author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAMON MONTAGUE, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—2082
    Opinion filed April 25, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Crystal H. Marchigiani and Kyle Wesendorf, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Andrea Muchin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Ramon Montague, James Edens, and Deborah Weathersby were charged with murder, home invasion and attempt (murder) (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1, 12 — 11, 8 — 4), all committed on March 21, 1984, at the residence of Harry Schenault in the City of Chicago. Montague was tried separately, convicted of all counts by a jury, and, after the jury declined to impose the death penalty sought by the State, he was sentenced to natural life imprisonment on the murder charge, 30 years to be served concurrently for attempt (murder), and 30 years, also concurrent, for home invasion.

This appeal concerns only Montague, who assigns the following errors on appeal: (1) that the trial court improperly refused to permit defendant to introduce hearsay testimony regarding another murder; (2) that it wrongfully prevented the defense from impeaching key State witnesses against defendant; (3) that it prejudiced defendant by admitting evidence that defendant was in Federal custody when he was interrogated about this case; (4) that it permitted prosecutorial misconduct during closing argument, warranting a reversal of the convictions; (5) that it allowed the jury to view autopsy photos of the victim when the cause of death was not an issue in the case; (6) that its imposition of a sentence of natural life imprisonment must be vacated because the trial court based the sentence on the erroneous finding that the offense was brutal and heinous; and (7) that the delay of two years before the defendant was brought to trial violated defendant’s right to a speedy trial.

Prior to trial, the judge granted the People’s motion in limine to preclude defendant from mentioning anything relative to a 1983 homicide in his opening statement, and further specified that if the issue arose during cross-examination of any of the State’s witnesses, it would be taken up again in a side-bar conference.

On March 21, 1984, at about 3:15 p.m., Chicago police officer Air-hart received a call that a home invasion was in progress at 2354 E. 80th Street. Airhart, the first officer on the scene, found Harry Schenault running northbound on the west side of Yates Avenue. Schenault told Airhart that a black man shot him, and Airhart observed injuries to Schenault’s cheek and thigh. Airhart immediately called for an ambulance and proceeded to Schenault’s home. There, Airhart saw a woman, later identified as Phyllis Alvarez, who appeared to be dead, lying on the staircase, and bleeding from gunshot wounds to the head.

Chicago Detective Flood was also summoned to the Schenault residence and arrived there at approximately 4:00 p.m. He noted Phyllis Alvarez’ body on the staircase as he went up to Schenault’s bedroom. The room appeared to have been ransacked: the bedside dresser drawers were open, their contents were in disarray, the bedsheets, bedspread and pillows were strewn about the room and there was a trail of blood on the carpeting.

After returning to his office, Detective Flood spoke with an employee of Schenault, Lilly Lovett, who informed him that Deborah Weathersby was involved in the occurrence. Consequently, the detective conducted a name check on Weathersby and learned that she was wanted for questioning in another matter. Lovett also described a man who had come into the Schenault house: he was black, his hair was in a curly perm, he wore a short dark jacket and he had a big gun with a long barrel. Lovett selected defendant’s photo from among a group that Flood had shown her, but she said that she would have to see the person’s build in order to be sure. On March 28, 1984, Flood went to the Metropolitan Correctional Center, from which he brought defendant to his office, and on that same day, Lovett picked defendant out of a lineup. The lineup photograph showed Montague to be 5 feet 7 inches tall, 140 pounds, with short hair and no mustache.

Lovett testified that prior to March of 1984, she had known Harry Schenault and Phyllis Alvarez for approximately two years; that she had known Schenault’s driver, Ron Casey; that she had known Deborah Weathersby for about three months; and that Weathersby lived with her for three months immediately before the incident of March 21, 1984. Lovett then testified as to the events that occurred on that day.

She was at work, sitting on a bench near the wall, in Schenault’s bedroom, when Weathersby entered the house. From where Lovett was sitting, she could see a hallway which led to the foyer and the front entrance. The door bell rang, and Alvarez answered it. Alvarez informed Schenault that it was Weathersby, and Schenault instructed Alvarez to let her in as he was expecting her. Lovett then heard Alvarez scream, “Oh no!” followed by two shots. After she had jumped up and gone to see where the shots had come from, Lovett saw defendant holding a gun and hovering over Alvarez with one arm around her. Lovett screamed, “It’s a robbery!” and ran into the bathroom in Schenault’s bedroom, out into the hallway and right into defendant, who was carrying a gun.

Lovett begged defendant not to shoot her and ran up the stairs towards Alvarez’ bedroom. Defendant was following her, and she continued to beg him not to shoot her. Once inside Alvarez’ room, Lovett had a clear look at defendant’s face. When defendant left the room, she tried unsuccessfully to lock the door, so she broke the window with a hard book and went through it. Because she had heard gunshots and was bleeding, she thought she had been shot, but then realized that she had cut her back on the jagged edges of the broken window. After Lovett had gone through the window and onto the roof, she went to the Yates Avenue side of the house, where she saw Schenault walking down the street, bleeding from his face and leg. Because she had sprained her hip, the police had to climb to the roof to get her down. Lovett was then taken to the hospital where she received 22 stitches for her cuts.

Detective John Solecki testified that when he and his partner, Joseph DiGiacomo, arrived at Schenault’s house on the day of the occurrence, other police officers were already on the scene, so they canvassed the area surrounding 80th and Yates attempting to find witnesses or information regarding the case. Eight days later, Solecki went to South Shore Hospital to show certain photos to Schenault. However, because Schenault was suffering from gunshot wounds, Solecki was unable to interview him. Solecki testified on cross-examination that he came to know Schenault in May of 1983 during his investigation of the murder of Ron Casey, and that the only eyewitness to that killing, Phyllis Alvarez, viewed two lineups regarding that case. Solecki stated that although arrests were made, defendant was not one of them, and no one was ever prosecuted for the Casey homicide.

Codefendant Deborah Weathersby, in testifying for the prosecution, admitted that she sold drugs for Schenault, that she agreed to testify against the defendant in return for a sentence of six years for home invasion, and that she had been in custody for more than two years at the time of her testimony in 1986. She stated that defendant was her boyfriend, that she knew Schenault in March of 1984, and that she had lived in his house at 80th and Yates from 1979 through 1981.

