author: JUSTICE HARRISON

text:
    ACSA JOHNSON, Plaintiff-Appellant, v. EDWARDSVILLE NATIONAL BANK AND TRUST COMPANY, now d/b/a Mark Twain Bank, et al., Defendants-Appellees.
    Fifth District
    No. 5—90—0596
    Opinion filed May 5, 1992.
    Rehearing denied June 24, 1992.

      Barbara L. Sherer, of Lucco, Brown & Mudge Law Offices, of Edwardsville, for appellant.
    William L. Wimmer III, of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellee Bank of Edwardsville.
    Burroughs, Simpson, Hepler, Broom & MacDonald, of Edwardsville, for appellee Edwardsville National Bank and Trust Company.
    George E. Marron III, of Johannes & Marron, of Highland, for appellee Clover Leaf Savings and Loan.
    John L. Gilbert, of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., of Edwardsville, for appellee First Federal Savings and Loan Association.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Acsa Johnson, brought an action in the circuit court of Madison County to recover damages from various defendants, including the Edwardsville National Bank and Trust Company, now doing business as Mark Twain Bank (Mark Twain); Clover Leaf Savings and Loan (Clover Leaf); First Federal Savings and Loan Association (First Federal); and the Bank of Edwardsville. As grounds for his action, plaintiff alleged that the defendant banks (hereinafter referred to collectively as the banks) had negligently allowed money from certain of his deposits to be paid to his sister, Mary Jones, under authority of a power of attorney which was either forged or else was executed by plaintiff at a time when he was not competent. The banks filed separate motions for summary judgment on the grounds that plaintiff’s claims against them were barred as a matter of law by section 11a— 23 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. IIOV2, par. 11a — 23), and their motions were granted in separate orders. Although additional claims against additional parties remained pending, the circuit court made an express written finding that there was no just reason for delaying enforcement or appeal. (See 134 Ill. 2d R. 304(a).) Plaintiff has now appealed in three separate proceedings, which we have consolidated for argument and decision. For the reasons which follow, we affirm in part and reverse and remand in part.

Summary judgment is proper where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The materials presented to the circuit court here showed that plaintiff deposited funds at various financial institutions including Mark Twain, Clover Leaf, First Federal, and the Bank of Edwardsville. His deposits at Mark Twain totaled in excess of $68,000. His deposits at Clover Leaf amounted to more than $34,000. At First Federal Savings he deposited approximately $32,500, while at the Bank of Edwardsville his deposits exceeded $15,500.

Beginning in January of 1987, defendant Mary Jones, plaintiff’s sister, began withdrawing money from these various accounts and depositing it in another account she had opened at the Bank of Edwardsville. Jones also deposited into the Bank of Edwardsville account additional sums from other accounts plaintiff had at other banks. After the funds were transferred to this new Bank of Edwardsville account, Jones began making substantial withdrawals. Jones was able to accomplish these transactions and withdrawals under authority of a power of attorney purportedly executed by plaintiff. At the time all of this was taking place, no petition had been filed to have plaintiff adjudged disabled. Although such a petition was brought sometime later, plaintiff has never been adjudged incompetent by the courts.

In his fifth amended complaint, plaintiff claims that Jones did not, in fact, have authority to make the -withdrawals and that the banks were negligent in allowing her to do so. Counts I and II of the complaint are directed against Mark Twain, counts III and IV are directed against Clover Leaf, while counts V and VI are directed against First Federal. The Bank of Edwardsville is named as a defendant in counts IX through XII. Counts I, III, V, IX and XI are each premised on the proposition that the respective banks should be held liable because the power of attorney used by Jones was actually a forgery. Counts II, IV, VI, X, and XII alleged, in the alternative, that the power of attorney was invalid because it was executed at a time when plaintiff was actually incompetent.

In both the counts alleging forgery and those asserting incompetency, plaintiff contends that the respective banks were negligent in that they failed to exercise ordinary care in determining the genuineness of the power of attorney, failed to contact plaintiff before allowing withdrawals of funds, failed to require proper evidence of the authority of Mary Jones to receive money belonging to plaintiff, and failed to compare the signature on the power of attorney with the signature on the signature cards executed by plaintiff and maintained in the banks’ files. Plaintiff also asserted generally that the respective banks “knew or should have known in the exercise of ordinary care that the signature in the Power of Attorney was not the Plaintiff’s normal signature and failed to inquire further into the making of the Power of Attorney.”

Mark Twain, Clover Leaf, First Federal, and the Bank of Edwardsville filed separate motions for summary judgment. Their respective motions each asserted that plaintiff’s cause of action was barred by section 11a — 23 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. llOVa, par. 11a — 23). Although that statute was subsequently repealed and replaced by section 2 — 8 of the Durable Power of Attorney Law (Ill. Rev. Stat. 1989, ch. lKP/a, par. 802 — 8), it was in effect at the time of the events giving rise to this litigation, and there is no dispute that it remains applicable to this dispute. (See Ill. Rev. Stat. 1989, ch. llOVa, par. 802 — 11.) The statute provided:

“Agency-principal deemed competent until adjudicated. A principal for whom another acts under a written instrument of agency validly executed at a time when the principal was competent and before the filing of a petition for adjudication of disability of the principal, shall be deemed competent for purposes of the agency and the agent’s dealings with third persons until the principal is adjudged a disabled person or until the prior termination of the agency pursuant to the terms of the instrument ***. A third person dealing with the agent may presume, in the absence of actual knowledge to the contrary, that the instrument of agency was validly executed and that the principal was competent at the time of the execution. This Section applies to all written instruments of agency wherever executed and to acts of the agent pursuant to the agency after September 18, 1977.” Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 23.

Relying on affidavits from their employees, the defendant banks contended that they believed that the power of attorney presented by Mary Jones was proper. They asserted that they had no actual knowledge that it might not have been validly executed or that plaintiff might not have been competent at the time he signed it. Given this, they argued that the statute expressly gave them the right to presume that the power of attorney was valid and that they had no obligation to inquire further as to the validity of its execution or plaintiff’s competency. The circuit court agreed with the banks’ analysis and granted their motions for summary judgment based on the statute.

On this appeal, plaintiff first contends that the circuit court erred in invoking section 11a — 23 of the Probate Act (Ill. Rev. Stat. 1985, ch. IIOV2, par. 11a — 23) to enter summary judgment against him on counts II, IV, VI, X, and XII of his fifth amended complaint, which alleged that the power of attorney was executed at a time when plaintiff was not competent. According to plaintiff, section 11a — 23 (Ill. Rev. Stat. 1985, ch. IIOV2, par. 11a — 23) is not a bar to those counts because applicability of the statute “is limited to the period of time between the filing of a disability petition and [entry of] a final judgment [of disability],” and no petition for adjudication of disability had yet been filed at the time of the events giving rise to this litigation. This argument finds no support in the language of the statute itself, the legislative history, or the case law.

Also without merit is plaintiff’s contention that the banks should be regarded as having owed him a fiduciary duty and, as fiduciaries, they should not qualify as a “third parties” who are entitled to invoke the statute’s protection. A fiduciary relationship does not exist as a matter of law between a bank and its depositors. Rather, the relationship is simply that of debtor-creditor. Under Illinois law, no fiduciary duty will be found to exist absent facts showing that the depositor was subject to domination and influence on the part of the bank. (Paskas v. Illini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 30-31, 440 N.E.2d 194, 198-99.) Plaintiff has made no claim that the bank exercised any such domination and influence here.

Plaintiff next asserts that judgment should not have been entered against him on his claims that he was incompetent because a genuine issue of fact remained as to whether the banks had actual knowledge that plaintiff was not competent at the time the power of attorney was executed. This argument must fail as well. The banks cannot be deemed to have had any greater knowledge than that possessed by their employees, and affidavits from the bank employees involved in the disputed transactions here stated that they thought plaintiff was competent at the time the power of attorney was executed. They further stated that they had no actual knowledge to contradict that belief. Plaintiff adduced nothing to the contrary.

