author: JUSTICE DiVITO

text:
    MILDRED DENNIS et al., on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellees, v. OLD REPUBLIC INSURANCE COMPANY, Defendant-Appellant (La Salle Bank Lake View, f/k/a Lake View Trust and Savings Bank, Defendant).
    First District (2nd Division)
    No. 1-90-2107
    Opinion filed August 6, 1991.
    Rehearing denied September 26, 1991.

      Lord, Bissell & Brook, of Chicago (Edward C. Fitzpatrick and Albert E. Fowerbaugh, Jr., of counsel), for appellant.
    Lawrence Walner & Associates, Ltd., of Chicago (Lawrence Walner and Daniel A. Edelman, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs Mildred Dennis, Patricia Murphy, and Richard Moore, Jr., brought suit on behalf of themselves and others similarly situated against defendants Old Republic Insurance Company (Old Republic) and La Salle Bank Lake View (La Salle Bank) to recover for damages incurred in calculating the refund credit due upon prepayment of alleged retail installment contracts. Old Republic’s motion to dismiss the complaint was denied by the circuit court. Thereafter, the circuit court certified the order for interlocutory appeal under Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308), raising as issues (1) whether the use of the Rule of 78’s in calculating the refund credit due upon prepayment of a loan under $25,000 which is secured by a mortgage on residential real estate is authorized by section 4a of “An Act in relation to the rate of interest and other charges in connection with sales on credit and the lending of money” (Interest Act) (Ill. Rev. Stat. 1987, ch. 17, par. 6410); (2) whether the use of the Rule of 78’s in calculating the refund credit due upon prepayment of a loan is prohibited by section 4 of the Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6404(3)); and (3) whether the Interest Act applies to the alleged “retail installment” sales contracts entered into by the parties.

Of the three named plaintiffs in this case, Mildred Dennis (Dennis) is the only one with a claim against Old Republic; thus, only Dennis’ claim will be discussed. The facts giving rise to Dennis’ claim are as follows.

In the spring of 1987, Dennis purchased home improvement goods and services from House of Beauty Builders (House of Beauty). House of Beauty then undertook to secure financing for Dennis from La Salle Bank. The contract entered into between Dennis and House of Beauty, dated June 25, 1987, provided for the sale of goods and services, including installation of a new bathtub, ceilings, panelling, and flooring and provided for the “payoff of Drexel Bank $2,000.00.” Also on June 25, 1987, another document, entitled “retail installment contract,” was signed by Dennis. This document, as part of the contract between Dennis and House of Beauty, provided that the amount financed was $13,500 ($2,000 to go to Drexel Bank) payable in 84 installments of $265.92. The retail installment contract listed the annual percentage rate, finance charge, and other required disclosures.

In addition, the retail installment contract provided that a mortgage on Dennis’ home would be taken as security. House of Beauty then had Dennis sign a trust deed on her home to secure payment.

Thereafter, House of Beauty assigned the contract to La Salle Bank, which subsequently assigned it to Old Republic after plaintiff refused, due to alleged defects in the work performed, to make payments. In its letter advising Dennis of the assignment, Old Republic described Dennis’ obligation as an “instalment loan.” Old Republic attempted, pursuant to the contract, to accelerate the balance, using the Rule of 78’s.. The contract stipulated that involuntary acceleration, triggered by nonpayment, was to be treated the same as voluntary prepayment. In the event of prepayment, the contract provided that “the Buyer shall receive a rebate of unearned finance charge computed on the Rule of 78’s.”

Subsequently, Dennis filed suit against La Salle Bank and Old Republic, alleging that the use of the Rule of 78’s to calculate her rebate of unearned finance charges was prohibited by section 4 of the Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6404(3)). Dennis contended that the actuarial method was the proper method for calculating her rebate.

In response, Old Republic moved to dismiss Dennis’ complaint under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). For support, Old Republic contended that the contract, a retail installment contract, was governed, not by the Interest Act, but by the Retail Installment Sales Act (RISA) (Ill. Rev. Stat. 1987, ch. 121V2, par. 501 et seq.). Section 7 of RISA expressly permits a seller to use the Rule of 78’s to calculate the refund credit due upon prepayment of an obligation. (Ill. Rev. Stat. 1987, ch. I2IV2, par. 507.) The circuit court denied Old Republic’s motion and certified the order for interlocutory appeal.

I

Old Republic initially contends that it is authorized by section 4a of the Interest Act to use the Rule of 78’s to calculate the prepayment rebate. Section 4a provides, in pertinent part, as follows:

“On money loaned to or in any manner owing from any person, whether secured or unsecured, except where the money loaned or in any manner owing is directly or indirectly for the purchase price of real estate or an interest therein and is secured by a lien on or retention of title to that real estate or interest therein, to an amount not more than $25,000 (excluding interest) which is evidenced by a written instrument providing for the payment thereof in 2 or more substantially equal periodic installments over a period of not more than 181 months from the date of the execution of the written instrument, *** the debtor may satisfy in full at any time before maturity the debt evidenced by the written instrument, and in so satisfying must receive a refund credit against the total amount of interest added to the principal in an amount at least as great a proportion of the total interest, as the sum of the periodical time balances after the date of payment bears to the sum of all the periodical time balances under the schedule of payments provided for in the written instrument ***.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 17, par. 6410(a).

Despite the language of the statute authorizing a refund “at least as great” as that calculated by the Rule of 78’s, Dennis contends that section 4a of the Interest Act does not authorize the use of the Rule of 78’s. For support, Dennis relies upon Dechow v. Sko-Fed Credit (1989), 181 Ill. App. 3d 367, 536 N.E.2d 1382.

In Dechow, the plaintiffs borrowed $49,000 for 15 years from the defendant and secured this loan with a first mortgage on their residence. When the plaintiffs attempted to prepay the loan, the defendant based its computation of the interest refund upon the Rule of 78’s pursuant to the contract between the parties. The Dechow court held that use of the Rule of 78’s to calculate the prepayment refund was improper. In so holding, the court reasoned that “[i]t is untenable to suggest that the interest ‘accrues’ according to the Rule of 78’s, since during early periods of long-term loans, the amounts constituting interest under the Rule of 78’s *** will generally exceed what has actually been collected according to the payment schedule.” (Dechow, 181 Ill. App. 3d at 372.) Because of the resulting inequity, “the lender on a loan secured by a mortgage on residential real estate, upon prepayment, may only collect additional interest at the annual rate, essentially prorated over the period since interest on the principal balance was last paid.” (Dechow, 181 Ill. App. 3d at 372-73.) The Dechow court further held that, despite section 4a’s inapplicability to the case, if section 4a were deemed applicable, it would not “specifically authorize computation of interest due by any method other than the actuarial method.” Dechow, 181 Ill. App. 3d at 371.

Notwithstanding the Dechow holding, it appears that section 4a does indeed authorize, or at least does not prohibit, the use of the Rule of 78’s. Unlike Dechow, Dennis’ installment contract in the instant case was for an amount less than $25,000. Thus, unlike Dechow, the facts in the instant case fall within the purview of section 4a. Moreover, despite language to the contrary in Dechow, section 4a of the Interest Act allows for the use of the Rule of 78’s in calculating the prepayment refund; the italicized language in the above-quoted portion of section 4a is simply the formula for the Rule of 78’s. See Lanier v. Associates Finance, Inc. (1985), 134 Ill. App. 3d 183, 479 N.E.2d 1227 (Rule of 78’s implicitly held proper in determining the prepayment refund of a $24,961.48 loan secured by a 10-year mortgage on a residence); cf. Ortegel v. ITT Thorp Corp. (1991), 210 Ill. App. 3d 669, 569 N.E.2d 586.

In the instant case, Dennis’ contract falls within the purview of section 4a of the Interest Act. The amount of the money loaned is less than $25,000 and the written instrument evidencing Dennis’ contract provided for less than 181 monthly installments. Consequently, as section 4a allows for a prepayment refund of an amount at least as great as that calculated using the Rule of 78’s, the use of the Rule of 78’s is proper in this case as the minimum amount of prepayment refund a lender must return.