On March 21, 1984, at approximately 1 or 2 p.m., Weathersby walked to a grocery store on 81st and Cottage and met defendant and James Edens, whom defendant referred to as “Bob.” Defendant told her that he wanted her to let them into Schenault’s house; she agreed, so they went in Edens’ orange Datsun to another store on 79th and Yates. Weathersby telephoned Schenault from the store and told him that she wanted to purchase a half-ounce of cocaine for $800 or $900 and that she was on her way over. Before the three left the store, defendant purchased a potato to silence his gun and put it in his briefcase. When defendant opened the briefcase, Weathersby saw some gray tape and a 30-30 sawed-off rifle that was approximately 14 to 16 inches long. While riding in the car to Schenault’s home, she saw that defendant also had a .38 pistol.

When they arrived at Schenault’s house, Weathersby and defendant, who had his briefcase and .22 pistol with him, went to the door. They rang the doorbell, and the housekeeper, Alvarez, let them in. After Lovett announced Weathersby to Schenault, Alvarez started up the stairs and defendant followed her. Next, defendant grabbed Alvarez around the head and Alvarez begged him not to kill her. Defendant then shot her in the head twice, and Alvarez fell to the bottom of the steps.

Defendant and Edens, who also had a gun out, then started up the stairs to Schenault’s bedroom. After defendant went up the stairs, Weathersby heard gunshots and a lot of noise, as if someone were running. She heard Lovett say, “Please don’t shoot me, Deborah is my friend,” and remembers hearing Edens tell defendant that they would have to leave because Schenault was on the phone calling the police. Weathersby then heard three or four more shots. When they got outside to the car, Weathersby heard defendant say, “We got the old man, but we didn’t get the bitch.”

Following the incident at the Schenault home, the three drove to defendant’s aunt’s house on the west-side of Chicago to hide out. After two or three days, Weathersby went to Detroit, where she stayed with another of defendant’s aunts, and on April 2, 1984, she returned to Chicago and turned herself in to the police.

After the People rested their case, defendant made a motion for a directed finding, which the trial court denied.

Thereafter, at a conference held in the judge’s chambers, and again at the close of the evidence, defense counsel objected to the jury’s viewing three postmortem autopsy photographs, arguing that there was no issue regarding the cause of death and that the photographs were prejudicial. The court overruled the objection and allowed the jury to view the photos.

During rebuttal, the State argued, over defense counsel’s objection, that defendant did not appear upset or remorseful, and that the jury should believe Weathersby because she had testified at an earlier trial and if her testimony were different, the defense would have impeached her. In moving for a mistrial, the defense contended that the State’s remarks impermissibly shifted the burden of proof onto the defendant.

At the sentencing hearing, Detective Flood testified in aggravation that when he went to defendant’s home shortly after the Alvarez murder, he learned when defendant was going to be at the Metropolitan Correctional Center to surrender himself as a result of his having been convicted of a Federal offense. The detective went to the center with a court order, took custody of defendant, and put him in á lineup. After Flood returned defendant to Federal custody, he was sent to Michigan and later extradited to the Illinois authorities in connection with their investigation of the instant case.

Officer James O’Rourke testified that at 7:30 p.m. on July 21, 1978, he went to 80th and Escanaba in response to a complaint that there were several armed men there in a car. When he arrived, O’Rourke observed a 1967 Pontiac with three black males inside, one of whom was the defendant. O’Rourke further testified that “defendant was the driver” and that he saw him throw a loaded .38 caliber handgun from the car.

Joseph Smith testified that defendant took certain items from him at gunpoint at a carnival on September 24, 1976, and during the dispute, defendant shot Joseph twice in the genitals.

Defendant’s Federal probation officer testified that defendant had been convicted of possession of a postal money order with the intent to counterfeit and was sentenced to a prison term of two years. This offense occurred while defendant was on probation for receiving and possessing a United States postal money order with intent to use it, knowing it to have been embezzled, stolen or converted.

In mitigation, defendant’s mother testified that defendant was the youngest of five children and that he worked in his father’s business until his father’s death in 1984. Defendant’s sister, Gloria, testified that the defendant helped her to raise her five children after she separated from her husband. Verna Jackson, who had known defendant for 14 years, testified that defendant had always helped her during her illnesses.

The jury declined to impose the death penalty. Accordingly, after hearing post-trial motions, the judge found defendant’s behavior to be exceptionally brutal and heinous and that he acted with premeditation. As previously noted, he sentenced defendant to natural life in prison for murder, 30 years for attempt (murder), and 30 years for home invasion, all to be served concurrently.

I

Defendant first argues that the trial court improperly refused to permit him to introduce hearsay testimony regarding the Casey murder. Defendant charges that someone other than he had a strong motive to kill Alvarez, for, he reasons, since she was the sole witness to the earlier murder of Schenault’s driver, Ron Casey, whoever murdered Casey could have killed Alvarez to prevent being identified by her. The trial court excluded such evidence several times, ruling that it was inadmissible as hearsay. The defendant stresses that the right to present a defense is fundamental to a fair trial, that he was denied this right and that he must therefore be granted a new trial. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.) Defendant adds that the evidence he sought to introduce was admissible for a nonhearsay purpose, one pertaining to the motive or state of mind of Alvarez’ assassin; thus, he protests that Simpson, Lovett, and Solecki were prevented from testifying that Alvarez was a witness to the Casey homicide and had been threatened because she was a witness. Defendant further maintains that the trial judge’s error was magnified when the prosecutor in summation argued that because defendant killed Alvarez, Casey’s murderers went free inasmuch as the -witness was dead. The prejudicial effect of excluding the proffered testimony as a theory of defense, defendant concludes, while allowing the State to challenge that theory in its rebuttal argument is manifest and a new trial must be granted.

We decline to make use of the bed of Procrustes upon which defendant takes his measure of this aspect of his trial. Professor Cleary informs us that “[a] statement expressing the declarant’s then-existing state of mind *** such as intent, plan, motive, design, *** is admissible as a hearsay exception.” (E. Cleary & M. Graham, Handbook of Illinois Evidence §803.4, at 554 (4th ed. 1984).) In his briefs filed in this court, defendant relies on two cases: People v. Kline (1980), 90 Ill. App. 3d 1008, 414 N.E.2d 141, and People v. Shannon (1986), 149 Ill. App. 3d 525, 501 N.E.2d 166. In Kline it was held that statements relating to proposed narcotics transactions were not hearsay when offered to establish the reasonableness of the defendant’s belief that the decedents were armed and dangerous in support of his claim of self-defense. In Shannon, a witness was precluded from testifying that Ivanov had discussed -with the witness on several occasions that he wanted to “get” the victim, who Ivanov believed was responsible for the killing of his brother. The defendant, at trial, claimed that it was Ivanov who shot the victim. The appellate court held, with one justice dissenting, that the exclusion of such testimony was error, but, in light of the overwhelming evidence of defendant’s guilt, the error was harmless.

