testify in detail about the location of gang territory. Moreover, the trial court’s action in sustaining an objection and instructing the jury to disregard improper statements is a sufficient cure for any prejudice resulting from improper argument. People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.

Defendant also assigns as errors the prosecutor’s interrogatory statement, “How do you think he (Paul Mandrik) knows the Gaylords are over there?” and remarks that the prosecutor had not called Mandrik as a witness because “[w]e can’t. He is not reliable. That is why he is not a People’s witness in this case.” Defendant maintains that the statements were “so substantially prejudicial that the taint of their prejudicial effect to him could not have been cured by the trial court’s sustaining of the defense objections.” (People v. Brown (1983), 113 Ill. App. 3d 625, 629, 447 N.E.2d 1011.) Additionally, it was error for the prosecutor to express his personal opinion of a witness’ (here Paul Mandrik’s) veracity. People v. Martin (1975), 29 Ill. App. 3d 825, 829-30, 331 N.E.2d 311.

We have reviewed the record and find that the complained-of statements were made after defense counsel’s remarks about witness Mandrik. In the instant case, defense counsel accused the prosecution of hiding Paul Mandrik by insinuating that his testimony contradicted that of Gina and Thiel. It is well settled that the credibility of witnesses is a proper subject for closing argument if it is based on facts in the record or on inferences drawn from facts. Further, where a prosecutor’s remarks are in response to and invited by defense counsel’s argument, a defendant cannot claim error as a result of the prosecutor’s response. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355.) Moreover, any error that occurred here was cured by the trial judge’s sustaining of defendant’s objections.

During summation, the prosecutor told the jury “And if you feel that the People’s witnesses are telling the truth, either of them, Gina or Kenny (Klish) — *** Then that is proof beyond a reasonable doubt and you could and should find them [sic] guilty of the murder of Danny Klish and the attempt [sic] murder of Kenneth Thiel.” Defendant argues that these comments were extraordinarily improper because a prosecutor may not misstate the burden of proof by suggesting incorrectly what the jury must find in order to reach a certain verdict. (People v. Vargas (7th Cir. 1981), 583 F.2d 380, 386.) Specifically, he relies upon People v. Crossno (1981), 93 Ill. App. 3d 808, 821-22, 417 N.E.2d 827, where this court found it is error for the prosecutor to tell the jurors “that, if they believe the prosecution witnesses, they must convict the defendant.”

Crossno reasoned that “[m]ore was involved than the credibility of the State’s witnesses.” In that case, the court held that the prosecutor misstated the law when he said a finding by the jury that the stories of the witnesses were sincere necessitated verdicts of guilt. (Crossno, 93 Ill. App. 3d at 822.) Defendant here argues that even if the jury believed the State’s witnesses were “telling the truth,” they still might have reasonably concluded that they were mistaken. He concludes that in Illinois, it is error for the trial court or counsel to define reasonable doubt to the jury. People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 163.

The State denies that it attempted to shift the People’s burden of proof in closing argument to the jury, but properly rebutted defense counsel’s assertions that reasonable doubt flowed from the testimony of defense witnesses. Thus, the State contends that the trial court properly allowed the prosecutor’s response (see People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355), to defense counsel’s following comments:

“[DEFENSE COUNSEL]: Paul Mandrik cooperated with them, told the police something they didn’t want to hear, told the State something they didn’t want to hear because his testimony, his testimony alone, is a reasonable doubt.”

We find no attempt by the State here to quantify or otherwise define reasonable doubt to the jury. (Cf. Crossno, 93 Ill. App. 3d 808, 417 N.E.2d 827.) Crossno is distinguishable from the statement complained of here because the prosecution in Crossno reduced the issue of guilt to the credibility of the witnesses as a matter of law, while the prosecutor here merely argued that if the jury found the prosecution witnesses to be credible, they “could and should” find defendant guilty. To the contrary, the prosecutor here argued only that the State’s evidence was proof of defendant’s guilt beyond a reasonable doubt.

Defendant" next argues that the prosecutor impugned the integrity of defense counsel by accusing him of trying to mislead or confuse the jury through remarks made during rebuttal closing argument. At the beginning of his rebuttal closing argument, the prosecutor told the jury:

“[PROSECUTOR]: When I heard counsel’s opening statement to you a couple of days ago, when I heard his cross-examination of the witnesses throughout this trial, now having heard his closing argument, I realized that the defense really isn’t identification or alibi at all; it really isn’t a recognized defense at all. What it is, it is the defense of confusion.”

The prosecutor also repeatedly referred to a “defense of confusion” throughout the remainder of his closing argument. However, the State counters that its remarks were proper rebuttal to defense counsel’s insinuation that the prosecution failed to produce existing evidence. Defense counsel stated:

“[DEFENSE COUNSEL]: You can determine in arriving at reasonable doubt whether or not there was any scientific, forensic evidence that indicated that Mr. Rodriguez was guilty, that he was there, or you can determine whether or not there isn’t any.”

Because defense counsel was attempting to draw the jury’s attention away from the evidence presented at trial by focusing on evidence that was supposedly not presented, the State contends it was necessary to shift the focus back to the evidence and facts of the case.

Prosecutorial comment not intended to distract a jury’s attention from the facts before them — but couched in terms of specific trial — will not be found to be error. (People v. Britz (1984), 128 Ill. App. 3d 29, 470 N.E.2d 1059.) Here, the prosecutor never accused defense counsel of any wrongdoing, or of lying (cf. People v. Ray (1984), 126 Ill. App. 3d 656, 660, 467 N.E.2d 1078); rather, the comments were restricted only to the weaknesses in the defense and to those comments made by defense counsel in closing argument.

Finally, defendant asserts that the prosecution improperly shifted the burden of proof by telling the jury that defense counsel had an obligation to call Niva DeMartino as a witness. Again, the State counters that the comment was a justified response to defense counsel’s statement to the jury that Niva had not been called by the prosecution.

In relevant part, defense counsel stated:

“[DEFENSE COUNSEL]: He (Thiel) also said that when he was struggling with the man at the building, he heard Niva at the third floor say, ‘Danny, Danny, he has got a gun,’ speaking of the other person. Niva is a person who obviously had not been called during this case.”

The prosecutor stated:

“[PROSECUTOR]: But why are they talking about that? Why are they talking about Niva, who could have been called as a witness? If they thought Niva had anything to add to this case, this [sic] could call her. They had the same subpoena power, the same power to bring in witnesses to testify in this case as we do. So why does counsel throw that one out, why Niva didn’t testify, because he wants you to think about that.
* * *
He wants you to forget how certain they (Gina and Thiel) were when they pointed to him (defendant) in court ***.”

Our review of the foregoing comments indicates that the prosecutor’s remarks were made in response to defense counsel’s comments and thus were proper. Even if the comments were error, defendant suffered no substantial prejudice because of the comments, given the overwhelming evidence presented by the State against him. See People v. Scott (1990), 194 Ill. App. 3d 634, 551 N.E.2d 280.

Defendant next asserts that this court should reduce his sentence for murder or remand the cause to the trial court for a new sentencing hearing. He contends that the trial court considered an improper factor in aggravation when it noted that the conduct of defendant caused “the ultimate serious harm” to Klish. He also assigns as error the trial court’s consideration of an unsworn representation made by the prosecutor concerning a purported juvenile conviction against defendant.

According to the presentence investigation report, defendant had no prior criminal record, juvenile or adult. However, the prosecutor stated in aggravation that the defendant had been “sentenced to 18 months” for the “charge of attempt [sic] battery, aggravated batter [sic].” When the trial court overruled defense counsel’s objection, the prosecution went on to say that defendant had been “sentenced to probation in juvenile court on the aggravated battery.”

It is well settled that it is not error for the trial court to hear evidence of a prior juvenile commitment if the record shows that the trial judge placed no reliance on such commitment in passing sentence. (People v. Reno (1974), 17 Ill. App. 3d 348, 308 N.E.2d 3.) It is also well settled that reliance by a trial court on an improper aggravating factor does not always require a remand for resentencing, especially where it can be determined from the record that the weight placed on an improperly considered factor was so insignificant that it did not lead to a greater sentence. People v. Mattingly (1989), 180 Ill. App. 3d 573, 536 N.E.2d 257.

< In People v. Moore (1988), 178 Ill. App. 3d 531, 533 N.E.2d 463, this court held that the trial court’s consideration of defendant’s conduct in causing the victim’s death was improper because death is implicit in the offense of murder; however, the court declined to vacate defendant’s sentence or remand for resentencing. The court therein reasoned that consideration of the improper factor in the sentencing process was insignificant and did not lead to imposition of a greater sentence where the trial court focused on several other factors as well and placed the greatest emphasis on defendant’s prior criminal acts and violation of probation. Moore, 178 Ill. App. 3d at 544.

