author: JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TED WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—2714
    Opinion filed June 29, 1990.
    Rehearing denied January 4, 1991.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Kathleen F. Hewlett, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

The defendant, Ted Williams, was charged by indictment with the attempted rape (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4), and murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)), of his 12-year-old niece, Sharon McCambry. His defense was insanity. A fitness hearing was held before a six-person jury to determine defendant’s fitness for trial. The jury determined that the defendant was fit for trial. After a jury trial on the charges, he was convicted of both offenses and sentenced to a term of natural life imprisonment.

Defendant contends on appeal that the court committed reversible error by ordering sua sponte a six-man jury to determine his fitness to stand trial. He further contends that he was denied his constitutional right to a fair and impartial trial because the trial court restricted his efforts to present an insanity defense, and erred in its evidentiary rulings, its conduct and comments as well as by the prosecutor’s closing arguments.

The evidence presented during the trial revealed that, on February 12, 1984, the defendant’s live-in girlfriend, Annette Cathey, took their daughter and moved back home with her mother. That same day, the defendant unsuccessfully attempted to visit his mother, Mattie, at 4555 South State Street. He then proceeded to the residence of Yvonne McCambry, his sister, and the mother of Sharon McCambry (victim). His sister was not at home; however, the victim was there and she subsequently left with the defendant, presumably to go to her grandmother Mattie’s house. Instead, the defendant took the victim to his house, began to drink liquor that he had purchased en route to his house, smoked some hashish and made sexual advances to the victim. When the victim resisted his sexual advances, the defendant struck her in the head with a hammer. The defendant then disposed of some of the evidence in a dumpster on 35th Street and left the victim’s body near her home in the vicinity of around 43rd and Federal.

The victim’s body was discovered the next day by Robert Wonsley, a neighbor, who resided at 4331 Federal. Mr. Wonsley testified that he saw a bundle of bedding that was covered with blood. The police were called immediately, and upon their arrival, determined that a body dressed only in a sweatshirt and socks was inside the bundle of bedding. Upon hearing that a body had been found, the victim’s mother, Yvonne McCambry, ran down the stairs and identified the body as her missing daughter, Sharon.

Wendy Walker, the victim’s best friend, and Leon Williams, the defendant’s nephew, testified that on February 12, 1984, they saw the victim and the defendant leave together. The testimony from other witnesses also revealed that bloodstains were found in the defendant’s car and apartment and there were recently cut holes in the carpet. The testimony further revealed that paint chips found on the murder weapon, the bedding, the victim’s clothing, and the defendant’s apartment were from a common origin. Annette Cathey also identified the blankets, sheets and towels which were covered with blood and dirt as items from the apartment which she previously shared with the defendant. Annette further testified that subsequent to the defendant’s arrest, he told her that he had hurt his niece and explained the sequence of events that occurred in great detail, beginning with getting high, touching the victim’s breast, the struggle between them which led to his striking her with a hammer, and ending with the disposal of the victim’s body and his return to the apartment. Annette also testified that several months prior to the murder of the victim, the defendant had killed their cat and threatened to do the same thing to Annette.

An autopsy performed on the victim showed extensive head injuries consistent with being struck in the head with a hammer. It further revealed injuries to the victim’s lips, abrasions on her chin, discoloration of her right cheek, scratches on her neck, bruises on her wrists and contusion to the vaginal opening. Also, during the trial, the State published a statement given by the defendant to the assistant State’s Attorney on the evening of his arrest. The defendant told the assistant State’s Attorney exactly how he killed the victim and how he disposed of the hammer, clothing, and pieces of carpeting in a dumpster on 35th Street and then took the victim’s body wrapped in bedding and left it near some railroad tracks at 43rd and Federal.

During the trial, the defendant presented the testimony of three expert witnesses to support his insanity defense, Doctors Henry Con-roe, Louis Hemmerich and Alan Rosenwald. Dr. Hemmerich diagnosed the defendant as being borderline mentally defective suffering from borderline personality disorders with anti-social features and schizoid personality disorders resulting in episodic psychosis. In his opinion, as a result of the mental disease or defect, the defendant was unable to appreciate the criminality of his act or conform his conduct to the requirements of the law.

Dr. Conroe, a psychiatrist and assistant professor of psychiatry at the University of Chicago, testified that he examined the defendant on September 9, 1985. After reviewing police reports, the reports of Drs. Rosenwald and Hemmerich and reports from the Psychiatric Institute, he learned that the defendant’s mother had been institutionalized on several occasions at mental hospitals, that his sister had a history of hospitalizations for psychosis, and that the defendant’s father was a very sadistic man who had beaten the defendant and other family members and had allegedly raped two of the defendant’s sisters. Dr. Conroe further learned that the defendant had a history of alcohol and drug use. Based upon his review of the reports and his personal examination, he concluded that the defendant had a borderline personality disorder with the “capacity to go over into psychosis,” and when he attacked the victim, he lacked the capacity to conform his conduct to the requirements of the law. He did, however, testify that the defendant understood the criminality of his actions when the murder was committed.

Dr. Rosenwald examined the defendant in September 1984 and found the defendant clinically and legally insane based solely on the tests that he had administered. However, he stated that he did not ask the defendant any questions regarding the details of what took place on February 12, 1984. Dr. Rosenwald further testified that although the defendant could not conform his conduct to the requirements of the law, he might simultaneously appreciate the criminality of his act.

In rebuttal, the State called Dr. Albert Stipes and Dr. , Gilbert Bogen, two psychiatrists from the Cook County Psychiatric Institute. Dr. Stipes testified that he examined the defendant on March 30, 1984, and his evaluation revealed that the defendant suffered from three disorders: (1) adjustment disorder with depressed mood; (2) intermittent explosive disorder; and (3) anti-social personality disorder. However, these disorders were not mental diseases or defects. Dr. Stipes stated that his examination of the defendant revealed no evidence of schizophrenia, hallucinations or any psychosis and when the incident occurred, the defendant did not exhibit any delusional thinking. Dr. Stipes further concluded that based on his interview with the defendant, psychological reports, the social history, and medical reports, on the date that the defendant struck the deceased he was able to conform his conduct to the requirements of the law and the defendant was legally sane at the time the offense was committed.

Dr. Bogen testified that the defendant’s behavior prior to and immediately after the incident was logical, understandable, deliberate and purposeful. Dr. Bogan also testified that the defendant suffers from five types of personality disorders and mental illness or defects. Furthermore, he opined that the defendant is able to conform his conduct to the law and appreciate the criminality of the offense and, based on the evidence, concluded that the defendant was sane at the time of the offense.

The jury found the defendant guilty of murder and attempted rape. However, it rejected the death penalty, and the court sentenced the defendant to natural life in the Illinois Department of Corrections. On appeal, we are called upon to determine whether reversible error occurred in connection with and during the defendant’s pretrial fitness hearing and whether the defendant was denied his constitutional right to a fair and impartial trial.

The defendant initially contends that reversible error was committed at the pretrial fitness hearing when the trial court sua sponte ordered that the jury for the defendant’s fitness hearing would consist of six persons. Defendant further contends that the fitness hearing was unfair and improperly conducted. Generally, in a criminal trial an accused is entitled to a 12-person jury. However, a fitness hearing is not a part of the trial on the criminal charges against the defendant. (People v. Rosochacki (1969), 41 Ill. 2d 483, 489-90, 244 N.E.2d 136; People v. McCullum (1977), 66 Ill. 2d 306, 312, 362 N.E.2d 307.) Instead, a fitness hearing is a preliminary civil proceeding separately conducted to determine an accused’s competency to stand trial. People v. Williams (1970), 131 Ill. App. 2d 507, 508, 266 N.E.2d 145; Rosochacki, 41 Ill. 2d at 489.

The sole purpose of a pretrial fitness hearing is to determine whether the defendant can understand the nature of the proceedings and can participate in his own defense at trial. (Ill. Rev. Stat. 1987, ch. 38, par. 104-10; Pate v. Robinson (1966), 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838; People v. Lang (1986), 113 Ill. 2d 407, 440, 498 N.E.2d 1105.) If the defendant is unable to understand the nature of the proceedings against him or to assist his counsel in the preparation of his defense, then he is unfit to stand trial. People v. Wright (1988), 171 Ill. App. 3d 573, 580, 525 N.E.2d 1165; People v. Turner (1982), 111 Ill. App. 3d 358, 361, 443 N.E.2d 1167.