What plaintiff did submit was an affidavit from his niece, Judy Nelson, in which Nelson related various statements by a Bank of Edwardsville employee who had expressed concern over how plaintiff’s affairs were being handled. Nelson quotes the employee as having stated that “I’m so glad someone is in here because money has been leaving here like water,” and that “[w]e’ve known for some time that something is wrong.” The employee also allegedly stated that the signature on the power of attorney “looks nothing like Mr. Johnson’s signature.”

As a preliminary matter, we fail to see, and plaintiff has not explained, how these statements can possibly bear on the liability of anyone except the Bank of Edwardsville. With respect to that defendant, they scarcely suffice to raise a genuine issue of material fact on the question of plaintiff’s supposed incompetency or the banks’ knowledge thereof. While the remarks related by Nelson indicate an awareness that some kind of problem existed, there is nothing in them which suggests that the bank or any of its employees thought that the problem might have anything to do with a lack of competency by plaintiff at the time the power of attorney was executed.

Even if the remarks could somehow be interpreted to mean that the bank did suspect that the problem related to competency, that would still not be enough, for the statute requires more than mere suspicion before a third party’s entitlement to the presumption of competency is lost. Actual knowledge is necessary. We must therefore conclude that the circuit court ruled correctly when it held that section 11a — 23 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. lKP/a, par. 11a — 23) barred plaintiff’s claims for recovery on the grounds that he was not competent at the time the power of attorney was executed. Accordingly, the court’s orders granting summary judgment in favor of defendants on counts II, IV, VI, X and XII of plaintiff’s fifth amended complaint shall be affirmed.

We reach a different conclusion with respect to counts I, III, V, IX, and XI, which were premised on the theory that the power of attorney was never actually executed by plaintiff at all but was, in fact, forged. As we indicated previously, the circuit court granted summary judgment in favor of the defendant banks on those counts on the same theory that it entered summary judgment against plaintiff on the “incompetency” counts, namely, that they were barred by section 11a — 23 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 23). We believe that this finding was based on an incorrect interpretation of the statute and must fail as a matter of law.

It is axiomatic that in construing a statute, a court must ascertain the intent of the legislature and give it effect. To determine the legislature’s intent, the court will examine the entire statute and will seek to determine the objective which the statute sought to accomplish and the evils it desired to remedy. (Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 1060, 566 N.E.2d 785, 789.) Section 11a — 23 (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 23), the statute at issue here, appeared in article XIa of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110½, pars. 11a — 1 through 11a — 23). That article concerns guardians for adults who are not competent to manage their affairs because they are disabled. Section 11a — 23 itself was, by its terms, addressed to one specific aspect of the problem of disability, namely, the effects of the incompetency of a principal on the relationship he has with his agents and on the agents’ dealings with third parties where the agent acts under a written instrument of agency. (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 23.) With respect to both article XIa (Ill. Rev. Stat. 1985, ch. 110½, pars. 11a — 1 through 1 la-23) in general and section 11a — 23 (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 23) in particular, questions of competency are thus elemental. Accordingly, where an individual’s competency is not at issue, they can have no possible application.

Such is the case with plaintiff’s forgery counts. Unlike the previous counts, they do not allege and are in no way premised on any lack of competency by plaintiff at the time the power of attorney was executed. Rather, they are based on the common law duty that a third party has when dealing with an assumed agent to use reasonable diligence and prudence to verify both the fact and extent of the agent’s authority. (Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 1138, 405 N.E.2d 1076, 1081; Lawcock v. United States Trotting Association (1965), 55 Ill. App. 2d 211, 218, 204 N.E.2d 802, 806.) To accept the circuit court’s judgment would mean that this duty was completely supplanted by section 11a — 23 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. 110½, par. 11a — 23). There is no support for such a conclusion, and the mischief it might engender is apparent. If the circuit court were correct, a person could simply draw up a power of attorney in the name of another, sign that person’s name to the document, and then loot the person’s bank accounts, and as long as the bank had no actual knowledge of the forgery, it would be immune from liability. It could just stand back and watch the theft occur. We do not believe that our legislature intended such an unjust result.

Mark Twain Bank, Clover Leaf, and First Federal Savings and Loan argue, in the alternative, that summary judgment was nevertheless properly granted in their favor on the forgery counts because plaintiff failed to establish that he suffered any damages as a result of their having paid out funds in reliance on the power of attorney. This argument is without merit. On the banks’ motions for summary judgment, plaintiff had no affirmative obligation to go forward in the first instance to prove his case. (See Anest v. Bailey (1990), 198 Ill. App. 3d 740, 745, 556 N.E.2d 280, 282-83.) Rather, it was for defendants to show that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. (See La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 161, 498 N.E.2d 697, 699.) This they did not do. While evidence was presented which showed that the money taken from plaintiff’s accounts was ultimately expended for his benefit, there is other evidence which suggests that the amounts paid for the services involved were excessive, and it is by no means clear that plaintiff wanted, needed, or would have authorized the funds to be spent as they were. A genuine issue as to plaintiff’s damages therefore remains.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed insofar as it granted summary judgment in favor of defendants Mark Twain, Clover Leaf, First Federal Savings and Loan, and the Bank of Edwardsville and against plaintiff on counts II, IV, VI, X and XII of plaintiff’s fifth amended complaint. It is reversed insofar as it granted summary judgment in favor of those defendants and against plaintiff on counts I, III, V, IX and XI, and the cause is remanded for further proceedings consistent with our opinion.

Affirmed in part; reversed and remanded in part.

GOLDENHERSH, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH JUSTICE CHAPMAN, JUSTICE HARRISON,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PARKER, Defendant-Appellant.
    Fifth District
    No. 5—89—0370
    Opinion filed May 26, 1992.
    Rehearing denied July 8, 1992.

      CHAPMAN, J., specially concurring.
    HARRISON, J., dissenting.
    Daniel M. Kirwan and John T. Hildebrand, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, Larry Parker, was found guilty of first-degree murder in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(1)), two counts of aggravated battery in violation of section 12 — 4(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4(a)), and unlawful use of weapons by a felon in violation of section 24 — 1.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1).

On appeal defendant contends (1) he was denied a fair trial by the State’s prejudicial use of inadmissible hearsay, (2) he was denied a fair trial by the State’s introduction of a prejudicial autopsy photograph of the decedent, (3) he received ineffective assistance of counsel, and (4) one conviction for aggravated battery must be vacated because both convictions are based upon the same physical act. We affirm in part and vacate in part.

Defendant was charged with three counts of first-degree murder for the death of his former girl friend, Estella Day, two counts of aggravated battery for shooting Leslie Mosley in the hip, and one count of unlawful use of weapons by a felon for knowingly and unlawfully possessing a .38 caliber handgun after having been convicted of a felony in the State of Illinois. A jury trial commenced February 14, 1989, at which time the following facts were adduced.

In the early morning hours of July 2, 1988, 28-year-old Estella Day traveled to Kousin’s Riverside Klub (Kousin’s), a Murphysboro tavern, with Donald Stewart. Upon their arrival, Day saw a friend, Catherine Martin, who came over and sat in Stewart’s car with Day and Stewart for a brief period before going inside the bar. While Day, Stewart and Martin were conversing in Stewart’s car, defendant came around the side of the building and Day called to him. Defendant testified that he and Day had been dating for approximately three years and were still involved in a relationship on July 2, 1988. Day’s mother, Sharon Day, and Catherine Martin testified that defendant and Day broke up several months prior to that date.

