author: JUSTICE HOWERTON JUSTICE WELCH,

text:
      In re MARRIAGE OF GREGORY P. FIRKUS, Respondent-Appellee, and TRUDY FIRKUS, n/k/a Trudy Guerra, Petitioner-Appellant.
    Fifth District
    No. 5 — 91—0147
    Opinion filed December 30, 1991.
    WELCH, J., dissenting.
    Elizabeth Levine Levy, of Levy & Levy, P.C., of Collinsville, for appellant.
    James M. Drazen, of Troy, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Trudy Firkus, now Guerra, had been awarded custody of an only child in an earlier dissolution order and in this proceeding requested the circuit court’s permission to take the child to Florida. The circuit court directed a judgment against her at the close of her case in chief, ruling that there was insufficient proof that the move was in the child’s best interests. We affirm.

Section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 609) permits a custodial parent to remove a child from the State whenever removal is in the best interests of the child and places the burden of proof “on the party seeking the removal.” Ill. Rev. Stat. 1989, ch. 40, par. 609.

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, said no bright-line test for determining the best interests of a child exists; rather, removal depends upon the facts and circumstances of each case. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) To aid the circuit court’s determination whether removal is in the child’s best interest, the court suggested consideration of the following factors: (1) the likelihood that the move will enhance the quality of life and general welfare of both the custodial parent and the child; (2) the custodial parent’s motive in seeking removal; (3) the motives of the noncustodial parent in resisting removal; (4) whether a realistic and reasonable visitation schedule can be reached if removal is allowed; and (5) if the move is to a distant jurisdiction, the harm to the child which may result. Eckert, 119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.

In this appeal, Guerra claims the circuit court erred by directing a judgment against her because she had made a prima facie case of removal inasmuch as she presented some evidence on every factor set out in Eckert. We hold that presenting some evidence on every factor set out in Eckert is not necessarily equivalent to making a prima facie case for removal.

The Eckert factors are not elements of a prima facie case that must be proven in order to avoid a directed judgment. Rather, they are merely suggestions, factors to be considered when determining whether removal serves the child’s best interests. Presenting some evidence on each Eckert factor, therefore, will not necessarily make a prima facie case for removal. A prima facie case for removal of a child from the State is made by proving that the move is in the child’s best interests.

Here, the circuit court ruled at the close of Guerra’s case that there had been an insufficient showing that the move was in the child’s best interests, and we cannot say that ruling was against the manifest weight of the evidence or that a manifest injustice has occurred. (See Eckert, 119 Ill. 2d at 330, 518 N.E.2d at 1046 (for this court’s standard of review).) Thus, we cannot reverse.

The circuit court is affirmed.

Affirmed.

HARRISON, J., concurs.

JUSTICE WELCH,

dissenting:

Without discussing any of the facts of this case, the majority concludes that the trial court’s finding that the petitioner, the custodial parent, failed to prove that removal of the child to Florida was in the child’s best interest was not against the manifest weight of the evidence. I cannot agree.

I do agree with the majority that when, as in the instant case, a motion is made for judgment in respondent’s favor at the close of petitioner’s case, that motion will be granted unless petitioner has met her burden of proof on every element essential to her case. (In re Custody of Anderson (1986), 145 Ill. App. 3d 746, 750, 496 N.E.2d 345, 348.) This decision can be made only after considering the weight and quality of all the evidence, including that favorable to the respondent. (Anderson, 145 Ill. App. 3d at 750, 496 N.E.2d at 348.) Thus, I agree with the majority that, in order to survive a motion for judgment at the close of petitioner’s case, petitioner must do more than simply present some evidence that the removal of the child is in the child’s best interest; the petitioner must prove that, in fact, the removal is in the child’s best interest. However, I disagree with the majority’s finding that the petitioner failed to carry this burden in the instant case.

As the majority points out, our supreme court has set forth certain factors which courts are to consider in deciding whether removal is in the child’s best interest. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041.) There is no simple bright-line test for reaching this decision, and each case must be decided on its own facts. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) However, Eckert tells us that courts should consider: (1) the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation; (3) the motives of the noncustodial parent in resisting the move; (4) the visitation rights of the noncustodial parent, remembering that it is in the best interest of a child to have a healthy and close relationship with both parents, as well as other family members; (5) whether a realistic and reasonable visitation schedule, i.e., one that will preserve and foster the child’s relationship with the noncustodial parent, can be reached if the move is allowed; and (6) when removal to a distant jurisdiction will substantially impair the noncustodial parent’s involvement with the child, the potential harm to the child which may result from the move. Eckert, 119 Ill. 2d at 326-28, 518 N.E.2d at 1045-46.

In Eckert, the supreme court found that petitioner’s claim that the move from Illinois to Arizona was motivated by a desire to enhance her career was put in question by the fact that her new position in Arizona paid little, if any, more than she was earning in Illinois and she admitted that she really had not been looking for work. The court found that petitioner’s claim that she could not find comparable work in Illinois was also questionable because petitioner admitted that she had not looked for comparable work near her home in Illinois. Petitioner’s claim that the move to Arizona would benefit the health of one of her children was unsubstantiated by the evidence. Finally, the court found that the respondent/father was an exemplary parent who had an exceptionally good relationship with the child. The court found that petitioner had at times attempted to interfere with respondent’s visitation with the child. Furthermore, most of the child’s extended family lived in Illinois. The supreme court affirmed the judgment of the circuit court that removal of the child was not in the child’s best interest.

It appeared in Eckert that the only reason for the move to Arizona was the petitioner’s mere desire to move to another State. This is not sufficient to establish that the move is in the child’s best interest. In re Marriage of Kutinac (1989), 182 Ill. App. 3d 377, 382, 538 N.E.2d 862, 865.

The instant case is more similar to In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780. In that case, the custodial mother had married a man, Martin, who was employed by the United States Postal Service. Prior to his engagement to the custodial mother, Martin had requested a transfer within the postal service from Chicago to Seattle, Washington. Subsequent to the marriage, this request was approved and Martin was transferred to Seattle. He could not refuse the transfer without also losing his job with the postal service in Chicago. He would lose many benefits if he ceased working for the postal service. Furthermore, Martin wanted very much to move his family to Seattle.

The custodial mother had located a school in Seattle comparable to that attended by the child in Chicago. She had also found a suitable synagogue and a suitable pediatrician. Mother thought the prospects for her finding comparable employment in Seattle were good. Mother also agreed to allow the noncustodial father liberal visitation with the child, including weekly telephone calls at mother’s expense. Travel would be paid for in part by father’s child support payments, which mother agreed to put in an escrow fund to be allocated entirely to transportation.

Father testified to the liberal visitation he exercised with the child in Chicago. He testified that he saw the child often and was very involved in the child’s life.

In applying the factors set forth in Eckert, the appellate court found that the quality of life for the child would not be directly enhanced by the move to Seattle. Instead, the quality of her life would remain basically the same. However, the move to Seattle would greatly enhance the quality of life for the custodial mother and, therefore, indirectly, the quality of life for the child. The court pointed out that the child is part of a household which consists of her, her mother and her mother’s new husband. The quality of life for the entire household would be enhanced by the move to Seattle because they would all be together where they wanted to be. Finally, the court found that, although the noncustodial father’s visitation rights would change against his wishes, the liberal visitation rights proposed by mother would provide father with an adequate means to foster his relationship with the child. The court stated, “On balance, we do not think that the interests of the custodial mother should be subordinated to those of the custodial father. *** Although [father] would prefer consistent day-to-day contact with [the child], this preference is insufficient to chain [mother] to the State of Illinois.” 175 Ill. App. 3d at 190, 529 N.E.2d at 783.

In the instant case, the record indicates that mother sought to move to Florida to be with her new husband, who, being unable to find employment in his field near their home in Illinois, had sought and found employment in Florida. Petitioner’s husband’s move to Florida was motivated by his ability to find work there and also by his desire to live there. He sought work in Miami because he had a friend working in the same field there who told him there were many jobs available. He was able to find a job in Florida within 15 days. He had searched for a job in his field in the Illinois area for six months to one year. Husband works a full-time job and a part-time job in Florida. Mother and her husband also have a child together, who remains with her mother in Illinois.

Because of the financial strain of maintaining two households, mother and her two children have moved in with her parents. She and her two children live in the basement of her parent’s home. The child in question does not have his own room. Mother works part time at a Subway Sandwich Shop, earning between minimum wage and $5 per hour, depending on the hours she works. Although mother has a bachelor’s degree and is certified to teach in Illinois, she has not sought employment in the teaching field in Illinois. She has, however, applied for a teaching job in Florida. However, she feels that her husband earns enough that she might be able to stay home with the children. She thinks this would be beneficial to the children.

Mother’s husband has rented a two-bedroom apartment in an upper middle-class suburb of Miami. The apartment complex has a pool, gymnasium facilities and grassy areas for children to play. Mother feels it is a low-crime area. Mother has made no real investigation into the school system in Florida. Mother feels the separation from her husband creates great stress for everyone, including the child.