The dichotomy between the panel of 12 jurors versus six jurors was addressed by the United States Supreme Court in Williams v. Florida (1970), 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893. In that case, the Court denied petitioner’s pretrial motion requesting a 12-person jury rather than a six-person jury. The Supreme Court held that the six-member jury did not violate the constitutional guarantee of trial by jury. (Williams, 399 U.S. at 86, 26 L. Ed. 2d at 452-53, 90 S. Ct. at 1898.) Moreover, although the size of the jury at common law generally was fixed at 12, “that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” (Williams, 399 U.S. at 89-90, 26 L. Ed. 2d at 454, 90 S. Ct. at 1900.) The Williams Court further reasoned that the number should be large enough to obtain a representative cross-section of the community and there is no reason why this cannot be achieved as reliably when the jury numbers six than when it numbers 12, especially if the unanimity requirement is retained. Williams, 399 U.S. at 100, 26 L. Ed. 2d at 460, 90 S. Ct. at 1906.

The Supreme Court reaffirmed its conclusion reached in Williams relative to civil cases in Colgrove v. Battin (1973), 413 U.S. 149, 151-52, 37 L. Ed. 2d 522, 526, 93 S. Ct. 2448, 2450. The Colgrove Court determined that the purpose of the jury trial is to assure a fair and equitable resolution of factual issues. (Colgrove, 413 U.S. at 157, 37 L. Ed. 2d at 529, 93 S. Ct. at 2453.) Therefore, “it cannot be said that 12 members is a substantive aspect of the right of trial by jury.” (Colgrove, 413 U.S. at 157, 37 L. Ed. 2d at 529, 93 S. Ct. at 2453.) We, therefore, conclude that a jury of six satisfies the constitutional guarantees in both criminal and civil cases. (See Williams, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893; Colgrove, 413 U.S. at 160, 37 L. Ed. 2d at 530-31, 93 S. Ct. at 2454.) Accordingly, in light of our United States Supreme Court decisions on this issue and upon our review of the entire record, we conclude that in the present case the trial court properly ordered a six-man jury to determine the defendant’s fitness to stand trial. If any error occurred as to the court’s own motion to impanel a jury of six persons, the error was harmless beyond a reasonable doubt. See United States v. Hasting (1983), 461 U.S. 499, 510-11, 76 L. Ed. 2d 96, 107, 103 S. Ct. 1974, 1981; Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828; People v. Arman (1989), 131 Ill. 2d 115, 127, 545 N.E.2d 658.

Defendant next argues that reversible error also occurred at the fitness hearing when Dr. Bogan, the State’s psychiatrist, testified to the defendant’s propensities for violence. The record reveals that Dr. Bogan submitted a report of his findings upon which he based his opinion. Defendant correctly argues that Dr. Bogan summarized the defendant’s personality disorders in laymen’s terms as being “mean, ornery, very mean, sometimes vicious.” However, although an expert may express an opinion regarding the defendant’s fitness, the ultimate issue is for the trial court to decide based on the factual basis for the expert’s opinion. (People v. Bleitner (1989), 189 Ill. App. 3d 971, 976, 546 N.E.2d 241.) Moreover, it is the responsibility of the trier of fact to determine the credibility of an expert and the weight to be given the psychiatric testimony in a fitness hearing. (People v. Bilyew (1978), 73 Ill. 2d 294, 302, 383 N.E.2d 212.) It is well established that a court of review will not substitute its judgment for that of the trial court absent an abuse of discretion. (People v. Branson (1984), 131 Ill. App. 3d 280, 289-90, 475 N.E.2d 905; Turner, 111 Ill. App. 3d at 366; Wright, 171 Ill. App. 3d at 580.) Since we find no abuse of the trial court’s discretion in the instant case, we will not substitute our judgment for that of the trial court.

The defendant next contends that he was denied his constitutional right to a fair and impartial trial. Specifically, he contends that the trial court restricted his efforts to present an insanity defense and erred in its evidentiary rulings. Defendant argues that he was precluded from presenting expert and lay testimony on: (1) the defendant’s family history of insanity; and (2) the physical and sexual abuse to which defendant and his siblings were subjected by defendant’s father. Furthermore, defendant asserts that the court erroneously granted the State’s motion in limine barring the admission of medical records. Defendant further argues that although Dr. Hemmerich, a clinical psychologist, testified that the defendant was a “borderline personality” and that the killing of his niece with a hammer was a “transient psychotic episode,” the trial court precluded Dr. Hemmerich from testifying to facts pertaining to the defendant’s suicide attempts in jail and other facts pertaining to the defendant’s family history in support of his diagnosis. Additionally, the trial court precluded the defendant’s mother from testifying regarding the mental problems of other family members, and the defendant’s brother, Oliver Williams, was barred from testifying about the interparental violence in the defendant’s home and the physical and sexual abuse his father administered to defendant and his siblings.

The State argues that the trial court properly restricted testimony regarding the defendant’s family history since it was collateral testimony and not probative as to whether the defendant was able to appreciate the criminality of his conduct at the time he murdered his 12-year-old niece. The record reveals that Dr. Hemmerich was allowed to testify regarding his personal clinical interview with the defendant, the testing performed and the information received therefrom. Moreover, Dr. Conroe, another expert testifying on behalf of the defendant, provided testimony regarding hospitalizations of defendant’s mother and sister for mental illness, the alleged rape of the two sisters by the father and the sadistic nature of the defendant’s father. Dr. Conroe further testified that the defendant grew up in foster homes and experienced behavior problems as a child. Therefore, the probative evidence regarding the defendant’s family history was put before the jury and additional testimony would have been cumulative.

We acknowledge that a psychiatrist should be allowed to testify regarding the contents of the materials relied on by him in explaining the basis of his opinion, including statements of the defendant that were used to support his opinion. (See People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485; People v. Murphy (1986), 147 Ill. App. 3d 122, 125, 497 N.E.2d 871.) However, we have previously held that the defendant is not prejudiced by the rejection of evidence where the same or substantially the same evidence that has been excluded is admitted elsewhere in the trial. (People v. Hoddenbach (1983), 116 Ill. App. 3d 57, 61, 452 N.E.2d 32.) While it could have been error for the trial court to restrict the testimony of Dr. Hemmerich, if any error occurred, we would deem it to be harmless since the information he sought to adduce was presented to the jury through the testimony of other witnesses. Therefore, we cannot conclude that the defendant was denied his right to a fair and impartial trial as a result of any restrictions placed on Dr. Hemmerich’s testimony.

Defendant also argues that the trial court erroneously granted the State’s motion in limine disallowing certain medical records. In limine motions are encouraged in criminal cases to exclude extraneous or collateral matters. (People v. Downey (1987), 162 Ill. App. 3d 322, 334, 515 N.E.2d 362; People v. Clark (1984), 129 Ill. App. 3d 374, 377, 472 N.E.2d 814.) A court of review will not reverse a trial court’s decision to grant or deny a motion in limine absent an abuse of discretion. (Downey, 162 Ill. App. 3d at 334; People v. Williams (1978), 60 Ill. App. 3d 529, 532, 377 N.E.2d 367.) It is well settled that the testimony of a psychiatrist regarding the defendant’s sanity may be based on medical or psychological reports that have been prepared by others even when those reports are not admitted into evidence as long as experts in the field rely on such materials. (Anderson, 113 Ill. 2d at 7; Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322; People v. Ward (1975), 61 Ill. 2d 559, 568, 338 N.E.2d 171; Murphy, 147 Ill. App. 3d at 125.) Moreover, the People v. Anderson court took “judicial notice that psychiatrists customarily rely upon other psychiatric and investigative reports.” (Anderson, 113 Ill. 2d at 8.) However, in the present case, sufficient evidence was presented through expert testimony to provide the jury with a factual basis to determine whether the defendant did appreciate the criminality of his conduct and whether he could conform his conduct to the requirements of the law when he murdered his 12-year-old niece. Thus, we can not find an abuse of discretion in granting the motion in limine.

Defendant further contends that his insanity defense was prejudiced by the court’s conduct and comments by the court as well as by the prosecutor’s closing arguments. Specifically, he alleges that the trial court lost its impartiality towards the defense and defense counsel in the presence of the jury. The State counters the defendant’s argument by arguing that the trial court also displayed a partiality towards the defense by assisting the defense in laying a foundation to qualify Dr. Conroe as an expert witness. Moreover, the State contends the trial court interposed and sustained an objection on behalf of the defendant to an improper question asked of the defendant’s expert witness although the defense counsel had not made such an objection. Finally, the State asserts that during a sidebar, the trial court provided guidance to defense counsel regarding the proper form of questions for eliciting an expert opinion.