Defendant approached the car and Martin went inside Kousin’s. Day introduced defendant to Stewart and then exited the car to speak with defendant for 10 to 15 minutes. Defendant testified that Day warned him to “be careful because Stewart was carrying a piece.” There was no evidence presented as to why Stewart would want to harm defendant. After the conversation with Day, defendant went inside Kousin’s. Day and Stewart entered the bar shortly thereafter, and Day and defendant were seen talking by the bar for several minutes before separating to talk to other patrons. Defendant testified that Day again warned him to be careful because Stewart was armed. At approximately 3:30 a.m., Stewart, Day and defendant met on the parking lot outside Kousin’s. Evidence showed that Day was standing directly in front of defendant, at a distance of two to four feet from defendant, and Stewart was behind and slightly to the right of Day at a distance of approximately 7 to 10 feet from defendant. Defendant testified that Stewart was wearing a bulky jacket and he saw Stewart reach inside the jacket for what defendant believed to be a gun. There is no evidence that Stewart had a weapon of any kind. Defendant then pulled his own concealed .38 caliber revolver and fired two shots. The first shot struck Day in the head, entering just above and behind her left ear. The second shot hit another patron, Leslie Mosley, in the hip. Stewart testified that he did not possess a weapon on July 2, 1988, and no other witnesses saw him with a weapon at any time that morning. After shooting Day and Mosley, defendant left the parking lot and saw Mark Hunter stopped at an intersection. Defendant approached the car and asked Hunter to take him to his father’s residence in Carbondale. Hunter assented and defendant entered the back seat. Another passenger, Carolyn Gaston, was in the front seat. Hunter testified that defendant said, “I fucked up. I got to get over to Carbondale to my father’s house.” Gaston testified that although she had been drinking, she remembered defendant saying something like, “I know they’re going to be all over the place,” but not knowing to whom defendant was referring. Hunter then drove defendant to Carbondale and dropped him off at his father’s residence, a senior citizens apartment complex. Before exiting the car, defendant asked Hunter to take him to a friend’s house instead, but Hunter refused. Defendant then went inside the building, put the gun which belonged to his father, Joe McCorkle, under a pillow, and left the building. He was picked up outside his father’s residence by Carbondale police officer Harold Tucker and taken into custody. Defendant was subsequently charged and convicted of first-degree murder for the death of E stella Day, aggravated assault for the shooting of Leslie Mosley, and unlawful use of weapons by a felon.

Defendant’s first contention on appeal is that he was denied a fair trial by the State’s prejudicial use of inadmissible hearsay evidence. Near the end of its case, the State called defendant’s father, Joe Mc-Corkle, to testify. The State was aware of a conversation that took place between defendant and McCorkle on July 2, 1988, while defendant was in custody, during which defendant made a statement implying that the shooting of Day was intentional. McCorkle repeated defendant’s statement to Detective Robert Burns later that same day. When the State called McCorkle to testify to what defendant had told him, however, McCorkle testified as follows:

“Q. Did your son, Larry Parker, telephone you on July 2, 1988?
A. Call me? No. I ain’t told nobody that. Larry didn’t call me July 2. Like I say, he was there July 2. Why should he call me?
Q. Did he call you in the afternoon of July 2?
A. Later on, maybe, yes. Later on, but it was near dark then or dark. That was still July the second, though.
* * *
Q. What did your son tell you on the telephone when he spoke to you?
A. Oh, I don’t know. Ain’t no need of — You trying to make me lie. ***
* * *
Q. During your conversation on July 3, 1988, did you tell Detective Burns what your son had told you?
* * *

A. No, I wouldn’t tell him — I don’t have to answer, do I?” Thereafter, the State recalled Detective Burns as an impeachment witness. Burns testified as follows:

“Q. And in the afternoon hours of July 2, 1988, did you have a telephone conversation with Joe McCorkle?
A. Yes, sir, I did.
Q. What time of the day was that?
A. It was 5:20 p.m.
Q. And what was the purpose for calling Mr. McCorkle?
A. To speak with him about information that we had received from him earlier.
Q. During the conversation that you had with him in that phone call, did he indicate to you that he had an earlier phone conference with Larry Parker, his son?
A. Yes, he did.
Q. And what did he indicate to you was the nature of the earlier phone conference with his son, Larry Parker?
* * *
A. He indicated that when he spoke with Larry, he asked Larry what had made him do such a thing and Larry had made the remark that it was a long story, but that she had been messing him over for a long period of time, and that he had put a stop to it.
Q. Was that phone conference that he referred to earlier that day on July 2, in the afternoon of July 2?
A. Yes, sir.”

Immediately following Burns’ testimony, the court instructed the jury that his testimony was to be considered only as impeachment of McCorkle’s testimony and must not be considered as proving the truth of defendant’s statement about which Burns testified. The jury was given a similar instruction at the end of trial.

The governing principle of law states: “A *** witness *** cannot be impeached by [a] prior inconsistent statement^ ] unless his testimony has damaged, rather than failed to support the position of the impeaching party.” (People v. Weaver (1982), 92 Ill. 2d 545, 563, 442 N.E.2d 255, 262.) Therefore, the first issue before us is whether McCorkle’s testimony damaged the State’s case or whether it failed to support the State’s position. Defendant argues that McCorkle’s testimony merely failed to add something desired by the State, and the State’s case was not damaged. We disagree. The State’s purpose in calling McCorkle as a witness was to elicit testimony tending to show that defendant intentionally killed Day, a key element in the State’s case. The State correctly asserts that had McCorkle testified to the statement defendant made to him, the contents of defendant’s statement would have been admissible as substantive evidence of an admission. (People v. Newbury (1972), 53 Ill. 2d 228, 290 N.E.2d 592; People v. Prante (1986), 147 Ill. App. 3d 1039, 498 N.E.2d 889.) However, McCorkle denied defendant made the admission, denied repeating defendant’s statement to Detective Burns, and indicated that the State was fabricating the incident by accusing the State’s Attorney of trying to make him lie.

The level of damage necessary to allow impeachment testimony was stated by the Weaver court: “It is only when the witness’ testimony is more damaging than his complete failure to testify would have been that impeachment is useful.” (92 Ill. 2d at 563-64, 442 N.E.2d at 262-63.) It is clear to this court that McCorkle’s testimony was more damaging to the State than his complete failure to testify would have been. McCorkle failed to support a single element of the State’s case, and he suggested improprieties by the State, that the State fabricated information and tried to recruit his participation in such fabrication. We find that McCorkle’s testimony damaged the State’s credibility, an essential element in any case. Therefore, the Weaver test has been met.

Defendant argues that the case at bar is remarkably similar to People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433, in which this court held that impeachment of a prosecution witness was impermissible. In Johnson, the defendant allegedly confessed to a cellmate, Dewayne Davis, who repeated the defendant’s statements to police investigator Edward Tolbert. When the State called Davis to testify, he denied ever having knowledge of the defendant’s alleged confession. The State then called Investigator Tolbert to rebut Davis’ testimony by eliciting testimony that Davis told him of a conversation with the defendant whereby the defendant made several admissions of guilt. This court, following Weaver, held that Davis’ testimony did not damage or contradict the State’s case. (138 Ill. App. 3d at 985, 486 N.E.2d at 437.) We perceived no possible purpose for impeaching Davis except to bring inadmissible hearsay to the jury’s attention, and we concluded that Tolbert’s testimony was impermissible. 138 Ill. App. 3d at 985, 486 N.E.2d at 437.

Although factually similar, Johnson is distinguishable from the case before us. As we have already discussed, McCorkle’s testimony damaged the State’s credibility and position in the case at bar, whereas Davis’ testimony merely failed to support the State’s case in Johnson. Therefore, we affirm the trial court’s decision to allow impeachment testimony by Officer Burns, a conclusion not inconsistent with our holding in Johnson.

We next address defendant’s contention that the State’s introduction of an autopsy photograph of the decedent inflamed and prejudiced the jury. The photograph defendant objects to depicts a portion of the decedent’s head with the scalp peeled back, showing the location of the bullet lodged in decedent’s skull. Defendant argues that the photograph was irrelevant to establish any material facts in the case because the following issues were not disputed: (1) cause of death; and (2) defendant fired the fatal shot. Defendant maintains that the final location of the bullet after it traveled through the decedent’s head was not probative, so the only purpose served by the photograph was to inflame the jury against defendant.

Photographs of a murder victim are admissible into evidence regardless of their gruesome nature if they are relevant to establish any material fact in the case. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208.) The general rule is that the decision to admit photographs into evidence lies in the sound discretion of the trial judge. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6; People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827.) We have reviewed the photograph and do not believe the trial court abused its discretion by permitting the jury to see it. The photograph corroborates testimony as to the cause of death and location of the wound; it helps negate defendant’s defense that although he was standing two to four feet from the decedent, he accidentally shot her squarely in the head. We therefore affirm the trial court’s decision to admit the autopsy photograph depicting the location of the bullet in the decedent’s head.

Defendant next contends that he received ineffective assistance of counsel in that trial counsel failed to request a transferred-intent instruction and an involuntary manslaughter instruction and failed to object to the State’s closing arguments.