The child’s father has always exercised his visitation rights and has a good relationship with the child. He visits with the child every other weekend, as well as three weeks in the summer and every other holiday. Furthermore, the child’s extended family resides in Illinois and the child has good relationships with this extended family. However, mother testified that her new husband is employed by a major commercial airline and therefore the child could receive passes to fly home for visitation. There might still be some cost involved. Mother suggested visitation once a month or every other month with an extended summer visitation. Mother stressed that she did not want to hamper father’s visitation with the child. She admitted that the child’s visitation with her parents might be reduced to once every four or five months.

Applying the Eckert factors to the case at bar, I think the trial court’s finding that petitioner failed to prove that removal to the State of Florida is in the child’s best interest is against the manifest weight of the evidence. Initially, there is no suggestion in the record that the motive of either of the parents in seeking or resisting removal is improper. The evidence indicates that the move to Florida would enhance the quality of life for the child, not only indirectly in that his family would be together and his mother happy, but also directly in that he would be living in his own home with his own family rather than in the basement of his grandparents’ home. He would have his own room in a two-bedroom apartment. At present, he does not have his own room. The apartment is in an upper middle-class area, and the apartment complex has recreational facilities. The financial situation of the family would be much improved. While the record contains little evidence as to the quality of the school system in Florida, failure to adduce evidence on this one fact does not destroy petitioner’s case.

With respect to visitation, the evidence shows that petitioner would receive passes to fly the child home for visitation at little or no cost. Petitioner feels that visits monthly or every other month as well as an extended summer visitation and holidays would be sufficient for father to foster his relationship with the child, and I agree. Although the child’s extended family resides in Illinois, he could visit with them when he visits his father.

As in Zamarripa-Gesundheit, I do not think the interests of the custodial mother should be subordinated to those of the noncustodial father. Mother should not be put in the position of choosing between her new husband who, despite diligent efforts to find employment in Illinois, was forced to move to Florida to find employment and her son, especially where, as here, transportation for visitation is easily arranged. Although, of course, father does not want his son to move away, his desire is not sufficient to chain mother to the State of Illinois.

I would have reversed the judgment of the circuit court as against the manifest weight of the evidence.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    TRANSCRAFT CORPORATION, Plaintiff-Appellant, v. ANNA INDUSTRIAL DEVELOPMENT CORPORATION, Defendant-Appellee.
    Fifth District
    No. 5 — 90—0656
    Opinion filed December 30, 1991.

      Sorling, Northrop, Hanna, Cullen & Cochran, Ltd., of Springfield, and Medlin & Medlin, of Carbondale (William S. Hanley, Peggy J. Ryan, and James S. Medlin, of counsel), for appellant.
    R. Corydon Finch, of Finch & Karraker, P.C., of Anna, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Transcraft Corporation (Transcraft) leased a parcel of land in Anna, Illinois, from Anna Industrial Development Corporation (Anna). Section 4(c) of the lease agreement stated:

“In addition to the rental payments to be made by Transcraft from the Effective Date, Transcraft shall pay the actual cost of general real estate taxes beginning with the first year said building is assessed as an improvement on the premises, provided that Transcraft shall never be required to pay more than $800.00 in the aggregate during any lease year for such taxes, and any excess required to be paid for such purpose shall be paid promptly when due and before penalty by Anna.” (Emphasis added.)

Though taxes had exceeded $800 every year since 1965, Anna never paid its share of the taxes. Instead, Transcraft paid the taxes and sued for the amount it paid in excess of $800 for tax years 1965 through 1987.

Both parties filed motions for summary judgment. (111. Rev. Stat. 1989, eh. 110, par. 2 — 1005.) Anna claimed section 9 of the contract required Transcraft to deduct the amount Anna failed to pay from rent, and that deducting that amount from rent was Transcraft’s sole remedy. Section 9 stated:

“During the term of the lease Anna shall be liable for, shall pay before penalty or otherwise lawfully satisfy, and shall indemnify Transcraft against and hold Transcraft harmless for liability for, all real estate taxes (except that portion to be paid by Transcraft as provided in §4(a)), special assessments and other taxes imposed upon the premises or any part thereof. Upon failure of Anna to pay its share of such taxes and all such special assessments and other taxes Transcraft may, but shall not be required to pay them. If Transcraft pays same, the cost thereof shall be deducted from rentals.” (Emphasis added.)

Transcraft claimed that the contract required Anna to pay the excess taxes, that it repeatedly demanded that Anna pay those taxes, and that Anna continually refused, stating it had no money to pay the taxes. Also, Transcraft claimed that after it exercised an option to buy the leased land, Anna failed to deliver a warranty deed free and clear of encumbrances as required by section 5 of the second amended lease.

The circuit court granted Anna’s motion, stating that the “lease agreement clearly and unambiguously mandate[d] plaintiff to deduct such payments in excess of $800 annually from rentals due defendant [and that] the parties agreed to no other remedy.” It denied Transcraft’s motion for summary judgment and did not comment on the issue of taxes stemming from the option-to-purchase clause. Transcraft appealed. We reverse and remand.

Courts should construe contracts as a whole, giving meaning and effect to all its provisions. (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 523 N.E.2d 30.) The contract, in the case at bar, contained a “NO WAIVER” clause, which stated:

“The failure of either party, in any one or more instances[,] to demand strict performance or observance of any of the terms and conditions of the lease or to take advantage of any rights hereunder[ ] shall not operate or be construed as a waiver of any such terms and conditions or the relinquishment of any such rights but the same shall continue and remain in full force and effect.”

The “terms,” “conditions,” and “rights” of the contract were clear and unambiguous: Transcraft was to pay the first $800 of real estate taxes on the land and its improvements; Anna was to pay the real estate taxes in excess of $800. Equally clear is that in the event that Anna failed to pay the excess and instead Transcraft paid it, that amount was to be deducted from rent. Failure of Transcraft to deduct the taxes it paid from rent, however, did not relieve Anna of its contractual obligation, i.e., the obligation to pay real estate taxes in excess of $800. The “NO WAIVER” clause makes clear that any failure to demand strict performance or to take advantage of any “terms,” “conditions,” or “rights” was neither a “waiver” nor the “relinquishment” of the “terms,” “conditions,” or “rights” within the contract. Therefore, under the “NO WAIVER” clause of the contract, Anna’s obligation to pay the excess taxes remains in “full force and effect” despite Transcraft’s failure to deduct the taxes it paid from rent. We, therefore, reverse the circuit court and remand with directions to grant summary judgment on this issue in favor of Transcraft.

The second issue on appeal involves section 5 of the second amendment to the lease which gave Transcraft the option to purchase the leased land. Section 5 provided that if Transcraft exercised the option to buy the land, Anna was required to deliver a warranty deed “free and clear of all liens and encumbrances except that portion of general real estate taxes required to be paid by Transcraft.”

In 1989, Transcraft exercised that option. Anna, however, delivered a deed encumbered by tax liens from 1988 and 1989. Transcraft paid off the liens and sued Anna for its portion of the tax obligation under the contract. The circuit court denied Transcraft’s motion for summary judgment without comment. Here too, we reverse. The contract is clear and unambiguous: Anna was obligated to pay its share of the taxes for the years 1988 and 1989 and to deliver a warranty deed free and clear of any liens or encumbrances. It failed to do either. We, therefore, reverse the circuit court on this issue also and remand with directions to grant summary judgment on this issue in favor of Transcraft.

In the case at bar, there are no factual disputes. The only issue is the interpretation of the contract, which is a question of law that can be made on review independent of the trial court’s judgment. (Butler v. Economy Fire & Casualty Co. (1990), 199 Ill. App. 3d 1015, 557 N.E.2d 1281.) Here, the record shows clearly that Anna was obliged, under contract, to pay general real estate taxes assessed on the leased property in excess of $800. It failed to pay those taxes. Therefore, we reverse the circuit court’s order awarding Anna summary judgment and remand this matter to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded with directions.

GOLDENHERSH, P.J., and HARRISON, J., concur.


author: JUSTICE WELCH

text:
    AUBRA SELBY, Plaintiff-Appellee, v. DuQUOIN STATE BANK, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0518
    Opinion filed December 31, 1991.

      Michael F. Dahlen and Paul G. Schoen, both of Feirich/Schoen/Mager/ Green, of Carbondale, for appellant.
    Jerry B. Smith, of DuQuoin, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, Aubra Selby, brought a small claims complaint against defendant, DuQuoin State Bank (hereinafter the Bank), alleging that the Bank converted and improperly set off $2,477.78 in funds deposited to the checking account she held jointly with Norman Smith, now deceased. Plaintiff sought judgment against the Bank in the amount of $2,477.78 plus interest thereon, costs, and attorney fees. Following hearing on plaintiff’s complaint on May 9, 1990, the circuit court of Perry County entered judgment in favor of the defendant Bank, basing its judgment upon the supreme court’s decision in Pescetto v. Colonial Trust & Savings Bank (1986), 111 Ill. 2d 314, 489 N.E.2d 1365. Plaintiff filed a motion to vacate the judgment, which the circuit court granted by order entered July 10, 1990. Thereupon the court entered judgment in favor of plaintiff and against defendant Bank in the amount of $2,477.78, plus costs of $43. It is from the July 10, 1990, order of the circuit court of Perry County that the Bank brings this appeal.