Defendant further alleges that the court refused to allow the defense to rehabilitate Dr. Henry Conroe when he stated that he generally testified for the defense on sanity and fitness issues and each time opined that the defendant was insane. It is within the sound discretion of the trial court to determine whether inquiry for rehabilitative purposes is proper. (People v. Moore (1980), 92 Ill. App. 3d 71, 73-74, 414 N.E.2d 274; People v. Burke (1964), 52 Ill. App. 2d 159, 201 N.E.2d 636.) In the present case, the court’s conduct revealed that it did not deem it proper to allow rehabilitation of Dr. Conroe’s testimony. Dr. Conroe’s testimony revealed that he had testified approximately 25 times in criminal insanity cases. He also stated that each time he testified it was for the defense and on each occasion he concluded that the defendant was insane at the time of the offense. When the State objected to the question regarding the number of times Dr. Conroe conducted assessments of criminal defendants, the trial court allowed Dr. Conroe to answer. However, when defense counsel attempted to elicit from Dr. Conroe his reasons for not testifying in those other cases, the court disallowed that line of questioning since neither the results of those examinations nor the bases for those examinations were matters pending before the court nor did they have a bearing on the matter before the court.

Based on the facts presented, we cannot find an abuse of discretion by the trial court’s limiting the rehabilitation of Dr. Conroe where his additional testimony concerned collateral facts. (See Moore, 92 Ill. App. 3d 71, 414 N.E.2d 274.) Moreover, although the facts presented by Dr. Conroe had a tendency to show bias, those facts would have remained the same notwithstanding the allowance of collateral facts. We have previously held that the rehabilitation of a witness who has been shown to be biased on cross-examination will not be allowed on redirect examination where the reasons for the bias do not have a tendency to rehabilitate the witness. (See Burke, 52 Ill. App. 2d at 161.) Upon a review of the entire record, we conclude that if any error occurred as a result of the trial court’s comments or conduct, the errors were harmless and did not deprive the defendant of his right to a fair trial. See Hasting, 461 U.S. at 510, 76 L. Ed. 2d at 107, 103 S. Ct. at 1981; Chapman, 386 U.S. at 24, 17 L. Ed. 2d at 710-11, 87 S. Ct. at 828; Arman, 131 Ill. 2d at 127.

Defendant further contends that his insanity defense was prejudiced by the prosecutor’s closing arguments. He supports this contention by asserting that: (1) the prosecutor referred to the State’s experts as “independent” and the defense experts as “hired”; (2) the prosecutor dismissed the defendant’s expert testimony as “garbage”; (3) the prosecutor concluded that the insanity defense was a last resort effort since no other defense was available; and (4) the prosecutor attempted to shift the jury’s concern from the insanity defense to sympathy for the victim. The defendant’s argument lacks merit. The scope of argument to the jury is within the discretion of the trial court and every reasonable presumption must be indulged in that the trial court properly exercised that discretion. (People v. Harris (1989), 132 Ill. 2d 366, 391, 547 N.E.2d 1241; People v. Shum (1987), 117 Ill. 2d 317, 351, 512 N.E.2d 1183, cert, denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060.) Moreover, a prosecutor has wide latitude during closing argument to comment on the evidence presented, and the trial court’s determination regarding the propriety of the closing argument will not be reversed on appeal absent a clear abuse of discretion. Shum, 117 Ill. 2d at 341; People v. White (1989), 181 Ill. App. 3d 798, 806, 537 N.E.2d 1315; People v. Richard (1980), 88 Ill. App. 3d 247, 410 N.E.2d 459.

During closing argument the prosecutor stated that the defendant saw Dr. Grossman and Dr. Stipes shortly after the incident, who were independent doctors not paid for by the defense or the State. The prosecutor further stated that the defense hired a series of doctors, i.e., Dr. Rosenwald, Dr. Hemmerich and Dr. Conroe. Drs. Hemmerich and Conroe disagreed with the findings of Dr. Rosenwald and agreed with the conclusions of the State’s experts that there was no evidence of schizophrenia. The record does reveal that the prosecutor did refer to the defense expert’s testimony as “garbage” when Dr. Hemmerich during his testimony expanded on the report that he completed shortly after examining the defendant regarding the defendant’s mental state. Dr. Hemmerich testified that his report was “somewhat conservative” when he stated that the defendant may have had a psychotic episode. Instead, during testimony, Dr. Hemmerich told the jury that in defendant’s delusional system he believed that he was murdering his girlfriend or his mother. The prosecutor argued that this assessment was “garbage” because the defendant specifically stated that he wanted to have sex with the victim and the defendant's actions “had nothing to do with Annette Cathey or his mother.” In reviewing the defendant’s contention, we believe that even if the prosecutor’s comments were improper, it has been frequently held that an improper argument will not constitute reversible error unless the alleged improper prosecutorial comments constituted a material factor in the defendant’s conviction or if the comments resulted in substantial prejudice to the accused. (Shum, 117 Ill. 2d at 347; People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200; Peo ple v. Cobb (1989), 186 Ill. App. 3d 898, 914, 542 N.E.2d 1171; White, 181 Ill. App. 3d at 806.) We have carefully reviewed the record, and in light of the overwhelming evidence presented during the trial, we find that the prosecutor’s comments did not constitute a material factor in the defendant’s conviction nor did the comments result in substantial prejudice to the defendant.

Defendant also contends that his insanity defense was prejudiced when the prosecutor referred to it as a last resort effort since no other defense was available. The prosecutor identified other possible defenses during closing argument that were not used, i.e., self-defense, accident, alibi, or someone else committing the crime and posed the question “Are you surprised about the defense of insanity?” The State was commenting on the evidence presented and reasonable inferences that could be drawn from the evidence when it implied that the insanity defense was the defendant’s last resort. Comments by a prosecutor do not result in error if the evidence supports the argument. (People v. McGee (1982), 110 Ill. App. 3d 766, 776, 443 N.E.2d 1057.) In the present case, the evidence supports the argument that the defenses raised by the prosecutor were not available to the defendant.

Defendant finally argues that the prosecutor’s closing argument was improper where it urged the jury to shift its concerns away from the insanity defense to sympathy for the victim when the prosecutor stated, “Let’s talk about a 12 year old girl, not inkblots. *** We haven’t heard from an important person, Sharon McCambry. But when you think about it, Sharon is speaking to you today *** through her blood *** through her shirt *** through her socks, with blood in them *** through the autopsy report that shows what the last few minutes of her life were about being beaten, sexually assaulted by that mean, vicious person.” It is well settled that it is proper for the prosecutor to emphasize the evil results of a crime and urge the fearless administration of the law. (People v. Harris (1989), 129 Ill. 2d 123, 160, 544 N.E.2d 357; People v. Owens (1984), 102 Ill. 2d 88, 105-06, 464 N.E.2d 261; People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739.) We believe that the prosecutor did not exceed the bounds of proper comment.

In this case, the prosecutor’s arguments were inferences that could have reasonably been drawn from the evidence presented at trial. We, therefore, conclude that the trial judge’s rulings did not constitute an abuse of discretion, and the prosecutorial comments in the case at bar were not so improper or prejudicial as to deny the defendant a fair trial.

Accordingly, for the reasons stated on this record, we cannot conclude that the trial court precluded the defendant from presenting his insanity defense nor was he denied his right to a fair and impartial trial. The judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff, v. CHICAGO TITLE AND TRUST COMPANY, as Trustee, et al., Defendants-Appellees (Steve Bedalow et al., Defendants-Appellants).
    First District (5th Division)
    No. 1—90—1513
    Opinion filed September 14, 1990.
    Modified on denial of rehearing November 21, 1990.

      Robert A. Handelsman, of Chicago, for appellants.
    Righeimer, Martin & Cinquino, P.C., of Chicago (Leo N. Cinquino, Sandra L. Hebenstreit, and Celeste P. Cinquino, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

On May 4, 1990, we dismissed an appeal by Steve Bedalow and Delores Fritz in the instant case as premature for lack of jurisdiction in the absence of a finding below pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Because such a finding has now been obtained and the appeal otherwise timely perfected, we proceed to consider the merits of the matter.

As we briefly outlined in our earlier opinion (reported at 197 Ill. App. 3d 1062, 557 N.E.2d 311), Bedalow and Fritz appeal from an order of summary judgment dismissing their action to assert ownership of the beneficial interest to property which was the subject of an eminent domain proceeding. We summarize, in greater detail below, pertinent facts from the record.