In People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, our supreme court adopted the principles concerning ineffective assistance of counsel as established by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. To establish ineffective assistance of counsel, a defendant must show that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to deprive the defendant of a fair trial. (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255.) Defendant must also establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different. 104 Ill. 2d at 525, 473 N.E.2d at 1255.

Defendant first argues that his representation was incompetent because counsel failed to tender a jury instruction on the doctrine of transferred intent and failed to argue transferred intent during closing arguments. We have consistently held that where a person without legal justification or excuse shoots at one individual and inadvertently kills another, he is guilty of the same degree of unlawful homicide as if he had killed the object of his aim. (People v. Johnson (1978), 66 Ill. App. 3d 84, 383 N.E.2d 648; People v. Adams (1972), 9 Ill. App. 3d 61, 291 N.E.2d 54.) The State argues that the jury was, in fact, made aware of the doctrine of transferred intent with regard to the first-degree-murder offense when the court issued Illinois Pattern Jury Instruction, Criminal 2d, No. 7.01:

“A person commits the offense of murder when he kills an individual without lawful justification if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual or another,
or
(2) he knows that such acts will cause death to that individual or another,
or
(3) he knows that such acts create a strong probability of death or great bodily harm to that individual or another ***.” (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. 1981).

Contrary to defendant’s argument, defense counsel did refer to the doctrine of transferred intent to exonerate defendant during closing argument:

“If I can make an analogy here, if this were a police officer and he believed that this individual, Donald Stewart, was armed or he had been told by a couple people that ‘this man is armed and dangerous and you better watch out’ and the police officer saw Donald Stewart coming around the parking lot, reach for his waistband and saw what he thought may have been a gun and the police officer pulled his weapon and fired and, in the process, caught Estella Day, we wouldn’t be here. The law is the same.”

The doctrine of transferred intent was not completely ignored by defense counsel or the court. Although defense counsel failed to request a specific instruction on the transferred-intent doctrine, defendant cites no authority, and we find none, indicating that such an omission constitutes ineffective assistance of counsel. Additionally, this court finds that such an omission does not fall below the objective standard of Reasonableness mandated by People v. Albanese.

Defendant next argues that he received incompetent representation because counsel failed to tender an involuntary manslaughter instruction. Defendant asserts that he was entitled to such an instruction because the jury could have concluded that defendant unintentionally killed Day but that his acts displayed a reckless and unjustified disregard for Day’s life. Involuntary manslaughter is defined as follows:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).)

In support of his argument, defendant cites two cases, People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, and People v. Adams (1972), 9 Ill. App. 3d 61, 291 N.E.2d 54. The Santiago court held that if there is some evidence in the record which would reduce the crime to involuntary manslaughter, defendant is entitled to an instruction defining the lesser offense. (Santiago, 108 Ill. App. 3d at 802, 439 N.E.2d at 994.) The defendant in Santiago fired a gun in the general direction of a parked car. One of the bullets struck David Pifer, who later died from his injuries. The defendant was convicted of voluntary manslaughter. The court held that under the facts of that case defendant was entitled to an involuntary manslaughter instruction. (108 Ill. App. 3d at 803, 439 N.E.2d at 995.) In reaching this conclusion, the court noted there was no evidence that anyone was standing near the car when the defendant opened fire. (108 Ill. App. 3d at 803, 439 N.E.2d at 995.) The case before us is distinguishable from Santiago in that defendant in the present case admitted that when he fired the gun, he intended to shoot Donald Stewart. That admitted intent is absent, from Santiago, making it factually inapposite to the case at bar.

People v. Adams is also factually distinct. The defendant in Adams was fired upon by an assailant sitting in a car. In self-defense, defendant returned the assailant’s fire with several bullets from his own gun, striking the assailant. At least one of the defendant’s bullets traveled through the assailant and struck a woman sitting next to him. The woman subsequently died of her injuries, and the defendant was convicted of involuntary manslaughter for the woman’s death. The issue on appeal was whether a defendant can be found guilty of involuntary manslaughter of a third person unintentionally killed by him while defending himself against an unlawful attack by another. The narrow holding reached by the Adams court was that the defendant committed no crime:

“He had to act immediately to protect himself from a man who had been drinking all day and who was not just threatening him but was shooting at him. Even under such circumstances defendant did not shoot wildly or carelessly. From the record it can be inferred that he hit his assailant with every shot and that the innocent victim was killed only as a result of a bullet passing through the body of the assailant.” (Adams, 9 Ill. App. 3d at 64, 291 N.E.2d at 56.)

Clearly, the circumstances in Adams under which the defendant fired his weapon are completely different than the circumstances under which defendant in the present case fired his weapon. The fact-specific holding in Adams has no application here.

Looking beyond the case law defendant provides, we do not find any authority to support defendant’s contention. Upon defense counsel’s request, the court issued a voluntary manslaughter instruction to the jury, in addition to the first- and second-degree-murder instructions. The jury returned a verdict that defendant was guilty of first-degree murder, a conviction far removed from involuntary manslaughter or even voluntary manslaughter. Assuming, arguendo, that defense counsel’s failure to tender an involuntary manslaughter instruction was an error, it does not rise to the level of incompetence required for a judgment of ineffective assistance of counsel. As stated earlier, under Albanese, defendant must establish a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. We find no such probability exists here, and defense counsel’s failure to tender an involuntary manslaughter instruction does not constitute ineffective assistance of counsel.

Defendant’s next complaint regarding his representation lies with defense counsel’s failure to object to comments made by the State during closing argument. Defendant cites several instances where defense counsel should have objected during the State’s closing argument, contending that counsel’s failure to do so amounts to ineffective assistance of counsel. Upon review of the record, we find no such error.

The final issue on appeal is whether one of defendant’s convictions for aggravated battery must be vacated. According to People v. Ellis (1986), 143 Ill. App. 3d 892, 493 N.E.2d 739, multiple convictions for aggravated battery cannot stand when a single physical act is the basis for both offenses. Defendant was convicted of two counts of aggravated battery for the shooting of Leslie Mosley, a single physical act, so this court will vacate one of the aggravated battery convictions.

For the foregoing reasons, the judgment of the circuit court of Jackson County finding defendant guilty of first-degree murder, aggravated battery and unlawful use of weapons by a felon is affirmed, and the second conviction of aggravated battery is vacated.

Affirmed in part, vacated in part.

JUSTICE CHAPMAN,

specially concurring:

While I agree with Justice Harrison’s dissenting opinion that under People v. Weaver (1982), 92 Ill. 2d 545, 442 N.E.2d 255, and People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433, the impeachment of McCorkle was improper, I do not agree that the error mandates reversal in this case.

Mr. McCorkle was in his eighties and almost blind. As the court indicated:

“Now, Mr. McCorkle says he does not remember. The man is
81 years old, Mr. Wepsiec.
* * *
*** You are asking him compound questions. You are not being specific in your questions. You are asking him open-ended questions. And I think it’s very unfair. I think it’s extremely unfair.”

And later:

“I don’t think he is a hostile witness. I think the man doesn’t remember, Mr. Grace, legitimately doesn’t remember ***.”

In contrast to the possible confusion involved in McCorkle’s testimony, there was specific, albeit controverted, testimony from 24-year-old Catherine Martin that a week or two before the killing the defendant had sort of wrestled with and slapped the victim in the face while trying to wake her up. When the victim argued with him, he had picked up a gun, pointed it at her, and said, “I will kill you.” In view of Catherine Martin’s testimony I conclude that the trial court’s action with respect to the impeachment of McCorkle does not warrant reversal, and I, therefore, concur with the result reached by Justice Goldenhersh.