Here, it is clear from the record that the trial court did not rely on this factor alone in sentencing the defendant. It also focused on the senselessness of the shooting and the need to deter future violent crimes. Accordingly, based on the record below, we find that the weight placed on the improper factor, the mention of Klish’s death, was fleeting. Such remark was insignificant when viewed in context and in light of the record which reflects that the trial court did not impose a greater sentence on defendant. See People v. White (1986), 114 Ill. 2d 61, 67, 499 N.E.2d 467.

Lastly, defendant contends that the trial court abused its discretion in sentencing him to the maximum terms for murder and attempted murder (People v. Steffens (1985), 131 Ill. App. 3d 141, 475 N.E.2d 606); in particular, because of his lack of criminal history.

The standard of review to be applied by this court when considering the propriety of granting a reduction of sentence is enunciated in People v. Jenkins (1984), 128 Ill. App. 3d 853, 857, 471 N.E.2d 647. The Jenkins court opined:

“Sentencing decisions are matters of judicial discretion, and so long as the sentence imposed is within the statutory limits, we may not exercise our power to reduce it absent a finding that the court has abused that discretion [citation], since the trial court has a better opportunity to acquire information about the defendant and assess factors in aggravation and mitigation [citation]. A rebuttable presumption arises that the sentence imposed was proper and is only overcome by an affirmative showing that the sentence imposed varies greatly from the purposes and spirit of the law or is manifestly violative of constitutional guidelines.” 128 Ill. App. 3d at 857.

In the present case, the sentence does not violate “constitutional guidelines.” Further, the record indicates that the court articulated its reasoning for imposition of the maximum sentences after considering the factors presented to the court in both aggravation and mitigation. The only mitigating factor presented was defendant’s lack of criminal background. This court will not disturb a trial court’s imposition of a sentence unless the sentence is grossly disproportionate to the nature of the offense (People v. Cabrera (1987), 116 Ill. 2d 474, 493, 508 N.E.2d 708), and is a clear abuse of discretion. A judgment as to the appropriate sentence depends on the facts of each case, considering such relevant factors as the defendant’s age, demeanor, mentality, habits, general moral character, credibility, and social environment, along with the nature and circumstances of the offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 268, 497 N.E.2d 1138.) We find no abuse of discretion, and we affirm the sentence of 40 and 30 years, respectively, for murder and attempted murder.

Affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE CERDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KATHLEEN QUICK, Defendant-Appellant.
    First District (3rd Division)
    No. 1—89—1230
    Opinion filed October 7, 1992.
    Rehearing denied November 20, 1992.

      Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Judy L. DeAngelis, and Susan Smith Snyder, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Following a jury trial, defendant, Kathleen Quick, was convicted of solicitation to murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 1, 9 — 1) for asking an undercover police officer to murder her husband. At trial, defendant unsuccessfully raised the entrapment and compulsion defenses and was sentenced to 10 years’ imprisonment. On appeal, defendant asserts that the trial court erred by (1) ruling that out-of-court statements were inadmissible hearsay even though they were offered to show their effect on her state of mind; (2) allowing improper rebuttal testimony; (3) tendering an improper and confusing jury instruction on the compulsion defense; (4) refusing to answer the jury’s request for the dictionary meaning of “imminent”; (5) permitting the State to improperly cross-examine her; and (6) not giving an accomplice witness instruction sua sponte. We reverse and remand for a new trial.

One of the issues in this case is whether it was prejudicial error for the trial court to give an instruction on the compulsion defense tendered by defense counsel, which omitted the “if she reasonably believed” portion.

On February 28, 1987, defendant paged Sergeant Randal Kacaba, an undercover Illinois State Police officer, and told him that a friend of a friend gave her his beeper number. After defendant stated that she understood that he could take care of her problem, Kacaba told defendant that he did not want to discuss the matter over the telephone, that he already knew what she wanted done, and not to worry about it. Kacaba suggested that she page him later to arrange a meeting.

Kacaba testified that George Lekas, a paid police informant, had earlier told him to expect defendant’s call. Lekas said that he had met defendant in a bowling alley bar through Phil Lavin. Kacaba testified that he had never met Lavin, who was not a government agent, had not heard of him prior to February 28, 1987, and knew little about him.

On March 2, 1987, defendant again paged Kacaba. They met in a restaurant parking lot, wheré defendant got into Kacaba’s car and told him that she wanted to have her husband killed because she was tired of his physical abuse and accusations. Defendant stated that killing her husband was her only alternative because he would never agree to a divorce. Defendant then agreed to a $500 down payment for the killing.

Kacaba instructed defendant to bring a picture and information about her husband. He also told defendant that she could change her mind before paying the money, but not afterward, and she should page him again two days later.

On March 4, 1987, Kacaba obtained a court order authorizing him to use a tape recorder, a transmitter, and a video camera for the hotel room where the transaction would occur. Later that day, defendant paged Kacaba and told him that she still wanted to go through with the killing. Kacaba said that he would arrange a meeting with his partner, who would actually do the job. Defendant agreed to meet him the next afternoon with the $500 down payment in $50 bills.

The next day, Kacaba was wired with a recording and transmitting device. When he met defendant, Kacaba told her that they would meet his partner at a Holiday Inn and that she could change her mind at anytime. All she would have tó do is get up and leave. Defendant replied that she understood and that she was a little nervous, but that she was going through with it. The tape-recorded conversation was played for the jury.

Defendant followed Kacaba to the Holiday Inn, where they both went into room 124. Everything that occurred in the room was video taped and shown to the jury over defendant’s objection. Bridgeview police officer Richard Cannella, who was posing as a hitman, was already in the room.

Defendant told Cannella that she wanted her husband killed because he constantly beat her up and she was “tired of his shit.” After discussing the price, defendant gave Cannella two photographs of her husband and wrote information about him on a pad, including places he frequented and times he left work. Cannella testified that he had heard of Lavin, but did not know if he gave defendant the beeper information or encouraged her to kill her husband.

Defendant testified that she met her husband at a church youth gathering when she was 13 years old and he was 15 years old. They started dating casually, meeting after church on Sundays, spending all day together, and going to church again at night.

Defendant stated that her husband began physically abusing her after she began working. At first, he shoved her, but he later escalated to hitting her, causing bruises. During that time, defendant met Lavin, who knew her husband. According to defendant, they became friends, but not lovers, and defendant confided in Lavin about her husband’s physical abuse. During a telephone conversation in 1985, Lavin suggested that he could take care of her husband for her. The trial court sustained the prosecutor’s hearsay objection to that testimony.

Defendant also testified that Lavin came to her job and gave her the beeper number. The trial court sustained the prosecution’s objection to defendant’s testimony about Lavin’s statements to her regarding the beeper number; how much it would cost; and what she should say. The trial court ruled that any testimony relating to Lavin’s statement to defendant was inadmissible hearsay and admonished the jury to disregard it.

Defendant then testified that she continued having conversations with Lavin, but did not reveal the content of those conversations. Defendant stated that she felt that she had to call the number because Lavin’s remarks had scared her. Defendant’s testimony of the events leading to her arrest was substantially the same as that of Officers Kacaba and Cannella.

Although defendant did intend to kill her husband at that time, she maintained that she decided to do so only after her husband hit her and after Lavin kept suggesting it to her. Defendant also testified that she thought that killing her husband was her only solution to her marital problems. Defendant testified that she never discussed killing her husband with anyone but Lavin, Kacaba, and Cannella; she never met Lekas; she never asked Lavin to find a hitman to kill her husband; Lavin was the first person to raise the subject; and she did not ask Lavin to come to her workplace to give her the beeper number. Defendant also stated that her previous efforts to employ a hitman to kill her husband involved Lavin, but that she never met or paid anyone to kill her husband prior to this incident. Defendant said that it was Lavin who told her that her husband would never let her have a divorce.

On cross-examination, defendant testified that Lavin kept badgering her about killing her husband. Defendant admitted that she was taught that having her husband killed would be a mortal sin for which she could go to hell for eternity. She also stated that she told Cannella that he could make extra money by robbing her husband’s truck.

According to defendant, Lavin had previously informed her that it would cost $1,000 to have her husband killed. Defendant stated that she was not a tough person, but tried to appear tough so that the “hitmen” would believe her. She claimed that she did everything she did because she was told to do so by Lavin and the “hitmen.”