A report of proceedings was certified by the circuit court pursuant to Supreme Court Rule 323(c) (134 Ill. 2d R. 323(c)). The report of proceedings and the exhibits placed into evidence at the hearing on plaintiff’s complaint indicate that the following evidence was before the court in reaching its decision.

On July 26, 1988, plaintiff and the decedent, Norman Smith, opened a joint checking (NOW) account with defendant Bank, by executing a signature card. Both plaintiff and Smith made deposits into and wrote checks upon the account. The signature card, which was placed into evidence, provided that one signature was required for withdrawals from the account and that it was a joint account with survivorship. The signature-card agreement further provided:

“Each depositor (individually and jointly) hereby acknowledges that this financial institution has the right to charge or set-off against any deposit of the depositor with this financial institution any debts or obligations owing by the depositor to this financial institution whether direct or indirect, secured or unsecured, absolute or contingent, joint or several, due or to become due, whether as maker, endorser, guarantor, or otherwise, now existing or hereafter contracted or acquired by this financial institution and wherever payable, and the interest thereon and expense, if any, which may be incurred by this financial institution in connection therewith, and this agreement shall be construed to be the consent of the depositor to make such a charge or set-off against his/her/their account(s) if consent be required by any present or future statute or law.”

The decedent executed a note and security agreement in favor of defendant Bank on August 1, 1989. The proceeds of the loan were used by decedent to purchase a mobile home and lot, and decedent executed a mortgage on real estate owned by decedent in Perry County to further secure the indebtedness. The note and security agreement provided that decedent gave the bank a security interest in “the goods or property being purchased” and “[decedent’s] deposit accounts and other rights to payment of money from [the Bank].” The default provisions of the note and security agreement provided, among other events of default, that decedent would be in default if he died.

Norman Smith died on November 10, 1989, and at the time of his death he was not in default for failure to have made any of the loan payments on the August 1, 1989, note and security agreement. On November 27, 1989, the Bank applied the $2,477.87 balance in the NOW account to the balance owed by decedent on the August 1, 1989, note and security agreement. Plaintiff demanded payment from the Bank of the $2,477.78 prior to filing suit for conversion.

The Bank presents the following issue for our review: whether a bank can enforce its security interest in a joint NOW account to secure payment of a loan that is in default by either (1) charging the account to the satisfaction of the loan pursuant to a pledge or (2) setting off the funds on deposit against the loan, where the surviving joint owner of the NOW account did not sign the combined promissory note and security agreement but did sign the signature-card agreement. The parties agree that there is no factual dispute in the instant case and that the issues involve only contract interpretation. The construction and legal effect of an instrument raise a question of law in the absence of any material question of fact. (Oldweiler v. Peoples Bank (1987), 161 Ill. App. 3d 317, 320, 514 N.E.2d 541, 543.) Consequently, since the evidence before the court below was entirely documentary in nature, this court is unrestrained by the trial court’s findings and may independently construe the instruments involved. Oldweiler, 161 Ill. App. 3d at 320, 514 N.E.2d at 543.

We shall first discuss the issue of whether the Bank was entitled to set off the parties’ joint checking account for the debt of one of the owners thereof. The common law right of setoff provides that a Bank may apply its depositor’s account for a debt he owes to the bank. (First National Bank v. Lewis (1989), 186 Ill. App. 3d 16, 19, 542 N.E.2d 124, 126, citing Kerner v. Kinsey (1943), 384 Ill. 180, 51 N.E.2d 126; International Bank v. Jones (1887), 119 Ill. 407, 9 N.E. 885; First National Bank v. Estate of Philp (1982), 106 Ill. App. 3d 360, 436 N.E.2d 15.) Under common law a bank has the power to apply the deposit to the payment of such depositor’s indebtedness only when there are mutual demands and debts between the parties and this right of setoff arises at the time the depositor’s indebtedness to the bank has matured. Bonhiver v. State Bank (1975), 29 Ill. App. 3d 794, 803-04, 331 N.E.2d 390, 398.

Plaintiff argues that there was neither mutuality of demand and debt nor maturity of debt in the instant case. We note the Bank’s assertion in its phrasing of the issue on review that decedent’s loan was in default. Plaintiff contends on appeal that the loan was not in default at the time of Smith’s death and so under the rules of joint tenancy, the entire interest in the NOW account became vested in her. Plaintiff further contends that the Bank’s purported right to set off the funds does not survive Smith’s death because the loan was not in default at the time of his death.

The general rule is that a bank cannot apply the deposit of a debtor to an unmatured indebtedness in the absence of an express authority to do so. (Bonhiver, 29 Ill. App. 3d at 804, 331 N.E.2d at 398.) It is similarly recognized that in the absence of statutory authority or a contract to the contrary, the right to set off a debt of a deceased joint tenant against the interest of the surviving joint tenant does not exist. (Donnelly v. First Mutual Savings Association (Fla. Dist. Ct. App. 1987), 509 So. 2d 1273, 1274, citing Annot., 68 A.L.R.3d 192, 202 (1976).) Although the maturity date on the August 1, 1989, note and security agreement was July 31, 1992, the note provided that in the event of a default the Bank could elect to accelerate the due date of the note. Because Norman Smith’s death was a specified event of default, the Bank had the power to accelerate the indebtedness and thus Smith’s loan with the Bank matured on the date of his death along with the Bank’s right of setoff.

We agree with plaintiff, however, that there was no apparent mutuality between the debtor on the note and security agreement and the parties entitled under the checking account to demand payment of the funds on deposit with the bank. The relationship between a bank and its depositor is that of debtor and creditor. (Paskas v. Illini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 31, 440 N.E.2d 194, 198-99.) When money is deposited with a bank, title to it passes and the bank becomes a debtor to the extent of the deposit and, to that extent, the depositor becomes a creditor. (Mid-City National Bank v. Mar Building Corp. (1975), 33 Ill. App. 3d 1083, 1089, 339 N.E.2d 497, 502.) While Norman Smith was the sole debtor on the note and security agreement, it was Norman Smith and Aubra Selby who owned the deposit account and were creditors to the Bank to the extent of the amount of moneys deposited in that account.

The Bank argues, however, that the fact that plaintiff did not execute the note and security agreement is irrelevant and there was, in fact, mutuality of obligation between plaintiff and the Bank because of the setoff provision in the signature-card agreement. The express or implied contract between the depositor and the bank controls their relationship. (Menicocci v. Archer National Bank (1978), 67 Ill. App. 3d 388, 391, 385 N.E.2d 63, 66.) The Bank argues that the signature-card agreement should be construed to be a “consent” by each depositor to the setoff of an obligation of either depositor against the entire joint account. The Bank cites an Ohio decision, Chickerneo v. Society National Bank (1979), 58 Ohio 2d 315, 390 N.E.2d 1183, for the proposition that a bank can properly set off funds in a jointly owned account for a debt owing by only one of the depositors, despite lack of mutuality, where the depositors’ contract with the bank so allows. In Chickerneo, the bank had rules and regulations governing bank accounts such as was held by the plaintiff therein and his codepositor, and these regulations were made a part of the contract between the bank and its depositors. One of the regulations provided that any indebtedness owed the bank by a depositor may be charged to an account in the name of such depositor and another. Because the bank’s actions were in conformity with the bank regulation and thus lawful under the terms of its contract with the depositors, the court on review upheld the lower court’s judgment in favor of the defendant bank, despite proof by plaintiff that he was the sole owner of the funds deposited into the account. Chickerneo, 58 Ohio 2d at 320-21, 390 N.E.2d at 1186.

In the instant case the signature-card agreement for the NOW account provided that one signature was required for withdrawals and that it was a joint account with survivorship. We also note that under section 2 of the Illinois Joint Tenancy Act:

“when a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons payable to them when the account is opened or thereafter, the deposit or any part thereof or any interest or dividend thereon may be paid to any one of those persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made.” (Ill. Rev. Stat. 1989, ch. 76, par. 2(a).)

Thus, both Illinois law and the depositors’ contract with the Bank imply an intent that each depositor be treated as owner of the entire interest in the account.

Moreover, a plain reading of the setoff provision of the signature-card agreement indicates to this court that the Bank asserted a right to set off each depositor’s debts or obligations owing to the Bank against the deposit account and that each depositor recognized this right of the Bank to set off either depositor’s debts against the joint account. Therefore, under the reasoning of the Chickerneo case, because the joint depositors, Smith and plaintiff, agreed that the Bank’s right of setoff applied to the joint account for a debt or obligation owing by either of them, the Bank’s setoff of these funds was proper.

Accordingly, we find that the court below erred in determining that the defendant Bank did not have the right to set off the indebtedness owed by Norman Smith from plaintiff’s joint NOW account, we reverse the July 10, 1990, order of the circuit court of Perry County, and we enter judgment on plaintiff’s complaint in favor of the defendant. Because of our holding that the defendant Bank had the right to set off the funds in the NOW account against the amount due on decedent’s loan with the Bank, we need not reach the issue of whether the decedent validly pledged the account by way of the loan documents executed by decedent on August 1, 1989, or whether the signature-card agreement authorized a pledge of the account by one joint tenant under Pescetto v. Colonial Trust & Savings Bank.