II

Old Republic next contends that section 4 of the Interest Act does not prohibit the use of the Rule of 78’s in calculating the prepayment refund in the instant case. Specifically, Old Republic maintains that section 4 does not conflict with section 4a of the Interest Act. In the alternative, Old Republic maintains that any conflicts should be resolved in favor of section 4a of the Interest Act.

Section 4 of the Interest Act, which was relied upon by the circuit court in denying Old Republic’s motion to dismiss, provides, in pertinent part, as follows:

“In any contract or loan which is secured by a mortgage, deed of trust, or conveyance in the nature of a mortgage, on residential real estate, the interest which is computed, calculated, charged, or collected pursuant to such contract or loan, *** may not be computed, calculated, charged or collected for any period of time occurring after the date on which the total indebtedness, with the exception of late payment penalties, is paid in full.
*** In the event of a prepayment of the indebtedness which is made on a date after the date on which interest on the indebtedness was last computed, calculated, charged, or collected but before the next date on which interest on the indebtedness was to be calculated, *** charged, or collected, the lender may calculate, charge and collect interest on the indebtedness for the period which elapsed between the date on which the prepayment is made and the date on which interest on the indebtedness was last computed, calculated, charged or collected at a rate equal to 1ls6o of the annual rate for each day which so elapsed, which rate shall be applied to the indebtedness outstanding as of the date of prepayment.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 17, par. 6404(3).

Despite the statutory language of section 4a of the Interest Act authorizing the use of the Rule of 78’s in a loan installment contract under $25,000, Dennis urges that use of the Rule of 78’s is prohibited by language in section 4 of the same Act. Specifically, Dennis maintains that the portion of section 4 which stipulates the interest to be charged on the indebtedness between the date of prepayment and the last interest computation mandates a computation based upon the actuarial method or, in other words, “Vseo of the annual rate for each day.”

In the instant case, both parties maintain that the legislative history behind section 4 supports their respective arguments. Old Republic’s contention, however, is more persuasive. Old Republic quotes Representative Cullerton, the sponsor of House Bill 204, which added section 4 to the Interest Act, who stated that section 4 “basically says that you just can’t charge interest on money that isn’t loaned.” In other words, section 4 prohibits interest charges on the balance for the period between the prepayment and the next interest computation date. Furthermore, section 4 stipulates that interest charges between the last date of computation of interest and prepayment shall be calculated on a daily basis for each day between those dates. Thus, if interest were typically calculated on the 30th of each month, and a borrower prepaid on the 15th day of the 5th month, that borrower would receive a refund of the interest computed on the 15 days, calculated by the actuarial method. Section 4, however, does not necessarily mandate which method of prepayment refund calculation shall be used on the four months prior to prepayment. According to Representative Cullerton, section 4 addresses only the period between the last interest computation and the date of prepayment.

This court may, in determining the intent of the legislature, consider not only the language of the statute, but also ‘the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved.’ ” (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 239, 537 N.E.2d 284, quoting Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.) It appears that the legislature enacted section 4 to remedy the “evil” of charging interest on loans after they had been fully prepaid.

Dennis further argues that section 4 of the Interest Act takes precedence over section 4a because section 4 is the more specific statute. In response, Old Republic urges the opposite result. It is a well-settled rule of statutory construction that where there is a specific statutory provision, and where there is a general statutory provision which relates to the same subject, the specific statute controls over the general statute. McCann v. Lisle-Woodridge Fire Protection District (1983), 115 Ill. App. 3d 702, 711, 450 N.E.2d 1311.

In the instant case, section 4a is the more specific statute. Section 4, entitled “General interest rate,” applies to “any contract or loan which is secured by a mortgage *** on residential real estate,” whereas section 4a, entitled “Installment loan rate,” applies to installment loans whether secured or unsecured. (Ill. Rev. Stat. 1987, ch. 17, pars. 6404, 6410.) Based upon the titles of these sections as well as their contents, we find that section 4a is the more specific. Consequently, section 4a applies to the instant case of a secured installment contract.

Dennis further argues that policy reasons, as evidenced by the legislature’s slow erosion of the use of the Rule of 78’s, should convince this court to hold that the Rule of 78’s does not apply to obligations secured by home mortgages. Dennis maintains that the legislature perceived the problem as that of homeowners having their home equity encumbered by charges for credit that they did not actually use. Further, Dennis argues that lenders should not be allowed to jeopardize residential mortgages, typically good security for a loan, with use of the Rule of 78’s.

We agree with Dennis that the use of the Rule of 78’s on residential mortgages presents a significant consumer protection problem. Notwithstanding Dennis’ well-founded reasons for a policy change, however, the decision to prohibit the use of the Rule of 78’s in consumer credit transactions secured by home mortgages is not a matter for the courts, but rather involves a policy decision more properly addressed to the legislature. (See Lanier v. Associates Finance, Inc. (1986), 114 Ill. 2d 1, 17, 499 N.E.2d 440.) Although conceding the basic unfairness of charging consumers higher prepayment interest rates on obligations secured by home mortgages, this court is unable to legislate the necessary changes to abrogate the use of the Rule of 78’s. See Lanier, 114 Ill. 2d at 17.

Ill

Old Republic lastly contends, in the alternative, that the Interest Act is not applicable to the contract in the instant case. Rather, Old Republic argues that the contract is a straightforward consumer goods installment contract and, thus, is governed by RISA.

It is well settled that the Interest Act applies to those contracts which in substance involve a loan of money and is not applicable where there is a bona fide sale of goods or services. (Computer Sales Corp. v. Rousonelos Farms, Inc. (1989), 190 Ill. App. 3d 388, 392, 546 N.E.2d 761.) Thus the Interest Act is inapplicable to consumer sales contracts and RISA governs. Furthermore, section 7 of RISA expressly permits the seller to use the Rule of 78’s to calculate the refund credit due upon prepayment. Section 7 provides, in pertinent part, that “the buyer may prepay the contract in full *** at any time before maturity, and if he does so, shall receive a refund credit” at least as great as that calculated using the Rule of 78’s. Ill. Rev. Stat. 1987, ch. 121V2, par. 507.

In response, Dennis contends that the contract with House of Beauty was a consumer installment sales contract in form only. She maintains that the contract was actually a loan from La Salle Bank. For support, she points to the fact that $2,000 of the $13,500 contract price was used to pay off an existing debt to another bank. Moreover, she argues that the security used to support her obligation, a trust deed to her home, is consistent with a loan transaction.

In the instant case, the combined effect of the $2,000 payment with the security of Dennis’ home suggests that the contract entered into between House of Beauty and Dennis was not merely a retail installment contract. Even Old Republic, in attempting to collect from Dennis, described the contract as an “instalment loan.” Although Dennis is not limited merely to the face of the contract but may show the complete transaction in order to support her case sounding in usury (First National Bank v. Larkins (1983), 111 Ill. App. 3d 953, 444 N.E.2d 818), the fact that her contract with House of Beauty may have been a loan is immaterial.

Assuming that the contract was a loan does not negate the fact that the use of the Rule of 78’s is still a proper method for determining a prepayment refund pursuant to the Interest Act. As previously stated, sections 4 and 4a of the Interest Act do not prohibit the use of the Rule of 78’s in installment contracts, whether secured or unsecured. Consequently, whether the contract is categorized as a loan or a retail installment sale, the Rule of 78’s is a proper method for determining the prepayment interest refund.

Accordingly, because neither section 4a nor section 4 of the Interest Act prohibits the use of the Rule of 78’s in calculating the prepayment interest rebate, the judgment of the circuit court of Cook County is reversed and remanded with directions to dismiss the cause.

Reversed and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.

      The Rule of 78’s is a method of calculating the refund credit due upon early payment of a loan. The amount of the refund equals a proportion of the total interest, as the sum of the periodical time balances after the date of payment bears to the sum of all the periodical time balances under the schedule of payments provided for in the contract. Under this method, a higher percentage of the total finance charge is attributable to the first months of a loan. Thus, inherent in the Rule of 78’s is that the interest or finance charges are higher on the earlier installments and diminish with time.