On August 28, 1987, the City of Chicago (City) filed an action for condemnation, pursuant to a “quick-take” under section 7 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 103), of property located at 2530-60 South Archer Avenue in Chicago. The “quick-take” was exercised in conjunction with development of a rapid transit line from the City to Midway Airport. The City’s complaint named, as defendants, Chicago Title & Trust Company (CT&T), trustee of a land trust executed November 23, 1983, in which title to the property was held, Dominic Bertucci, named in the trust agreement as sole beneficiary, Bedalow, Fritz, and other unknown owners.

Subsequently, the City successfully moved for immediate vesting of fee simple title to the property and deposited $385,840 with the county treasurer in accordance with the circuit court’s preliminary finding of just compensation.

Thereafter, Bedalow and Fritz, brother and sister, filed a four-count counterclaim (see 197 Ill. App. 3d at 1065, 557 N.E.2d at 542) seeking, essentially, to have themselves declared owners of the beneficial interest in the subject property. The counterclaim asserted Bedalow and Fritz (counterclaimants) merely assigned the beneficial interest in the subject property to Bertucci as security for a loan from him to enable the property to be purchased, and that, as of December 9, 1987, counterclaimants had performed their part of the agreement.

Specifically, the counterclaim alleged that, in 1983, Bertucci orally agreed to lend Bedalow $60,000 to permit Bedalow to purchase the property. Attached to the counterclaim, as an exhibit, was a three-page memorialization (Agreement), executed on November 23, 1983, embodying the terms of the loan. The Agreement stated in part:

“[Bertucci] has loaned to [counterclaimants] the principal sum of [s]ixty [t]housand [djollars ($60,000.00) to be repaid within (60) days of the date of this Agreement^] *** Should [counter-claimants] be unable to repay the principal amount plus interest on or before the maturity date of sixty days (60) of the date of this Agreement, then additional interest of V-k% per month on the said principal balance and interest shall be added to the total sum due. In no event shall the full payment of the principal and accrued interest be made later than six (6) months of the date of this Agreement.”

The Agreement indicated that as security for the loan, counter-claimants assigned the entire beneficial interest in the subject property to Bertucci and gave Bertucci sole power of direction over the trust. The Agreement provided:

“However, it is understood by and between all the parties hereto that said transfer of title to the *** property is only for purposes of securing the *** loan, and that upon full payment of the principal amount plus all accrued interest that [Bertucci] shall assign all beneficial interest and convey the power of direction to [counterclaimants], or to their assigns.
[Bertucci] agrees that he will not sell or encumber the title to said real property so long as [counterclaimants] are not in default.
[Counterclaimants] shall be considered to be in default if [the] principal sum and interest *** is not paid within the time limits hereunder set forth, or unless extended by [Bertucci] in writing. In the event of default, [counterclaimants] shall have no claim to reconveyance of title and hereby irrevocably and forever waive all interest in said property.”

The Agreement was executed on the closing date.

The record indicates that counterclaimants failed to repay the loan in accordance with the terms of the Agreement. However, in the counterclaim, counterclaimants alleged nine $945 payments were made to Bertucci, four of which were accepted later than six months after the date of the Agreement. The counterclaim also alleged counterclaimants had paid an installment on real estate taxes on the property but that Bertucci neither paid any real estate taxes on the property nor filed notice of change with respect to ownership of the property with the county treasurer. The counterclaim further alleged Bertucci did not declare a default on the loan or notify counter-claimants of forfeiture. Last, the counterclaim recited that funds in satisfaction of the loan had been deposited with the county treasurer on December 9, 1987. More specifically, the record indicates Edwin Michaels, an acquaintance of counterclaimants’ trial counsel, deposited $60,000 with the county treasurer on counterclaimants’ behalf for the purpose of curing all defaults under the Agreement.

Based on the allegations summarized above, counterclaimants sought, in count I, reformation of the Agreement to reflect the parties’ oral understanding. In count II, counterclaimants sought a declaration of the parties’ rights alleging, additionally, that at no time prior to December 9, 1987, did Bertucci make written demands upon counterclaimants to cure any defaults or notify them that, unless any defaults were cured, Bertucci would seek to extinguish counter-claimants’ rights in the property. In count III, counterclaimants incorporated the allegations of counts I and II and sought to have Bertucci convey the property to them or pay to them the preliminarily determined amount under a theory of specific performance. Count IV also incorporated the allegations of counts I and II and sought payment of the preliminarily determined amount under a theory of unjust enrichment.

Bedalow was'deposed in January 1988. He testified he had originally contacted Bertucci, whom he knew as an acquaintance because they frequented the same neighborhood restaurant, upon the suggestion of another individual. Bedalow thereafter met with Bertucci at Bertucci’s home, explained his intentions to build a restaurant on the property, and told Bertucci he only had a few days before the closing date of purchase. Bedalow stated Bertucci agreed to contact a friend at a bank and would obtain a loan in his, Bertucci’s, name for a fee “under the table.”

Bedalow stated he had approached Bertucci because he was unable to obtain the funds by other means prior to the closing date. Bedalow stated he had contemplated selling his home to pay Bertucci and actually told Bertucci he would pay the loan upon the subsequent sale of his home. Bedalow stated that there was no conversation between the date of the meeting and the date of closing about how Bedalow was going to pay the money back.

Bedalow stated the parties executed the Agreement at the closing. He stated he had not seen the Agreement prior to that time. Although Bedalow at first acknowledged, in response to counsel’s question, that the Agreement reflected the parties’ understanding regarding the transaction, he also stated the Agreement “was [the] complete opposite of [his] original conversation with [Bertucci.]”

As to the drafting of the Agreement, Bedalow testified that a few days before the closing, at Bertucci’s direction, he went to see Rocco Montegna, an attorney, regarding documentation of the financing of the purchase. Bedalow stated he never told Montegna what he wanted included in the Agreement. At the closing, Bedalow stated, he scanned the Agreement and affixed his signature without asking Montegna any questions. Bedalow acknowledged that he understood the Agreement when he read it at home later that day. He maintained, however, that the Agreement was different than the transaction he and Bertucci had originally discussed. Bedalow admitted he understood the Agreement to mean that if he did not repay the amount of the loan within six months of the date of the Agreement, he would not have any right in the property.

Bedalow stated he made a total of nine payments of $945 each to Bertucci on the loan. The last payment was in January 1985 and probably consisted of a check written by his friend, Dominic Armato, since deceased, who made several payments on Bedalow’s behalf.

In his deposition, Dominic Bertucci explained he became interested in the transaction when he learned through his accountant that Bedalow had contracted to purchase the property but was having difficulty raising funds to close the transaction. Bertucci stated he told Bedalow, when they initially discussed the loan, that as long as the loan was short term, he would be interested in lending Bedalow funds. He explained he desired the loan to have a fixed date for repayment because funds for the loan were from those he would need to meet his construction company’s payroll. In any case, Bertucci stated he told Bedalow he would be interested in making the loan only if he was given 100% beneficial interest in the property. He stated Bedalow understood his concerns.

Bertucci characterized the parties’ transaction as a loan with a condition that if the loan was not repaid within the time agreed upon, Bertucci would own the property. Bertucci stated he understood Bedalow was to sell his home to raise funds to retire the loan and stated that, had he known Bedalow was not selling the house, he would not have made the loan.

Bertucci stated he was represented at the closing by Anthony Montegna, Rocco Montegna’s son. Bertucci stated Montegna was present to ensure title to the property was unencumbered and to prepare a closing statement. Bertucci stated both Bedalow and Fritz read and signed the Agreement at the closing and that the Agreement reflected the parties’ understanding regarding the transaction’s terms. Bertucci stated he also first saw the Agreement at the closing. Bertucci testified Rocco Montegna drafted the Agreement upon his direction of the terms.

Bertucci acknowledged Bedalow had made some payments on the loan and admitted he did not pay real estate taxes on the property.

Bertucci also acknowledged he did not serve Bedalow with any default or forfeiture.

In other deposition testimony, Anthony Montegna stated he represented Bertucci at the closing in place of his father. At the closing, he handed copies of the Agreement to Bedalow and Bertucci and told Bedalow that, by executing the Agreement, Bedalow would have no interest in the property. Montegna stated he explained that if the Agreement did not accurately reflect what the parties desired, they should not sign the document. He stated' Bedalow had “panicked,” but indicated a desire to close the transaction that day.