Reversed; judgment entered.

HARRISON and LEWIS, JJ., concur.


author: JUSTICE WELCH JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT YATES, Defendant-Appellee.
    Fifth District
    No. 5 — 89—0842
    Opinion filed December 31, 1991.

      HARRISON, J., dissenting.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The People of the State of Illinois appeal from an order of the circuit court of St. Clair County, entered November 15, 1989, which granted the post-conviction petition of defendant, Robert Yates, on the basis of the supreme court’s then-recent decision in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141. The post-conviction court found that the jury at defendant’s trial for attempted murder had not been properly instructed regarding the State’s burden to prove the defendant’s lack of justification (self-defense) as an element of the offense where the defendant had presented some evidence of self-defense.

Defendant was charged by indictment, filed March 20, 1986, with the offenses of armed violence, aggravated battery and attempted murder arising from a shooting in a tavern on January 13, 1986. The victim, Rufus Burns, had been shot with a pistol four times in the legs and back by defendant. The victim and numerous eyewitnesses testified that the shooting was unprovoked and not preceded by any argument, fight or struggle. Defendant claimed that the shooting was done in self-defense following an argument during which the victim began to draw a gun. Defendant claimed that the shots were fired during his struggle with the victim to gain control over the gun.

Following a jury trial, defendant was convicted of all three offenses. Judgment was entered on the verdicts on October 20, 1987, and defendant was sentenced to serve 10 years in the Department of Corrections.

Subsequently, defendant appealed his convictions for aggravated battery and armed violence, arguing that they must be vacated because based on the same physical act as was his conviction for attempted murder. This court agreed, and on March 8, 1989, defendant’s convictions for aggravated battery and armed violence were vacated. Defendant’s conviction for attempted murder was explicitly affirmed. People v. Yates (1989), 178 Ill. App. 3d 1163, 552 N.E.2d 822 (unpublished order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23)).

On April 10, 1989, defendant filed a pro se petition for post-conviction relief. This petition was subsequently twice amended by defendant’s court-appointed counsel. The amended petition was dismissed except for the allegations that defendant’s trial counsel had been ineffective for failing to tender an instruction requiring the State to disprove that petitioner reasonably believed he was justified in the use of force which was intended or likely to cause death or great bodily harm and that petitioner was denied due process and equal protection under the United States Constitution and Illinois Constitution due to the fact that the trial court incorrectly instructed the jury on attempted murder and self-defense pursuant to People v. Reddick.

On November 15, 1989, the circuit court of St. Clair County entered its order granting defendant’s post-conviction petition finding that, pursuant to People v. Reddick, failure to apprise the jury of the State’s burden of proof constitutes grave error and that Reddick should be applied retroactively to defendant’s case pursuant to People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367. The court vacated defendant’s conviction for attempted murder, did not order a new trial and did not address the previous vacation of defendant’s convictions for aggravated battery and armed violence based upon the same physical act as the attempted murder conviction.

The State argues on appeal that the post-conviction court erred in granting defendant’s post-conviction petition because the defendant waived any error with respect to the attempted murder/self-defense instructions by his failure to raise the issue on direct appeal; the decision in Reddick does not apply retroactively to defendant’s case pursuant to the supreme court’s decision in People v. Flowers (1990), 138 v. 2d 218, 561 N.E.2d 674; and, in any event, the decision in Reddick is inapplicable to the case at bar where no voluntary manslaughter instruction was given and the jury was adequately instructed on the State’s burden of proof with respect to justifiable use of force.

In People v. Reddick, the Illinois Supreme Court held, on direct appeal from defendants’ convictions, that the previous Illinois Pattern Jury Instructions, Criminal, which stated that in order to sustain a charge of voluntary manslaughter the State must prove not only that defendant committed intentional or knowing homicide but also that when he did so he acted under a sudden and intense passion resulting from serious provocation by another or that when he did so he acted under an unreasonable belief that circumstances existed which would have justified the killing, erroneously stated the State’s burden of proof on the mitigating elements. The supreme court held that if a defendant in a murder trial presents sufficient evidence to raise issues which would reduce the charge of murder to voluntary manslaughter, then to sustain the murder conviction, the State must prove beyond a reasonable doubt that those defenses are meritless and must also prove beyond a reasonable doubt the statutory elements of murder. Thus, the supreme court determined that the mitigating factors present in the offense of voluntary manslaughter are affirmative defenses which must be raised by defendant but rebutted beyond a reasonable doubt by the State. The State thus bears the burden of disproving, beyond a reasonable doubt, the existence of the mitigating states of mind for voluntary manslaughter once they are raised by defendant.

The situation in the instant case is different than that presented in Reddick. In the instant case, no homicide occurred so that the issue of voluntary manslaughter did not arise. Instead, the defendant was charged with attempted murder, to which he raised the defense of justifiable use of force or self-defense.

The defense of justifiable use of force has long been regarded as an affirmative defense (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 14), and pursuant to section 3 — 2 of the Criminal Code of 1961, the State bears the burden of ultimately disproving, beyond a reasonable doubt, any affirmative defense raised by the defendant (Ill. Rev. Stat. 1989, eh. 38, par. 3 — 2). (See People v. Sanchez (1981), 95 Ill. App. 3d 1006, 420 N.E.2d 680; People v. Tucker (1988), 176 Ill. App. 3d 209, 530 N.E.2d 1079.) The Illinois Pattern Jury Instructions, Criminal, provide an instruction, to be used as the final proposition in the issues instruction for the offense charged, which states that, in order to sustain the charge, the State must prove that the defendant was not justified in using the force which he used. (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.06A (2d ed. 1981) (hereinafter IPI).) This has been the law since the enactment of the Criminal Code of 1961, and it is the law which was in effect at the time of defendant’s trial. Consequently, we fail to see how Reddick applies in any respect to the case at bar, or why the parties and the trial court chose to rely on Reddick as opposed to well-established statutory and case law directly applicable to the case at bar. Because we do not believe that Reddick establishes any law which applies to the instant case, we will not address the issue, raised by the State, as to whether Reddick should be applied retroactively to defendant’s case, now on collateral review.

We are still faced with the question of whether the post-conviction court erred in granting defendant’s post-conviction petition on the basis that the jury instructions given did not adequately apprise the jury that lack of justification was an element of the offense of attempted murder and that the State had the burden to prove, beyond a reasonable doubt, that defendant was not justified in the force he used.

In the instant case, the following pertinent jury instructions were given:

“A person commits the offense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder.
The offense attempted need not have been committed.”
“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death, he intends to kill that individual.”
“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another.”
“To sustain the charge of attempt, the State must prove the following propositions:
FIRST: That the defendant performed an act which constituted a substantial step toward the commission of the offense of murder; and
SECOND: That the defendant did so with intent to commit the offense of murder.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”
“The defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”

The trial record shows that defendant’s trial counsel failed to tender, and the trial court failed to include, IPI Criminal 2d No. 24— 25.06A in the issues instruction for attempted murder. It has been repeatedly held that failure to include this instruction constitutes error. (People v. Tiller (1978), 61 Ill. App. 3d 785, 378 N.E.2d 282; People v. Whitney (1980), 86 Ill. App. 3d 617, 408 N.E.2d 268; People v. Brophy (1981), 96 Ill. App. 3d 936, 422 N.E.2d 158.) Defendant contends in his post-conviction petition that his trial counsel’s failure to tender the instruction constitutes ineffective assistance of counsel in violation of his constitutional rights, and that he was denied due process and equal protection of the laws by the trial court’s failure to properly instruct the jury on attempted murder and self-defense. The State argues that defendant has waived the error by his failure to raise it on direct appeal.

The State is correct that any claim which could have been presented on direct appeal but was not is thereafter barred under the doctrine of waiver and cannot be raised in a petition for post-conviction relief. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 275, 544 N.E.2d 312, 317.) The instructional error in the instant case was apparent of record at the time of defendant’s direct appeal and could have been raised at that time. It was not. Consequently, defendant has waived this issue for purposes of post-conviction relief.

However, where fundamental fairness so requires, a reviewing court will relax the waiver doctrine in post-conviction proceedings and review the alleged error. (People v. Owens (1989), 129 Ill. 2d 303, 317, 544 N.E.2d 276, 281.) The principle of fundamental fairness is not the same as the “plain error” rule which allows reviewing courts on direct appeal to address plain errors affecting substantial rights which were not brought to the attention of the trial court. (Owens, 129 Ill. 2d at 316-17, 544 N.E.2d at 281.) A defendant may not seek review of procedurally defaulted claims raised in a post-conviction petition under the plain error rule. (Owens, 129 Ill. 2d at 317, 544 N.E.2d at 281.) Instead, to show that collateral review is required by fundamental fairness despite waiver of the error, a post-conviction petitioner must show cognizable “cause” for his failure to raise the error and “actual prejudice” flowing from the error. In order to show actual prejudice, a defendant must show that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. A defendant can show prejudice only if he shows, not simply that an error in instruction worked to his detriment, but that the result of the proceeding would have been different if the proper instruction had been given. Owens, 129 Ill. 2d at 318, 544 N.E.2d at 282.