      In the actuarial method of computing interest, an agreed-upon rate of interest is applied to the outstanding balance periodically over the precise length of time the credit is outstanding. Thus, a prepayment refund would necessarily be greater if calculated using this method rather than the Rule of 78’s.


source: Caselaw Access Project

author: JUSTICE GREIMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIMON ARNOLD et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 1-87-3121, 1-87-3328 cons.
    Opinion filed August 14, 1991.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant Simon Arnold.
    Randolph N. Stone, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant Christiana Grier.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Candace A. Williams, Assistant State’s Attorneys, of counsel), for the People.

       Justice White concurred with this opinion prior to his retirement.

   JUSTICE GREIMAN

delivered the opinion of the court:

Defendant Simon Arnold was convicted of armed robbery, armed violence, two counts of unlawful restraint, and was sentenced to 10 years’ imprisonment. Defendant Christiana Grier was convicted of armed robbery, armed violence, unlawful restraint and was sentenced to six years’ imprisonment. These convictions arose from defendants’ execution, of a scheme to force a currency exchange employee to give them entry to the exchange.

We affirm those convictions.

On appeal, both defendants (Arnold and Grier) urge error involving the trial judge’s answer to the jury’s question as to whether the charges would be different if the gun used was a toy gun. Arnold also contends his right to effective counsel was impaired because of a lawsuit he had pending at the time of trial against the public defender representing him, and Grier argues that the victims’ identification of her was so indefinite that she could not have been proven guilty beyond a reasonable doubt. She further alleges she was denied a fair trial by reason of her counsel’s incompetence.

On November 11, 1985, the two defendants presented bogus credentials to Julia and Landon Ward identifying themselves as police of-fleers and told Mrs. Ward that she was wanted by the police for murder. When Mr. Ward attempted to call the police to verify the identity of the officers, Arnold threatened him with a gun and hung up the phone. After Mr. Ward was taken to the basement, handcuffed, tape placed over his eyes and his feet bound, Arnold told the couple that the reason for the defendants’ intrusion was to force Mrs. Ward to gain entry to the currency exchange where she was employed.

Arnold further told Mrs. Ward that if she did not do what she was told, her husband would be blown up with dynamite. She was shown a bundle of sticks resembling dynamite with a remote control device. Mrs. Ward acquiesced and accompanied defendants in her car.

After driving past the currency exchange to find it closed, Arnold drove back to the Ward home and found the Wards’ daughter Natasha had returned home. Arnold tied her up and placed her in the basement with Mr. Ward while Grier and Mrs. Ward waited in the car.

The defendants then drove Mrs. Ward back to the currency exchange where she admitted them and they took $3,690 and 22 motor vehicle city stickers. Returning Mrs. Ward to her home, defendants left in the Wards’ car. Mrs. Ward found her husband and daughter still tied up and called the police.

Both defendants question the trial court’s response to a question submitted by the jury during its deliberation. The trial record regarding the question is as follows:

“THE COURT: Okay, From the — Another note from the jury. ‘If the gun used was a toy gun, not a real gun, is it armed violence?’ I’m in a quandary how to answer this. I would think— Well, It’s a hypothetical question. I think I’ll just put — .
PROSECUTOR: There is no evidence it was a toy gun.
DEFENSE COUNSEL (1): Oh, no, no.
DEFENSE COUNSEL (2): I think that answers the question.
THE COURT: Yeah. Yeah, that’s — I’m not going to put that down.
DEFENSE COUNSEL (2): I would just put, ‘You must decide based on the instructions.’
THE COURT: This is a hypothetical question and the jury must decide the case on the evidence.
DEFENSE COUNSEL (2): I would also ask Your Honor include, ‘Evidence and instructions that have been tendered to them.’
THE COURT: Okay. This is the answer. ‘This is a hypothetical question. The jury must decide the case on the evidence and the instructions tendered.’ ”

Defendants contend that the character of the gun was a factual question for the jury, and the judge’s answer that it was “a hypothetical question” forecloses the jury from considering whether the weapon was a toy gun. Defendants argue that the jury’s inquiry showed that at least some of the jurors believed there was evidence it was a toy gun, and the trial judge could not usurp determination of this factual question from the jury. It is further contended that the judge’s answer relieved the State of one element of its burden of proof for armed robbery and armed violence — whether there was a dangerous weapon used.

The record does not disclose a scintilla of evidence that would question the testimony identifying the weapon as a real gun. Three witnesses directly described it as such.

However, we need not rule directly on whether the trial judge’s characterization of the question as hypothetical decided a question of fact since we find both defendants failed to properly interpose an objection at trial and failed to adequately raise the issue in post-trial motions. Moreover, there is no plain error.

When the trial judge received the inquiry from the jury, he properly conferred with counsel for both parties, discussed an appropriate answer and accepted defense counsel’s suggestions for alteration of the answer. Our courts have consistently held that a party waives an issue for appellate review if he fails to object at trial and fails to raise the issue in a post-trial motion. (People v. Reid (1990), 136 Ill. 2d 27, 38, 554 N.E.2d 174; People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124; People v. Harris (1990), 204 Ill. App. 3d 491, 496, 561 N.E.2d 1361.) Where a defendant acquiesces to the trial court’s answer to the jury’s question, the defendant cannot later charge that the court abused its discretion. (Reid, 136 Ill. 2d at 38; People v. Dunigan (1981), 96 Ill. App. 3d 799, 828, 421 N.E.2d 1319.) The purpose of the waiver rule is to encourage timely objections so the trial court may promptly correct any error and to restrain a party from trying the case anew before the reviewing court. Reid, 136 Ill. 2d at 38.

We may consider issues on appeal where there has been no timely objection or appropriate motion in instances of plain error when the evidence is closely balanced or if the error is so grave that the accused is denied a fair and impartial trial. (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196; People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) We find that neither defendant can succeed under the plain error exception.

To justify a reversal for plain error, we must be convinced that the defendant was prejudiced by the error and that the outcome might have been different. A review of the cases convinces us otherwise.

Our courts have been reluctant to invoke the plain error doctrine: People v. Reid (1990), 136 Ill. 2d 27, 554 N.E.2d 174 (jury’s question whether it could find defendant guilty of one crime and not the other was answered by direction to jury to reach a verdict based on instructions it had previously received. On following day, court declined defendant’s request to answer the question differently since it believed a new answer would surprise or confuse the jury); People v. Turner (1989), 128 Ill. 2d 540, 539 N.E.2d 1196 (prosecutor’s statement that hair possesses similar characteristics is not the same as suggesting identical identification); People v. Womack (1991), 216 Ill. App. 3d 540 (defendant’s fifth amendment right to remain silent waived where evidence was not close); People v. Duffie (1990), 193 Ill. App. 3d 737, 550 N.E.2d 691 (deviation from Illinois Pattern Jury Instructions not substantially affecting defendant’s rights); People v. Bridges (1989), 188 Ill. App. 3d 155, 544 N.E.2d 40 (improper instruction on specific intent for attempted murder erroneous, but not grave error); People v. Lowery (1988), 177 Ill. App. 3d 639, 532 N.E.2d 414 (court’s denial to jury request for grand jury proceedings and indictment not plain error where court advised the jury the indictment did not create any inference of guilt); and People v. Smith (1988), 165 Ill. App. 3d 603, 518 N.E.2d 1382 (failure to define term “reasonably believes” in self-defense instruction was not error where evidence was substantial against defendant).

On the other hand, the failure to instruct the jury on the State’s burden of proof or on an essential element of the crime charged has been held of such grave consequence to the jury’s deliberation that there need be no showing of specific prejudice or that the evidence was closely balanced. People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141; People v. Allen (1983), 116 Ill. App. 3d 996, 452 N.E.2d 636, aff’d in part & rev’d in part on other grounds (1985), 109 Ill. 2d 177, 486 N.E.2d 873.

In cases with closely balanced evidence, plain error has been determined: People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214 (error to amend charge at trial changing the nature of “mental state” required by the offense); and People v. Tansil (1985), 137 Ill. App. 3d 498, 484 N.E.2d 1169 (court refused to exercise discretion in providing transcript for jury in erroneous belief that it had no discretion in that regard).