Because there appears to be some confusion on defendant’s part regarding the events that transpired at trial in connection with the Casey matter, it might prove helpful to review the record.

The State’s motion in limine was to prohibit the cross-examination of any witness “as to the homicide that occurred in May, 1983, as not probative of the facts before this court or jury.” Defense counsel objected on the ground that the police were of the belief that Alvarez was “eliminated because she identified the three perpetrators.” Defendant’s objections were overruled, the court holding that defense counsel was “talking speculation, conjecture, and hearsay *** what I have heard so far, you have no witness that you are going to put on, or the State’s going to put on that you can elicit critical, probative, relevant testimony to the murders of the people that killed Miss Alvarez, so I will grant the State’s motion at this stage ***. If it arises during cross-examination of the witness, we will have a side-bar and you can raise the issue again.” After the judge had characterized defense counsel’s objections to the motion in limine as an attempt to bring “speculation, conjecture, and hearsay” into the case, defendant’s attorney responded, “If I have to prove it up, I can prove it up by the officers.” (Emphasis added.)

Nonetheless, and as previously noted, defendant’s counsel was permitted, over the State’s objection that it was beyond the scope of the direct examination, to obtain from Detective Solecki testimony that he investigated the Casey murder and that Alvarez viewed two lineups in an attempt to identify Casey’s assailant. But, when counsel asked Solecki if she viewed a third lineup, the State objected, and the objection was sustained. Defense counsel then asked Solecki if anyone was arrested after a third lineup was shown to Alvarez, and again the State objected, but before the judge could rule thereon, the State asked for a side-bar. At the side-bar the prosecutor complained that if defendant’s attorney “wants to go into this, he should go into it in his case. He should call Detective Solecki as his witness” — and he characterized as calling for “blatant hearsay” counsel’s asking if Solecki arrested anyone after Alvarez had viewed a lineup.

Because “this is going to come out anyway,” the judge ruled, “I’m going to allow him to go into it. But, you can’t get in any hearsay,” and he overruled the State’s objection. Thereafter, Detective Solecki testified that he did not arrest defendant Montague, that he did arrest two others, but that no one was “ever prosecuted on that case.” On redirect, the prosecution brought out that Casey was killed in front of Schenault’s house in May 1983, that the only eyewitness thereto was Alvarez, that Weathersby “had absolutely no connection, was never mentioned at any point in time with that 1983 homicide,” that Lilly Lovett did not have anything “at all to do with it,” and that there was no connection “whatsoever” between the Casey and the Alvarez cases.

On re-cross-examination, defense counsel was precluded from putting the following questions to Solecki, both of which were apparently cut short by the State’s objections:

“On Mr. Casey’s murder, if I’m correct, a woman gained entrance to Harry Schenault’s house by — ,”

and:

“Was the motive of the Ron Casey homicide to — .”

Both objections were sustained and the jury was instructed to disregard the questions. No offer of proof was made by defendant, and contrary to his intent, as stated at the hearing on the State’s motion in limine and at another side-bar when Alvarez’ son Ray Simpson was on the witness stand, defense counsel called neither Solecki nor any other police officer to testify.

The complaint that defendant makes here with respect to this issue as stated in his briefs is as follows: “The defense theory was that someone other than Montague had a strong motive to kill Alvarez. Alvarez had witnessed the earlier Casey murder, and could identify the perpetrators of that murder. The theory was that the men who killed Casey could have killed Alvarez to prevent being identified by her. It was critical to develop evidence that Alvarez was an eyewitness ***. The court erroneously excluded evidence from several witnesses pertaining to the perpetrator’s motive, or state of mind. Simpson, Lovett and Solecki were prevented from testifying that Alvarez was a witness to the Casey homicide and had been threatened because she was a witness.”

Defendant’s complaint thus reduces itself to two points: one, that “the court excluded all testimony” that Alvarez was a witness to Casey’s assassination, and two, that she “had been threatened because she was a witness.” But defendant inexplicably ignores that Detective Solecki testified that Alvarez was not only a witness to Casey’s murder, but that she was the only witness thereto. Accordingly, that fact was indisputably before the jury, and it was testified to authoritatively by the police detective who had investigated the Casey matter. As to defendant’s claim that Alvarez had been threatened because she was a witness, we find in the record that in a side-bar while Alvarez’ son, Ray Simpson, was on the witness stand, defense counsel informed the judge that he wanted to “not just show that she was killed because she was a witness to this case, that is not my theory of defense,” but “to show this place, Harry’s Castle was a dangerous place.” The judge responded, “I don’t think that is even contested by the State ***. I told you if you want to put in competent evidence to show that there is a homicide, some time prior to the date in question, it is somewhat probative to your theory of defense, I would let you do so, but the evidence has to be competent evidence.” Defendant’s counsel responded, “I can do that by the detective.” (Emphasis added.) And, as we have noted above, this is precisely what counsel was allowed to do. As to counsel’s wanting to show that Schenault’s “was a dangerous place,” the State, as the judge observed, not only did not contest it, but defendant’s attorney argued that point vigorously and in detail in summation. It simply was not an issue in the trial of this matter; indeed, the evidence thereon was plenary.

With regard to Lovett’s testimony, here, in yet another side-bar, defense counsel admitted to the judge more than once that he did not know what her answers would be to his questions. Nevertheless, the judge, although commenting that counsel would be “fishing,” permitted him to interrogate Lovett outside the presence of the jury, and in response thereto, we learn that she knew that Casey was killed in a robbery attempt at Schenault’s house in May 1983, but she was not present; that she heard that Phyllis was a "witness to it and “that someone had put a hit on her or something”; that Alvarez’ son had told her so; that she did not know if “the hit” was because Alvarez had identified Casey’s killer; that she had “heard it both ways” but “I don’t know anything about it.” The judge continued the motion in limine, adding, “now you know this witness didn’t see it.”