Rocco Montegna stated that in a discussion regarding the transaction prior to drafting the Agreement, Bertucci told him he wanted the property in his name because Bertucci wanted to be able to quickly realize funds generated from the property if Bedalow defaulted. Montegna also stated that Bertucci explained to Bedalow that, upon a default, the property would be Bertucci’s to sell.

On June 2, 1988, counterclaimants moved for summary judgment on two of the counterclaim’s four counts. The motion was supported by the following exhibits: Bedalow’s affidavit stating he made payments of $945 each to ‘Bertucci on June 4, 1984, and June 15, 1984, more than six months after the expiration of the six-month repayment period, and that on February 1, 1985, he paid one installment of real estate taxes on the property; a portion of the deposition testimony of Nicholas Jankovich, Bertucci’s accountant, indicating that Bertucci’s records showed receipt of four checks, each for $945, written by Dominic Armato to Bertucci’s construction company on April 3, 1984, April 30, 1984, May 17, 1984, and June 15, 1984; and a portion of Bertucci’s deposition testimony in which Bertucci stated he did not directly tell Bedalow that Bedalow had “lost” the property because of a default on the loan.

Although not found in the record on appeal, a cross-motion for summary judgment was filed by Bertucci and CT&T on June 28, 1988.

Following argument on the motions, the trial judge issued a memorandum of his decision denying counterclaimants’ motion, granting the cross-motion filed by Bertucci and CT&T, and dismissing, with prejudice, the entire counterclaim.

Opinion

Initially, we note that counterclaimants do not argue on appeal that an issue of genuine material fact existed which should have precluded the grant of summary judgment in Bertucci’s favor. (See Ill. Rev. Stat. 1989, ch. 110; par. 2 — 1005(c).) Rather, counterclaimants contend summary judgment was not proper as a matter of law as based on the facts as developed because, by accepting late payments on the loan, Bertucci waived the benefit of the Agreement’s forfeiture provision. In support of that contention, counterclaimants urge us to draw analogy to cases involving contracts for the purchase of land in which forfeiture clauses were found waived by the seller’s acceptance of late payments in the absence of notification of an intent to rely on the contractual provision of timely payment. Counterclaimants contend the contract thus remained open for performance. Counter-claimants further reason they acted timely in pursuing ownership rights to the property because the action accrued only when Bertucci refused to accept the $60,000 deposited with the county treasurer as satisfaction of the loan in December 1987. Therefore, the defense of laches is inapplicable, contrary to the determination of the trial judge.

We are aware of no case in this State in which the waiver of a forfeiture clause has been asserted in an action involving a transaction such as the one in the instant case. However, forfeiture of title or other possessory interest in real property as consequence for the breach of a contract unrelated to the property’s purchase is certainly within the realm of proper legal remedies to the nonbreaching party where the contract so provides. (See 3 Grigsby, Illinois Real Property §1411 (1948).) Thus; while it appears that courts in this State have found opportunity to address the relevant issues respecting waiver of forfeiture provisions most often in cases involving contracts for the purchase of land, the law as recited in those cases is directly applicable here.

We quote from Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 395 N.E.2d 1212:

“Where a party accepts late payments it may waive or suspend its right to timely payments and its right to declare a forfeiture unless the buyer is given a definite and written notice of the intention to require strict compliance with the contract in the future. [Citations.] To reestablish strict compliance, the notice must give a reasonable time for performance, and what is a reasonable time depends on the facts in the case.” (Allabastro, 77 Ill. App. 3d at 365-66, 395 N.E.2d at 1217.)

Quoting from Krentz v. Johnson (1976), 36 Ill. App. 3d 142, 343 N.E.2d 165, the court added:

“ ‘It has been stated generally *** that where a forfeiture has been declared in the manner prescribed in a contract the court will give effect to it. [Citations.] It would appear, however, that the cases give effect to this rule when the result is not essentially unfair to either party. The equally familiar rule is that forfeitures are not favored by courts of equity and that parties will be relieved from a technical forfeiture of rights under a contract if injustice results from its enforcement. [Citation.] In Rose [(Rose v. Dolejs (1953), 1 Ill. 2d 280, 116 N.E.2d 402)], the court stated ***:
“It is especially well settled that where the agreement is simply one for the payment of money, a forfeiture of land incurred by the nonperformance of the agreement will be set aside on behalf of the defaulting party or relief will be granted in any other manner made necessary by the circumstances of the case, on the payment of the debt, interest and costs, unless complainant has disbarred himself by his own conduct. [Rose, 1 Ill. 2d at 290, 116 N.E.2d at 409.]”
Specific performance of installment land contracts has been granted despite late payments of money due under the agreement in by far the greater number of cases [citation]. The principal factors considered significant in granting relief from forfeitures appear to be: [t]he prior acceptance of late payments and whether the buyer has been given a reasonable warning that the seller will insist on prompt payment in the future [citations]; the length of time involved in the delay and whether the default has been repeated [citation]; whether substantial payment has been made on the whole contract [citation]; whether the purchaser has substantially improved the property [citation]; and whether there has been a mere delay rather than a suspension of the payments [citations]. When, in effect, the seller has not been deprived of the general object of the sales agreement, equity has considered time of performance to be a mere formal defect which may be corrected by payment of the contract balance with interest. [Citations.]’ ” Allabastro, 77 Ill. App. 3d at 366-67, 395 N.E.2d at 1218, quoting Krentz, 36 Ill. App. 3d at 144-45, 343 N.E.2d at 167.

With the above considerations in mind, we examine the nature of the transaction in the instant case, as memorialized in the Agreement, and the parties’ actions in performance of the Agreement, as shown by the facts so far established in the record to determine whether summary judgment was proper.

Under the Agreement, Bedalow was obligated to repay the principal amount loaned with accrued interest within 60 days of November 23, 1983, the date the Agreement was executed. In no event was the time for payment of the full amount due to exceed six months from the date of execution, approximately May 23, 1984. The Agreement provided that default, triggering forfeiture of Bedalow’s right to claim reconveyance of title to the property, would occur if payment was not made within the above time limits, absent Bertucci’s written extension.

The record reveals that some payments in accordance with the obligations under the Agreement were made either by Bedalow, or on his behalf, and were accepted by Bertucci. The exact number of payments and the exact time of their acceptance are disputed.

It is alleged in the counterclaim, which Bedalow verified, that nine payments were made and accepted by Bertucci on the amount owed. Four payments were allegedly made after May 23, 1984. In conjunction with counterclaimants’ response to a motion by Bertucci to compel production of checks representing payments under the Agreement, the record contains photocopies of three cancelled checks dated June 4, 1984, February 25, 1984, and January 25, 1985, for $945, $945, and $1,074.93, respectively. Each of the checks was drawn on a checking account of Dominic Armato and made payable to Bedalow.

The checks dated February 25, 1984, and June 4, 1984, were specially endorsed by Bedalow as payable to Bertucci’s construction company. The check dated January 25, 1985, was also specially endorsed by Bedalow but was made payable to a wholesale grocer and was deposited at a different bank than the checks endorsed in favor of Bertucci’s construction company. We note, however, the amount of the January 25, 1985, check corresponds to the amount Bedalow stated in his affidavit that he paid in real estate taxes on the property on February 1, 1985.

The record also contains, as established in the deposition testimony of Bertucci’s accountant, evidence of four recorded transactions in Dominic Armato’s name in the records of Bertucci’s construction company. Those records reflect deposits of $945 each on behalf of Bertucci’s construction company on April 3, 1984, April 30, 1984, May 17,1984, and June 15,1984.

Initially, we note a question of fact exists as to whether the deposit recorded as being made on June 15, 1984, merely reflected acceptance of the check dated June 4, 1984, as Bertucci argues. Counterclaimants contend the June 15, 1984, payment was a second, separate payment accepted by Bertucci after the Agreement’s six-month repayment period had lapsed. Nevertheless, we believe the undisputed acceptance of the check dated June 4, 1984, the understanding between the parties as embodied in the Agreement’s language, and other facts in the record must preclude a grant of summary judgment in Bertucci’s favor as a matter of law.