Defendant Grier argues that the evidence is closely balanced as to her because of what she deems to be a faulty identification and, therefore, this falls within the plain error doctrine. The evidence adduced at trial as to her identification is more than convincing and her guilt proven beyond a reasonable doubt: Mrs. Ward was able to describe Grier’s height and appearance to police, and pick her out of a lineup, even noting that her hairstyle had changed. Mrs. Ward was with defendant Grier for approximately IV2 hours, which gave her adequate time to examine and recall Grier’s appearance accurately. Apparently, the Grier allegations are based on the fact that she was 6V2 months pregnant at the time of the robbery and that the Wards inaccurately guessed Grier’s weight. However, Mrs. Ward did testify that Grier was heavy and Mr. Ward suggested that she was “a bit more than 135.” Apparently, she weighed between 170 to 190 pounds at the time of her arrest.

Arnold contends the judge’s failure to instruct the jury on the lesser included offense of robbery deprived him of a fair trial because the evidence at trial created a question of fact as to whether the gun was real. Arnold argues that the pattern of trickery by the defendants — -the fake police identification, ersatz dynamite and phony police radio — led the jury to view the gun’s authenticity as a question of fact and that the jury’s question indicates it could have found him guilty of simple robbery.

However, instructions on lesser included offenses are not required in a case where the evidence rationally precludes instructions on the lesser included offense. (People v. Castro (1989), 190 Ill. App. 3d 227, 546 N.E.2d 662; People v. Bryant (1986), 113 Ill. 2d 497, 507, 499 N.E.2d 413.) In Bryant, the court found that the included offense instruction is proper only where “the charged greater offense requires the jury to find a disputed factual element” which is not required for conviction of the lesser included offense. Bryant, 113 Ill. 2d at 507.

We have already determined that there was no evidence to question the authenticity of the gun. All three victims testified that they saw a dark-colored steel handgun at various times during the robbery, and the record establishes that Arnold did not attempt to dispute or rebut these statements. The only reference to the authenticity of the gun was in defense counsel’s closing argument. Therefore, the trial judge was correct in viewing the evidence presented as rationally precluding the finding of the lesser charge of simple robbery.

Grier also maintains her attorney was incompetent when he failed to call a witness that Grier viewed as critical in impeaching Mrs. Ward’s testimony. The record indicates Mrs. Ward initially told Officer Danzl she thought the female defendant weighed 130 pounds, although Grier actually weighed between 170 and 190 pounds at the time of her arrest. Defense counsel failed to subpoena Officer Danzl, and in defendant’s motion for new trial, counsel faulted the State for not calling the officer to testify and indicated that had the witness testified he would have provided a prior inconsistent statement by Mrs. Ward.

Grier contends this statement shows that counsel inaccurately believed it was the State’s duty to call Officer Danzl when it was actually defense counsel’s duty. Grier argues that since Mrs. Ward’s identification was a key part of the case against her, defense counsel should have perfected the impeachment.

The standard for evaluating the effectiveness of counsel was first set out in Strickland v. Washington (1984), 466 U.S. 668, 694, 698, 80 L. Ed. 2d 674, 698, 700, 104 S. Ct. 2052, 2068, 2070, and adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246: a defendant must establish both that counsel’s representation was below an objective standard of reasonableness, thus depriving defendant of a trial “whose result is reliable,” and also that there is a reasonable probability that the result would have been different had there not been ineffective assistance of counsel. People v. Flores (1989), 128 Ill. 2d 66, 80-81, 538 N.E.2d 481.

Defendant Grier relies on an Illinois case in which defense counsel was deemed ineffective for failing to call witnesses who could testify that defendant was intoxicated; counsel misunderstood that the defense of intoxication was available as a defense to the murder charge. (People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973.) Grier argues this case is analogous because her attorney also misunderstood that it was his duty and not the State’s to call Officer Danzl as a witness.

Typically, the decision whether to present a given witness is a matter of trial strategy or tactics and cannot support a claim of ineffective assistance of trial counsel. (Wright, 111 Ill. 2d at 26; People v. Smith (1986), 141 Ill. App. 3d 797, 800, 491 N.E.2d 128.) However, a reviewing court must not consider counsel’s decision standing alone, but rather must also evaluate whether defense counsel devised appropriate theories, given the applicable law and circumstances, and then determine if the decision was reasonable. Wright, 111 Ill. 2d at 27.

Even if Grier’s charges of ineffective counsel were presumed to be true, we find she failed to establish that she is prejudiced by her counsel’s actions. The court in Strickland recognized that errors in a weak case are more likely to affect the outcome of a trial than errors in a case where the record evidence is overwhelming. (Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.) We find that the outcome in Grier’s case would not be different if Officer Danzl had testified as to Mrs. Ward’s statement. The evidence regarding Grier’s identification as the female offender is overwhelming. Consider Mrs. Ward’s highly accurate identification of her after spending IV2 hours with her; both Mr. and Mrs. Ward’s recollection of the offender wearing a long brown down overcoat; Grier’s failure to provide any evidence that another woman borrowed her coat; and her failure to provide any evidence to support an alibi that she was shopping at the time of the robbery. The alleged discrepancy in defendant’s weight, even if introduced into evidence, would certainly not be enough to dissuade a rational trier of fact from ignoring the considerable evidence against this defendant.

While we find defendant Grier has not shown the outcome is prejudiced because of counsel’s actions, we also find her situation distinguishable from Wright. In Wright, there was testimony from defense counsel as to his misapprehension of the law; this facilitated the trial court’s determination that under the circumstances, defense counsel’s decision to omit witness testimony was not based on trial strategy or tactics. In the case at bar, we have no such testimony from Grier’s counsel as to any misapprehension of the applicable law which caused counsel to decide not to call Officer Danzl to testify. From the record, we cannot tell if the reasoning behind counsel’s decision is flawed. In reviewing counsel’s motion for new trial, the statement at issue does not declare it is the State’s duty to call the witness, nor does it convey an inference that counsel misapprehended the applicable law.

Unlike Wright, defendant has not developed a record to establish that counsel’s representation fell below a reasonable level of competence. (People v. Jaffe (1986), 145 Ill. App. 3d 840, 493 N.E.2d 600.) We find counsel’s performance fell within the range of competence demanded of attorneys in criminal cases.

Finally, defendant Arnold contends his sixth amendment right to counsel was violated when the trial judge denied his pro se motion for the appointment of trial counsel other than the public defender’s office because defendant had a lawsuit pending against defense counsel and several other public defenders at the time of trial. Arnold contends the pending suit gave counsel a “personal interest” in the way he would handle the criminal trial, and the fact that they were adversaries in a separate action created an “inevitable tension” which could only have hampered defendant’s case.

The prohibition against an attorney serving a client where there is a conflict of interest is based upon the principle that “no man can serve two masters,” so if a defense attorney falls into this category, he may be hindering his client’s sixth amendment right to counsel. (People v. Spreitzer (1988), 123 Ill. 2d 1, 13, 525 N.E.2d 30, citing Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 64 L. Ed. 2d 333, 343, 100 S. Ct. 1708, 1715.) Effective assistance means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. People v. Washington (1984), 101 Ill. 2d 104, 110, 461 N.E.2d 393; Spreitzer, 123 Ill. 2d at 13-14.

A trial court which is alerted to the possibility of defense counsel’s conflicts of interest has a duty to inquire whether different counsel should be appointed to represent the defendant. (Flores, 128 Ill. 2d at 84.) In some situations, the court will determine whether a per se conflict of interest exists. Generally, a defendant need not demonstrate actual prejudice where there has been a per se conflict of interest. Reversal of a conviction under this rule does not require a showing that the attorney’s actual performance was in any way affected by the purported conflict. Spreitzer, 123 Ill. 2d at 14-15.

Per se violations are often found in situations where defense counsel represents a witness in the same matter or in a related matter so that a favorable result for this defendant would inevitably conflict with the interests of another client and such facts might affect counsel’s performance in ways difficult to detect or demonstrate. However, in the absence of a per se conflict, the defendant must bear the burden of showing actual conflict or prejudice. Flores, 128 Ill. 2d at 84.

The record in this case does not clearly indicate the basis of the dispute between lawyer and client.