Defendant argues that the trial court erroneously excluded evidence from these witnesses “pertaining to the perpetrator’s motive or state of mind.” Yet, the record clearly and unmistakably shows that all the evidence defendant needed in order to present the type of defense which he argues is sanctioned by Kline and Shannon was before the jury in the form of Solecki’s testimony that, as the police detective who investigated the Casey homicide, he had Alvarez view at least two lineups; that he did not arrest Montague for that murder, although he did arrest two others; that the Casey murder had never been prosecuted; and that Alvarez was the only eyewitness to the Casey homicide. However, the only reference made to Solecki by the defense in summation was “he is the man that had been at Skinny’s [Schenault’s] house on the prior murder of Ron Casey less than a year before.” Counsel had obtained evidence enough for the purpose of making the argument he desired to put to the jury as to his theory of the case, but for reasons best known to him he failed, neglected or refused to do so.

Yet counsel complains that not only was the court’s refusal to admit the so-called “state-of-mind” testimony “highly prejudicial, as it prevented Mr. Montague from presenting his theory to the jury,” but “further, the error was compounded when the court allowed the State’s Attorney to argue the excluded evidence” — all of which, we are constrained to point out, is sheer, arrant nonsense, for the prosecutor’s references to the Casey homicide were firmly and correctly based on evidence, the admission of which was insisted upon by defendant. Accordingly, the prosecutor had the right to comment on that evidence and to draw all legitimate inferences deducible therefrom. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) Defendant had the same right and the same opportunity; that he chose not to exercise them is a fault not attributable to either the State or to the judge. The jury, however, must have readily perceived why the State argued in rebuttal: “When [Montague] killed Phyllis Alvarez, the three people that were accused of killing Ron Casey walked out the front door because the witness was dead.” It just as readily and just as easily must have apprehended that the defendant deliberately shunned arguing his “theory of defense” for its sheer incredibility when they considered that the evidence as to identity was overwhelmingly and compellingly against him: Weathersby, as particeps criminis, gave a detailed account of her relationship with defendant and their participation in this whole sordid affair, including her observing defendant as he shot Alvarez in the head twice, and Lovett’s having picked defendant’s photo from an array shown to her by the police, her identifying him in a lineup, and her identifying him in open court. Both accounts, of course, are related above in more detail. That the State entered into a plea bargain with Weathersby; that she had been a drug peddler for Schenault, and had used drugs; that she had first told the police that “Bob” (Edens) shot Alvarez; that she had withheld mentioning that defendant was a participant in Alvarez’ murder; and that she had been impeached in her testimony that she was not a prostitute before 1983, should afford no comfort to defendant, for it is by this time too well established to require any further elaboration on our part that this court is without a writ to reach the credibility issue which confronted the jury in this case. (People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291; People v. Sumner (1969), 43 Ill. 2d 228, 252 N.E.2d 534; People v. Harvey (1981), 95 Ill. App. 3d 992, 420 N.E.2d 645.) Consequently, we hold that the trial judge was eminently fair and just in his ruling as to defendant’s “state-of-mind” issue.

II

Defendant argues that the trial court wrongfully prevented defense counsel from impeaching key State witnesses against him, claiming that two prosecution witnesses accused him of the offenses charged and that the impeachment of each witness was crucial to his defense.

Defendant first contends that the trial court unduly restricted his counsel’s cross-examination of Deborah Weathersby — specifically, that the trial court incorrectly disallowed the playing of a tape recording of her statement to the police. Defendant argues that Weathersby’s demeanor during the making of this statement was critical to the determination of her credibility, especially since she first accused “Bob” (Edens) and later changed her statement and accused defendant. Defendant asserts that Weathersby’s earlier demeanor was intimately relevant to her demeanor on the stand, as in both instances, she swore she was telling the truth.

Second, defense counsel attempted to impeach Lovett through Flood with an omission in the description of the defendant that she gave to Flood and to show the extent of Lovett’s opportunity to observe the offender. However, the court ruled that he could not lay a foundation through Flood, and although counsel made an offer of proof, the judge excluded the testimony on the ground that it did not constitute impeachment. Defendant claims that it is proper to impeach a witness by showing her failure to state a fact under circumstances where one would expect such a fact to be given. (People v. Monroe (1977), 66 Ill. 2d 317, 362 N.E.2d 295.) The defendant further avers that statements regarding the description of the accused are so significant that they are the proper subject of impeachment by omission. People v. Gonzalez (1983), 120 Ill. App. 3d 1029, 458 N.E.2d 1047, aff’d (1984), 104 Ill. 2d 332, 472 N.E.2d 417.

The State responds that defense counsel fully cross-examined Deborah Weathersby regarding her prior statements, thereby rendering the playing of her tape-recorded statement unnecessary. While the State acknowledges the defendant’s right to confront the witnesses testifying against him (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8), it also points out that the right to conduct cross-examination is limited: the trial court has discretion to determine in criminal proceedings the parameters of permissible cross-examination, and its decision in this regard will not be disturbed on appeal unless the defendant establishes that such discretion has been abused and has resulted in manifest prejudice to him. People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.

We conclude that the trial court correctly declined to permit defendant to play the tape recording of Weathersby’s statement to the police for the record clearly reveals that she admitted on cross-examination that she gave such a statement and that in it she lied to the police. She also admitted that at the end of the recorded statement, she looked at the police and told them she was telling the truth. Although defendant seeks to make an issue of demeanor apropos a tape recording, we fail to be edified. In the ordinary legal sense, the demeanor of a witness refers to facial expressions, hand and other body gestures, or other physical indicia. We fail to perceive how any of these can be captured on tape; nor does our perception extend to the comprehension of how tone of voice alone, which is manifestly all a tape recording can offer the fact finder without the accompanying “body language,” performs the function claimed for it by defendant. Moreover, defendant propounds no authority in support of the proposition he advances here. More important, defendant overlooks that Weathersby, as we have noted above, had already been impeached by her admission that she had previously lied to the police. The evidence on the tape would be merely cumulative and would appear to add nothing to what was already before the jury.

The State maintains that the trial court properly denied defense counsel permission to impeach Lovett with an omission in her statement to Detective Flood because defense counsel did not lay a foundation for that purpose while cross-examining her. We find the trial court to have ruled correctly. Lovett testified that when he shot Alvarez, defendant had a permanent, a mustache, was wearing a dark jacket, was 5 feet 6 inches or 5 feet 7 inches tall, and weighed 140 or 150 pounds. But defense counsel did not ask Lovett what, if any, description she gave to the officers; accordingly, because he failed to lay the proper foundation, there was no testimony to impeach.