JUSTICE HARRISON,

dissenting:

I decline to join in Judge Goldenhersh’s opinion because I do not agree that Mr. McCorkle’s testimony damaged the State’s case so as to make impeachment permissible. The following are further excerpts from Mr. McCorkle’s testimony at trial:

“Q. What did your son tell you on the telephone when he spoke to you?
A. Oh, I don’t know. Ain’t no need of — You trying to make me lie. I don’t know what Larry said, not that long ago. In
fact, I don’t know. I think he said he was in jail. I don’t know.
* * *
Q. Sir, did your son, in the course of his telephone conversation with you, tell you that it was a long story, but that she had been messing—
MR. "VAN DERHOFF: Your Honor, I am going to object. The witness has already testified he didn’t recall what was said in the conversation.
THE COURT: Sustained.
* * *
Q. Isn’t it a fact, Mr. McCorkle, that on July 2, 1988, at approximately 5:20 p.m., you were contacted by Officer Robert Burns of the Jackson County Sheriff’s Department by telephone?
A. By telephone? I don’t remember whether that’s right or not.
MR. WEPSIEC: Your Honor-
A. He might have called me, yes, but like I say, I don’t remember him calling me.
MR. WEPSIEC: Your Honor, pursuant to S[upreme] Court Rule 238, I would ask that Mr. McCorkle be labeled a hostile witness.
THE COURT: Denied.
MR. WEPSIEC: I would ask-
THE COURT: It’s obvious, Mr. Wepsiec, that the gentleman cannot remember what was said to him, if his son called him on July 2 or 3.
Q. Mr. McCorkle, do you remember speaking with Detective Burns on July 2, 1988, on the telephone?
A. What did you say?
* * *
THE COURT: He wants to know, Mr. McCorkle if you talked with Detective Bums on the telephone, not in person, but on the telephone on July 2, 1988?

A. Well, I don’t recall talking to him on no telephone, no.” When considered in its entirety, the testimony of Mr. McCorkle does not, as Judge Goldenhersh suggests, damage the State’s credibility by implying that the State was attempting to fabricate evidence. Rather, the testimony simply shows that Mr. McCorkle could not remember the conversations about which the State was questioning him and did not want to be pressured into saying he recalled something when he clearly did not. Indeed, the trial court, in proceedings held outside the jury’s presence, stated its belief that Mr. McCorkle was not attempting to impair the State’s case:

“THE COURT: Now, Mr. McCorkle says he does not remember. The man is 81 years old, Mr. Wepsiec.
MR. WEPSIEC: I realize that, your Honor.
THE COURT: You are asking him compound questions. You are not being specific in your questions. You are asking him open-ended questions. And I think it’s very unfair. I think it’s extremely unfair.
MR. WEPSIEC: I can ask him leading questions, if the Court would permit me, your Honor.
THE COURT: I will ask you — I will allow you to ask the man leading questions, but you have asked him all these questions. You obviously have him confused, and he’s told you he did not talk with his son on the phone, or, at least, he did not remember talking to him.
* * *
MR. GRACE: And, Your Honor, at this point in time, I believe we have established sufficient indication at this point of a hostile witness under [Rule] 238.
THE COURT: I don’t think he is a hostile witness. I think the man doesn’t remember, Mr. Grace, legitimately doesn’t remember, but I will allow you to ask him leading questions.”

Therefore, because I believe that, as in People v. Johnson (1985), 138 Ill. App. 3d 980, 486 N.E.2d 433, there was no possible purpose for impeaching the witness except to bring inadmissible hearsay to the jury’s attention, the impeachment testimony of Detective Burns was impermissible. Since admissions are almost always potent evidence of guilt, I find that the error was not harmless. Accordingly, I would reverse and remand for a new trial. See Johnson, 138 Ill. App. 3d at 986, 486 N.E.2d at 437.


author: JUSTICE CHAPMAN PRESIDING JUSTICE GOLDENHERSH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MALCOLM CEMOND, Defendant-Appellant.
    Fifth District
    No. 5—90—0055
    Opinion filed June 4, 1992.

      GOLDENHERSH, P.J., dissenting.
    Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Michael McCormick, State’s Attorney, of Vienna, and Jacques F. Heilingoetter, Jr., of Chicago (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant was found guilty of unlawful possession of cannabis in a State penal institution in violation of section 31A — 1.1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 31A — 1.1(b)). Defendant was sentenced to a six-year prison term to run consecutive to the sentence he had been serving at the time of the instant offense. Defendant raises a single issue, whether he knowingly, understandingly, and effectively waived his right to counsel. We affirm.

On July 24, 1989, a two-count information charged defendant with unlawful possession of cannabis in a State penal institution and unlawful possession of cannabis. Defendant’s preliminary hearing and arraignment took place on August 23, 1989, and he was advised of the nature of the charges and the potential penalty for the offenses. Defendant indicated that he understood the possible penalties on both charges. Defendant then asked the court’s permission to proceed pro se with the assistance of attorney Steven Douglas. The trial court allowed defendant to proceed in this manner.

On November 27, 1989, a three-day jury trial commenced. Attorney Douglas gave the opening statement and cross-examined the State’s witnesses. Defendant handled the other aspects of the case. The State’s main witness, Shawnee Correctional Center officer Kevin Kunath, testified that on June 6, 1989, he performed an inventory search of defendant’s cell and found a cellophane package taped under the rim of the commode containing what was later determined to be 3.6 grams of cannabis. Other State witnesses testified to the chain of custody, the prison’s internal security system, and the forensic analysis of the cannabis. Defendant admitted that the cannabis was found in his cell but defended on the theory that the evidence failed to establish beyond a reasonable doubt that he had knowledge of it.

The jury returned a verdict of guilty on both counts. Count II, possession of cannabis, was later dismissed. On December 29, 1989, defendant filed a motion for a new trial. While fairly comprehensive, the motion did not raise the issue now before us on appeal. On January 10, 1990, the trial court denied defendant’s motion for a new trial and sentenced defendant to an extended term of six years on count I. The sentence was ordered to run consecutive to any previous sentence defendant was already serving at the time of the offense.

The issue we are asked to consider is whether defendant knowingly, understandingly, and effectively waived his right to counsel. Defendant argues that because the trial court failed to admonish him under Supreme Court Rule 401(a) (134 Ill. 2d R. 401(a)), prior to granting his request to proceed pro se, that he was subject to a mandatory consecutive sentence, it cannot be said that defendant has waived his right to counsel. The State replies that defendant has waived this issue since he failed to raise it in his post-trial motion asking for a new trial. The State also contends that in order to qualify for the protection of Rule 401(a), a defendant must truly relinquish his right to counsel, and defendant failed to do this because he had the assistance of counsel at all times. Assuming, arguendo, that defendant was not effectively assisted by counsel and was in fact defending himself pro se, the State contends that defendant was adequately admonished pursuant to Rule 401(a).

We will first address the waiver argument. Ordinarily, failure to raise an issue in a written motion for a new trial constitutes waiver of that issue on appeal. (People v. Whooper (1979), 78 Ill. App. 3d 1079, 1083, 398 N.E.2d 93, 96.) However, Supreme Court Rule 615 allows for a relaxation of that rule where the alleged error involves substantial rights. Supreme Court Rule 615(a) provides:

“Rule 615. The Cause on Appeal
(a) Insubstantial and Substantial Errors on Appeal.
Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (134 Ill. 2d R. 615(a).)

Where the nature of the alleged error is such as to deprive an accused of his constitutional rights, a court will consider the error although not properly preserved for review. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) We will consider defendant’s argument that he did not waive his constitutionally mandated right to counsel.

Defendant’s contention that he did not effectively waive counsel must be considered in light of Supreme Court Rule 401(a), which provides:

“Rule 401. Waiver of Counsel
(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.” (134 Ill. 2d R. 401(a).)

The purposes of this rule are to provide a procedure which will eliminate any doubt that the defendant understands the nature and the consequences of the charge against him before the trial court accepts his waiver of the right to counsel and to prohibit the defendant from waiving assistance of counsel without full knowledge and understanding. (People v. Derra (1981), 92 Ill. App. 3d 1106, 1109, 416 N.E.2d 688, 690.) In determining whether there is a valid waiver of right to counsel, a reviewing court must consider the words and conduct of the defendant and indulge in every reasonable presumption against waiver. People v. Vanderwerff (1978), 57 Ill. App. 3d 44, 50, 372 N.E.2d 1014,1019.

In the instant case, the trial court made the following remarks concerning the possible penalties defendant faced if found guilty of the charges.