Although the forfeiture provision in the Agreement is clear as to its triggering events, the language is equally clear that transfer of title to Bertucci during the loan’s pendency was intended only to secure repayment. Bertucci’s own deposition testimony reveals the funds made available for the loan were needed to meet the payroll in Bertucci’s construction business. Indeed,' it was for that reason, Bertucci explained, that the loan had to have a short term and a definite repayment deadline. However, when Bedalow failed to meet his obligation in accordance with the Agreement, Bertucci did not respond by notifying Bedalow of default. Nor did Bertucci indicate an intention to capitalize on the forfeiture provision which might have served to fulfill the purpose for making time the essence of the Agreement. At no time did Bertucci indicate a change in ownership of the property. Instead, it appears Bertucci accepted at least one late payment in June 1984. Given the above, we believe an issue of fact is presented regarding whether Bertucci waived the right to claim a forfeiture of title to the property such that summary judgment should not have been entered. See Brown v. Jurczak (1947), 397 Ill. 532, 74 N.E.2d 821.

In terms of equity under the circumstances present here, to sanction a forfeiture in light of the acceptance of even a single late payment in the absence of any notification of intent to enforce the Agreement’s timely payment clauses would be unfair. Without a forfeiture, both parties yet stand to benefit from their original bargain under the Agreement. Counterclaimants would enjoy the right to benefit from ownership interest in the land, the purchase of which was made possible through sums loaned by Bertucci. And, because it is not apparent how Bertucci might have suffered real harm by the delay in timely payment, Bertucci would still benefit from the right to repayment of the principal loaned with accrued interest to date.

Further, we do not conclude counterclaimants’ action should be barred by operation of laches as the trial judge determined. In addition to other considerations, laches can be invoked only where the claimant’s delay in asserting a right has prejudiced the adverse party. (7 Ill. L. & Prac. Chancery §118 (1954).) As we have observed above, the record does not indicate Bertucci has been prejudiced by any delay in the filing of the counterclaim.

Last, we note that because Bertucci never indicated the Agreement was a default, laches would seem more properly applicable to bar an assertion of forfeiture rights. Bertucci’s right to claim a forfeiture accrued automatically after the running of the six-month period following execution of the Agreement. It is less clear what right counterclaimants were tardy in asserting in the absence of notification by Bertucci of his intention to exercise the forfeiture provision.

For all of the above reasons, we reverse the circuit court’s order granting summary judgment in favor of Bertucci and we remand the matter for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GORDON and MURRAY, JJ., concur.

      Only Bedalow signed the verified counterclaim. However, we refer to Bedalow and Fritz collectively because the counterclaim indicates the allegations were made by both parties.

       Justice Coccia recused himself following oral argument and disposition of the original appeal. Justice Murray then listened to the tapes of that argument and fully participated in the disposition of the appeal.


author: JUSTICE FREEMAN

text:
    STATE SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. RAMON SOTOS BURGOS et al., Indiv. and d/b/a Casablanca Liquor and Grocery Store, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—2101
    Opinion filed July 18, 1990.
    Rehearing denied December 7, 1990.

      Brody, Gore, Fineberg & Wikoff, Ltd., of Chicago (Larry R. Wikoff and Marcus J. Nunes, of counsel), for appellant.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, State Security Insurance Company, filed a declaratory judgment action against Ramon and Felicita Sotos Burgos, individually and d/b/a Casablanca Liquor and Grocery Store, their son, Rolando Soto, and Milagros C. Segarra, administrator of the estate of Manuel A. Segarra. Plaintiff sought a declaration that it did not owe the Burgoses or Soto a duty to defend or indemnify them under a liability insurance policy, issued to the Burgoses, in a lawsuit brought by Milagros Segarra as administrator of the estate of Manuel Segarra. After plaintiff and Segarra filed cross-motions for summary judgment, the trial court denied plaintiff’s motion and granted Segarra’s motion. Plaintiff appeals the denial of its motion for summary judgment and the grant of Segarra’s motion. Only Segarra (hereinafter defendant) has filed an appellee’s brief.

The action underlying plaintiff’s declaratory action grew out of the death of Manual Segarra, after being shot by Rolando Soto on November 5, 1981. In its declaratory judgment complaint, plaintiff alleged that the Burgoses had failed to comply with the “notice of occurrence” provision of the policy issued by plaintiff. That provision stated that “[i]n the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof and the names and addresses of the injured and of available witnesses shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.” Plaintiff alleged that it had not received notice of Segarra’s shooting and death until November 28, 1983, when it received a copy of the summons and complaint in defendant Segarra’s law action against the Burgoses. After receiving notice of the suit, plaintiff undertook to represent the Burgoses and Soto under a reservation of rights.

After answering the complaint, defendant moved for summary judgment on the grounds that: (1) notice to plaintiff of Segarra’s shooting was excused because the Burgoses reasonably believed that they were not liable therefor as it had occurred outside of the store; (2) the Burgoses had acted reasonably in giving notice of the shooting to their insurance broker, Robert Patis, who procured plaintiff’s insurance coverage for the Burgoses, and whom plaintiff had clothed with apparent authority to receive notice as required under the policy; and (3) given the definitions in plaintiff’s policy of the terms “occurrence” and “bodily injury,” as used therein, no notice of the shooting death of Segarra was required thereunder. The trial court entered summary judgment for defendant, agreeing with her second ground therefor.

Preliminarily, we must address plaintiff’s motions to strike as irrelevant and/or incompetent those portions of the statement of fact in defendant’s brief dealing with: (1) the prior claims history between Patis and the Burgoses; (2) what Patis told Burgos after the shooting of Segarra; (3) the occurrence underlying defendant’s claim; (4) the underlying procedural aspects of this case; and (5) the customs and practices in the insurance industry.

We will grant plaintiff’s motion to strike defendant’s references to the prior claims history between Patis and the Burgoses in view of the lack of any evidence that plaintiff had issued any policies other than the one at issue to the Burgoses. However, we deny the motion to strike her references as to what Patis told Burgos, after the shooting of Segarra, regarding whether the Burgoses’ insurance would cover the incident. We also deny the motion to strike to the extent that plaintiff may be seeking to exclude: (a) Burgos’ testimony that he believed that if he reported the incident to Patis, he did not have to report it to anyone else; and (b) the testimony of Burgos and Patis that Patis told Burgos not to worry after Burgos reported the shooting to him. Contrary to plaintiff’s assertions, we believe that what Patis told Burgos after Segarra’s shooting and Burgos’ belief as to his duties with respect to giving plaintiff notice of the shooting, as affected thereby, are absolutely relevant to the issue before us. We also grant the motion to strike defendant’s references to the specific facts of the occurrence underlying defendant’s claim and the underlying procedural aspects of this case. However, we deny the latter motion to the extent that plaintiff may be seeking to strike defendant’s reference to plaintiff’s reservation of rights and to plaintiff’s argument below that the matter of prejudice to it in this case is irrelevant. The fact that plaintiff reserved its rights against the Burgoses cannot be ignored since it was the predicate for plaintiff’s request for declaratory relief. Moreover, it is illogical for plaintiff to attempt to bar defendant from relying on plaintiff’s position below regarding the matter of prejudice to it in view of the fact that plaintiff takes the same position on appeal as well.

The most problematical matter we must address is whether defendant should be barred from relying upon the testimony of Patis and plaintiff’s claims manager, Michael Fitzgerald, regarding the customs and practice of plaintiff specifically and the insurance industry generally. To the extent that plaintiff relies on defendant’s alleged mischaracterization and/or misstatement of that testimony, we will grant the motion to strike. However, we must note that we may nonetheless read that testimony for ourselves and come to our own conclusions as to its meaning. To the extent that plaintiff relies upon the alleged incompetence of Patis and Fitzgerald to testify to plaintiff’s and industry-wide customs and practices, we will deny the motion. All that need be shown to testify to a party’s or industry’s customs and practices is a sufficient familiarity therewith. (See Capital Development Board ex rel. P.J. Gallas Electrical Contractors, Inc. v. G.A. Rafel & Co. (1986), 143 Ill. App. 3d 553, 493 N.E.2d 348.) The record conclusively reveals that Patis and Fitzgerald satisfied that requirement.

Finally, Fitzgerald’s testimony is not objectionable for the additional reasons advanced by plaintiff that his testimony was based on speculation and on his employment at a “completely different” insurance agency or because his testimony regarding plaintiff’s receipt of notices from brokers concerned only notices of «claims, not notices of occurrences. In the one instance in which Fitzgerald characterized his testimony as speculative, we find that he had a sufficient familiarity with the practices of plaintiff and brokers with whom it dealt to construe that testimony as opinion based on that familiarity rather than pure speculation. As to Fitzgerald’s employment with a “completely different” insurance agency, plaintiff ignores his testimony that that agency had an agency relationship with plaintiff and that he worked there for three years prior to working for plaintiff. In view of those facts, the fact that Fitzgerald based his testimony, in part, on his employment with that agency provides no basis on which to object thereto. Finally, the record clearly controverts plaintiff’s assertion that Fitzgerald did not testify that plaintiff received notices of occurrences from brokers, among others.