In the State’s rebuttal case, Lavin testified over defendant’s objections. He stated that he met defendant in 1984 or 1985 and that they had a year-long sexual affair beginning in the summer of 1985 or 1986. Lavin knew defendant’s husband, was friendly with him, and did not believe he had a bad temper. According to Lavin, defendant frequently complained that her husband beat her and that she was not happy in her marriage, but Lavin thought she was fantasizing. Lavin stated that only once, when he and defendant were both naked, did he see a bruise on defendant’s thigh.

Lavin testified that he became annoyed when defendant repeatedly asked if he knew someone who could kill her husband. When Lavin saw Lekas in a bowling alley bar in February 1987, he told Lekas that someone kept bothering him about wanting to get someone killed. Lavin had known Lekas for four or five years and considered him a con man. Two days later, in the bowling alley, Lekas gave Lavin a piece of paper with a phone number and the name “Rich” on it and he told Lavin to have his friend call the number and “they’ll take care of the problem.” Even though Lavin thought the number was phony, he gave it to defendant so that she would stop bothering him.

According to Lavin, he told defendant that he had talked to a guy, had no idea what it was or who it was for, and said, “it’s yours, I don’t want nothing to do with it.” From that time until defendant was arrested, Lavin claimed that he did not speak to her.

Lavin denied telling defendant that she would be killed if she did not call the number and ask for Rich; that he told her what to say after calling the number; or that he knew about her meeting at the Holiday Inn on March 5, 1987. Lavin also denied ever working as a police agent or ever working for or with Lekas.

At the instructions conference, the trial court allowed a compulsion instruction, but not an entrapment instruction since there was no evidence that Lavin was an agent acting on behalf of Lekas, who was a paid government informant. After the jury deliberated, defendant was convicted of solicitation of murder and sentenced to 10 years’ imprisonment. We reverse the conviction and remand the case for a new trial.

On appeal, defendant asserts that she was denied a fair trial because she was prohibited from testifying to Lavin’s out-of-court statements, which were the crux of her defense. Defendant maintains that Lavin and Lekas were working together to entrap her into committing the offense and that she felt compelled to go through with the crime because Lavin told her that the hitmen would kill her if she backed out.

The trial court barred defendant from testifying to any statements by Lavin on the basis that they were hearsay. Defendant contends that the statements were not hearsay because they were not being admitted for the truth of the matter asserted. Instead, they were being offered for their effect on her state of mind. We agree.

Defendant relied on cases where out-of court statements were not hearsay. See People v. Moore (1975), 27 Ill. App. 3d 337 (it was improper to prohibit the defendant from testifying about conversations that were the important factual foundation of the defendant’s claim that he shot the deceased in self-defense); People v. Hines (1975), 28 Ill. App. 3d 976 (conversation between the killer and defendant’s representative about how to commit the crime was proper to show that they had reached an agreement); People v. Sadaka (1988), 174 Ill. App. 3d 260 (evidence of a known heroin trafficker’s telephone number found on the defendant was not hearsay because it was introduced to show an association between the defendant and the person whose telephone number was in defendant’s possession); People v. Husted (1981), 97 Ill. App. 3d 160 (exclusion of a conversation that was integral to the defendant’s theory of defense could deny the defendant a fair trial).

Defendant then analogizes self-defense cases to the compulsion defense, asserting that out-of-court statements by others could similarly compel an individual to commit a crime. See People v. Hoddenbach (1983), 116 Ill. App. 3d 57; People v. Moore (1980), 89 Ill. App. 3d 202; People v. Ganci (1978), 57 Ill. App. 3d 234; People v. Limas (1977), 45 Ill. App. 3d 643; People v. Davis (1963), 29 Ill. 2d 127.

The State’s response is fundamentally flawed. It does not address defendant’s argument that the out-of-court statements were not hearsay. Instead, the State concludes that the trial court properly excluded Lavin’s out-of-court statements because they were hearsay that did not come under any exception to the hearsay rule. The State argues that the statements were hearsay because they were offered as substantive evidence to prove the truth of defendant’s own statements that she was afraid she would be hurt or killed if she backed out of killing her husband. The State also maintains that defendant cannot prove her own out-of-court statements. Furthermore, the State contends that defendant cannot use the state of mind exception to the hearsay rule to admit Lavin’ s statements to prove her own state of mind because she was not the declarant. People v. Berry (1988), 172 Ill. App. 3d 256.

The State is confusing two separate hearsay concepts: nonhearsay statements or verbal acts, offered to show the effect of the declarant’s statement on the person hearing it; and a hearsay exception, which permits out-of-court statements to prove the declarant’s state of mind, emotion, or sensation, when his state of mind is at issue or in cases when a declarant’s statements of intention are used as proof that the intended act was done.

The State then argues that the trial court has the discretion to determine whether evidence is relevant and admissible. (People v. Hayes (1990), 139 Ill. 2d 89.) However, there is no issue of relevancy raised here. The testimony was excluded on the basis of hearsay, not because it was irrelevant.

This case is similar to People v. Perez (1991), 209 Ill. App. 3d 457, 466, where the trial court erred by not allowing the defendant to testify fully to out-of-court statements consisting of threats and an offer of cocaine, which influenced his state of mind, even though he was allowed to testify to some of those statements. Furthermore, in Perez, the defendant’s motive was material to the issue of a lack of predisposition, which was an essential element of his entrapment defense. Perez, 209 Ill. App. 3d at 466.

An out-of-court statement used for purposes other than establishing the truth of the matter asserted may be admissible to show the state of mind of the recipient after hearing the statement. (Perez, 209 Ill. App. 3d at 466.) If that statement is offered to prove its effect on the listener’s state of mind or to show why the listener acted as she did, it is not hearsay. (People v. Jackson (1986), 145 Ill. App. 3d 626, 636.) Furthermore, where the intention, motive, or belief of the accused is material to the issue, she should be allowed to testify directly to that fact, and to have the circumstances surrounding the act considered in connection with her testimony. Perez, 209 Ill. App. 3d at 466.

Lavin’s out-of-court statements were improperly excluded as hearsay. They were offered to show their effect on defendant’s state of mind after she heard them. Furthermore, Lavin’s out-of-court statements were crucial to defendant’s defense. By barring that testimony, the trial court’s rulings denied defendant her constitutional right to present a defense. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038; Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920; People v. Manion (1977), 67 Ill. 2d 564.) Accordingly, we reverse defendant’s conviction and remand this cause for a new trial.

Defendant then asserts that the trial court’s error prohibiting her from testifying to Lavin’s statements was compounded by Lavin improperly testifying in the State’s rebuttal case. We agree.

Lavin gave a detailed version of his statements to defendant, including that (1) defendant constantly complained of beatings by her husband, but Lavin thought she was fantasizing; (2) starting as early as 1985, defendant repeatedly said that she wanted to have her husband killed; (3) Lavin did not tell her that she or her children would be harmed if she did not call the number; and (4) Lavin did not coach defendant about what to say at the Holiday Inn.

Rebuttal testimony is testimony that is adduced by the prosecutor to explain, repel, contradict, or disprove evidence given by the defendant. (People v. Hunter (1984), 124 Ill. App. 3d 516, 538.) Since defendant was not allowed to testify about Lavin’s statements and the jury was instructed to disregard her attempts to describe them on cross-examination, Lavin’s detailed rebuttal testimony about those statements was improper.

Next, defendant asserts that the trial court erred by giving the jury a confusing instruction on the compulsion defense, which, in effeet, instructed the jury on the wrong standard. The State contends that defendant waived this issue. Not only did she not object to the instruction at trial, the State argues, but it was the defense counsel who prepared and tendered the instruction. Since the alleged error affected defendant’s substantial rights, we will consider it as plain error. People v. Almo (1985), 108 Ill. 2d 54, 66.

The Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.21 (2d ed. 1981) (hereinafter IPI Criminal 2d) on the compulsion defense states:

“It is a defense to the charge made against defendant that [s]he acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if [s]he reasonably believed death or great bodily harm would be inflicted upon [her] if [s]he did not perform the conduct with which [s]he is charged.”

The instruction given to the jury differed from the IPI instruction in that it omitted a substantial part of the instruction. The instruction given to the jury was:

“It is a defense to the charge made against the defendant that she acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm would be inflicted upon her if she did not perform the conduct with which she is charged.”

Because the words “if she reasonably believed death or great bodily harm” were omitted, the trial court committed plain error in giving the instruction to the jury.

A defendant is entitled to the benefit of any defense shown by the entire evidence and very slight evidence will justify the giving of an instruction. (People v. Bratcher (1976), 63 Ill. 2d 534, 540.) A jury instruction may not be misleading or confusing and should fully and fairly inform the jury of the law applicable to the respective theories of defense. (People v. Gathings (1981), 99 Ill. App. 3d 1135, 1138.) The court’s duty is to give the jury proper guidance, not to generate confusion. People v. Jenkins (1977), 69 Ill. 2d 61, 66.