III

Defendant argues that, over his objection, the trial court erred in allowing Officer Flood to testify that, during his investigation, he learned that defendant was in custody at the Metropolitan Correctional Center and that Flood interrogated him there, thus violating his right to a fair trial, requiring a reversal of the convictions. Defendant cites authority that when a jury hears evidence regarding the accused’s previous contacts with the police or previous incarcerations, there is a real danger the jury will be biased thereby. People v. Lampkin (1983), 98 Ill. 2d 418, 457 N.E.2d 50.

The State responds that the defendant waived this issue by failing to raise it in his post-trial motion (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988),_U.S___ 102 L. Ed. 2d 263, 109 S. Ct. 274), the purpose of which motion is to afford the trial court the opportunity to review and correct alleged errors that occurred at trial. (People v. Myles (1985), 131 Ill. App. 3d 1034, 476 N.E.2d 1333.) We agree. Defendant did not raise the matter in his post-trial motion; he has therefore waived it on appeal.

IV

Defendant charges the prosecutor with improperly arguing that defense counsel would have impeached Weathersby with the testimony she gave in another trial if she were untruthful during defendant’s trial. Defendant urges that this argument impermissibly suggested that the defense had the burden of proof in this case, citing People v. Holman (1984), 103 Ill. 2d 133, 469 N.E.2d 119, cert. denied (1985), 471 U.S. 1050, 85 L. Ed. 2d 342, 105 S. Ct. 2044.

The State responds that the prosecutor’s statement did not shift the burden of proof inasmuch as defense counsel had himself commented that Weathersby had lied to the police, and counsel continued throughout his closing argument to comment that she had lied and been impeached. Such tactics, the State adds, could be seen as inviting the prosecutor’s response, maintaining that it is firmly established that remarks made by the prosecutor which might ordinarily be considered improper are permissible in rebuttal argument when they are invited by those made by defense counsel in his own closing argument. People v. Sutton (1977), 45 Ill. App. 3d 739, 359 N.E.2d 1132.

The State further refers to defense counsel’s statement in his closing argument that Weathersby had more motive to lie than anyone else since a deal was made with her that after the trial was over, it would be recommended to the judge that she be sentenced to six years in the penitentiary. Thus, it concludes, the State’s comment was invited and therefore not error.

There can be no question but that the prosecutor’s rebuttal argument that the defendant could have impeached Weathersby was clearly invited by the defense’s closing argument; therefore, it does not constitute error.

V

Defendant next argues that the trial court erred when it allowed the jury to view autopsy photos of the victim when the cause of death was not in issue, thus denying his right to a fair trial (People v. Fierer (1987), 151 Ill. App. 3d 649, 503 N.E.2d 594, aff'd (1988), 124 Ill. 2d 176, 529 N.E.2d 972), and complains that autopsy photos are usually grisly scenes of the autopsy procedure itself and tend to arouse strong emotions.

The State replies that the autopsy photographs were properly admitted, and we agree. It is firmly established that the admission of the photos of a murder victim is within the sound discretion of the trial court (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6), more particularly where they are relevant to establish any fact in issue, even where defendant does not refute the victim’s identity or the cause of his death. (People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247, cert. denied (1983), 364 U.S. 865, 78 L. Ed. 2d 174, 104 S. Ct. 199.) Photographs of a victim are also properly admitted into evidence when they corroborate testimony as to the cause of death, the number and location of wounds and the manner in which they were inflicted. People v. Williams (1985), 137 Ill. App. 3d 736, 484 N.E.2d 1191.

In the case sub judice, inasmuch as the record shows that the photographs were admitted to corroborate testimony as to the number of gunshot wounds, the location of the wounds, and the gun that caused them, we find no abuse of the judge’s discretion.

VI

Defendant contends that his sentence of natural life imprisonment must be vacated because the trial court based his sentence on the erroneous finding that the offense was accompanied by brutal and heinous behavior, the court having invoked the provisions of section 5— 8 — 1(a)(1)(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(1)(b)) in order to do so.

The defendant argues that a finding that the killing was brutal and heinous requires evidence that the defendant’s conduct was shocking and inhumane, something more than conduct that is associated simply with the act of killing. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) The defendant urges upon this court that his conduct was not the evil, grossly inhumane conduct which would support a finding that it was brutal and heinous, citing People v. Holiday (1985), 130 Ill. App. 3d 753, 474 N.E.2d 1280, in which the defendant robbed a dice game, killed one victim by shooting him twice, and wounded three others, and the court held that such conduct was not brutal and heinous. Defendant further argues that a sentence of life imprisonment does not comport with the mandate of our constitution that sentences be proportionate to the seriousness of the offense; nor is it, he claims, within the range of sentences that are generally imposed for similar offenses. Ill. Const. 1970, art. 1, §11.

We quite agree with the State that the defendant’s sentence of life imprisonment was a proper exercise of judicial discretion inasmuch as the murder here was wantonly brutal and heinous. In La Pointe, the Illinois Supreme Court specifically found that the statute does not limit the imposition of a sentence of natural life imprisonment to only those murders involving torture or the infliction of unnecessary pain. The supreme court went on to hold in La Pointe that the defendant was properly sentenced to life imprisonment since the record indicated that he had a history of criminal activity, acted with premeditation and deliberation, and displayed a total lack of remorse. Similarly, in the case at bar, the defendant clearly acted with premeditation, deliberately and without remorse.

A trial court’s decision with respect to sentencing is entitled to great weight and deference. (LaPointe, 88 Ill. 2d 482.) Furthermore, it is a well-settled principle of law that absent an abuse of discretion by the trial court, a sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Rather than having merely the “cold record” afforded to this court on appeal upon which to base the imposition of its sentence, the trial court is provided a much better opportunity to consider the many factors from which an appropriate sentence may be deduced. (Perruquet, 68 Ill. 2d 149.) Based on very much the same evidence, we said in the case of Montague’s codefendant James Edens:

“[T]he trial judge made a specific finding that the offense in the instant case was accompanied by ‘exceptionally brutal and heinous behavior indicative of wanton cruelty,’ and he further found ‘a total absence of remorse’ on the part of the defendant. When we review the facts of this case in which the armed defendants fiendishly planned this robbery, savagely invaded a home in the middle of the afternoon, brutally shot Phyllis Alvarez, a victim who in no way antagonized the perpetrators of the crime or provoked the shooting, inhumanly terrorized Lilly Lovett, and mercilessly shot Harry Schenault, we cannot say that the judge abused his discretion in imposing an extended-term sentence upon defendant.” (People v. Edens (1988), 174 Ill. App. 3d 1033, 1048, 529 N.E.2d 617.)