“THE COURT: Are you ready now for me to inform you of possible penalties? All right. Count I alleges a Class 4 felony. If one is convicted of a Class 4 felony in the State of Illinois, he or she could be sentenced to the Illinois Department of Corrections for a term not less than one nor more than three years, a fixed amount of time within that range. If one is convicted of a Class 4 felony in the State of Illinois and at the sentencing hearing the Judge were to find that within the past ten years that the defendant had been convicted of the same, a Class 4 felony, or a higher class of felony in the State of Illinois and excluding, which means not counting, any time spent in custody on the previous felony conviction and if all of the requirements of the Extended Term Section of the Illinois Criminal Code were met, that individual could be sentenced in the Judge’s sentencing discretion to the Illinois Department of Corrections under the Extended Term Section of the Code to a term not less than three nor more than six years, a fixed amount of time within that range. If one is convicted and sentenced to the Illinois Department of Corrections, upon release there would be a one year period of mandatory supervisory release, very similar to what we use[d] to term parole, another possible sentencing alternative which would very likely not apply in this case since if you are convicted, it is said in the allegations that you are a resident of a correctional facility and then imprisonment would be the legal and the statutory sentence to be given. But I’ll go ahead and tell you about possible other alternatives if one is routinely charged with a class felony. And you should keep in mind that these may very well not apply in part or in total to you. You could be placed on probation or conditional charges for a term up to not more than thirty months within terms and conditions coming therefrom. Another possible sentencing alternative, periodic imprisonment or periodic jail confinement for a term not to exceed eighteen months in duration, a fine up to $10,000, a fine up to not more than $10,000 could be imposed if convicted. Of course, court costs, statutory court costs would be imposed if convicted. Now Count II, that is a Class B misdemeanor. If you are convicted of a Class B misdemeanor, the maximum period of confinement would be up to six months in the county jail. You could be in addition fined up to $500 and court costs, statutory costs and fees, would be imposed if convicted. You could be placed on probation or conditional discharge for a term up to not more than twelve months with terms and conditions coming therefrom. Now do you understand the possible penalties on both charges?
DEFENDANT: Yes, sir.”

Defendant was not informed that if he was convicted, his sentence would run consecutive to any sentence he was presently serving pursuant to section 5 — 8—4(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(f)). After defendant was informed of the possible penalties, the following colloquy ensued:

“THE COURT: How does he plead, Mr. Douglas, to Count I? Does he plead not guilty, Mr. Douglas? Sir, I’m asking you how to plead.
DEFENDANT: I thought you were talking to Mr. Douglas.
THE COURT: He’s your lawyer. One of you, it doesn’t matter which, can enter your plea. I’ve got other cases, as you can see. So how do you plead, not guilty or guilty, Mr. Cemond?
DEFENDANT: Not guilty.
THE COURT: Not guilty to Count I. How do you plead to Count II?
DEFENDANT: Not guilty.
THE COURT: Not guilty pleas are entered. Jury trial will be when, Mr. Yandell?
MR. YANDELL: September 25.
THE COURT: September 25,1989, at 9:00.
DEFENDANT: Your Honor, may I say something? May I proceed pro se with the assistance of Mr. Douglas on this case?
THE COURT: Is that what you want to do at your jury trial?
DEFENDANT: Yes. From this point on, I would like all the records pertaining to this case and I will process [sic] pro se with the assistance of Mr. Douglas.
THE COURT: All right, you’re sure that’s what you want to do?
DEFENDANT: Yes.
THE COURT: All right, I’ll allow you to proceed representing pro se, representing yourself, with the assistance of Mr. Douglas. Mr. Douglas will be here at all hearings and he will assist you in any way. Your jury trial, sir, is September 25, 1989, at 9:00.”

The State argues that from the above language it is apparent that defendant did not waive counsel since defendant proceeded with the “technical assistance” of an attorney. The State contends that where a defendant proceeds with the technical assistance of an attorney, the defendant has not waived counsel, and that in such a situation, a defendant need not be given the full admonishment of Supreme Court Rule 401(a). The rationale for this ruling was articulated in People v. Hite (1983), 115 Ill. App. 3d 66, 450 N.E.2d 416:

“The reason for these decisions is that a defendant who seeks to conduct his own defense with the advice of counsel partakes of the freedom of defending himself in addition to the expertise of an advisor with legal training. A defendant who wishes to act pro se desires to stand alone, but this does not occur if a lawyer assists him at trial. In this instance, a defendant receiving such legal advice should not be heard to complain on appeal of improprieties pertaining to admonishments about proceeding pro se or of deficiencies apparent of record relating to a waiver of legal assistance.” (Emphasis added.) (115 Ill. App. 3d at 69, 450 N.E.2d at 418.)

We believe this rationale applies in the instant case. Although the trial court failed to point out to defendant that if convicted he would be subject to a mandatory consecutive term (134 Ill. 2d R. 401(a)), at the preliminary hearing Cemond expressed his desire to proceed pro se with the assistance of counsel and did in fact receive the assistance of his attorney. It has been held that in such situations the admonitions of Rule 401(a) are not required to be given because the defendant has not made a waiver of counsel within the meaning of the rule. (People v. Love (1985), 139 Ill. App. 3d 104, 113, 486 N.E.2d 1337, 1343-44; People v. Pittman (1979), 75 Ill. App. 3d 683, 394 N.E.2d 702.) “[Wjhere a defendant proceeds to trial with the ‘technical assistance’ of an attorney, he has not waived counsel.” (People v. Smith (1985), 133 Ill. App. 3d 574, 579, 479 N.E.2d 24, 29.) In Pittman the court found that any alleged deficiency was harmless and that the record therein reflected substantial compliance with Rule 401.

For the forgoing reasons, the judgment of the circuit court of Johnson County is affirmed.

Affirmed.

RARICK, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent. I do not believe the rationale of People v. Hite (1983), 115 Ill. App. 3d 66, 450 N.E.2d 416, is applicable in the instant situation where there is lack of compliance with Supreme Court Rule 401(a)(2) (134 Ill. 2d R. 401(a)(2)) regarding potential sentence. The trial court did not point out to defendant that if convicted, he would be subject to a mandatory consecutive term. People v. Smith (1985), 133 Ill. App. 3d 574, 579, 479 N.E.2d 24, 29; People v. Love (1985), 139 Ill. App. 3d 104, 113-14, 486 N.E.2d 1337, 1343-44; see People v. Montoya (1981), 94 Ill. App. 3d 6, 418 N.E.2d 84.

The appointment of advisory counsel does not by itself relieve a court of its responsibility to ensure that the defendant’s waiver of counsel is knowingly and intelligently made. (United States v. Padilla (10th Cir. 1987), 819 F.2d 952, 959-60.) In the instant case, the record reflects that defendant did use the assistance of an attorney, but the record also clearly reflects defendant was attempting to represent himself. Under the facts and circumstances herein, I believe the trial court was required to provide defendant with a complete Rule 401 admonition even though defendant asked for and was granted the use of an attorney in an advisory capacity. See People v. Derra (1981), 92 Ill. App. 3d 1106, 416 N.E.2d 688.

Rule 401(a) is clear that a defendant must be admonished as to his potential for consecutive sentences due to past convictions. It is quite possible defendant would have come to a different conclusion as to whether he wanted to represent himself had it been pointed out to him that he was facing a mandatory consecutive sentence pursuant to section 5 — 8—4(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(f)) if convicted. I therefore conclude that defendant did not knowingly, understandingly, and effectively waive his right to counsel.


author: JUSTICE CHAPMAN

text:
    TERRY MAUS, Plaintiff-Appellant, v. MARATHON PETROLEUM COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 5—91—0449
    Opinion filed June 4, 1992.
    Rehearing denied July 8, 1992.

      Law Offices of Robert L. Douglas, Ltd., of Robinson, for appellant.
    John P. Ewart and John L. Barger, both of Craig & Craig, of Mattoon, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Terry Maus brought an action against his former employer, Marathon Petroleum Company, and acting subforeman, Paul Wilson, for wrongful termination and breach of employment contract. The jury found for the defendants. We reverse and remand with directions.