We point out initially that defendant has not offered any “cause” or explanation for his failure to raise this issue on direct appeal. For example, he has not argued the ineffectiveness of his appellate counsel. Furthermore, while we find the instructional error to be clear and defendant’s trial counsel’s performance deficient in failing to tender the appropriate instruction, looking as a whole at the instructions which were given and the evidence before the jury, we do not think that defendant has shown sufficient prejudice as a result of the error such that fundamental fairness requires our review of the issue.

While the instructions given in the instant case were erroneous in that they failed to include the third proposition in the issues instruction dealing with the State’s burden to prove that defendant was not justified in the force he used, they were not misleading or confusing to the jury, nor did they incorrectly state the law or improperly instruct the jury. The jury was instructed that, in order to sustain the charge of attempted murder, the State must prove that defendant took a substantial step toward commission of the offense of murder which, as defined to the jury, includes as an element that the killing was not justified. The jury was also instructed on the justifiable use of force and the State’s general burden to prove all the elements of the offense beyond a reasonable doubt.

Furthermore, this case is not closely balanced factually. While defendant did present some evidence of self-defense, primarily his own testimony, that evidence was far from persuasive or convincing. Defendant testified that the victim was one of defendant’s school teachers in junior high. He had never had any problems with the victim. On the evening of the shooting, defendant and the victim were both in the tavern. Defendant said hello to “Mr. Burns.” The victim responded, “MF, don’t call me Mr. Burns.” As defendant was leaving the tavern, he said good bye to “Mr. Burns.” The victim responded, “MF, I told you not to call me Mr. Burns.” The victim assumed a fighting posture and said, “Do what you want to do.” Defendant then punched the victim in the face. As the victim fell back, he began to reach inside his coat. Defendant, who was unarmed, thought the victim was reaching for a weapon and grabbed the victim. The two struggled and a shot went off. They continued to struggle. Finally, defendant pushed the victim to the floor and ran out of the tavern.

The defendant’s testimony of a struggle with the victim was countered by the numerous eyewitnesses to the shooting. The victim testified that he had no altercation with defendant prior to the shooting. The first shot fired hit the victim in the back. The victim was shot four times. The victim testified that he was unarmed. The victim denied making the aforementioned remarks to the defendant.

An employee of the tavern testified that she was working the night of the shooting. She saw defendant hit the victim, who fell to the floor. One of the patrons told the defendant to stop. The defendant pushed the patron out of the way, pulled out a pistol and shot the victim. She did not see the defendant take the gun from the victim. She thought he was carrying it himself. She did not see any struggle.

A patron of the tavern testified that he heard no argument between the victim and the defendant. Out of the corner of his eye, he saw someone fall to the floor. He turned and saw the defendant approach the person on the floor. Another patron approached the defendant and told him to stop. The defendant then reached behind his jacket and pulled out a revolver. He reached around the patron who was trying to stop him and shot at the person on the floor. When the defendant left the bar, he was carrying the revolver.

The owner of the tavern testified that on the night of the shooting she did not hear any argument between the victim and the defendant. She heard the sound of glass breaking and looked to see the victim on the floor. She realized that the victim had been knocked down by the defendant. She saw the defendant hit the victim. She ran out of the tavern. When she saw the defendant leave the tavern, he was carrying a pistol. She never saw the victim with a weapon.

A forensic firearm and toolmark examiner for the Illinois State Police testified that of the eight bullet holes in the victim’s clothing, three shots were fired at close range. A close shot is anything under six inches.

A patron of the tavern, who considered himself to be a good friend of defendant, testified that on the evening of the shooting he was in the tavern. He heard a gunshot and upon turning around, saw the defendant with a gun. The victim was kneeling on the floor. The victim was not armed. Defendant then fired again at the victim several times. Defendant left the tavern with the gun in his hand.

Another patron testified that he saw defendant walk up to the victim and take a swing at him. There was a scuffle and then a gunshot. The witness did not see the victim with a weapon, but did see the defendant with one. When the defendant fired the first shot, the victim was already on the ground and the defendant shot down at the victim. The victim was not touching the gun. Defendant left the tavern with the gun.

Another patron testified that the defendant approached the victim and accused him of ignoring him. Defendant then shot the victim. There was no struggle between them and the defendant did not strike the victim.

The surgeon who treated the victim for the gunshot wounds testified that he observed four bullet entrance wounds: in the left groin, the right outer thigh, the left flank or side and in the left upper back near the shoulder blade.

We find that the evidence of guilt is overwhelming and that there is no substantial likelihood that the jury would have reached a different result had it been properly instructed. Thus, defendant has waived the instructional error and because he has failed to show actual prejudice as a result of the error, fundamental fairness does not entitle him to collateral relief. Accordingly, we find that the trial court erred in granting defendant’s post-conviction petition and reverse the order of the circuit court of St. Clair County which granted that petition.

The State has raised other issues on appeal which, in light of our holding herein, we need not address. We therefore decline to do so.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby reversed and defendant’s conviction for attempted murder is reinstated.

Reversed.

HOWERTON, J., concurs.

JUSTICE HARRISON,

dissenting:

While I agree with the majority that People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, is of no assistance in determining whether the jury herein was adequately instructed regarding the elements of the offense of attempted murder and the State’s burden of proof with respect to the justifiable use of force, I disagree with the majority’s conclusion that Reddick fails to establish any law which applies to the instant case. In Reddick, the Illinois Supreme Court reaffirmed its previous holding that “certain instructions, such as the burden of proof and elements of the offense, are essential to a fair trial and that the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the People’s burden of proof.” (123 Ill. 2d at 198, 526 N.E.2d at 147.) The Reddick court concluded that although one of the defendants had not raised the instructional error at trial, in a post-trial motion or in the direct appeal, where the error was grave, waiver should not preclude this rule from applying to him. (123 Ill. 2d at 198-99, 526 N.E.2d at 146-47.) Therefore, in the case at bar, the trial court’s order correctly cited Reddick for the proposition that where the jury is not properly instructed on the State’s burden to disprove an affirmative defense, grave error occurs such that the doctrine of waiver should not bar consideration of the issue.

Here, as the majority admits, the failure to include the element requiring the State to prove that defendant was not justified in using the force which he used, in the issues instruction for attempted murder, constituted clear instructional error. Therefore, under Reddick, defendant need show nothing more in order to establish the viability of the issue for review, despite waiver of the error. Further, in People v. Flowers (1990), 138 Ill. 2d 218, 234-35, 561 N.E.2d 674, 680, the Illinois Supreme Court considered a defendant’s Reddick claim despite the defendant’s failure to specifically raise the issue prior to his post-conviction hearing, agreeing that, as in Reddick, the “important principle involved” required its consideration.

Although the court in Flowers ultimately determined that the particular instructional error identified in Reddick was addressed through the use of a new constitutional rule which could not be applied retroactively on collateral review, this determination was totally separate from the question of whether a grave instructional error of this type is waived. Thus, contrary to the majority’s view, I do not believe the doctrine of waiver prevents our review of this issue. The trial court properly considered the jury instruction issue on post-conviction review despite defendant’s failure to raise the issue in an earlier proceeding.

Nor do I agree with the majority that the instructions given in the instant case, when considered as a whole, sufficiently informed the jury of the State’s burden of proof. Modifications to the issues instructions are necessary when an affirmative defense is raised even when an instruction defining the affirmative defense is given — as was the case here:

“ ‘ “[The drafter of the Illinois Pattern jury instructions] has concluded that the elements or issues of an affirmative defense should be treated in two ways: first, by definition following the definition of the crime with which the defendant is charged ***, and second, in the same instruction with the issues or elements of the crime and the state’s burden of proof.” (IPI Criminal No. 25.00, Committee Comments, at 435-36 (1968).)’ ” People v. Brophy (1981), 96 Ill. App. 3d 936, 942-43, 422 N.E.2d 158, 164, quoting People v. Lewis (1977), 53 Ill. App. 3d 89, 93, 368 N.E.2d 619, 623.

Here, the instruction setting forth the elements of the offense charged against defendant, attempt, erroneously failed to include that the State must prove beyond a reasonable doubt that defendant was acting without lawful justification. Even if the instructions are considered as a whole, this error still remains. Therefore, I would affirm the trial court’s vacation of defendant’s conviction for attempted murder and would remand the case for a new trial on the charge. See Brophy, 96 Ill. App. 3d at 946, 422 N.E.2d at 165-66; Reddick, 123 Ill. 2d at 199. 526 N.E.2d at 147.


author: JUSTICE HARRISON

text:
    NORMAN E. BOATMAN et al., Plaintiffs-Appellees, v. A.P. GREEN REFRACTORIES COMPANY et al., Defendants (North American Refractories Company, Defendant-Appellant).
    Fifth District
    No. 5 — 91—0231
    Opinion filed December 31, 1991.