Where defense counsel has a relationship with a person or entity (such as counsel’s client, employer, or own previous commitments) which would benefit from an unfavorable verdict for the defendant, counsel will be deemed to have a per se conflict of interest making him ineligible to represent defendant in that matter. (Spreitzer, 123 Ill. 2d at 16.) In the case at bar, the fact that defendant has filed suit against the public defender representing him does not fall into this category of per se conflict. See People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393 (defense attorney cannot simultaneously serve as part-time attorney for the municipality where the defendant was being prosecuted); People v. Fife (1979), 76 Ill. 2d 418, 392 N.E.2d 1345 (defense attorney cannot simultaneously serve as special assistant Attorney General handling unemployment compensation cases for the State on a part-time basis); People v. Coslet (1977), 67 Ill. 2d 127, 364 N.E.2d 67 (defense attorney cannot simultaneously serve as administrator of the victim’s estate).

In People v. Hardeman (1990), 203 Ill. App. 3d 482, 560 N.E.2d 1198, this court considered the implications of a defendant’s civil suit directed against his criminal defense attorney. There and in the case at bar, a civil suit was filed against defense counsel. The trial court, after due consideration, determined that the pending lawsuit did not create the kind of conflict that would preclude counsel from continuing- to represent the defendant and satisfy his sixth amendment rights.

In Hardeman, the court was concerned that defendants might frustrate the administration of justice by the filing of spurious civil suits against their lawyers. The issue was further addressed in Smith v. Lockhart (8th Cir. 1991), 923 F.2d 1314, which acknowledged that the mere existence of a lawsuit would not “alone, constitute cause for appointment of new counsel.” (Smith, 923 F.2d at 1321 n.11.) In Smith, defendant raised objection to his counsel at the earliest possible time and consistently and vigorously objected to counsel. These are not the facts in the case before us.

In the instant case, defendant objected to his counsel, by pro se motion, which was considered by the court on July 16, 1986, 13 months before the trial. Nothing in the record indicates that defendant and counsel failed to cooperate in the preparation and execution of the defense during the subsequent year before trial. Defendant’s continued cooperation with his counsel would undermine the notion that he was deprived of effective assistance or representation in his defense. (Carter v. Armontrout (8th Cir. 1991), 929 F.2d 1294.) In Carter, under similar facts, the court observed:

“We recognize that a pending lawsuit between a defendant and his attorney may give rise to a conflict of interest requiring appointment of new counsel. [Citation.] However, a defendant who files a lawsuit against his attorney does not necessarily create such a conflict. *** After reviewing the record, we find no support, except the filing of the lawsuit, for Carter’s claim.” Carter, 929 F.2d at 1300.

In Hardeman, Carter and Smith the trial court considered the nature and gravamen of defendant’s civil lawsuit filed against his counsel. In the first two cases mentioned, the respective trial courts determined that the claim was frivolous, while in Smith some reasonable grounds may have existed along with defendant’s persistent request to change counsel. Smith, 923 F.2d at 1320-21.

The record here is ambiguous as to the gist of the civil action. However, the court is clearly advised of the pendency of the action and speculates as to the kind of conflict necessary for him to appoint new counsel or make appointment from the conflicts division of the public defender’s office.

Since the trial court here has not made the kind of clear statement regarding the appropriateness of the civil action as we found in the record of Hardeman, we have carefully examined the trial record to determine whether it establishes that the public defender thoroughly and vigorously defended the defendant and met the reasonably effective standards of assistance of counsel required in criminal cases.

A careful reading of Flores and Carter directs us to extend our inquiry to the actual nature and extent of defense provided. Flores, 128 Ill. 2d at 84; Carter, 929 F.2d at 1300.

The record establishes that the assistant public defender extensively cross-examined Julia and Natasha Ward and attempted to draw inconsistencies in their testimony for the full benefit of the defense. Their cross-examinations were in depth as to their descriptions of the male defendant’s appearance, and Julia was cross-examined as to the type of gun the male defendant carried.

Seven other witnesses were exhaustively cross-examined by assistant public defender O’Hara, who incorporated defense strategy into his line of questioning. For example, in the cross-examination of Officer Baker, defense counsel made a concerted attempt to bring up potential problems in the processing of evidence by police officers and technicians, and to highlight discrepancies in Mr. Ward’s report of his description of the male defendant.

Moreover, Mr. O’Hara clearly and effectively set out defense theories for the jury in his opening and closing arguments. In his 23-page closing argument, counsel was particularly vigorous in his extensive analysis of the inadequacies of the prosecution’s theories and arguments. He detailed the flaws in the Wards’ descriptions of the defendant, offered alternative arguments as to defendant’s guilt (i.e., that Arnold had been framed by the police) and argued that there was evidence of an incomplete and incompetent police investigation to help support that argument.

Counsel further effectively represented defendant at the sentencing hearing, making a thoughtful argument for mitigation, and adequately prepared defendant’s motion for new trial.

Accordingly, defendant’s sixth amendment right to counsel was not violated by denial of his pro se motion for the appointment of other trial counsel or by the absence of a vigorous defense that might have been occasioned by such a ruling.

For all the reasons set forth, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNY LARRY, Defendant-Appellant.
    First District (5th Division)
    No. 1-88-3436
    Opinion filed August 16, 1991.

      James H. Reddy, Public Defender, of Chicago (Stephen L. Richards, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael M. O’Brien, and Robin M. Bright, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Johnny Larry was convicted of unlawful use of a weapon by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1(a)), and following a jury trial, judgment was entered on the guilty verdict. Larry was sentenced to serve five years in the Illinois Department of Corrections. Larry appeals his conviction, alleging that: (1) he was deprived of his sixth amendment confrontation rights by the State’s references to hearsay statements made by an unavailable witness; (2) that he was denied a fair trial by the State’s improper remarks in summation; (3) that the trial judge erred in refusing to charge the jury that possession is a voluntary act; and (4) that the trial judge erred in refusing to charge the jury as to impeachment by prior inconsistent statements.

At trial, Officer Rodriguez testified that at approximately 1:15 a.m. on May 30, 1988, he was in his squad car with Officer Luera at 15th and Homan Streets in Chicago when the officers observed defendant’s vehicle with its headlights off stopped at a stop sign at 15th Street. As defendant proceeded through the intersection, the officers followed the defendant, activating the squad car’s security system. Defendant curbed his vehicle approximately one half block after the officers activated their security equipment.

The officers approached defendant and asked whether he was aware that his headlights were off. Defendant responded that he was unsure, and he then turned on the headlights. Officer Rodriguez then asked defendant if he had a driver’s license, and defendant stated that he did not know whether he had the license with him. As defendant was looking for his license, Officer Rodriguez asked him to step out of the vehicle. Defendant complied with the officer’s request, and Officer Luera then looked into defendant’s car. He observed the handle of a gun protruding from underneath the right side of the mat on the driver’s side of the hump of the car. He recovered the revolver and placed defendant under arrest.

Defendant testified that during the late evening hours of May 29, 1988, he was at Douglas Park at Kedzie and Douglas Streets in Chicago having a picnic with friends and his daughter. At approximately 1 a.m. on May 30, 1988, he borrowed the car of his friend, Debra Johnson, to take his daughter home. He testified that his headlights were on.

Defendant claimed that he first noticed a police car behind him traveling westbound on 16th and Sawyer Streets. He entered 16th and Homan and went to his house at 1517 South Homan. The police followed defendant, and when defendant parked his car at 1521 South Homan, the pólice parked three or four cars behind defendant’s car. Defendant took his daughter into the house, and when he returned to his car, the two detectives were still in their car with the lights off. With his vehicle headlights on, defendant turned onto 15th Street and headed toward Kedzie. He noticed that the officers’ spotlight was on his car and he stopped his car. Both officers exited the squad car, and Officer Rodriguez approached him and told him to get out of his car. Defendant complied. He testified that he did not remain in his car to look for his driver’s license for he did not have one, and he informed Officer Rodriguez of that fact. Officer Rodriguez did not mention to defendant that his lights were off. Officer Luera went to the car and searched it. When Officer Luera came back, he did not have his gun with him and said something to Officer Rodriguez which defendant did not hear. Defendant stated that he did not know the gun was in the car and that the first time he saw the gun was at the police station.