The compulsion defense instruction given in this case was confusing and incorrect. The trial court had the duty to clarify that confusion even though the defense counsel had tendered the erroneous instruction. The issue was not whether defendant would be harmed, since it was reasonable for the jury to infer that defendant would not have been harmed because the “hitmen” were actually undercover police. Instead, the issue was what defendant reasonably believed. If she reasonably believed that she would be injured, that would be sufficient for the compulsion defense. The error was so substantial that it reflected on the fairness of the trial. (People v. Linscott (1991), 142 Ill. 2d 22, 28.) Since the trial’s outcome could have been different if the correct instruction had been given, the instruction was prejudicial error.

Next, defendant asserts that the trial court erred when it refused to answer the jury’s request for the dictionary definition of the word “imminent” contained in the compulsion defense instruction. Defendant waived this issue because she did not object at trial and did not include the error in her post-trial motion.

Defendant then asserts that the trial court erred in permitting the State to cross-examine her about whether soliciting her husband’s murder was a mortal sin for which she could go to hell for eternity. The State maintains that the cross-examination questions were in response to defendant’s direct examination testimony that she met her husband at a church youth gathering and the two continued to see each other on Sunday afternoons after church. The State also argues that the questions were not offered to prove bad moral character, but to determine when defendant made the decision to kill her husband and how important that decision was to defendant.

The trial court erred in allowing the testimony. The court should not permit cross-examination that is designed to insult, degrade, or humiliate a witness (People v. Brown (1912), 254 Ill. 260, 269) or whose only apparent purpose is to demonstrate that the defendant was of bad moral character (People v. Butler (1974), 58 Ill. 2d 45, 50). Inquiring into defendant’s religious beliefs was improper. It is disturbing that the prosecutor asked those questions. There is a difference between religious activities and religious beliefs. Defendant’s testimony about her religious activities did not allow the State to question her about her religious beliefs.

Finally, defendant waived her argument that the trial court erred by not sua sponte giving the jury an accomplice instruction. Defendant did not tender such an instruction and the evidence did not support such an instruction. It is the burden of the party who desires a specific instruction to present it to the court and request that it be given to the jury. (People v. Turner (1989), 128 Ill. 2d 540, 562; People v. Bodoh (1990), 200 Ill. App. 3d 415, 431.) A trial court is only required to offer an instruction sua sponte if it relates to the elements of the offense charged, the presumption of innocence, or the burden of proof. (Turner, 128 Ill. 2d at 562-63.) Moreover, a court is obligated to use restraint in giving instructions sua sponte so as not to interfere with or frustrate defense strategy. People v. Garcia (1988), 169 Ill. App. 3d 618.

Based on the forgoing, defendant’s convictions are reversed and remanded for a new trial.

Reversed and remanded.

GREIMAN, P.J., and TULLY, J., concur.


author: JUSTICE O’CONNOR

text:
    HORACE MANN INSURANCE COMPANY, Plaintiff-Appellee, v. ROBERT H. BROWN et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—91—0061
    Opinion filed October 13, 1992.

      William E. Reynolds, of Chicago (Timothy Quinn, of counsel), for appellants.
    Hinshaw & Culbertson, of Chicago (Joshua G. Vincent and Keith G. Carlson, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

On December 6, 1985, a car driven by defendant Robert Brown collided with another automobile on Lake Shore Drive in Chicago. As a result of the accident, a passenger in the other car, Robert Ring, was killed, and the car’s two other occupants, Frank Navarro and Kathy Vasilakos, received injuries. At the time of the collision, the car which Robert was driving was owned by Robert’s father, Hamilton, and was insured under an automobile insurance policy issued by plaintiff, Horace Mann Insurance Company.

Representatives of Ring, along with Vasilakos and Navarro, also defendants in this action, subsequently submitted claims to plaintiff and filed a civil suit in the circuit court for damages arising from Robert’s operation of Hamilton’s car. Plaintiff denied that Robert was covered under Hamilton’s policy because Robert had taken the car without Hamilton’s permission and because Robert did not live with Hamilton. To that end, plaintiff instituted a declaratory judgment action against defendants in the circuit court. Defendants denied the allegations, and the circuit court conducted a trial on the coverage issue, where it ultimately determined that plaintiff was not obligated, under the terms of an automobile insurance policy issued by it, to defend Robert in the lawsuit arising from the accident. Defendants appeal.

We affirm.

At the trial, Hamilton testified that he resided at 8619 South Creiger, in Chicago. Robert, his adopted son, had lived there with his parents until approximately 1982. Robert visited his parents on a monthly basis and usually remained only for dinner. He seldom stayed overnight at the house.

On the evening of December 5, 1985, Robert visited his parents’ home and stayed there for approximately three hours. Hamilton never saw Robert leave the house. He first noticed that Robert was gone when he discovered that the back door was unlocked and that the car was missing. He checked his jacket pocket for the car keys. They, too, had disappeared. Hamilton never, at any time during the evening, gave Robert permission to take the car.

Later in the early morning hours of December 6, 1985, two police officers came to the house and informed Hamilton that his automobile was involved in an accident. Still later that morning, Hamilton received a telephone call from a police officer regarding the accident. He denied telling the officer anything about Robert nor did he report his car as having been stolen. Hamilton did not recall receiving any other calls from police that morning. He denied telling police that he had allowed Robert to use the automobile and that Robert had “not yet returned home.” Hamilton did not call police to report the car stolen because he did not want Robert “to get into trouble just for that.” He stated that he believed Robert would return the car “at least sometime that night.”

On December 11, 1985, Hamilton submitted a claim for property damage to plaintiff. The property loss form, signed by both Robert and Hamilton, was submitted into evidence by defendants. On the form, Hamilton had noted that Robert had taken the car for “pleasure.” He also had checked the box which indicated that Robert’s address was the “same as owner.” Hamilton explained that he had checked that box because he wanted any mail regarding the accident to be sent to his house and because he did not know where Robert was living at the time.

Defendants also presented the testimony of Chicago police officer Ralph Wesolek, in the form of his deposition transcript. In the deposition, Wesolek, reading from his police report of the incident, stated that he investigated the accident at issue with his partner, William Smith. According to Wesolek, either he or Smith conducted a telephone interview with Hamilton in which Hamilton stated that Robert had permission to use the car and that he had not yet returned home. Wesolek could not recall who had spoken to Hamilton. Wesolek stated that he typed the report in question with the aid of his partner.

Chicago police officer William Smith’s deposition testimony mirrored Wesolek’s. Smith was also unable to recall who had spoken to Hamilton. During the investigation, Smith took handwritten notes, which were later transcribed onto the report at issue. Smith stated that, at times, he would have to interpret the handwritten notes for the transcriber. He did not know who had transcribed his notes in the Brown investigation.

Plaintiff objected to the use of the deposition testimony to introduce the contents of the police report. The circuit court admitted the testimony for purposes of impeachment, but refused to admit the testimony as substantive evidence. Specifically, the court noted that the past recollection recorded exception to the hearsay rule requires that the declarant have personal knowledge of the contents of the report. The officers had no personal knowledge of Robert’s use of the automobile or his place of residence and had to rely solely on the statement of Hamilton Brown. Moreover, the court noted, there was no showing as to how the person who made the report gathered the hearsay information, which could have been passed from one officer to the other since neither officer knew who actually had spoken to Hamilton on the phone.

Finally, Chicago police officer Arthur Godfrey testified on behalf on defendants. Godfrey was assigned to investigate the accident after police learned a suspect had turned himself in at a third district police station. Godfrey stated that during his interview with Robert, Robert admitted leaving the scene of the accident. Godfrey asked Robert standard “booking” questions such as name, height, weight, date of birth, and address. Godfrey stated that, normally, this type of information is obtained from a suspect’s driver’s license, but since Robert did not have a driver’s license, Godfrey had to elicit the information from Robert himself. In response to his questions, Robert told Godfrey his address was 8619 South Creiger. Godfrey, however, had no personal knowledge of where Robert lived prior to the accident and did not conduct any follow-up investigation to confirm the address.

At the conclusion of Godfrey’s testimony, the circuit court struck the evidence, ruling that it could not be used as a declaration against plaintiff because the statement was not made by any agent of plaintiff. The court further ruled that any statement by Robert as to his address was not part of his inculpatory speech. The court also ruled that Godfrey’s testimony lacked the requisite indicia of reliability and could not be admitted as substantive evidence and the testimony as to Robert’s statements could not be used to impeach Hamilton.