We can conceive of no reason to reach a different result here.

VII

As his last issue, defendant argues that the delay of two years before he was brought to trial violated his right to a speedy trial. The Uniform Agreement on Detainers provides that when a person is in a penal or correctional institution of another State, and a case is pending against him in State court, the pending case must be tried within 180 days of the defendant’s demand for trial. (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 8—9.) Article III(a) of the agreement sets forth that in order to activate its provisions, the defendant must provide the prosecuting officer and the appropriate court written notice of the place of his imprisonment and his request that a final disposition be made of the indictment. Ill. Rev. Stat. 1983, ch. 38, par. 1003-8-9, art. III(a).

The defendant claims that he demanded trial on April 19, 1984, when the case was called for arraignment, and that he further advised the prosecutor and the court that he was in Federal custody in Terre Haute. Defendant asserts that he was not present in court again until November 14, 1984, 211 days from the date he demanded trial. He stresses that although the case was continued by agreement on November 14, 1984, and many times thereafter, the time period at issue is that from the demand for trial to the defendant’s first appearance in court — which was a 211-day delay. Thus, he argues, his delay was well over the required 180-day period; accordingly, it violated his right to a speedy trial.

Defendant further asserts that his right to a speedy trial is also assured by the sixth amendment to the U.S. Constitution, and that the Supreme Court has specified that four factors need to be considered in order to determine whether that right has been violated (Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182), namely: (1) the length of the delay, (2) the reason asserted for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice suffered by the defendant. (Barker, 407 U.S. at 530, 33 L. Ed. 2d at 117, 92 S. Ct. at 2192.) Defendant states that our supreme court has also adopted this test. People v. Jones (1984), 104 Ill. 2d 268, 472 N.E.2d 455.

His defense, he declares, was that he was not present at the scene and that he took no part in the incident. In his speedy trial motion, his counsel asserted that the defense was hindered by the delay, in that it engendered difficulty in obtaining the evidence needed to substantiate the alibi a year after the incident. In fact, defendant notes, no alibi witnesses testified. Defendant contends that a consideration of these factors in the context of the present case necessarily leads to the conclusion that he was prejudiced by the delay.

We agree with the State’s position that the defendant’s statutory right to a speedy trial was not violated. Defendant failed to activate the operational procedures set forth in the Uniform Agreement on Detainers, and such failure clearly precludes relief thereunder. (People v. Uplinger (1977), 69 Ill. 2d 181, 370 N.E.2d 1054.) In Up-linger, the trial court dismissed defendant’s indictment for burglary because he was not properly advised of his right to demand trial or be brought to trial within 180 days pursuant to the provisions of the Uniform Agreement on Detainers. The State appealed and the appellate court found that the defendant did not qualify for protection under the 180-day rule. Defendant then appealed to the Illinois Supreme Court, arguing that he was entitled to protection because the warden did not inform him of his right to make a request for a final disposition of his case as mandated by section 3 — 8—9 (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 8—9, art. III(c)). The court held that the warden’s failure to comply fully with the mandate of the agreement did not excuse defendant from invoking its provisions especially in light of the fact that both defendant and his attorney knew of this right.

In the case at bar, defendant was aware of his right and failed to invoke it, having never filed written notice with the prosecutor’s office or with the court. Consequently, the defendant waived the right.

As to defendant’s claim that his constitutional right to a speedy trial was violated, he fails to set forth any evidence whatsoever that his defense was hindered by the delay. We are told of no alibi witnesses that would have been produced had the trial been held earlier, nor are we given any information at all regarding where defendant claims to have been, or whom he was with at the time in question. All we are furnished is the bare conclusion that had there not been a delay of one year, the defendant would have had an alibi. This unsupported allegation does not amount to proof of a violation of the defendant’s constitutional right to a speedy trial. The evidence of defendant’s guilt is, as we have already noted, quite ponderous, and after examining the requisite factors, it is clear to this court, as it was to the trial judge, that the defendant’s constitutional right to a speedy trial was not violated.

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.

      The appeal of Montague’s codefendant, James Edens, is reported at People v. Edens (1988), 174 Ill. App. 3d 1033, 529 N.E.2d 617.


source: Caselaw Access Project

author: PRESIDING JUSTICE BILANDIC

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OSCAR PETERSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—0738
    Opinion filed April 25, 1989.
    Rehearing denied May 23, 1989.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and Christine Perille, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Defendant Oscar Peterson was convicted by a jury of murder, robbery and the aggravated kidnapping of Gerald Broyles (hereinafter victim or deceased). On defendant’s motion, the trial court vacated the aggravated kidnapping conviction and sentenced defendant to concurrent terms of 30 years for murder and seven years for robbery. Defendant appeals, arguing that he was denied effective assistance of counsel at trial; that he was denied a fair trial by the admission of a hearsay statement of the deceased to a paramedic; and that his 30-year sentence for murder is excessive. We affirm.

The alleged crimes occurred on September 24, 1984, in the vicinity of 69th and State Streets in Chicago, Illinois. Guys and Gals Lounge occupies the first floor of the building known as 6901 South State Street. Charlene Smith lives in a third-floor apartment in the same building. As she looked out of her apartment window at approximately 4 a.m. on September 24, 1984, she noticed two police officers talking to an elderly man and a young man. She identified the defendant as the younger man and the victim as the older man. Charles Fitzpatrick and Robert Poole were the officers engaged in the conversation with the defendant and the victim. She did not hear the conversation.

Ms. Smith saw the defendant and the victim walk east on 69th Street. There was no struggle or exchange of angry words. Then the officers entered the lounge on the first floor of her building and were out of her view. Next, she saw the defendant look back toward State Street, grab the victim by the collar, and drag him into a SVa-footwide gangway on the State Street side of her building. The only entrance or exit to the gangway was on State Street.

As defendant dragged the victim into the gangway, Ms. Smith saw the victim’s foot clinging to an edge of the building. Then she noticed the foot quiver, go limp, and disappear from her view. Approximately two minutes later, she saw the defendant emerge from the gangway alone. Ms. Smith called 911 and reported the incident.

When she returned to her apartment window, she saw Officers Fitzpatrick and Poole leave the lounge and head for their squadrol and leave. Shortly thereafter, she noticed that the squadrol returned. She then saw the officers speaking to the defendant. She did not hear this conversation.