Defendant’s first contention on appeal is that his sixth amendment confrontation rights were violated by the prosecutor’s repeated references to hearsay statements of Debra Johnson, the owner of the car in which the gun was found. Although Debra Johnson did not testify at trial, the prosecution used the following methods to convey to the jury the substance of Debra Johnson’s out-of-court statements. During direct examination of Officer Rodriguez, the prosecution asked the following questions:

“Q. By the way, Officer, in terms of this follow up investigation, did you determine that the car was owned by a woman?
A. Yes.
Q. Her name was Debra Johnson?
Q. You spoke with Debra Johnson that particular night, didn’t you?
A. Yes.
Q. Spoke to her at the 10th District police station?
A. In the lobby at the 10th District, yes.
Q. What if anything did she say?
MR. KLOAK: Objection, hearsay.
THE COURT: Sustained.
MR. CUOMO: Q. Did she say anything about the gun?
MR. KLOAK: Objection, hearsay, beyond the scope.
THE COURT: I don’t know that. The objection will be sustained.”

Despite the trial court’s ruling, the prosecutor again brought up the subject of Debra Johnson’s statements during cross-examination of Johnny Larry. After establishing that Debra Johnson had been brought into the same interrogation room as Larry, the prosecutor asked:

“Q. Asked [Debra] questions about the ownership of the car, didn’t they?
A. Yes.
Q. Said she owned the car, right.
MR. KLOAK: I object, hearsay.
THE COURT: Pose another question. Sustained.”

After a side bar in which the trial court explicitly ruled that Debra Johnson’s out-of-court statements were inadmissible hearsay, the prosecutor again asked, “They talked to her about the ownership of the car, correct?” After Larry responded, “Yes,” the prosecutor asked, “What else happened when she was there?” After an objection to this question had been sustained, the prosecutor asked, “They did not arrest Debbie Johnson did they, for possession of a gun that particular night?” After a fifth objection on hearsay grounds had been sustained, the prosecutor elicited from Larry the fact that Debra Johnson was not in the paddy wagon which brought him to the station house. The prosecutor then asked: “It’s because she wasn’t under arrest, Right?” A sixth objection to this question was then sustained.

Despite these repeated rulings, the prosecutor during summation underlined the significance of Debra Johnson’s out-of-court statements by stating:

“They got the guy in custody with the gun. They talk to her and asked about the ownership of the car and let her go.”

Likewise, in rebuttal, the prosecutor stated:

“Debbie Johnson who went to the police station and was given her car keys, and then went home that night because it wasn’t her gun. It was his gun.”

We agree with the defendant that the prosecutor’s repetition of the same basic question, not once, but six times, was egregious. The cumulative effect of these repeated questions was to inform the jury that Debra Johnson had admitted owning the car, but denied possession of the gun. The fact that the trial court attempted to curb this misconduct by correctly sustaining objections to the prosecutor’s questions was insufficient to shield the jury from the implications of the questions.

If counsel timely objects at trial to improper interrogation or to an improper remark by counsel to the jury, the court can usually correct the error by sustaining the objection or instructing the jury to disregard the answer or remark. (People v. Carlson (1980), 79 Ill. 2d

564, 404 N.E.2d 233.) It is, however, improper for a prosecutor to persist in asking the same question after receiving an adverse ruling on the question by the trial court. (People v. Hovanec (1976), 40 Ill. App. 3d 15, 351 N.E.2d 402.) Where, as here, prosecutors defy the trial court’s rulings by repeating the same questions after objections have been sustained, the court’s rulings can have no salutary effect. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) “Driving a nail into a board and then pulling the nail out does not remove the hole.” (People v. Cepek (1934), 357 Ill. 560, 192 N.E. 573.) In fact, the prosecutor’s repetition of objectionable questions served to increase the prejudice to Johnny Larry by suggesting to the jury that defense counsel was attempting to prevent them from hearing pertinent evidence. In Hovanec, where the prosecutor asked about inadmissible evidence five times, rather than six, the court stated:

“The prosecutor should have known the question was objectionable *** the first time. However, the more reprehensible conduct was the persistent asking of the question after an objection to it had been sustained. [Citation.] There can be little doubt that the prosecutor was *** attempting to make it appear to the jury that defendant was trying to keep unfavorable evidence from them.” Hovanec, 40 Ill. App. 3d at 18.

The prosecutor’s conduct in the instant case was even more egregious than that in Hovanec, since here, not only did the prosecutor ask questions concerning Debra Johnson’s out-of-court statement six times, but the prosecutor also compounded the error by his comments in summation. Telling the jury that the officers had asked Debra Johnson about the ownership of the car and then let her go, especially after his series of objectionable questions, implied that she denied ownership of the gun. But for the prosecution’s insinuations that Debra Johnson denied ownership of the gun, the jury may have concluded that the prosecution had failed to establish beyond a reasonable doubt that the gun found in Debra Johnson’s car belonged not to Debra Johnson, but to Johnny Larry. For this reason, Johnny Larry’s conviction is reversed, and the cause remanded for a new trial.

Defendant next maintains that he was denied a fair trial due to the prosecutor’s comments during closing argument which misrepresented defense counsel’s argument and told the jury that he was accusing the police officers of planting the gun in Debra Johnson’s car. During his closing remarks, the prosecutor stated:

“Are they [the police officers] stalking [the defendant] and turning off their headlights and then following him again and planting a gun in his car? That is ludicrous. That is ridiculous. There’s enough crime out there in the streets. These two officers don’t have to go around there planting a gun in a guy’s car especially that late at night.
Ladies and gentleman, when you consider the evidence in this case, I want you to analyze what you heard from the officers. Is this the type of case where officers are planting a gun. Is this someone creating a case? I submit to you, obviously not. *** [Tjhe defendant will have you believe that they planted the gun, didn’t have the gun registered, carried it around with them to plant it.”

In response, defense counsel insisted that defendant was not saying that the police planted the gun. Instead, defense counsel asserted that when defendant borrowed Johnson’s car, he was simply unaware that the gun was in the car. The prosecutor, nonetheless, returned to the planted-gun argument in his rebuttal.

A prosecutor is allowed a great deal of latitude in making closing argument, and the trial court’s determination of the propriety of the closing argument will generally be followed absent a clear abuse of discretion. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) The prosecutor may comment on the evidence and all legitimate inferences deducible from the evidence, even if unfavorable to the defendant. Weatherspoon, 63 Ill. App. 3d at 322.

A review of the record indicates that the prosecutor’s remarks on the planted-gun theory were justified based upon the evidence. In his opening statement, defense counsel stated that the evidence would show that the officers followed defendant to his home and again when defendant went to return the car to its owner, and that after searching the vehicle and finding nothing, the shorter officer went to the taller officer and whispered to him, whereupon the taller officer recovered a gun from the car. Furthermore, when questioning Officer Rodriguez, defense counsel elicited statements as to the name of the gun, that it was not dusted for fingerprints, that a police officer might purchase the type of weapon recovered from defendant’s car, but that he could not carry a gun with that type of handle, and that the original handle could be removed, and new handles of the type on the subject gun could be placed on the gun. Furthermore, defense counsel’s argument had invited rebuttal because he asked the jury to consider what the officers were doing outside of the defendant’s home. Accordingly, while defendant denied relying on a planted-gun theory, his argument and questioning indicate otherwise, and we find nothing improper with the prosecutor commenting on this theory.

Defendant further maintains that the trial judge erred by refusing to instruct the jury that possession is a voluntary act. The voluntary possession instruction which the defense tendered read:

“Possession is a voluntary act if the offender knowingly procured or received the thing possessed, or was aware of his control of the thing for a sufficient time to have been able to terminate his possession.” (Illinois Pattern Jury Instructions, Criminal, No. 4.15 (2d ed. 1981).)

The trial court refused the instruction on the ground that it would be “confusing” to the jury.