Following closing arguments, the circuit court determined that Robert did not live with Hamilton at the time of the accident and that Hamilton did not give his son permission to use the car. The court accepted Hamilton’s reasons for not reporting his car as stolen to the police and believed that those reasons were adequate to explain away any contradictory statements which may have been given to the police. Accordingly, the court entered judgment for plaintiff on both counts of its complaint for declaratory judgment.

I

Defendants assert that Hamilton’s statement to police that Robert had taken the car with his permission and had not yet returned home should have been admitted as substantive evidence as “state of mind” and “past recollection recorded” exceptions to the hearsay rule.

Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted and is inadmissible unless it falls within one of the recognized exceptions to the rule. (People v. Lawler (1991), 142 Ill. 2d 548, 568 N.E.2d 895.) We first note that the evidence defendants seek to have admitted constitutes double hearsay since Hamilton’s out-of-court statement is contained in a police report. In such a case, both levels must fall within an exception to the hearsay rule in order to be used as substantive evidence. (See People v. Chambers (1989), 179 Ill. App. 3d 565, 534 N.E.2d 554; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §805.1 (5th ed. 1990).) We further note that defendants did not argue that Hamilton’s statement to police was admissible as a state of mind exception to the hearsay rule in the circuit court. Generally, the proponent of excluded testimony is limited on appeal to the grounds for admissibility raised in the circuit court. (Crimp v. First Union Trust & Savings Bank (1933), 352 Ill. 93, 185 N.E. 179; Waechter v. Carson Pirie Scott & Co. (1988), 170 Ill. App. 3d 370, 523 N.E.2d 1348, appeal denied (1988), 122 Ill. 2d 595, 530 N.E.2d 266; Light v. Steward (1984), 128 Ill. App. 3d 587, 470 N.E.2d 1180.) Accordingly, defendants are precluded from arguing that the exception should be applied in the present case.

Even if we were to assume that defendants properly preserved their argument, the exception is not satisfied under the facts at issue. Generally, an out-of-court statement of a declarant is admissible when that statement tends to show the declarant’s state of mind at the time of the utterance. (People v. Lawler, 142 Ill. 2d at 559; People v. Britz (1986), 112 Ill. 2d 314, 493 N.E.2d 575.) A statement qualifies under the state of mind exception to the hearsay rule when it purports to relate to a condition of mind existing at the time the statement is made and when it was made under circumstances indicating apparent sincerity. (People v. Berry (1988), 172 Ill. App. 3d 256, 526 N.E.2d 502.) The likelihood of conscious or deliberate misrepresentation must be negated. (People v. Berry, 172 Ill. App. 3d at 262.) Finally, the circuit court is given discretion concerning questions regarding admissibility and, upon review, its decision will not be disturbed absent abuse of that discretion. People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292, appeal denied (1986), 111 Ill. 2d 575, 488 N.E.2d 272.

Here, Hamilton’s statement does not relate to a condition of mind. Moreover, the likelihood of conscious or deliberate misrepresentation was not negated given Hamilton’s determination not to “get” Robert in “trouble” with police for taking the car without permission. Under these circumstances, the state of mind exception is not satisfied.

As to the second level of hearsay present here, the police report, such documents usually are not admissible as evidence. (People v. Garrett (1991), 216 Ill. App. 3d 348, 576 N.E.2d 331.) Police reports may be used to refresh a witness’ recollection (Baumgartner v. Ziessow (1988), 169 Ill. App. 3d 647, 523 N.E.2d 1010) or may be admitted as past recollection recorded if the proper foundation is laid. (People v. Garrett, 216 Ill. App. 3d at 357.) In order to be admissible, the proponent must establish that the witness has no independent recollection of the event or occurrence recorded, that the report fails to refresh the witness’ recollection, that the facts in the report have been recorded at the time of the occurrence or soon thereafter, and that the report is both truthful and accurate. Loughnane v. City of Chicago (1989), 188 Ill. App. 3d 1078, 545 N.E.2d 150, appeal denied (1990), 129 Ill. 2d 564, 550 N.E.2d 557.

Our review of the record indicates that the police report was not used to refresh Wesolek’s memory, but was read by him into evidence. Although Wesolek averred that his report refreshed his recollection, his testimony clearly shows that he had no recollection of the event. See Rigor v. Howard Liquors, Inc. (1973), 10 Ill. App. 3d 1004, 295 N.E.2d 491.

Moreover, the testimony reveals that, as to Wesolek, defendants failed to lay a proper foundation for the admission of the police report into evidence as past recollection recorded. Wesolek averred that the report refreshed his recollection of the events. As noted above, police reports are admissible as past recollection recorded when the proponent establishes that the report fails to refresh the witness’ recollection. Accordingly, the decision to bar the statement, as to Wesolek, was not erroneous.

Additionally, Smith averred that the report refreshed his memory, but neither he nor Wesolek could remember who had spoken to Hamilton. The report’s accuracy, therefore, is open to question particularly because neither officer could state with any certainty who had spoken to Hamilton. In view of these facts, the circuit court correctly ruled that the police report constituted inadmissible hearsay. See Roeseke v. Pryor (1987), 152 Ill. App. 3d 771, 504 N.E.2d 927.

II

Defendants next maintain that Robert’s statement to Officer Godfrey, that he resided at 8619 South Creiger, was a declaration against interest.

The requirements for admissibility for this exception are that the declarant be unavailable, that the declaration, when made, must have been against his pecuniary or proprietary interest, that the declarant have had competent knowledge of the fact declared, and that the declarant have had no probable motive to lie. Buckley v. Cronkhite (1979), 74 Ill. App. 3d 487, 393 N.E.2d 60; Merritt v. Chonowski (1978), 58 Ill. App. 3d 192, 373 N.E.2d 1060.

It appears that both parties agree that Robert possessed competent knowledge of his address; however, the parties disagree as to whether he was unavailable. We need not address that issue because we find that the other requirements for admission under this exception were not met. Robert’s statement that he resided at 8619 South Creiger was not against his pecuniary interest because, if true, he would be entitled to coverage for damages arising from the collision under Hamilton’s insurance policy. Under these circumstances, it is difficult to conceive of a more powerful motive to lie.

Defendants nevertheless contend that Robert’s confession to police was against his pecuniary interest and that the collateral information received at that time, the address, is admissible. However, Robert admitted his participation in the accident in a different interview and at a different time and place from where he told police his address. Although collateral statements substantially connected with the same subject as that covered by the declaration against interest are admissible (Buckley, 74 Ill. App. 3d at 492), the record clearly shows that Robert’s statement concerning his address was not collateral to his admission of guilt. Robert initially told Godfrey that he left the scene of the accident to seek medical assistance. After Godfrey pointed out several inconsistencies in Robert’s account, Robert terminated the interview and refused to answer any more questions until his lawyer arrived. Robert later was taken to another police station where he made the statement now at issue. In this context, Robert’s motive to lie becomes even stronger because he attempted to lie to the police from the outset of the investigation. Accordingly, the circuit court did not err in barring the admission of Godfrey’s testimony.

III

Relying on People v. Newsome (1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634, cert. denied (1983), 464 U.S. 934, 78 L. Ed. 2d 308, 104 S. Ct. 340, and People v. Harvey (1980), 92 Ill. App. 3d 465, 415 N.E.2d 1161, defendants next argue that the circuit court should have allowed Godfrey’s testimony for the limited purpose of impeaching Hamilton during surrebuttal.

In both Newsome and Harvey, testimony by third parties concerning statements made by defendants was ruled admissible to impeach the alibi testimony of defense witnesses. Here, the statement at issue was not an inconsistent statement made by Hamilton, but merely was the self-serving statement of one of the defendants. The admission of such evidence is within the circuit court’s discretion, and its exercise of that discretion will not be disturbed on review unless an abuse is shown. (People v. Harvey, 92 Ill. App. 3d 465, 415 N.E.2d 1161.) Under the circumstances here, the circuit court did not err in barring the testimony for purposes of Hamilton’s impeachment.

IV

Finally, defendants claim error in the circuit court’s denial of their motions for judgment n.o.v. or for a new trial.

A motion for a new trial is addressed to the sound discretion of the circuit court, and its decision will not be disturbed absent a clear abuse of discretion. (Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348, appeal denied (1989), 127 Ill. 2d 620, 545 N.E.2d 114.) In considering such a motion, the circuit court must determine whether the trier of fact’s verdict was against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 356 N.E.2d 32.) A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings are unreasonable, arbitrary, and not based upon the evidence. (Anderson v. Beers (1979), 74 Ill. App. 3d 619, 393 N.E.2d 552.) Upon review, this court may not reconsider the evidence or reassess the witnesses’ credibility or demeanor. Netzel, 181 Ill. App. 3d at 813.