The officers testified that when they first observed the defendant and the victim at 69th and State Streets, the victim was bleeding from a laceration across his nose, his glasses were crooked, and he smelled of alcohol. He told the officers that the defendant did not cause his injuries. Then the officers entered the Guys and Gals Lounge and talked to the night watchman for 5 or 10 minutes.

As the officers left the lounge in response to a call to check out the alley between 69th and 70th Streets, they noticed the defendant four or five feet from the gangway. They asked him about the victim, and defendant responded that he left in a car with some whores. Defendant was sweating profusely despite the fact that it was a fall morning. Because of his suspicious activity, the officers filled out a contact card regarding the defendant and then asked him to leave.

After completing the alley check, the officers returned to the corner of 69th and State Streets. The night watchman knocked on the window of the lounge to get their attention. They then noticed the gangway for the first time. With the help of a flashlight, they entered the gangway and discovered the victim in the fetal position, lying in a pool of blood, with his wallet and some papers nearby. They did not see any money. When the victim failed to respond to their questions, they called for paramedics.

Chicago fire department paramedics attended to the victim and took him to St. Bernard’s Hospital. One of the paramedics, William Mallary, testified regarding the victim’s condition and the treatment provided from the scene to the hospital. In addition, he testified that Broyles told him that he was the victim of a robbery and that the same person beat him up and robbed him. Mallary also testified that the victim appeared confused.

On October 2, 1984, the victim died at St. Bernard’s Hospital. Dr. Kirschner, the forensic pathologist who performed the autopsy, testified that the immediate cause of death was “multiple blunt trauma injuries to the head” which caused the brain to bleed. No single blow could be identified as the cause of death, and the injuries could not have been caused by an accidental fall.

Because of the lead provided by the contact card, defendant was arrested on October 2, 1984. Between 10:20 a.m. and 10:55 p.m., defendant made four different oral statements. At 10:55 p.m., he made a written statement in which he said that on September 24, 1984, at about 4 a.m., on the corner of 69th and State Streets, the decedent told him that some “dudes” beat him up and tried to rob him of the $72 in his wallet. Then they encountered Officers Fitzpatrick and Poole. After the officers left, he “grabbed [the decedent] by the collar and forced him into the gangway.” While the deceased struggled to get away, he struck his head against the building and fell. Defendant took the money from the deceased and left the gangway. In response to their question, he told the police that the deceased had left in a taxi with some whores.

Defendant testified on his own behalf. He stated that he had lied to the police during the first four interrogations, but told the truth during the fifth because he was tired of covering up. Defendant’s version of what happened is similar to his written statement, except that defendant met the deceased on a bus going south on State Street and that the deceased became hostile and struck him when he suggested that the deceased seek medical attention. As the deceased tried to strike him again, defendant grabbed the deceased’s arm to stop him. They then fell into the gangway and wrestled. Defendant denied grabbing the deceased’s collar or dragging him into the gangway. While they wrestled, the deceased struck his head against a wall. Defendant asked the deceased if he was all right, and there was no response. At this point, and not before, defendant decided to take the money. He did not seek medical help for the deceased. He was ashamed of himself for taking the money and not calling for medical help for the decedent.

During deliberation, the jury sent out two questions relating to robbery and involuntary manslaughter, which the judge answered. The jury returned verdicts of murder, robbery and aggravated kidnapping. The court later vacated the aggravated kidnapping verdict and denied defendant’s motion for a new trial.

A death penalty hearing was held without a jury due to defendant’s pretrial waiver. The trial court refused to impose the death sentence based either on the facts or defendant’s background. The court also refused to sentence defendant to an extended term, even though he was eligible. Defendant was sentenced to 30 years for murder and a consecutive seven-year sentence for robbery.

Defendant then filed a pro se motion for a new trial based on ineffective assistance of counsel. That motion was denied and this appeal followed.

I

Defendant initially contends that his appointed counsel’s strategy deprived him of effective assistance of counsel. During opening, counsel indicated that the defense theory would be self-defense which caused an accident. Defendant’s testimony was consistent, in that he stated that when the deceased and he were wrestling, they fell and the deceased hit his head. However, during the jury instruction conference, counsel stated that self-defense was no longer the theory, but that defendant was guilty of involuntary manslaughter and theft from the person. Counsel also asked for instructions on these lesser offenses, but failed to tender any instructions on affirmative defenses or any other lesser offenses. Finally, in closing argument, defense counsel argued that if anything, the defendant was stupid and should be convicted of involuntary manslaughter and not murder.

In order to prove ineffective assistance of counsel, defendant must prove both prongs of the test set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (People v. Albanese (1984), 104 Ill. 2d 504, 526 N.E.2d 1246, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.) The requirements are that the errors must be so great that counsel is not acting as “counsel” as guaranteed by the Sixth Amendment and, second, that the errors were so great as to deprive defendant of a fair trial. (Strickland v. Washington, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) This is a difficult evaluation due to the distorting effects of hindsight. This court should indulge a strong presumption that counsel’s conduct falls within the wide range of professional assistance. Defendant must overcome the presumption that under the circumstances, the challenged action “might be considered sound trial strategy.” 466 U.S. at 689-90, 80 L. Ed. 2d at 695, 104 S. Ct. at 2065-66.

Counsel’s incompetence is to be determined from a consideration of the totality of counsel’s conduct, not isolated incidents, and a reviewing court will not extend its inquiry into areas involving the exercise of judgment, discretion, trial tactics or strategy. People v. Thurman (1988), 169 Ill. App. 3d 996, 1005, 523 N.E.2d 1184.

Counsel’s concession of guilt on a lesser offense does not, by itself, affect a conviction of a more serious offense. (People v. Bone (1987), 154 Ill. App. 3d 412, 415, 506 N.E.2d 1033, appeal denied (1987), 116 Ill. 2d 563.) A decision to rely on one defense theory to the exclusion of others is a matter of trial tactics. People v. Gallardo (1983), 112 Ill. App. 3d 764, 770, 445 N.E.2d 1213, appeal denied (1983), 94 Ill. 2d 554.

We find that counsel’s performance was competent — he submitted and argued motions; investigated the case; effectively cross-examined witnesses; objected knowledgeably; and presented evidence on defendant’s behalf. Counsel was well prepared, knowledgeable, and a strategic advocate for his client. The decision to promote a verdict of guilty of involuntary manslaughter rather than murder was, based on the evidence presented, sound trial strategy.

Defendant has not shown that counsel’s actions constituted such serious errors that he was not functioning as defendant’s attorney as guaranteed by the sixth amendment. Nor has defendant shown that he was prejudiced by these “errors.” There has been no showing that there was a reasonable probability that the result of the trial would have been different but for counsel’s “errors.”