On appeal, plaintiff contends that the Burgoses failed to give notice of the shooting death of Segarra to plaintiff as soon as practicable. Specifically, plaintiff argues that the Burgoses giving notice to their insurance broker, Patis, did not constitute notice to it because he was the Burgoses’ agent, not plaintiff’s. With respect to the trial court’s finding that Patis had apparent authority to receive notice on plaintiff’s behalf, plaintiff argues that it neither took any actions nor acquiesced in any actions by Patis with regard to his authority to act as its agent. It further argues that defendant failed to establish that the Burgoses relied on Patis’ apparent authority in that regard.

Addressing the specific facts of this case, plaintiff argues that Patis never advised it that he routinely obliterated the information contained on the face of the policy as to plaintiff’s representative, Guild Insurance Agency, by placing a sticker with his own name and address thereover. Nor did it know, plaintiff asserts, that Patis would attach his own cover letter to the policies delivered to him for delivery to plaintiff’s insureds advising them to notify him in the event of a loss.

In support, by way of distinction, plaintiff cites Empire Fire & Marine Insurance Co. v. Faith Truck Lines, Inc. (1988), 178 Ill. App. 3d 356, 533 N.E.2d 441. In Empire, the court found that the prior course of conduct of an insurer, its agent, the insured’s agent and the insured with respect to the reporting of accidents had created an apparent agency on behalf of the insurer for receipt of notice of loss in the insured’s agent and that the insurer was estopped to deny that apparent agency as well as the apparent agency of its own agent. In this case, unlike Empire, plaintiff notes, there was no prior course of dealings between it and the Burgoses that could mislead them into believing that their agent, Patis, had an agency relationship with plaintiff. For that reason, plaintiff, unlike the insurer in Empire, could not have acquiesced to Patis’ actions in receiving notice of Segarra’s death on its behalf.

Plaintiff also notes that State Security Insurance Co. v. Goodman (1972), 6 Ill. App. 3d 1008, 286 N.E.2d 374, and Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealer Services, Inc. (1985), 138 Ill. App. 3d 574, 485 N.E.2d 1281, which defendant cited in the trial court and cites on appeal as finding an insured’s broker to be the agent of the insurer for purposes of receipt of notice of a loss, restate the fundamental requirement for apparent agency that the insurer must have taken some action vis-a-vis the insured to be estopped to deny the authority of its apparent agent. Unlike Goodman, wherein the insurer specifically named the insured’s broker as its authorized representative in the policy issued the insured, and unlike Mitchell, wherein the insurer failed to name its authorized agent in the policy issued the insured, in this case plaintiff named its authorized representative, Guild Insurance Agency, in the policy. Lastly, plaintiff argues that the Burgoses did not rely upon any actions by it in believing that they had met their obligation of notifying plaintiff of the shooting of Segarra by informing Patis of that occurrence.

In response, defendant argues that the facts of this case reveal “a course of dealing” within the insurance industry which, for the purpose of receipt of notice of an occurrence, cloaked Patis with the apparent authority to receive such notice on plaintiff’s behalf. In this regard, defendant argues that the only representative of plaintiff which the.Burgoses ever knew of was Patis. Further in this regard, defendant notes the deposition testimony of plaintiff’s vice-president that: (1) “the regular practice” was for an insured to report an occurrence to his broker, who would then report it to an insurance company; (2) policies are delivered to an insured’s agent “as a convenience”; (3) the “general procedure” is that an insured would report a claim to the individual to whom he paid his insurance premiums; and (4) plaintiff receives notices of occurrences from agents as well as brokers.

Defendant further argues that because plaintiff engages in the “ ‘common practice in Illinois’ ” of transmitting the policy to the insured through the latter’s agent, that agent is afforded the opportunity to identify itself as plaintiff’s authorized representative and to append a direction that all losses should be reported to him. In support, defendant cites Goodman and American Home Assurance Co. v. City of Granite City (1978), 59 Ill. App. 3d 656, 375 N.E.2d 969. Specifically, defendant argues that, similarly to Goodman, in this case an insured’s agent, “consistent with a 20 year relationship” between them, obtained an insurance policy and transmitted it to the insured with the direction to report any loss to him “and thereby conveyed to the insured apparent authority as an “ ‘authorized agent.’ ” Defendant further notes that there is no support in the court’s opinion for plaintiff’s assertion that in Goodman the insurer listed the insured’s agent as its authorized representative. Rather, defendant asserts that the opinion merely states the appearance of the policy to the insured.

After citing language in Mitchell holding, inter alia, that the term “[authorized representative” as used in the policy there at issue was ambiguous and therefore should be interpreted in favor of coverage, defendant asserts that this case presents a stronger set of facts than Mitchell to support a finding of apparent agency. Specifically, defendant notes the evidence that: (1) Patis was plaintiff’s “conduit” to the Burgoses as its insureds; (2) Patis attached his sticker to “every policy,” including defendant’s, to indicate that he was plaintiff’s representative; and (3) the terms of the policy were ambiguous to Burgos, especially in view of his limited education and obvious lack of knowledge of insurance matters. Thus, under American Home, Goodman or Mitchell, defendant concludes, notice to Patis was notice to plaintiff’s authorized agent. Finally, defendant notes the holding in Empire that a broker can act as agent of both an insured and insurer for purposes of notice where the notice provision of the policy there at issue did not define “agent” and the insured’s broker had been used by the company as intermediary for delivery of policies, billing, collecting premiums and other policy matters. As such, defendant argues, this court should find, like the Empire court, that plaintiff is estopped to deny the apparent agency of its broker for purposes of notice.

In reply, plaintiff argues that neither American Home nor Empire is of any support to defendant because both cases stand only for the proposition that a prior course of dealing which includes the acceptance of notice of claims from an insured’s broker may clothe the broker with apparent authority to accept subsequent notices of claims for the insurer. Plaintiff distinguishes Mitchell and Goodman as turning, respectively, upon an ambiguity placed in the policy at issue by the insurer and upon the insurer’s naming of the insured’s broker in the policy as its representative and thus authorized agent.

After reviewing the record in this case and the cases cited in support of each party's interpretation of that record, we are compelled to agree with plaintiff that there was no evidence of a prior course of dealing between it, its agent, Guild Insurance Agency (Guild), Patis and the Burgoses as plaintiff’s insureds such as would sustain the trial court’s finding that plaintiff had clothed Patis with apparent agency authority to receive any of the notices required under the policy at issue. That conclusion notwithstanding, however, we find the summary judgment for defendant and the denial of summary judgment to plaintiff sustainable on another ground appearing in the record.

In addition to prior course of dealings between the parties, there is another exception to the general rule that a broker acts on behalf of an insured, and not on behalf of an insurer. That exception is custom. (Ledbetter v. Crudup (1983), 114 Ill. App. 3d 401, 449 N.E.2d 265; see also 8 J.A. Appelman & J. Appelman, Insurance Law & Practice §4736, at 83-84 (1981), citing, inter alia, Boston Store v. Hartford Accident & Indemnity Co. (1922), 227 Ill. App. 192.) In regard thereto, the Ledbetter court stated:

“Courts have found an insurance company can be estopped from denying the authority of a broker to act on its behalf where the broker had acted in accordance with customary practices. A custom or usage becomes binding upon parties if it has been uniformly acquiesced in and applied by the parties for such a period of time so as to indicate that the custom was contemplated by the parties at the time formation of the contract was undertaken. A custom or usage should be established by the testimony of several witnesses.” Ledbetter, 114 Ill. App. 3d at 403.

In addition, DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 351 N.E.2d 302, cited by the Ledbetter court, held that the insured’s reasonable reliance upon his broker brought him within the scope of applicability of the custom and usage between an insurer, its agent and an insured’s broker. DeGraw thus rejected a contention that such custom and usage was irrelevant to an action by the insured because he was ignorant of and thus could not have relied upon it. DeGraw, 40 Ill. App. 3d at 34.