      Kenneth R. Heineman, Bruce D. Ryder, and Ronald L. Hack, all of Coburn, Croft & Putzell, of St. Louis, Missouri, for appellant.
    Randall A. Bono and Michael R. Bilbrey, both of Bono, Goldenberg, Hopkins & Bilbrey, P.C., of Wood River, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

Before us are permissive interlocutory appeals under Supreme Court Rule 308 (134 Ill. 2d R. 308) from identical orders entered by the circuit court of St. Clair County in each of six separate but related cases involving the same 19 defendants. The challenged orders denied petitions filed by defendant North American Refractories Company (North American) pursuant to section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001) for a change of venue based on judicial prejudice because changes of venue on account of judicial prejudice had already been granted to two of the other defendants in each case.

In all six cases a common question of law was certified for our review, namely, whether “each defendant in a multi-defendant case who files an otherwise proper and timely motion for change of venue [has] an absolute right to change of venue pursuant to Section 2 — 1001 of the Illinois Code of Civil Procedure and, if not, did the trial court err in denying the motion for change of venue herein?” By separate order, we have consolidated the six cases for argument and decision. For the reasons which follow, we now hold that each defendant in a multidefendant case does have an absolute right to one change of venue where, as here, the requirements of the venue statute have been otherwise satisfied. We therefore reverse and remand with directions that defendant North American’s petitions be granted.

The six cases involved here are part of 13 separate actions brought in the circuit court of St. Clair County to recover damages for personal injuries allegedly sustained by the plaintiffs as a result of exposure to asbestos fibers during the course of their employment as bricklayers. Named as defendants in each of the cases are 19 different companies, including the Sager Corporation, the Keene Corporation and North American. According to the pleadings, these 19 companies were responsible for manufacturing, distributing or selling the products from which the asbestos fibers emanated.

The complaints in each case were filed on December 8, 1989, and the cases were assigned to Judge Patrick Fleming, along with the seven other asbestos suits. In May of 1990, the plaintiffs in all 13 of the suits sought and obtained a change of venue pursuant to section 2 — 1001 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001) on the grounds that Judge Fleming was prejudiced against them. The cases were then reassigned to Judge James M. Radcliffe.

Four months later, defendant Sager Corporation sought and obtained a change of venue on the grounds that Judge Radcliffe was prejudiced against it. The cases were next reassigned to the Honorable Stephen M. Kernan. The following month, defendant Keene Corporation filed its own petitions for a change of venue alleging prejudice by Judge Kernan. Its petitions were also granted, and the cases were reassigned to a third judge, the Honorable Roger Scrivner. The month after that, petitions for a change of venue were filed by defendant North American alleging prejudice on the part of Judge Scrivner. These are the petitions which are at issue here.

Even though no prior petitions for change of venue had been filed by North American itself, even though the court had not yet ruled upon any substantial issue in the case, and even though North American’s petitions otherwise met the requirements of section 2 — 1001 of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2— 1001), the petitions were denied by Judge Scrivner following a hearing. Judge Scrivner denied them solely because of the two prior sets of petitions which had already been granted to other defendants in the litigation.

In ruling as he did, Judge Scrivner made a written finding that his orders involved a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from those orders may materially advance the ultimate termination of the litigation. As noted at the outset of this opinion, the question identified by the judge was whether “each defendant in a multi-defendant case who files an otherwise proper and timely motion for change of venue [has] an absolute right to one change of venue pursuant to Section 2 — 1001 of the Illinois Code of Civil Procedure and, if not, did the trial court err in denying the motion for change of venue herein?”

In addressing this question, we begin with the language of the statute, which states, in pertinent part, that a change of venue in a civil action may be had “[w]here any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because *** the judge is prejudiced against him or her.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(a)(2).) In such a situation, venue may be changed by consent of the parties or by application by a party or his or her attorney. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(a)(2).) Where a change of venue is granted, “it may be to some other judge in the same county, or in some other convenient county to which there is no valid objection.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(b).) No party, however, is entitled to more than one change of venue. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1002.

Our supreme court has recently reiterated that venue provisions are to be liberally construed, with an end toward effecting rather than defeating a change of venue, particularly where the impartiality of the trial judge is called into question. Where a petition asserting prejudice on the part of the trial judge is filed before trial or hearing and before the judge presiding in the case has made any substantial ruling, the right to a change of venue is absolute. If the petition for a change of venue is in proper form and timely filed, the trial judge must grant the petition. It has no discretion to do otherwise. In re Dominique F. (1991), 145 Ill. 2d 311, 318-19.

Nothing in the venue statutes authorizes a trial judge to deny a proper and timely petition simply because one or more changes of venue have already been granted to other parties in the case. As we have previously indicated, the only limitation imposed by the statutes is that no particular party “shall have more than one change of venue.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1002.) In Illinois, however, each individual defendant in a multidefendant case is deemed to be a separate party. (See, e.g., 134 Ill. 2d R. 11(c).) Accordingly, each such defendant in a multidefendant action must be regarded as having an independent right to one change of venue based on judicial prejudice.

There is no dispute that the petitions filed by defendant North American in the cases before us met all of the technical statutory requirements. They alleged that Judge Scrivner was prejudiced against North American and that such prejudice would prevent the company from receiving a fair trial. They were supported by affidavit and requested that all further proceedings in the cases be assigned to a different judge. At the time the petitions were filed, neither Judge Scrivner nor any of the previous judges had made any rulings on any substantial issues in any of the cases. In addition, defendant North American itself had not previously sought any change of venue. This was its first request. Its petitions should therefore have been granted.

In denying those petitions, the trial judge here was concerned that if all 19 of the defendants sought a separate change of venue, there would eventually be no judges left in the circuit who could hear the cases. That, however, is not a valid consideration. The staffing limitations of a particular circuit cannot be given precedence over a party’s right to trial before an impartial tribunal. If one county can provide no jurist who is free from bias, the case can, by statute, be transferred to “some other convenient county, to which there is no valid objection.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1001(b).

The trial judge also intimated that he did not believe that a change of venue based on prejudice was warranted because none of the defendants could substantiate their claims of prejudice. In his words, “I’ve never even had half of you appear in front of me. I don’t even know who you are. You’ve never had a case in front of me.” What the trial judge failed to appreciate is that none of the defendants, North American included, was required to prove prejudice in order to obtain a change of venue. Where a petition for change of venue on the basis of the trial judge’s prejudice is made, verified, and filed in accordance with the requirements of the statute before any substantive ruling is made, only general allegations of prejudice are necessary in order to trigger the petitioner’s absolute right to a substitution of judges. (In re Dominique F. (1991), 145 Ill. 2d 311, 319.) The trial judge has no right to inquire into whether those allegations are true or false. In re Marriage of Cummins (1982), 106 Ill. App. 3d 44, 47, 435 N.E.2d 506, 508.

Finally, plaintiffs argue that defendant North American’s petitions were properly denied because they were simply part of a scheme to delay or avoid a trial. There is no evidence in the record before us, however, to support such a charge, and no finding of improper motive was made by the circuit court. To the contrary, in the question certified for our consideration, the circuit court expressly assumed that North American’s petitions were “otherwise proper and timely.”

For the foregoing reasons, we must conclude that the circuit court of St. Clair County erred when it denied defendant North American’s petitions for a change of venue based on judicial prejudice. Accordingly, the circuit court’s orders denying North American’s petitions are reversed, and these causes are remanded with directions that the petitions be granted.

Reversed and remanded with directions.

LEWIS and HOWERTON, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALAN HAYNES, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0083
    Opinion filed December 30, 1991.
    Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      Gary Duncan, State’s Attorney, of Mt. Vernon (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Alan Haynes, was convicted after a jury trial of attempt (criminal trespass to a residence) (111. Rev. Stat. 1989, ch. 38, pars. 8 — 4, 19 — 4) and sentenced by the circuit court of Jefferson County to serve 10 months in the county jail. Defendant appeals both his sentence and conviction. We affirm.

At approximately 11 p.m. on July 22, 1989, defendant knocked on the door of one of the trailers in a trailer park where he frequently visited. Defendant knew the occupants of the trailer but had been warned previously not to associate with the children who resided there. On this particular evening, the oldest daughter, then 11 years old, was baby-sitting six other children in the trailer. When defendant knocked on the door, the daughter and her younger sister asked who was there. When they heard no response, they cracked open the door to see who was outside. Once the children recognized defendant, they opened the door farther. Defendant, who was intoxicated, asked to use the telephone because someone was going to beat him up. The daughter informed defendant she was not allowed to let him in and tried to shut the door. Defendant, however, stuck his foot in the doorway. The daughter then attempted to leave the trailer but was pushed back in by defendant. She tried again, and this time was successful. The daughter ran to some of her neighbors’ trailers to get help. Two neighbors came to her assistance and escorted defendant away from the trailer. Defendant never entered the children’s trailer but did prevent them from closing the door. None of the neighbors noticed any other people in the area who may have been after defendant, nor did defendant ask any of the neighbors for help. Based on this evidence, the jury found defendant guilty of attempt (criminal trespass), a Class A misdemeanor, and defendant was ordered to serve 10 months’ imprisonment in the county jail.