Terry Maus began working for Marathon in 1970. Sometime in late January or early February 1983, Maus approached his supervisor, foreman Jack Blankenbecker, and asked to be scheduled off work for the two days preceding his vacation of March 14-21, 1983. Blankenbecker replied that this did not seem to be a problem and posted a note to try to schedule the plaintiff off work for those two days. The actual work schedule for the week of March 7 would not be finalized until a few days before that date. Blankenbecker went on vacation in late February and did not return to his duties as foreman until Monday, March 14.

While Blankenbecker was gone, Paul Wilson acted as subforeman, and it became his responsibility to prepare the work schedule for the week of March 7. Wilson told Maus he could not schedule him off work for the requested two days due to a shortage of manpower. Maus claimed that Wilson then advised him to “call in sick,” but Wilson denied this.

On Friday, March 11, the plaintiff phoned in sick, and he left for a Jamaican vacation the next day. Plaintiff returned from Jamaica on March 20. On March 21 Jack Blankenbecker asked the plaintiff to come to a meeting at the main office building. Present at the meeting were the plaintiff, Blankenbecker, operations manager Jerry Atkins, and employee relations manager Don McNeely. Blankenbecker told Maus to “tell the truth.” Atkins conducted the meeting and asked the plaintiff when he had flown out. Plaintiff lied and said that he had flown out on Monday, March 14.

After this meeting Atkins advised his supervisor, Donald Dobe, the division manager, that there might be a problem with Maus in connection with unexcused absences. On March 22 plaintiff was again called to the office and asked to sign a release form allowing Marathon to contact Air Jamaica in order to confirm plaintiff’s claim that he had not flown out until Monday, March 14. Plaintiff signed the release, and the airline released information which established that plaintiff had departed for Jamaica on March 12.

On April 6, plaintiff was requested to attend another meeting. At the meeting Atkins informed plaintiff of the airline’s response. Plaintiff lied again and claimed the airline had made a mistake. Atkins then informed the plaintiff that due to the seriousness of the matter the plaintiff would be sent home and not allowed to return until after the issue was resolved.

On the evening of April 7, 1983, the plaintiff contacted Blankenbecker and acknowledged that he had been lying and that he had indeed flown to Jamaica on Saturday, March 12. Atkins was contacted and plaintiff admitted this information to him as well.

The next morning, April 8, Atkins talked to both McNeely and Dobe. Mr. Dobe made the final decision to terminate Terry Maus. At that point in time Dobe had only been with the division one year and was not familiar with the disciplinary procedures at the plant. On that same morning, Atkins called plaintiff to a meeting in McNeely’s office and informed plaintiff of his termination. Plaintiff was offered a prepared letter of resignation, but he refused to sign it.

On February 13, 1987, the plaintiff filed a complaint against Marathon Petroleum Company and its employee relations manager, Don McNeely. The complaint alleged that the defendants violated contractual rights that the plaintiff had with Marathon through an employee relations handbook. The complaint was later amended to add another defendant, Paul Wilson, the subforeman. On October 12, 1988, the plaintiff dismissed Don McNeely as a party defendant. The jury found for defendants, Marathon and Wilson.

Plaintiff claims, among other things, that the trial court committed error in failing to order witness Donald Dobe to answer certain questions in a discovery deposition and further erred in failing to allow the plaintiff to amend his complaint to conform to proofs at trial.

On December 9, 1988, plaintiff’s counsel took the deposition of Donald Dobe, the division manager of Marathon at the time plaintiff was fired. During the deposition defendant’s attorney objected to some of the questions and instructed Dobe not to answer them. The questions dealt with Dobe’s deference to Atkins and McNeely in the decision to terminate the plaintiff and whether Dobe had ever been told that plaintiff voluntarily informed Mr. Blankenbecker that he had indeed left for Jamaica, rather than actually being sick, prior to his discharge. If not, Dobe was asked, would this have made a difference in his final decision.

The witness refused to answer those questions on the advice of Marathon’s attorney. Plaintiff filed a motion to compel answers, and the trial court judge denied the motion with respect to these questions.

At trial Mr. Dobe testified that it would have been important for him to know whether Mr. Maus had admitted the improper claim of illness before he was discharged. Dobe could not, however, at trial state with certainty whether or not he had been informed of this prior to deciding to terminate. This testimony was first developed at trial. Plaintiff’s counsel, based on this testimony, requested leave to amend his complaint to state a cause of action against Marathon based on Mr. Dobe’s failure to properly investigate fully the Terry Maus matter as required by the employee handbook:

“3. If you do not feel your problem has been satisfactorily resolved, you may submit it in writing to the Refinery’s Division Manager who will investigate the matter fully and give you an answer.” (Emphasis added.)

Plaintiff claims that due to the trial court’s failure to compel Dobe to answer the disputed deposition questions, plaintiff was unable to develop the factual basis of this claim until Dobe testified at trial. Consequently, plaintiff contends that the trial court erred in not allowing plaintiff to amend his complaint to conform with the evidence derived from Donald Dobe at trial.

We need not address the correctness of the trial court’s decision not to compel answers to the various deposition questions at issue. The fact of the matter is, for whatever reasons, the court did not compel the answers, and the plaintiff was not made aware of the decision process, or lack thereof, employed by division manager Donald Dobe until Mr. Dobe testified at the actual trial.

Section 2 — 616 of the Code of Civil Procedure allows for amendment of pleadings “[a]t any time before final judgment *** on just and reasonable terms.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616.) The trial court’s power to allow amendments should be freely exercised so that a party may fully present its cause of action. The test for determining whether the trial court’s discretion was properly exercised is whether allowance of the amendment furthers the ends of justice. (Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 866, 501 N.E.2d 273, 280.) However, once a trial has begun, an amendment ordinarily should not be permitted for matters of which the pleader had full knowledge at the time of the filing of the original pleading and no excuse is presented for omitting the substance of the amendment from the original pleading, especially where the amendment is prejudicial or would alter the nature and quality of proof required to defend. Weldon v. Hawkins (1989), 183 Ill. App. 3d 525, 533-34, 539 N.E.2d 229, 234.

While some prejudice might result from a late amendment, we do not find the nature of the proposed complaint a substantial alteration from the original. We also note that the plaintiff did not have full knowledge of the substance of the amendment at the time of the original or amended filings due in no small part to the trial court’s denial of plaintiff’s motion to compel on the deposition questions dealing with Mr. Dobe’s “investigation” and subsequent decision to terminate. We, therefore, conclude that allowing plaintiff’s proposed amendment would have furthered the ends of justice and should have been allowed. To this end we reverse the ruling of the trial court and remand for a new trial in accordance with the findings of this opinion.

In view of this disposition, we need not address the other issues raised on appeal at this time.

Reversed and remanded.

GOLDENHERSH, P.J., and RARICK, J., concur.


author: JUSTICE WILLIAM A. LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK DAVIS, Defendant-Appellant.
    Fifth District
    No. 5—90—0828
    Opinion filed June 8, 1992.
    Daniel M. Kirwan and Robert S. Burke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Paula Phillips, State’s Attorney, of Effingham (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WILLIAM A. LEWIS

delivered the opinion of the court:

Defendant appeals from the denial of his post-conviction petition. He makes two arguments on appeal: (1) his conviction for possession of cannabis is improper because possession of cannabis is a lesser-included offense of possession of cannabis with intent to deliver; and (2) he was denied effective assistance of counsel in the post-conviction hearing because counsel did not comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). We vacate and remand.

Defendant was convicted of both possession of cannabis and possession of cannabis with intent to deliver. He now argues, for the first time, that the conviction for the lesser-included offense of possession of cannabis is improper. We agree.

There is no question that possession of cannabis is a lesser-included offense of possession of cannabis with intent to deliver. (People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319.) The State argues, however, that the conviction for the lesser-included offense should be “voidable” and not “void.” If the judgment of conviction is voidable and the defendant did not raise this issue in the trial court, the defendant has waived any right to challenge this conviction on appeal. This argument is the official position of the first and third districts of the Illinois Appellate Court. People v. Holder (3d Dist. 1991), 213 Ill. App. 3d 109, 571 N.E.2d 528; People v. Gray (1st Dist. 1988), 171 Ill. App. 3d 860, 525 N.E.2d 1033, appeal denied (1988), 123 Ill. 2d 562, 535 N.E.2d 406.