Applying the foregoing principles here, we find that, in view of the deposition testimony of Patis and plaintiff’s claims manager, Michael Fitzgerald, plaintiff is estopped to deny Patis’ authority to act on its behalf for purposes of receipt of notices from plaintiff’s insureds. We so conclude by reason of Patis’ adherence to the customary practice of receiving notices from plaintiff’s insureds for forwarding either to plaintiff’s agent, Guild, or plaintiff and by reason of plaintiff’s acquiescence to that procedure. We further conclude that the testimony of Patis and Fitzgerald also supports the conclusion that that procedure was adhered to by the parties for such a period of time prior to the formation of the Burgoses’ insurance contract that it was contemplated at that time.

Patis testified to the following at his deposition. He had placed approximately 100 to 200 risks with plaintiff through Guild. Guild, not he, would deal directly with plaintiff. With respect to the Burgoses’ policy, he had collected the premiums from them and sent them to Guild. He sent them to Guild rather than plaintiff because that was the industry practice. With regard to policies placed with Guild, including the Burgoses’ policy, Patis would receive all notices regarding cancellation, premium changes and renewals from Guild and then forward them to the insured. In addition, plaintiff would send policies issued to Patis’ clients to Guild, which would send them to Patis for forwarding to the insured. With respect to the instant case, he had received the policy issued by plaintiff to the Burgoses from Guild for forwarding to the Burgoses. If Patis received notice of a claim from an insured, he would send it directly to plaintiff rather than Guild. That was Patis’ own particular practice. In contrast, if Patis received notice of an “occurrence” from an insured, he would forward that notice to Guild. He would report an “occurrence” to Guild rather than plaintiff because an “occurrence” was not “a formal claim.” However, Patis would have considered notice of an “occurrence” to Guild effective notice thereof to plaintiff because Guild was an agent of plaintiff.

Michael Fitzgerald, plaintiff’s claims manager since December 1983, testified to the following at his deposition. Plaintiff received notice of occurrences from agents and brokers as well as insureds. Asked if he knew why the notice of claim with regard to defendant’s suit against the Burgoses came from Patis rather than the Burgoses, Fitzgerald responded, “I can only speculate, but just on general procedure as is quite often, an insured will report the claim to the individual that the[y] pay their insurance premiums to. I don’t know if that is the case here, but that would be my speculation.” Plaintiff’s underwriting department would send the policies issued by plaintiff to its agent rather than directly to the insured. County Insurance Service, an insurance agency which had an agency relationship with plaintiff and for whom Fitzgerald worked from October 1980 to December 1983, would receive insurance policies from insurers. It would forward the policies to its brokers, if the policy was ordered from a broker, or directly to the insured if no broker was involved. While with County Insurance Service, Fitzgerald received notices of occurrences from brokers and insureds, although rarely because “[tjhat was not the normal course of a transaction for a claim.” The “normal or regular” course was for the insured either to report directly to plaintiff or to their broker, who would then report it directly to the company.

The foregoing testimony of Patis and Fitzgerald amply reveals that plaintiff customarily used independent brokers who were not nominally its agents as an integral part of all phases of issuing and servicing its insurance policies. As such, we find that for purposes of receipt of notices of claims and occurrences from its insureds, Patis was an “authorized agent” of plaintiff, as that term was used in its policy, as well as an agent of his insureds for all matters relating to plaintiff’s policies. In the former regard, we find most telling Fitzgerald’s testimony that the “normal or regular” course was for insureds either to report claims and occurrences to their brokers, who would report them to plaintiff, or to report them directly to plaintiff. That is, it was just as normal or regular for insureds to report claims and occurrences to their brokers as it was for them to report them directly to plaintiff. Given that plaintiff, as a matter of custom, used these brokers to deliver policies to insureds, to collect premiums and to notify them of cancellations, premium changes and renewals, we believe that it manifestly authorized them to act on its behalf for purposes of receipt of the notices required under its policies.

Moreover, the record in this case amply reveals that the Burgoses reasonably relied upon Patis with respect to the giving of notice to plaintiff. As such, their ignorance of the customary practices of plaintiff, its agent, Guild, and independent brokers, including Patis, does not preclude them from availing themselves of the protections of those customary practices. DeGraw, 40 Ill. App. 3d 26, 351 N.E.2d 302.

Ramon Burgos testified to the following at his deposition. Asked if he had reported a threat by defendant to sue him, made at the time his son was being tried for the murder of Segarra, Burgos testified, “Everything, I reported Mr. Patis.” Asked whether he had reported anything about the shooting to plaintiff directly, Burgos testified, “No, sir. But Mr. Patis says he’d take care of that.” Asked if he had received any letters from lawyers stating that they represented defendant and asking him to report “this” to his insurance company, Burgos testified that he had and that he gave most of the papers to Patis, who had stated, “ T take care of it.’ ” Burgos gave Patis those letters because he thought there would be insurance coverage. Burgos called Patis the morning after Segarra’s shooting to report it to him. He called Patis because he thought there would be some coverage for Segarra’s shooting. The evening following Segarra’s shooting, Patis went to see Burgos. At that time, Burgos told him everything that had happened the night before. Patis told Burgos, “Don’t worry, I take care[ ]” and “we have insurance.” Patis also told Burgos that he did not think Burgos was liable because the shooting happened outside the store. Asked if he ever specifically asked Patis if he had reported the shooting to Burgos’ insurance company, Burgos responded, “Yes; because I believe if I report to him, I don’t have to report to nobody else.” When he was served after being sued by defendant, Burgos gave the papers to Patis because he believed there would be insurance coverage for the suit. Asked whether he understood that in its reservation of rights letter plaintiff was saying that it did not think it covered him for the lawsuit because he had not reported the shooting to it, Burgos responded, “Yes, but I did report it.” When Patis explained the meaning of the letter to him, Burgos said to him, “[H]ow can they say this when I reported it to you[?]” Patis responded, “I know, you reported it to me. I know.” Asked whether he ever specifically asked Patis if he had given the information about the shooting to the insurance company, Burgos responded that he asked him if he did what he had to and Patis said, “Yes, I know what to do.”

When the foregoing testimony is coupled with the fact that Patis had been Burgos’ insurance broker for 20 years, we believe that the reasonableness of plaintiff’s reliance on Patis for the giving of notice to plaintiff is manifest.

Plaintiff notes that Burgos also testified that he knew that Patis was an insurance agent rather than an insurance company and that he knew the difference between the two. We find these admissions by Burgos insufficient to show that he also knew that giving notice of Segarra’s shooting to Patis was not the same as giving notice to plaintiff.

Plaintiff also counsels against holding that Patis was its agent for purposes of receipt of notices from the Burgoses on the ground that we would be creating a per se rule that an insurance broker, such as Patis, who is normally the insured’s agent, is always the insurer’s agent for such purposes. However, we cannot agree that our decision in this case will have that effect.

The resolution of the existence of a principal-agent relationship depends upon the particular circumstances of each case. (See Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544.) Consistently with Gasbarra, our decision is based on the particular practices of plaintiff in using the brokers of its insureds as intermediaries between itself and its insureds in transacting business with them. Even more specifically, it is based on plaintiff’s adherence to that customary practice by using Patis as an intermediary between itself and the Burgoses. Having used Patis as such an intermediary for practically all aspects of transacting business with the Burgoses, in conformance with that practice, plaintiff is estopped to deny his agency for the one aspect of transacting business which is at issue here. Only where it is shown that an insurer follows the same customary practices proved here in dealing with the broker-agents of its insureds generally and adhered thereto in dealing with the broker-agent of the insureds seeking coverage specifically need insurers fear the result reached in this case.

Finally, in view of our holding in this case, we need not address whether the Burgoses’ failure to give plaintiff notice of Segarra’s shooting is, alternatively, justifiable on the ground, of a reasonable belief that plaintiff’s policy did not cover that incident. Nor, in view of plaintiff’s argument that prejudice to it is irrelevant to the issue in this case, need we consider or determine whether the conduct of the Burgoses or Patis prejudiced plaintiff.

For all of the foregoing reasons, we affirm the grant of summary judgment for defendant and the denial of summary judgment to plaintiff.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

      The policy defined “occurrence” as “an accident, including injurious exposure to conditions which results during the policy period in bodily injury or property damage neither expected or intended from the standpoint of the insured.”

      The fact that we disagree with plaintiff that American Home is a “prior dealings” case does not change this result.

      In arguing that there was prior course of dealing betw'een plaintiff, J?atis_and - the Burgoses, defendant cites evidence which relates more to customs follow-ed._by plaintiff and Patis than to a course of dealing involving each of them and the Burgoses. While that evidence is insufficient to sustain the summary judgment for defendant on a “course of dealings” theory, we find it sufficient to do so on a “customs” theory, as will be made clear below.