Defendant raises two issues on appeal, one pertaining to his conviction and the other to his sentencing. We turn first to defendant’s contention with respect to his conviction. Defendant argues he was denied effective assistance of counsel by defense counsel’s failure to tender to the jury an instruction on the defense of necessity. Defendant asserts only some evidence of a necessity defense is required to compel an instruction on such a defense, and according to defendant, his fear of being beaten up is “some evidence,” however slight, to trigger the defense that defendant acted out of necessity in attempting to criminally trespass on the children’s residence. His counsel’s failure to tender an instruction on the defense of necessity thereby deprived him of a fair trial when there was no evidence defendant had any other option but to try to use the telephone in the children’s residence to avoid harm to himself that night. We disagree.

It is true that a defendant is entitled to have the jury instructed on the defense of necessity if sufficient evidence has been introduced to support such a defense. (See, e.g., People v. Newbolds (1990), 204 Ill. App. 3d 952, 954, 562 N.E.2d 1051, 1052; People v. James (1989), 180 Ill. App. 3d 461, 464, 535 N.E.2d 1147, 1150.) Defendant, however, must be without blame in occasioning or developing the situation and must reasonably believe that his conduct, which would otherwise be an offense, was necessary to avoid a public or private injury greater than the injury which might reasonably have resulted from his own conduct. (People v. Janik (1989), 127 Ill. 2d 390, 399, 537 N.E.2d 756, 760; Newbolds, 204 Ill. App. 3d at 954, 562 N.E.2d at 1052; James, 180 Ill. App. 3d at 465, 535 N.E.2d at 1150.) Necessity involves a choice that can only be made between two admitted evils, other options being unavailable. (Janik, 127 Ill. 2d at 399, 537 N.E.2d at 760; People v. Branham (1991), 217 Ill. App. 3d 650, 651, 577 N.E.2d 803, 805.) When another alternative exists besides the two evil choices which, if carried out, would cause less harm, then the accused is not justified in breaking the law. (See People v. White (1979), 78 Ill. App. 3d 979, 981, 397 N.E.2d 1246, 1247.) Here, defendant had available other courses of action which were less harmful.

Defendant claims he tried to force his way into the trailer because he needed to use the phone to avoid being beaten. We first note that nothing in the record points to who allegedly was pursuing defendant or why he was being pursued. Accordingly, nothing confirms defendant was without blame in occasioning or developing the situation. More importantly, there was no evidence of anyone after defendant such that his attempted criminal trespass was necessary at that particular point in time. Defendant remained at the children’s trailer door for several minutes even though he knew other people who lived in the trailer park. If defendant truly were in dire emergency, he just as easily could have gone to another home to use a telephone. Once the neighbors arrived, defendant did not even request their help or ask to use their phones. The evidence further revealed the trailer park had a public phone. Defendant’s choices, therefore, were not limited solely to being beaten up or getting inside the children’s trailer. While it may have been necessary for defendant to use a telephone to get help, it was not necessary to use the children’s telephone. Under such circumstances, defendant simply was not justified in attempting to force his way into the trailer. And, as there was insufficient evidence at trial to trigger the giving of a necessity-defense instruction, defense counsel accordingly was not ineffective for not requesting that it be given. Defendant, therefore, was not denied a fair trial. See People v. White (1989), 180 Ill. App. 3d 1032, 1035, 536 N.E.2d 812, 815; see also People v. Gray (1980), 87 Ill. App. 3d 142, 150, 408 N.E.2d 1150, 1156; cf. People v. Pegram (1988), 124 Ill. 2d 166, 174, 529 N.E.2d 506, 509-10; Newbolds, 204 Ill. App. 3d at 954-55, 562 N.E.2d at 1052-53.

Defendant also argues on appeal the sentencing scheme which allows attempt misdemeanors to be punished as severely as the offenses attempted while attempt felonies are not punished as severely as the offenses attempted is unconstitutional. Again, we disagree.

We start with the proposition that all legislative enactments carry a strong presumption of constitutionality, and all doubts are to be resolved in favor of their validity. (People v. Esposito (1988), 121 Ill. 2d 491, 497, 521 N.E.2d 873, 875.) Because no fundamental right or suspect class is involved in this instance, the classification at issue need only bear a rational relationship to a valid legislative purpose. And, only if this classification is based on reasons totally unrelated to the pursuit of a legitimate State interest will we find the sentencing scheme to be unconstitutional. (See Esposito, 121 Ill. 2d at 500, 521 N.E.2d at 877.) Moreover, the legislature is not prohibited from enacting statutes which affect different classes of people differently as long as there is a rational basis for so doing and no fundamental right is involved. (Esposito, 121 Ill. 2d at 501, 521 N.E.2d at 877.) There simply is no requirement that a statutory classification be accurate or harmonious so long as it is not arbitrary and will accomplish the desired legislative design. (Esposito, 121 Ill. 2d at 501-02, 521 N.E.2d at 878.) The legislature is “allowed to take reform ‘one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,’ [citation]; and a legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.” McDonald, v. Board of Election Commissioners (1969), 394 U.S. 802, 809, 22 L. Ed. 2d 739, 746, 89 S. Ct. 1404, 1409, quoting Williamson v. Lee Optical of Oklahoma, Inc. (1955), 348 U.S. 483, 489, 99 L. Ed. 563, 573, 75 S. Ct. 461, 465; see also Esposito, 121 Ill. 2d at 503, 521 N.E.2d at 878.

At common law, all attempts were misdemeanors. (See Ill. Ann. Stat., ch. 38, par. 8 — 4, Committee Comments, at 498 (SmithHurd 1989).) By statute, however, the legislature chose to increase the penalties for attempts at the most serious felonies. This is understandable as these perpetrators pose a greater hazard to society by the very nature of the offenses attempted. The legislature quite properly may act to protect people from the most serious threats to their safety. (See Esposito, 121 Ill. 2d 491, 521 N.E.2d 873; see also People v. Morris (1990), 136 Ill. 2d 157, 554 N.E.2d 235.) Merely because the legislature has chosen to remedy an evil by taking this step of increasing penalties for attempts at more serious felonies does not mean the legislature must also establish lesser sentences for attempted misdemeanors in order to balance out the statute. Simply because defendant falls into a category upon which the legislature has not felt the need to act does not mean the resulting classification is unconstitutional. We further note the legislature has traditionally treated felons and misdemeanants differently. Accordingly, as there is a rational basis for the differing classifications, we find the sentencing schemes defendant challenges to be constitutional.

For the aforementioned reasons, we affirm the judgment of the circuit court of Jefferson County.

Affirmed.

GOLDENHERSH, P.J., and CHAPMAN, J., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS HENDERSON, Defendant-Appellant.
    Third District
    No. 3 — 91—0108
    Opinion filed December 18, 1991.

      Daniel J. Bute, of Ottawa, for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (John X. Breslin and Robert M. Hansen, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Defendant, Curtis Henderson, was convicted of criminal damage to State-supported property (Ill. Rev. Stat. 1989, ch. 38, par. 21— 4(a)). The defendant raises the following issues on appeal: (1) whether the trial court erred in ordering that the defendant be restrained with leg shackles throughout the jury trial; (2) whether the trial court erred in granting the State’s motion in limine preventing the defendant from raising the defense of necessity, and in refusing to instruct the jury on that defense; (3) whether the trial court erred in allowing the State to reopen its case to prove an essential element of the offense; and (4) whether remarks by the prosecutor during closing argument were improper and prejudicial. We affirm.

The record shows that on August 9, 1990, the defendant was an inmate at Sheridan Correctional Center (Sheridan), a facility of the Illinois Department of Corrections. The defendant was classified as a maximum segregation inmate. On the morning of August 9, 1990, the defendant was exercising in the segregation yard at Sheridan. After an hour in the yard, a correctional center employee told the defendant that it was time for him to cuff up and return to his cell. The defendant refused to cuff up, stating that he was entitled to 2V2 hours in the yard. After being told that the prison administration had limited his yard time, the defendant picked up a barbell and began breaking windows. He broke 24 window panes before a prison employee sprayed the defendant with mace. The defendant then agreed to cuff up and return to his cell. As he was being cuffed, the defendant spat upon a prison employee. The cost of replacing the windows was approximately $450.

At trial, the defendant was charged with aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(6)) for spitting on the prison employee and damage to State-supported property (Ill. Rev. Stat. 1989, ch. 38, par. 21 — 4(a)) for breaking the windows. The jury found the defendant not guilty of aggravated battery and guilty of criminal damage to State-supported property. He was sentenced to 240 days’ imprisonment to run consecutive to his present prison sentence.