With respect to a motion for judgment n.o.v., the circuit court may grant such a motion only when all the evidence, viewed in a manner most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) A judgment n.o.v. is improper where reasonable minds may differ as to the inferences or conclusions to be drawn from the facts presented. (Lee v. Grand Trunk Western R.R. Co. (1986), 143 Ill. App. 3d 500, 492 N.E.2d 1364.) Error occurs when judgment n.o.v. is granted where the evidence demonstrates a substantial factual dispute, or where the assessment of witnesses’ credibility or the resolution of conflicting evidence may determine the outcome. Lee v. Grand Trunk Western R.R. Co., 143 Ill. App. 3d at 509.

In the present case, defendants have met neither standard. The trial judge found Hamilton’s testimony regarding the residence of his son to be clear and positive. Moreover, the conflict of evidence with regard to the property loss form was resolved in favor of plaintiff. The trial judge further noted that defendants failed to offer any evidence tending to establish a property connection between Robert and the premises. The trial judge’s other finding, that Robert had taken Hamilton’s car without permission, was also based on what the trial judge characterized as the clear and positive testimony of Hamilton. Again, conflicting testimony was resolved in favor of plaintiff. Here, the trial judge had the opportunity to observe the demeanor of the witnesses while testifying, and his determination regarding the credibility and weight of the testimony must be given deference upon review, absent clear abuse of discretion. (Silas v. Robinson (1985), 131 Ill. App. 3d 1058, 477 N.E.2d 4.) Defendants have failed to establish such an abuse of discretion.

The judgment of the circuit court, therefore, is affirmed.

Affirmed.

BUCKLEY, P.J., and MANNING, J., concur.

       Under the terms of the policy issued to Hamilton, the use of the insured vehicle “must be within the scope of consent by the owner or person in lawful possession of it.” “Relative” was defined by the terms of the policy as “a person related to you [the insured] by blood, marriage or adoption who lives with you [the insured].”


author: JUSTICE McMORROW

text:
    JAMES BASS, Indiv. and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. SOUTH COOK COUNTY MOSQUITO ABATEMENT DISTRICT et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—91—2226
    Opinion filed October 8, 1992.
    Anthony B. Bass and Aron D. Robinson, both of Holstein, Mack & Klein, of Chicago, for appellant.

      Warren Lupel and Pamela J. Leichtling, both of Katz, Randall & Weinberg, of Chicago, and Jerry L. Lambert, of Stinespring, Lambert & Associates, of Flossmoor, for appellees.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, James Bass, brought an action on his own behalf and on behalf of other taxpayers within the South Cook County Mosquito Abatement District (the District) against the District, its trustees, and Edward J. Rosewell, Cook County Treasurer and collector of taxes (defendants). Plaintiff’s complaint alleged that defendants overtaxed property owners by appropriating approximately $1.5 million more than was needed for the operation of the District, and thereby created an illegal surplus from which funds were used by the trustees for unauthorized and unnecessary items benefitting the trustees and managers of the District. The complaint sought (1) a declaration that the District violated the law by overtaxing and overappropriating monies for the use of the District; and (2) injunctions (a) compelling the District to place the surplus funds into a trust account and (b) compelling the county treasurer to deposit all monies collected for the District in a trust account; (c) restraining the collector from disbursing any monies to the District without court approval; and (d) requiring the District to refund all surplus levies to the taxpayers within the District.

Defendants filed a motion to dismiss pursuant to section 2 — 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) asserting that plaintiff was not entitled to equitable relief because he had an adequate remedy at law which he failed to pursue. Defendants also asserted that the complaint failed to allege any facts to support plaintiff’s assertions of excessive appropriations or taxation or any other illegal conduct.

Following a hearing, the court granted defendants’ motion to dismiss, ruling that it lacked jurisdiction over the matter. This appeal followed.

Under the principle known as the voluntary payment doctrine, taxes voluntarily paid, even if erroneously, cannot be recovered unless recovery is authorized by statute. (Getto v. City of Chicago (1981), 86 Ill. 2d 39, 426 N.E.2d 844; Inland Real Estate Corp. v. Oak Park Trust & Savings Bank (1983), 127 Ill. App. 3d 535, 469 N.E.2d 204.) It is also a well-settled rule that equity will not assume jurisdiction to grant relief where an adequate remedy at law exists. Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299; R.D. Werner Co. v. Leyden Fire Protection District (1980), 91 Ill. App. 3d 587, 414 N.E.2d 1169.

Through the Revenue Act of 1939, the General Assembly has created a statutory scheme for taxpayers who wish to object to improper taxes to follow. Sections 194 and 235 provide that if a taxpayer elects to object to all or part of a real property tax, the taxpayer must pay both installments of the tax which is due under protest (Ill. Rev. Stat. 1989, ch. 120, par. 675) and file objections to the application for judgment (Ill. Rev. Stat. 1989, ch. 120, par. 716). This statutory procedure is the usual vehicle through which a taxpayer obtains relief in taxation matters and has been held to be an adequate remedy at law. (Clarendon Associates v. Korzen, 56 Ill. 2d 101; Alexander v. County of Tazewell (1989), 181 Ill. App. 3d 1070, 537 N.E.2d 1139.) The rationale for the payment-under-protest procedure is to protect the rights of the taxpayer while also ensuring that the functioning of government is not impaired by protracted delays in the collection of taxes necessary for the operation of governmental units. Clarendon Associates v. Korzen, 56 Ill. 2d 101; Wolf v. Hynes (1985), 137 Ill. App. 3d 987, 485 N.E.2d 463; R.D. Werner Co. v. Leyden Fire Protection District (1980), 91 Ill. App. 3d 587, 414 N.E.2d 1169.

Although the statutory procedure is generally a taxpayer’s exclusive remedy in tax cases (Alexander v. County of Tazewell, 181 Ill. App. 3d at 1074), there are two well-recognized exceptions under which equitable remédies are available without first following the statutory remedy. Where the tax is unauthorized by law or is levied upon exempt property, a taxpayer may seek relief by way of injunction without demonstrating an inadequate remedy at law. (Clarendon Associates v. Korzen, 56 Ill. 2d 101; Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833.) However, absent a recognized ground for equitable relief, a taxpayer who seeks equitable intervention prior to following the statutory procedures risks the loss of his right to a tax refund in cases where equitable relief is found unwarranted. R.D. Werner Co. v. Leyden Fire Protection District, 91 Ill. App. 3d at 594.

Plaintiff acknowledges that he did not avail himself of the statutory payment-under-protest procedure when he paid the tax at issue, and he does not allege that the District is not authorized to levy taxes or that the property is exempt from taxation. Relying on Clarendon Associates v. Korzen (56 Ill. 2d 101) and Hoyne Savings & Loan Asso ciation v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833, plaintiff asserts, however, that the availability of equitable remedies is not limited to those two traditional exceptions. He argues that a taxpayer may obtain equitable relief before following the statutory procedure where special grounds exist, such as a fraudulently excessive assessment and the unavailability of an adequate remedy at law. He maintains that the assessment at issue was fraudulently excessive because it was used to accumulate an illegal surplus of funds, and that he lacked an adequate remedy at law because he was unaware of the alleged illegal surplus and improper expenditure of funds from it until that information was disclosed in an audit of the District’s finances. Citing Getto v. City of Chicago (86 Ill. 2d 39), he further argues that his lack of knowledge that the taxes he paid were being used to create the surplus renders the voluntary payment doctrine inapplicable.

In Clarendon, a leading case on this subject, the plaintiffs-taxpayers sought an injunction restraining the collection of real estate taxes on the ground that the valuations of their properties were constructively fraudulent and void. The trial court entered an order enjoining the collection of the taxes while also ordering the plaintiffs to deposit those amounts into a trust account pending the outcome of the litigation. On interlocutory appeal, the supreme court noted that some courts had expanded the traditional limitations on equitable jurisdiction in tax cases by holding that equity may enjoin the collection of taxes where the assessment is so grossly excessive as to be constructively fraudulent. However, after an extensive review of the history of the Revenue Act and the rationale for the enactment of the statutory procedure of payment under protest, the Clarendon court reaffirmed the basic rule that the statute provided an adequate remedy even in cases alleging a fraudulent assessment. The court held that only when the taxpayer demonstrated that the assessment was fraudulent and that the legal remedy was inadequate would equity assume jurisdiction. (Clarendon, 56 Ill. 2d at 107.) The court reasoned that to hold otherwise, “[t]he door would thus be opened for all constructively fraudulent assessment cases to be tried in equity, thereby bypassing the statutory requirement that taxes be paid under protest.” (56 Ill. 2d at 108.) The taxpayers in Clarendon were found not to have satisfied the burden of showing that the statutory remedy was an inadequate remedy at law, and the case was remanded for dismissal and for distribution of the taxes to the taxing bodies involved.