We in the fifth district have ruled the opposite; a conviction on a lesser-included offense is “void” if there was a conviction for the greater offense, and an objection to the conviction can be raised at any time. (People v. Johnson (5th Dist. 1990), 200 Ill. App. 3d 1018, 558 N.E.2d 607.) The State now urges us to change our opinion to conform with the first and third districts. We refuse to do so.

The use of the words and concepts of “void” versus “voidable” has been the source of much confusion. It is interesting to note that the Illinois Supreme Court has not used these words in cases involving similar issues. (See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. Russo (1972), 52 Ill. 2d 425, 288 N.E.2d 412, cert, denied (1973), 410 U.S. 940, 35 L. Ed. 2d 606, 93 S. Ct. 1403; People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1; People v. Schlenger (1958), 13 Ill. 2d 63, 147 N.E.2d 316; People v. Whittington (1970), 46 Ill. 2d 405, 265 N.E.2d 679.) The supreme court did, however, use the concept of “void” in People v. Wade (1987), 116 Ill. 2d 1, 506 N.E.2d 954, when it held that a sentence to probation for robbery was “void” after it was discovered later that the defendant had prior convictions for armed robbery and rape. The court stated:

“A void judgment is one entered by a court without jurisdiction of the parties or the subject matter or that lacks ‘the inherent power to make or enter the particular order involved.’ ” (Emphasis added.) (Wade, 116 Ill. 2d at 5, 506 N.E.2d at 955, quoting R. W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309.)

The issue was not whether the trial judge had jurisdiction over the defendant or whether the trial judge had jurisdiction over a conviction for robbery, but rather the issue was whether the trial court had authority to assess a fine or impose a sentence other than that provided by statute. Section 5 — 5—3(c)(2)(F) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(2)(F)) did not provide for probation on a second conviction for a Class 2 felony. Thus, the trial court, even though it had jurisdiction over the party and the subject matter, was without authority to grant probation.

The State cites People v. Rodriguez (1988), 169 Ill. App. 3d 131, 523 N.E.2d 185, for the proposition that in order for a court order to be “void,” the defendant must show that the court never obtained jurisdiction over the subject matter or person. The State argues that defendant has not shown that the court did not have jurisdiction over the criminal charge of unlawful possession of cannabis and, therefore, the conviction is “voidable.”

This argument and Rodriguez ignore the further requirement that the court must have “the inherent power to make or enter” the conviction upon the lesser-included offense once the defendant has been convicted of the greater offense. The State never suggested or cited any authority to support the proposition that a court could enter a judgment on the lesser-included offense. In fact it is well established that a judgment cannot be entered on the lesser-included offense in a multiple-conviction situation where a single physical act is the basis for both charges. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E. 2d 477; People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1; People v. Schlenger (1958), 13 Ill. 2d 63, 147 N.E.2d 316.) Thus, the trial court clearly lacked the inherent power to enter the conviction.

We note that in Cox the supreme court vacated the judgment of conviction and the sentence on the second count for indecent liberties with a child, even though this issue was first raised in the post-conviction hearing. The supreme court could have easily ignored the judgment of conviction, since the petitioner was only objecting to the concurrent sentences. This vacation of the judgment as to the conviction was consistent with prior decisions of People v. Schlenger (1958), 13 Ill. 2d 63, 147 N.E.2d 316, People v. Russo (1972), 52 Ill. 2d 425, 288 N.E.2d 412, and People v. Whittington (1970), 46 Ill. 2d 405, 265 N.E.2d 679.

We see no benefit to the State in having an illegal conviction on defendant’s record. Defendant, however, can be prejudiced by this conviction. His criminal record will show this conviction, which could be considered on job applications, in setting bail on a new charge, in a sentencing hearing on a new conviction, and in parole hearings. This double conviction for the same act can lead to an erroneous view that defendant has been convicted of two entirely separate crimes. It does not enhance justice to have this mistaken belief.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, 844, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, the Illinois Supreme Court recognized this injustice when it stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses.” (King, 66 Ill. 2d at 566, 363 N.E.2d at 844.)

Illinois courts agree that the defendant has been prejudiced, so why continue to prejudice the defendant by hiding behind a questionable technicality or confusing concept?

We hold that when there are multiple convictions for the same act, a conviction on a lesser-included offense affects substantial rights of the defendant and that conviction is void. We, therefore, vacate defendant’s conviction on the lesser-included offense of possession of cannabis.

Defendant next complains that his post-conviction counsel was ineffective because he failed to comply with Supreme Court Rule 651(c). This rule provides:

“The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner *** to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c).

Counsel stated in his certificate that, “I have examined the record of the proceedings at the trial which were available to me for an adequate presentation of the Petitioner’s contentions on appeal.” (Emphasis added.) This certificate was filed on January 17, 1991, but the transcript of the jury trial was not filed until April 3, 1991. The hearing on the post-conviction petition took place on November 5, 1990, and the ruling denying such petition was entered on November 19, 1990. Clearly, counsel did not have a report of the trial proceedings and did not comply with Rule 651(c). Counsel’s failure to read the record of the trial proceedings raises the question of whether or not counsel made those amendments to the pro se petition that were necessary for an adequate presentation of possible violations of petitioner’s constitutional rights.

Defendant’s post-conviction petition concerned a telephone call or calls made by a juror to the State’s Attorney prior to the defendant’s jury trial, in which the juror allegedly apologized to the State’s Attorney for having voted to find a defendant not guilty in another unrelated trial. This evidence did not come to light until more than nine months after defendant’s jury trial. This matter was ruled upon at the post-conviction hearing, and its correctness is not raised in this appeal.

We note that defendant was found guilty by a jury and that no post-trial motions were made and no appeal was taken. Thus, no attorney had examined the record of the trial proceedings until the office of the State Appellate Defender did so pursuant to this appeal.

The purpose of Rule 651(c) is not merely formal, but rather it is to ensure defendants are provided proper representation under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). (People v. Brown (1972), 52 Ill. 2d 227, 230, 287 N.E.2d 663, 665; People v. Garrison (1969), 43 Ill. 2d 121, 124, 251 N.E.2d 200, 201; People v. Slaughter (1968), 39 Ill. 2d 278, 235 N.E.2d 566.) Thus, the record must show that the defendant’s post-conviction attorney examined the record of the trial proceedings by filing a certificate of compliance or establish compliance by an affirmative showing in the record that counsel examined all pertinent portions thereof. People v. Wilson (1985), 132 Ill. App. 3d 48, 477 N.E.2d 24; People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55; People v. Toles (1975), 30 Ill. App. 3d 837, 335 N.E.2d 188; People v. Bonn (1974), 19 Ill. App. 3d 443, 311 N.E. 2d 766; People v. Brown (1972), 52 Ill. 2d 227, 287 N.E.2d 663.

In the case at hand, there is no showing by a certificate of compliance or in the record that defendant’s post-conviction counsel examined the record of the trial proceedings. Our ruling is consistent with People v. Carter (4th Dist. 1992), 223 Ill. App. 3d 957, 586 N.E.2d 835, which held that “[cjounsel must examine the entire trial record to ascertain all possible violations of defendant’s constitutional rights.” 223 Ill. App. 3d at 963, 586 N.E .2d at 839.

We note that defendant’s appellate counsel raises several issues in this appeal in an attempt to prove that defendant’s counsel in the post-conviction hearing was ineffective because he could have raised the constitutional issue that defendant received ineffective assistance of counsel at the jury trial. It could be argued that, now that appellate counsel has apparently examined the record of the trial proceedings, we should rule on the issue of whether trial counsel met the standards provided by Strickland v. Washington (1984), 466 U.S 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh’g denied (1984), 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562. We decline to do so, for we do not believe it is necessary. If we were to rule on the effectiveness of trial counsel pursuant to the appellate defender’s brief, we would in effect be emasculating Rule 651(c). There would not be any reason for post-conviction counsel to comply with Rule 651(c) because counsel would know that the appellate counsel would perform post-conviction counsel’s duty.

We remand this cause to the trial court with instructions to vacate the judgment for unlawful possession of cannabis and to appoint post-conviction counsel, so that counsel can comply with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)).

Vacated and remanded with instructions.

RARICK and HARRISON, JJ., concur.