We first address the defendant’s contention that the trial court erred in ordering that the defendant be restrained with leg shackles throughout the trial. The determination of whether a defendant should remain shackled during a trial is left to the discretion of the trial judge, and that decision will not be reversed absent an abuse of discretion. (People v. Boose (1977), 66 Ill. 2d 261, 362 N.E.2d 303.) In Boose, the supreme court enumerated factors which the trial judge should consider in determining whether a defendant should be shackled. Among these factors are: (1) the seriousness of the charge; (2) the defendant’s temperament, character, age, and physical attributes; (3) his past record; (4) his past escapes and attempted escapes, and evidence of a present plan to escape; (5) threats to harm others or cause a disturbance; (6) the nature and physical security of the courtroom; and (7) the adequacy and availability of alternative remedies. Boose, 66 Ill. 2d at 266-67, 362 N.E.2d at 305-06.

In this case, the trial judge did not abuse his discretion in ordering that the defendant be restrained with leg shackles. At the time of trial, the defendant was serving a sentence for murder and was not eligible for parole until sometime after the year 2020. Furthermore, the defendant had committed 248 prison disciplinary violations since his incarceration. Based on these facts, the trial judge determined that the defendant was a candidate for escape and posed a threat to the safety of the people in the courtroom.

Upon making this determination, the trial judge took steps to insure that the restraints would not prejudice the defendant. The judge ordered that the defendant was not to be handcuffed and that his leg shackles were not to be attached to the floor. He further ordered that skirting be placed around both counsel tables to prevent the jury from seeing the shackles.

Throughout the trial, the defendant was moved in and out of the courtroom and to the witness stand out of the presence of the jury. At the close of the trial, the judge made the following statement for the record:

“The jury has now retired to the jury room to deliberate its verdict and I am happy to report that there has been no incident in this courtroom where I believe that the jury would have any idea whatsoever that the defendant had shackles on his feet.”

We find that the trial judge properly ordered that the defendant be restrained and that the defendant was not prejudiced by that order.

The defendant next argues that the trial court erred in denying the defendant’s motion for a directed verdict and allowing the State to reopen its case to prove an element of the offense of criminal damage to State-supported property. At the close of the State’s case, the defendant moved for a directed verdict on the criminal damage charge claiming that the State had failed to prove an essential element of the offense, to wit, that the damaged property was supported in whole or in part by State or Federal funds. The trial judge agreed that the State had failed to establish this element, but the judge considered it a technical point and allowed the State to reopen its case to prove that Sheridan was supported by State funds.

Proof that damaged property is supported by State or Federal funds is not a technical point, but rather an essential element of the crime of damage to State-supported property. (People v. Bartlett (1988), 175 Ill. App. 3d 686, 530 N.E.2d 90.) However, a court may, in its discretion, allow the State to reopen its case not only for the purpose of proving formalities but also to establish the very facts necessary for a conviction. (In re J.B. (1983), 120 Ill. App. 3d 155, 457 N.E.2d 983; People v. Price (1972), 8 Ill. App. 3d 158, 289 N.E.2d 280.) In People v. Faulkner (1978), 64 Ill. App. 3d 453, 381 N.E.2d 321, the appellate court affirmed the decision of the trial court allowing the State to reopen its case to prove the value of stolen property in a theft prosecution. Accordingly, we find that it was not an abuse of discretion for the trial court to permit the State to reopen its case to prove that Sheridan was supported by State funds.

The defendant’s reliance on People v. Bartlett (1988), 175 Ill. App. 3d 686, 530 N.E.2d 90, is misplaced. In Bartlett, the defendant was charged with criminal damage to State-supported property for wiping human excrement on the wall of a police department holding cell. During the bench trial, the State failed to offer any evidence that the damaged property was supported by State funds. At the close of the State’s case, the defendant moved for a directed verdict, arguing that the State had failed to prove an element of the offense. The trial court denied the motion, the defense proceeded with its case, and the defendant was subsequently convicted. The appellate court reversed the conviction, finding that the State had failed to prove an essential element of the crime.

The distinguishing factor between Bartlett and the instant case is that in Bartlett the record lacked any competent evidence that the damaged property was supported by State or Federal funds. Therefore, the appellate court found that all of the essential elements of the crime were not proven beyond a reasonable doubt. Here, the record clearly shows that the State offered sufficient proof that Sheridan was supported by State funds. The question is whether it was an abuse of discretion for the trial court to allow the State to reopen its case to prove that element. We find that it was not.

The defendant next argues that the trial court erred in granting the State’s motion in limine preventing the defendant from raising the defense of necessity. At the close of the State’s case, the State filed a motion in limine requesting that the defendant be prohibited from raising the defense of necessity and from eliciting testimony in support of that defense. Defense counsel argued that the defendant and another inmate intended to testify to the harsh living conditions which maximum segregation inmates are subjected to and that this testimony would show that the defendant was justified in breaking the windows based on the defense of necessity. The trial court granted the State’s motion in limine to exclude the testimony and prohibit the defendant from raising the necessity defense. The court found that the defense of necessity was inapplicable in this case and that evidence of the defendant’s living conditions was not relevant.

A motion in limine should be used with caution so as not to deprive a criminal defendant of a legally viable defense. (People v. Brumfield (1979), 72 Ill. App. 3d 107, 390 N.E.2d 589.) However, such motions are encouraged in criminal cases to exclude collateral or extraneous matters. (People v. Clark (1984), 129 Ill. App. 3d 374, 472 N.E.2d 814.) When an affirmative defense is raised which is unavailable as a matter of law, the trial court may properly grant a motion in limine prohibiting the introduction of evidence in support of that defense. (People v. Downey (1987), 162 Ill. App. 3d 322, 515 N.E.2d 362.) A reviewing court will not reverse a trial court’s grant or denial of a motion in limine absent a manifest abuse of discretion. People v. Williams (1978), 60 Ill. App. 3d 529, 377 N.E.2d 367.

In this case, the trial judge did not abuse his discretion in granting the State’s motion. The affirmative defense of necessity is defined by statute in section 7 — 13 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 13). Section 7 — 13 provides:

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” (Ill. Rev. Stat. 1989, ch. 38, par. 7 — 13.)

Conduct which would otherwise be illegal is justified by necessity only if the conduct was the sole reasonable alternative available to the defendant under the circumstances. (People v. Perez (1981), 97 Ill. App. 3d 278, 422 N.E.2d 945.) The defendant argues that his rights and privileges had been so severely restricted by the prison authorities that breaking the windows was the only reasonable course of conduct available to him under the circumstances.

In People v. Whitson (1984), 127 Ill. App. 3d 999, 470 N.E.2d 1054, the defendant was convicted of unlawful restraint for holding prison guards captive during a prison takeover by inmates. On appeal, the defendant argued that the trial judge erred in refusing to consider the defense of necessity during the bench trial. The defendant contended that the purpose of the takeover was to bring to the attention of the warden the deplorable conditions under which the prisoners were forced to live. The conditions complained of included bugs and vermin, broken windows, cold food, lack of access to the law library and yard time, and showers only once a week. The defendant argued that because of these conditions the court could have concluded that the takeover was necessary in order to avoid greater injury than the offense could reasonably be expected to cause. The appellate court found that the defendant was not in imminent danger of bodily harm when he committed the allegedly necessary act, nor had he exhausted all available alternatives. Furthermore, his presence in a unit which provided fewer privileges than those provided to the general population was a result of the defendant’s prior conduct and, therefore, he was not without blame as to his situation. The trial court was correct in refusing to find that the defendant’s actions fell within the defense of necessity. Whitson, 127 Ill. App. 3d 999, 470 N.E.2d 1054.

Similarly here, the defendant was not in imminent danger of bodily harm when he broke the windows. Breaking the windows was not the proper way for the defendant to file his grievance, much less his sole reasonable alternative. The restrictions on the defendant’s rights and privileges were due, at least in part, to the 248 disciplinary violations the defendant has committed since his incarceration. As in Whitson, the defendant here was not without blame as to his situation.

For the above-stated reasons, we agree with the trial court that the defense of necessity was not a viable defense in this case. Accordingly, we find that the trial judge did not abuse his discretion in granting the State’s motion in limine and in rejecting defendant’s tendered instruction on the defense of necessity.

Finally, the defendant contends that the State’s closing argument was so inflammatory and prejudicial that the defendant was denied a fair trial. Generally, a prosecutor is allowed wide latitude in closing argument. It is well settled that even though every defendant is entitled to a trial free from improper comments or arguments that engender prejudice, a verdict will not be set aside unless the remarks are clearly prejudicial, affecting the outcome of the case. (People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104.) In determining whether the remarks constituted prejudicial error, the test is whether the jury would have reached a contrary verdict had the improper remarks not been made. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

The defendant cites four allegedly prejudicial statements made by the prosecutor during closing argument. The first two statements dealt with inferences drawn from the defendant’s testimony. Such comments are proper argument. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) The third statement was an improper comment on an instruction which the judge was not going to give to the jury. The fourth statement was an improper appeal to the jury to support prison employees by returning a guilty verdict. While we do not condone the last two statements cited by the defendant, we find no substantial error, nor do we find that the cumulative impact of any errors in closing argument alleged by the defendant deprived him of a fair trial.

For the reasons stated above, we affirm the judgment and sentence of the circuit court.

Affirmed.

STOUDER, P.J., and McCUSKEY, J., concur.