In Hoyne Savings & Loan Association v. Hare (60 Ill. 2d 84), the plaintiff-taxpayer sought an injunction restraining the collection of the 1971 taxes on a 50-acre parcel of land. Prior to entry of an order in that case, the plaintiff brought another suit seeking the same relief for the tax year 1972. In both actions, the trial court ordered plaintiff to deposit the full amount of the taxes with the court and, in a final order, granted a refund to plaintiff of the amount found to be excessive.

On appeal, the supreme court considered the principles it had earlier enunciated in Clarendon, but held that under the unique circumstances presented, the taxpayer was entitled to partial equitable relief despite the existence of the statutory remedy at law because that remedy was inadequate. The factors cited by the court included that the assessed valuation of the property, which had increased more than 25 times from the previous year without any improvements having been made to the property, was grossly excessive; and that the assessment was based on the assessor’s opinion that the best use of the property was commercial, despite that the property was zoned residential, and on his incorrect assumption that the property was fully improved with water and sewer services. Additional circumstances, which related to the plaintiff’s failure to pursue its statutory remedy, were the extremely late date of the assessment and the subsequent publication of it; the late mailing of the tax bill; that the first actual notice the taxpayer had of the increased assessment was after the board of review had closed its books for the 1971 taxes; and that the 1973 assessment was substantially reduced by the board of review.

The Hoyne court found that the aggregation of all these circumstances led to “the formation of the total picture requiring equitable intervention,” and affirmed the order of the trial court granting a refund of the excess taxes for 1971. (Hoyne, 60 Ill. 2d at 90.) However, the court held that the facts warranting equitable relief as to the 1971 taxes did not exist as to the 1972 taxes because plaintiff was aware of the assessment long before the tax bills were received but nevertheless elected not to pursue its statutory remedy. Thus, the court held that equitable relief was not available for the excessive assessment for 1972, and the order granting defendant a refund of the excess 1972 taxes was reversed.

Plaintiff asserts that the type of special circumstances discussed in Clarendon and found to be present in Hoyne also warrant equitable relief in this case. We disagree.

We do not believe that this case presents sufficiently compelling circumstances as are necessary, and which have been found in only a few rare cases such as Hoyne, to require equitable intervention. Plaintiff has paid the tax at issue and now seeks a ruling that it was excessive and an order refunding the excess amount he paid. This is substantially the same procedure and relief which would be available under the payment-under-protest procedure of the statute. (Clarendon v. City of Chicago, 56 Ill. 2d at 108.) Second, in Hoyne, the errors resulting in the grossly excessive assessment imposed upon the individual taxpayer a substantially increased tax burden, i.e., approximately $17,000, from the previous year. Although the Hoyne court cautioned that it was not establishing “a line of demarcation” (Hoyne, 60 Ill. 2d at 89) as to when an assessment will be considered grossly excessive, there are no allegations and nothing in the record before us indicating that the assessment in this case imposed upon plaintiff a tax burden at all comparable to that in Hoyne so as to render his legal remedy inadequate. (See Alexander v. County of Tazewell, 181 Ill. App. 3d at 1075; Wolf v. Hynes, 137 Ill. App. 3d at 990.) Also, it is significant that notwithstanding the excessiveness of the increase in Hoyne, the court held that equitable intervention was not available to the taxpayer for the second year of overassessment because the statute provided an adequate remedy at law which the taxpayer elected not to pursue. Thus, the taxpayer in Hoyne lost its right to a refund of the second year’s excess taxes which had been placed on deposit with the circuit court. In our view, Hoyne is not supportive of plaintiff’s position, and Clarendon countermands it.

Neither are we persuaded by plaintiff’s arguments that he did not have an adequate legal remedy, and the voluntary payment doctrine is inapplicable because he lacked sufficient knowledge of the alleged overassessment at the time he paid the tax. Getto v. City of Chicago (86 Ill. 2d 39), on which plaintiff relies, held that invocation of the voluntary payment doctrine requires a showing that the taxpayer had knowledge of the facts upon which to frame a protest and that the payments were not made under duress or compulsion. In Getto, the plaintiff successfully challenged the method of calculating a municipal message tax. The tax appeared on each utility bill but was explained only as “an additional charge due to State and City taxes.” The bill did not indicate the type of tax, what portion of the bill was being taxed or that a percentage of the charge was used to cover accounting costs. The court ruled that the voluntary payment doctrine did not apply both because the customers had no way of ascertaining the method of computing the message tax, and because the threat of telephone service disconnection for nonpayment of the charges amounted to compulsion.

In contrast to Getto, the record in the present case establishes that the real estate tax bills designate what amount of the total tax is levied for the District’s operations; that the District’s proposed budgets were published during June, July and August each year for several years preceding this lawsuit; and that open hearings are held prior to the county board’s approval of a budget. The budget lists all the expenditures of the District, including those which plaintiff asserted, in a letter to the District during the pendency of the litigation, were excessive and/or unnecessary. Thus, plaintiff’s assertion that there was no way he could acquire the knowledge necessary to form a protest on the ground of an illegal accumulation of surplus funds prior to the audit is contradicted by the record. In our view plaintiff was chargeable with sufficient knowledge to form a protest because he had the means by which to discover the purportedly improper surplus. Cf. Isberian v. Village of Gurnee (1983), 116 Ill. App. 3d 146, 452 N.E.2d 844 (invocation of the voluntary payment doctrine does not require that the taxpayer be aware of the illegality of the tax at the time he makes payment; it is sufficient that the taxpayer had before him adequate facts upon which he could have based a contention of illegality).

Finally, the record discloses that in a letter to the county board chairman regarding the audit, the Cook County auditor opined that the amounts of the District’s investments and cash on hand were unnecessarily large, and recommended, inter alia, that the unreserved fund balance of $1.4 million be applied toward the following year’s budget. Subsequently, the District prepared an amended tax levy ordinance which implemented the auditor’s recommendation and reduced the levy to $700,000 on an amended budget of approximately $2.1 million. Thus, as the trial court noted, any excessive or otherwise improper taxes which created the surplus challenged by plaintiff were used to reduce plaintiff’s tax liability the following year.

We cannot say that there was a sufficient accumulation of inequities in this case, which is, essentially, one challenging the management practices of the District’s operations, to conclude that plaintiff lacked an adequate remedy at law. The trial court correctly ruled that it lacked jurisdiction to exercise its powers of equitable intervention.

For the reasons stated, the order of the trial court dismissing plaintiff’s action is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

       Although plaintiff brought suit as a class action, the suit was dismissed without class certification.


author: PRESIDING JUSTICE McNULTY

text:
      In re APPLICATION OF EDWARD J. ROSEWELL, as County Treasurer and ex officio Collector of Cook County, for Judgment and Order of Sale Against Lands and Lots Upon Which General Taxes for Each of Two or More Years Remain Due and Unpaid (Romel Koktapeh, Petitioner-Appellant, v. The City of Chicago et al., Respondents-Appellees).
    First District (5th Division)
    No. 1—91—4061
    Opinion filed October 9, 1992.

      Richard E. Steck, of Stock & Spataro, of Chicago, for appellant.
    Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Brian Trubitt, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Thomas J. McNulty and Maria E. Stangel, both of Keck, Mahin & Cate, of Chicago, for appellee Greater Southwest Development Corporation.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

On October 29, 1991, at an annual scavenger sale of tax delinquent properties, Romel Koktapeh bid on and purchased certain real estate located at 6315 South Western Avenue, in Chicago. On December 13, 1991, the circuit court denied confirmation of the sale, subsequently affirming a sale to the City of Chicago (hereinafter referred to as the City). The tax purchaser appealed. For the reasons which follow, we affirm.

In May 1991, Greater Southwest Development Corporation (Greater Southwest), a neighborhood redevelopment group interested in redeveloping and stimulating economically blighted areas on Chicago’s southwest side, selected the property at issue, also known as the Hi-Way Theater (hereinafter referred to as the Property), as a central location for a proposed cultural complex. In its rehabilitation plans, Greater Southwest projected that the anticipated center would create about 700 new jobs in the area, would generate new businesses, enhance other commercial and residential development, and provide for cultural training and entertainment for residents both locally and in the greater Chicago metropolitan area. Greater Southwest timely submitted its rehabilitation proposal to the City of Chicago’s Department of Economic Development (DED) under the tax reactivation program.