As a general matter, the trial court is required to give the applicable Illinois Pattern Jury Instruction (IPI) unless it does not accurately state the law. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.) Here, there is no dispute that IPI Criminal 2d No. 4.15 accurately states the law. (People v. Kissinger (1975), 26 Ill. App. 3d 260, 325 N.E.2d 28.) The State, however, maintains that since the defendant denied possession altogether, rather than advance a theory of voluntary possession, the jury was given the proper instruction on possession, which read:

“Possession may be actual or constructive. A person has actual possession when he has immediate and exclusive control over a thing. A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing either directly or through another person.” Illinois Pattern Jury Instructions, Criminal, No. 4.16 (2d ed. 1981).

We agree with defendant that he should not be denied the right to an instruction on voluntary possession merely because he denied knowledge of the gun altogether. A defendant is entitled to have the jury instructed not only as to the law applicable to the state of facts testified to but applicable to any state of facts which the jury may legitimately find from the evidence to have been proved. (People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573.) “This is true even if the facts on which the defense is based are inconsistent with the defendant’s own testimony, since the defendant is entitled to the benefit of any defense shown by the entire evidence.” (People v. Robinson (1987), 163 Ill. App. 3d 754, 761, 516 N.E.2d 1292, 1299.) Here, particularly given the position of the gun under the car mat, the jury might legitimately have inferred that the defendant had been aware of the gun, but not for a sufficient time to enable him to terminate his possession. Accordingly, it was reversible error for the trial court to refuse to instruct the jury on voluntary possession.

Lastly, defendant contends that the trial judge erred in refusing to charge the jury as to impeachment by prior inconsistent statements. Defense counsel tendered, but the trial court refused, IPI Criminal 2d No. 3.11 on prior inconsistent statements, which read:

“The believability of a witness may be challenged by evidence that on some former occasion he made a statement that was not consistent with his testimony in this case. Evidence of this kind may be considered by you only for the purpose of deciding the weight to be given the testimony you heard from the witnesses in this courtroom.” Illinois Pattern Jury instructions, Criminal, No. 3.11 (2d ed. 1981.)

When evidence of a witness’ prior inconsistent statement is admissible to impeach his or her credibility, such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony by showing his inconsistency. (People v. Cannon (1986), 150 Ill. App. 3d 1009, 502 N.E.2d 345.) An instruction to that effect should be given upon request. (People v. Moses (1957), 11 Ill. 2d 84, 142 N.E.2d 1.) A prior inconsistent statement encompasses omissions as well as affirmative statements. People v. Smith (1978), 67 Ill. App. 3d 672, 385 N.E.2d 44.

Minor discrepancies and inconsistencies in testimony do not render the testimony unworthy of belief, but go only to its weight. (People v. Smith (1978), 67 Ill. App. 3d 672, 385 N.E.2d 44; see People v. Cannon (1986), 150 Ill. App. 3d 1009, 502 N.E.2d 345 (where detective testified as to what defendant told him, but included a summary rather than defendant’s exact words in his police report, court found no error in the trial judge’s refusal to instruct the jury on prior inconsistent statements, IPI Criminal 2d No. 3.11, since it received the correct principle of law through IPI Criminal 2d No. 1.02).) The contradictory statements “must have the reasonable tendency to discredit a witness’ testimony on a material matter” for reversal error to be found. People v. Villa (1981), 93 Ill. App. 3d 196, 416 N.E.2d 1226; see People v. Mitchell (1975) 27 Ill. App. 3d 117, 327 N.E.2d 158 (where the crux of the State’s case was the testimony of Claude Harris, who was the only witness who linked the defendant directly to the killing, the court concluded that since Harris’ credibility was directly in issue and since he had admitted giving two prior inconsistent statements on a material issue in the case, the defendant was entitled to have the jury instructed on the law regarding prior inconsistent statements).

Applying these principles to the case at bar, we conclude that none of the inconsistencies or omissions of which defendant complains are material to the issues of defendant’s guilt of unlawful use of a weapon by a felon. That Officer Rodriguez preliminarily testified that he spotted defendant a block away from where he actually spotted him is not material to the question of defendant’s guilt of the offense charged, especially since the initial stop and the location of defendant’s arrest were in such close proximity. Likewise, Officer Luera’s failure to include in his inventory slip for the gun the name of the officer who recovered the gun was not even remotely material to defendant’s guilt, nor was Officer Rodriguez’s omission in his report that he asked defendant for his license. Furthermore, we find Officer Rodriguez’s testimony that defendant failed to stop his car when Rodriguez put on his flashing light, an assertion that he did not make in his police report, is not an omission sufficiently material to this offense to warrant an instruction on inconsistent statements.

Accordingly, we find that the correct principle of law applicable to the evidence before it was presented to the jury by IPI Criminal 2d No. 1.02, which read, in pertinent part:

“You are the sole judges of the believability of the witnesses and the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in light of all the evidence in the case.”

It is well established that the trial court is required to give the applicable IPI instruction unless it does not accurately state the law. (People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.) However, where a principle of law applicable to a case has already been covered correctly and sufficiently by an instruction which is given, it is not error for a court to refuse another instruction which states the same principle. (People v. Cannon (1986), 150 Ill. App. 3d 1009, 502 N.E.2d 345.) Here, since the applicable principle of law was covered in IPI Criminal 2d No. 1.02, we find no error in the trial court’s refusal to give the jury IPI Criminal 2d No. 3.11.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FERNANDO MILLER, Defendant-Appellant.
    First District (5th Division)
    No. 1-89-0500
    Opinion filed August 16, 1991.
    James H. Reddy, Public Defender, of Chicago (Protase Tinka and Jeffery M. Howard, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Laura Dibiase, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

After a jury trial, defendant Fernando Miller was convicted of possession of a controlled substance with intent to deliver more than 15 grams of cocaine, a Class X felony, and possession of a controlled substance with intent to deliver less than 10 grams of heroin, a Class 2 felony. He was sentenced on the Class X felony to a term of 16 years in the Illinois Department of Corrections.

Defendant contends on appeal that the State failed to prove beyond a reasonable doubt that the packets recovered from defendant contained over 15 grams of cocaine. For the following reasons we affirm.

On the evening of October 7, 1987, the tactical unit of the Chicago police department raided a second-floor apartment at 1416 East 69th Street, Chicago, Illinois. As some of the officers approached the building through the back alley, they noticed the defendant throwing clear plastic bottles out of the window. The officers used bolt cutters to gain entry into the apartment since the front and back doors were locked from the inside by burglar bars. Once inside, the officers discovered defendant and codefendant, Brian Jackson, but did not find the men to be in possession of drugs, money or the keys to the burglar bars. Defendant informed the officers that he and Jackson had been locked inside the apartment by a man named “Mike” who had offered to pay defendant and Jackson each $75 to sell drugs. Defendant told the officers that when they saw the squad cars, they became scared and threw the drugs out the window.

At trial, defendant testified that he was in the apartment to buy drugs, not to sell them, and that he had hidden the money he brought to buy drugs in his sock so that the police would not take it. He denied throwing drugs out of the window. Defendant further testified that he would steal and burglarize to get drugs, but would never sell drugs. Defendant admitted to being an addict, and that he had even used cocaine on the day of trial.

A stipulation was entered into as to the testimonies of the State’s two chemists, Phillip Somerville and Fumi Moka. It was first stipulated that Somerville analyzed and weighed 2 of the 18 sealed packets of brown and white powder contained in People’s exhibit number 1. It was stipulated by Somerville that “having removed the brown powder from these containers” he found that the brown powder contained in the two sealed packets weighed .08 grams and that the substance contained in the packets was heroin. It was also stipulated that Somer-ville tested 2 of the 18 packets of white powder in the 50/50 packs which tested negative for controlled substance.

The second stipulation concerned the chemical analysis procedures followed by chemist Fumi Moka regarding People’s exhibit number 2. It was stipulated that she was qualified as an expert in the area of analysis and identification of various controlled substances, specifically the substance cocaine. Furthermore, it was stipulated that Moka weighed the contents of 65 sealed paper packets of white powder contained in People’s exhibit number 2, “having removed the white powder from the containers,” and found the weight of the white powder in the 65 plastic sealed paper packets to be 13.721 grams. She further weighed the contents of eight tested bags, “having removed the white powder from the containers,” and found the weight of the white powder substance contained in these eight plastic sealed packets to be 1.42 grams. It was stipulated that Moka would testify that the total weight for the white powder was 15.141 grams. Furthermore, it was Moka’s expert opinion that the white powder substance in the eight packets and the additional 65 bags was a substance containing cocaine.