Under this program, the City would proceed to purchase the tax deed, and upon acquiring title, transfer its ownership to Greater Southwest. DED approved Greater Southwest’s proposal and forwarded it to the city council for its approval. On July 24, 1991, the city council passed an ordinance unanimously approving Greater Southwest’s proposal for returning the Property to productive tax status. The City then directed the County of Cook to enter a no cash bid on the Property when it was offered for sale. Although the tax delinquency subcommittee of the Cook County Board of Commissioners approved the City’s no cash bid proposal, it was not until November 4, 1991, that the full Cook County Board approved the City’s request and authorized the entry of a no cash bid for the property. However, on October 29, 1991, before the county’s preparations to purchase were concluded, the Property was validly purchased by Romel Koktapeh at a scavenger tax sale conducted pursuant to section 235a of the Revenue Act. (Ill. Rev. Stat. 1991, ch. 120, par. 716a.) On November 22, 1991, Edward J. Rosewell, county treasurer and ex officio collector of Cook County, filed a motion in circuit court for a confirmation of the tax sale which had taken place. On December 3, 1991, petitions for leave to intervene and motions to deny confirmation were filed by the City of Chicago and Greater Southwest. The circuit court granted petitioners the right to intervene, and in its order of December 13, 1991, denied confirmation of the previous tax sale, ordered that the purchase price paid by Koktapeh be refunded, and further declared that the Property would remain delinquent and could be sold pursuant to law. Koktapeh’s request for a stay of this order pending appeal was denied, and the Property was subsequently resold to the City.

On appeal, Koktapeh argues that the interveners in the tax confirmation proceeding below (the City and Greater Southwest) lacked any interest in the parcel and therefore had no standing to intervene. Koktapeh asserts that the statutorily required interest for such intervention is that of an owner or equitable owner, liable for or affected by the taxes assessed against the property. In support of this contention, Koktapeh relies upon section 235 of the Revenue Act (Ill. Rev. Stat. 1991, ch. 120, par. 716) governing the entry of judgments for sale on account of tax delinquency. That section does restrict objections to “person[s] interested in any of the lands or lots” and has been construed to require that an objector be connected with the title to the land in order to acquire standing to object to its sale on account of delinquent taxes. (People ex rel. Stuckart v. Robert White & Co. (1918), 286 Ill. 259, 262, 121 N.E. 553.) While the section of the Revenue Act which provides for scavenger sales (Ill. Rev. Stat. 1991, ch. 120, par. 716a) does provide that a hearing for such sales will be held according to section 235, case law does support the City’s contention that the interest in title requirement applies only to proceedings for order of sale and not to proceedings for confirmation. (In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, 1109, 418 N.E.2d 53, 56 (hereinafter Virginia), citing People v. Wrage (1960), 20 Ill. 2d 55, 58, 169 N.E.2d 225, 227.) Furthermore, economic interests have long been recognized as sufficient to lay the basis for standing with or without a specific statutory provision for judicial review. (Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 524 N.E.2d 561.) If the tax sale to petitioner Koktapeh were confirmed, the threatened economic injury to the City and Greater Southwest is clear. Greater Southwest has already incurred considerable expense in architectural fees and other items in preparation for receipt of the property. The City has incurred the expense of reviewing these plans and passing an ordinance authorizing the county to enter a bid. If the City receives the property, Greater Southwest will receive a quitclaim deed and will be able to develop the property according to its plans, thereby providing new jobs and increasing the property’s value and the taxes to the City. Even though Koktapeh argues that his plans will also increase the revenue to the City, such assertion does not decrease the interests of the City and Greater Southwest in the confirmation proceedings. The City and Greater Southwest cannot be characterized as disinterested observers with a “speculative interest” as was Mississippi Bluff Motel, Inc. v. County of Rock Island (1981), 96 Ill. App. 3d 31, 420 N.E.2d 748, when it attempted to intervene in a dispute over a zoning ordinance which it claimed was threatening to the bald eagle. The City and Greater Southwest had “distinct” and “palpable” interests “actually threatened” by confirmation of the sale to Koktapeh. (See Greer, 122 Ill. 2d at 492, 524 N.E.2d at 575.) Therefore, we cannot say that the trial judge erred when he found that these parties had standing to intervene in the confirmation proceedings at bar.

Koktapeh next maintains that the trial court abused its discretion by failing to confirm a properly and regularly conducted judicial sale. Case law firmly establishes that the circuit court has broad discretion in affirming a judicial sale of tax delinquent property. In Schultz v. Milburn (1937), 366 Ill. 400, 403, 9 N.E.2d 199, 200, the Illinois Supreme Court stated:

“A sale by a master in chancery is not, until confirmed by the court, a sale in the legal sense. The chancellor has a broad discretion in its approval or disapproval. The highest bidder whose bid has been returned to the court as the best offer acquires no interest in or any right to the land and his bid is a mere offer to purchase. Confirmation is final consent, and the court *** may consent or not, in its sound judicial discretion. This discretion, unless abused, will not be interfered with by a court of review.”

(See also In re Application of Rosewell (1981), 93 Ill. App. 3d 1106, 418 N.E.2d 53; Evans v. Hunold (1946), 393 Ill. 195, 65 N.E.2d 373; People v. Anderson (1942), 380 Ill. 158, 43 N.E.2d 997.) Although upholding a broad-based judicial discretion, these cases make it clear that there are limits to the exercise of this power. In Shultz, it was found that mere inadequacy of price will not justify a court in refusing to confirm an otherwise valid tax sale, thereby depriving the tax purchaser of the “benefit of his bargain.” (Shultz, 366 Ill. at 403, 9 N.E.2d at 200.) The Shultz court noted that public policy requires stability in judicial sales and cautioned that such sales should not be disturbed for “slight causes,” as courts would not “refuse to confirm a judicial sale, or order a re-sale, on the motion of an interested party, merely to protect himself against the result of his own negligence.” Shultz, 366 Ill. at 405, 9 N.E.2d at 201; see also Blancett v. Taylor (1955), 6 Ill. 2d 434, 128 N.E.2d 916.

While inadequacy in price or the possibility of achieving a higher price may be slight causes (Shultz, 366 Ill. 400, 9 N.E.2d 199; Blancett, 6 Ill. 2d 434, 128 N.E.2d 916), protecting the public interest is not. In In re Application of Rosewell (1983), 97 Ill. 2d 434, 454 N.E.2d 997 (hereinafter Levin), the Illinois Supreme Court stated that “[t]he court was not to be required to enter judgment and an order of sale regardless of circumstances and regardless of whether the public interest would be served.” (Levin, 97 Ill. 2d at 441, 454 N.E.2d at 1000.) In this decision, the supreme court reversed the appellate court decision and affirmed the judgment of the circuit court which (like the trial court in the case at bar) had refused judicial confirmation of the sale of certain parcels of real estate, validly sold at a previously held scavenger sale. In that case, the grounds for objection to the disposition made at the scavenger sale were that civil actions for delinquent taxes had already been brought (by the county) against the owners of the parcels at issue, and if the scavenger sale was confirmed the county would collect only a fraction of the tax indebtedness. (See Levin, 97 Ill. 2d at 436, 454 N.E.2d at 997.) Under these circumstances, the trial court as well as the supreme court found persuasive the county collector’s argument that the scavenger sale should go unconfirmed. Even though there was no fraud or irregularity, mistake or accident in the scavenger sale (see Garrett v. Moss (1858), 20 Ill. 549), the exercise of judicial discretion allowed for a consideration of the public interest in having the county pursue the civil suit for back taxes rather than accepting the less desirable economic results of the validly conducted scavenger sale. The court’s broad discretion in confirming such sales is also emphasized in Virginia (93 Ill. App. 3d 1106, 418 N.E.2d 53), which contrasts the scope of judicial discretion with the discretion afforded the county collector. (In that case it was determined that the county collector did not have the authority to withhold a parcel from confirmation in order to reoffer it for sale to the county.) In the case at bar, the public interest is also at stake. Greater Southwest’s plans for redevelopment of the property at issue promise not only a higher tax base and thus increased revenue for the city, but also 700 new jobs. Without implying that the tax petitioner’s plans for the property would have been without value to the city, we cannot say that the trial court abused its discretion in denying confirmation of the scavenger sale and subsequently reselling the property to the city. We therefore affirm the judgment of the circuit court.

Affirmed.

MURRAY and GORDON, JJ., concur.

       Section 216d of the Revenue Act of 1939 (Ill. Rev Stat. 1991, ch. 120, par. 697d) provides for “no cash” bids by the county itself, as trustee for all interested taxing districts.