The jury found defendant guilty of the offense of possession with the intent to deliver 15 grams or more of cocaine and possession of a controlled substance with the intent to deliver 10 grams or less of heroin. Judgment was entered only as to the Class X felony, possession with the intent to deliver more than 15 grams of cocaine, and defendant was sentenced to 16 years in the Illinois Department of Corrections.

Defendant contends that the State failed to prove beyond a reasonable doubt defendant’s possession with intent to deliver more than 15 grams of cocaine when it combined the content of the packets prior to weighing and analyzing the substances found in the packets. The crux of defendant’s argument focuses on the testimony of chemist Moka. Defendant contends that chemist Moka removed the white substance from the packages and indiscriminately mingled the contents of the packages prior to weighing the substances and before determining whether each individual package contained cocaine. According to defendant this procedure raises reasonable doubt as to the true weight and amount of cocaine found in the packaged bags.

Where there is a lesser included offense for possessing a smaller amount of a controlled substance, the weight of the substance containing a drug is an essential element of a possession charge, and the weight of the substance containing the drug must therefore be proved beyond a reasonable doubt. (People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604.) While the rule in Illinois is that a chemist need only test random samples in order to be qualified to render an opinion as to the makeup of the entire substance before him, this rule is not without limitation. (People v. Kaludis (1986), 146 Ill. App. 3d 888, 497 N.E.2d 360.) Where separate bags or containers of suspected drugs have been seized, a sample of each bag or container must be conclusively tested in order to prove that it contains a controlled substance. See People v. Maiden (1991), 210 Ill. App. 3d 390, 569 N.E.2d 120 (defendant’s conviction was reduced where chemist conclusively identified contraband in one of three liquor bottles although tests could have easily been performed to conclusively determine whether the substance in the other two bottles in fact contained PCP); People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604 (where chemist only conclusively tested bags containing 21.93 grams of the suspect powder, State did not prove beyond a reasonable doubt that over 30 grams of the seized substance in fact contained cocaine); People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127 (conviction reduced where chemist conclusively tested the contents of only one bag of two, while rendering his opinion that both bags contained heroin); People v. Games (1981), 94 Ill. App. 3d 130, 418 N.E.2d 520 (conviction reduced where chemist testified that she chemically tested a portion of the contents of one bag, out of the two suspected of containing cannabis, and then stated that the “material tested” contained cannabis, but expressed no opinion as to the whole).

The issue in dispute here, however, is not whether the State failed to prove defendant guilty beyond a reasonable doubt in failing to test a sample from each individual packet, but whether the State’s chemist Moka indiscriminately comingled the contents of the packages prior to weighing and testing the substances, and whether by following such procedure, the State failed to prove beyond a reasonable doubt that defendant possessed over 15 grams of cocaine. The stipulation in the present case provides:

“Fumi Moka would testify she weighed the contents of the sixty-five sealed paper packets *** having removed the white powder from the containers ***.
Fumi Moka would testify that she weighed the contents of the eight tested bags *** having removed the white powder from the containers ***.”

The State maintains that nowhere in the stipulation was it said that the chemist at any time indiscriminately mixed or mingled any of the contents prior to the weighing or testing of the substances. The State contends that the defendant erroneously interprets the testimony which reads “having removed the white powder from the containers,” as meaning the chemist removed and intermingled the contents prior to weighing. The State contends that a plain reading of the stipulation shows that the chemist removed the white powder from each container and then weighed and chemically analyzed the contents of each container separately.

Initially, it should be noted that defendant never raised at trial any question concerning Moka’s stipulated testimony. The State and the defense stipulated to Moka’s qualifications as an expert and to the weight and analysis performed by Fumi Moka. The chemist’s testimony was uncontroverted, and the record does not reveal that the defendant sought or presented an independent analysis or weighing of the questioned substances. Instructive in deciding the issue before the court is the case People v. Williams (1990), 200 Ill. App. 3d 503, 558 N.E.2d 261. In Williams, the trial court found that the entire 48.7 grams of white powdery substance were in fact cocaine, based on the stipulated testimony of an expert that he performed a series of chemical analyses and observations on the “the white powder,” which was contained in 102 plastic packets, and that “all the white powder” having been weighed, weighed 48.7 grams. The question before the reviewing court was whether the State had presented sufficient evidence proving beyond a reasonable doubt that all of the white powdery substance contained cocaine and that its total weight was 30 grams or more. The court in Williams stated:

“[W]e decline to subject Somerville’s statement that ‘the white powder’ was in fact cocaine, to further scrutiny. First, we do not believe that the State reasonably would have agreed to So-merville’s stipulated testimony, thereby foregoing the opportunity to place the chemist on the witness stand, where he could have described in detail the number and type of tests performed on the individual packets, were not the stipulation intended, in part, to eliminate the need for defending his testimony against a challenge to its sufficiency. Furthermore, we can only assume that defendant’s trial counsel, having received notice during discovery, prior to trial, that Somerville was a potential State’s witness, and having also received a copy of the laboratory report, decided to forego the opportunity to cross-examine the expert and to submit the report into evidence, in order to focus on other theories and aspects of the defense. Throughout the course of the trial, no question was raised concerning the evidence presented by Somerville or its sufficiency to support any element of the charged offenses. Nor did the defense offer any additional testimony or evidence to contradict Somerville’s statements.” (Williams, 200 Ill. App. 3d at 516-17, 558 N.E.2d at 269.)

Thus, since outside of the stipulated testimony, the weight and composition of the drugs were nowhere discussed, the Williams court concluded that regardless of whether the issue was waived on appeal, it was meritless in light of the record. The court therefore held that the State presented sufficient evidence for a rational trier of fact to conclude that defendant possessed a Class X amount of cocaine beyond a reasonable doubt. Williams, 200 Ill. App. 3d at 517, 558 N.E.2d at 270.

Likewise, in the instant case, the stipulated testimony of the State’s two chemists is the only evidence of record concerning the weight and sufficiency of the substances seized. In his closing argument, defense counsel focused almost entirely on the officer’s inconsistent testimony regarding the identification of defendant and his statement given at the time of arrest, as well as the evidence that the defendant was an addict in the apartment to buy drugs, not to sell them. Furthermore, as in Williams, the defendant’s written motion for a new trial, while containing the boilerplate language that the prosecution failed to prove his guilt beyond a reasonable doubt, failed to specifically address the weight and composition of the drugs. Accordingly, we too decline to subject the statement “having removed the white powder from the containers” to further scrutiny since the parties stipulated to this testimony and, other than the stipulated testimony, never addressed the issue at trial.

Furthermore, it is difficult to ascertain whether the statement “having removed the white powder from the containers” means that the chemist weighed each package separately or combined them. Nor can we ascertain whether the chemist analyzed the contents of the packets prior to combining them. There are two cases from the third district stating that if individual packets are combined, the chemist need only take a random sample from the combined substance in order to support a finding of reasonable doubt. (People v. Little (1986), 140 Ill. App. 3d 682, 489 N.E.2d 322; People v. Jackson (1985), 134 Ill. App. 3d 785, 481 N.E.2d 1222.) We note, however, that there is some disagreement as to the propriety of this procedure. See People v. Little (1986), 140 Ill. App. 3d 682, 686, 489 N.E.2d 322, 325 (Heiple, J. dissenting) (“The State, after all, is required to prove its case beyond a reasonable doubt. We may speculate that each of those 11 envelopes contained cannabis. That, however, amounts to guess and conjecture which will not do. It is possible that only one of those 11 envelopes contained cannabis and we do not know the weight of any of them”).

We need not, and do not, adopt the rationale of Jackson or the majority in Little to affirm the trial court in this case because where the record is unclear, we will not presume that an improper procedure was performed.

Affirmed.

LORENZ, P.J., and GORDON, J., concur.