Defendant did not suffer any prejudice from counsel’s closing argument since the jury did not follow his suggestion of guilt on the charge of involuntary manslaughter. Enough evidence was presented to the jury to allow them to conclude that defendant performed the acts which caused the victim’s death. In fact, defendant approved of counsel’s strategy. Defendant was questioned by the court after closing arguments, outside the presence of the jury. He said that he was satisfied with counsel’s representation and closing and that the closing was consistent with his testimony. In addition, counsel’s decision not to tender the jury instructions was sound given the circumstances of this case. The instructions given represented the strongest theory of defense.

Therefore, viewed in totality, counsel was effective under the Strickland standard.

II

The State sought to admit testimony from James Mallary, the paramedic who transported the deceased to the hospital, that the deceased told him that the same person who beat him had also robbed him. This testimony was allowed in, over defendant’s motion in limine, apparently on the grounds that it fell within the hearsay exception for treating physicians. Defendant appeals, arguing the statement does not fall within any of the hearsay exceptions.

However, while defendant objected at a pretrial proceeding, he failed to include this error in his post-trial motion. Defendant’s post-trial motion was five pages long and alleged 13 separate errors. This issue was not presented in the post-trial motion and, therefore, he has waived this alleged error on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, cert. denied (1988),_U.S. _, 102 L. Ed. 2d 263, 109 S. Ct. 274.

III

Defendant was sentenced to a 30-year term for murder and a seven-year concurrent term for robbery. Defendant appeals the sentence for murder, claiming it is excessive in light of the strong evidence of defendant’s potential to make a positive contribution to society and his lack of any significant criminal history.

Absent abuse of discretion, a sentence cannot be altered on review. (People v. La Pointe (1981), 88 Ill. 2d 482, 492, 431 N.E.2d 344; People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) This court may not substitute its judgment for the trial court’s merely because it “would have balanced the appropriate factors differently.” (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.) This is especially true where the sentence imposed by the trial court is within statutory limitations. People v. Lambrechts (1977), 69 Ill.. 2d 544, 559, 372 N.E.2d 641.

The 30-year sentence is not excessive based on the facts of this case. A 179-pound, 29-year-old man beats and robs a 129-pound, 67-year-old man, leaving him to die. The defendant was eligible for both the death sentence and an extended-term sentence for this crime. His sentence is well within the statutory limits.

The court conscientiously considered the evidence in aggravation and mitigation. Therefore, given the substantial nature of the evidence against defendant, this sentence will not be disturbed.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and EGAN, JJ., concur.

       Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


text:
    NORMA JANKOUSKY et al., Plaintiffs-Appellants, v. JEWEL COMPANIES, INC., Defendant-Appellee (American Stores Company, Defendant).
    First District (2nd Division)
    No. 1—87—3104
    Opinion filed April 25, 1989.

      Robert A. Holstein and Aron D. Robinson, both of Holstein, Mack & Dupree, of Chicago, for appellants.
    Gary E. Crawford, Frank K. Mandlebaum, Scott R. Shapherd, and John P. Buckley, all of Skadden, Arps, Slate, Meagher & Flora, of Chicago, for appellee.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Plaintiffs’ complaint seeks to establish a separate class of individuals to maintain an action to recover damages from defendants due to salmonellosis contracted from defendant Jewel’s contaminated milk products. The trial court dismissed the complaint pursuant to a section 2 — 615 motion. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) This appeal followed.

The complaint alleges the historical background of litigation against Jewel due to the salmonella outbreak in the Chicagoland area. On April 3, 1985, a class action was commenced in the circuit court of Cook County (by consolidation of existing cases) identified as In re Salmonella Litigation, civil action No. 85 — L—000000. Plaintiffs in the case at bar were potential members of that consolidated action. During the period shortly after the class action commenced, but before a class was certified, Jewel contacted potential class members for the purpose of settling their claims. Jewel succeeded in its efforts to settle and obtain releases from many individuals.

This led individuals who settled to file a petition to intervene in the consolidated class action (No. 85 — L—000000) as a subclass. That petition, identified as Albrecht v. Jewel, No. 85 — L—16454, alleged that defendants fraudulently concealed information concerning the pendency of No. 85 — L—000000 from plaintiffs when they settled their claims and executed releases. The settlements were completed prior to the certification of a class in the consolidated class action.

On October 15, 1986, the trial court allowed disabled persons and minors in Albrecht to participate in the consolidated class action (No. 85 — L—000000) as members, not as interveners. On October 23, 1986, the trial court found that the adult plaintiffs were not a proper class and could not intervene as a subclass in the consolidated class action because individual issues predominated over common issues.

The case before us was filed in January 1987. Plaintiffs are adults under no legal disability, who settled and executed releases prior to the certification of a class in the consolidated class action (No. 85 — L— 000000). Plaintiffs allege that defendants fraudulently concealed information concerning the pendency of the consolidated class action of which they were potential members. Defendants moved to dismiss plaintiffs’ complaint for failure to state a cause of action. Defendants assert that plaintiffs’ complaint failed to set forth the elements of a class action. Defendants further alleged that plaintiffs were collaterally estopped from relitigating the issue of class certification based on the court’s decision in Albrecht.

On August 28, 1987, the trial court dismissed plaintiffs’ action for failure to plead the statutory requirements of a class action and also determined that plaintiffs were collaterally estopped from maintaining the action based on the ruling in Albrecht. On August 31, 1987, plaintiffs’ entire complaint was dismissed for failure to state a cause of action. Thus, plaintiffs’ class action and individual claims were dismissed. Plaintiffs did not ask leave to amend and chose to stand by their complaint. This appeal only involves the dismissal of count IV, which is based on fraud in the inducement.

I

We will first consider whether the plaintiffs stated an individual cause of action. If we determine that an individual cause of action has been stated, then we must consider whether the plaintiffs can also maintain a cause of action for others similarly situated as their class representative in a class action.

Count IV of plaintiffs’ complaint seeks to allege fraud in the inducement. The parties agree that the essential elements of an action based on fraud or misrepresentation are: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) made with intent to induce the other party to act; (4) action by the other party in justifiable reliance on the truth of the statement; and (5) resulting damages. The reliance by the other party must be justified, i.e., he must have had a right to rely. (Salisbury v. Chapman Realty (1984), 124 Ill. App. 3d 1057, 1062, 465 N.E.2d 127.) Where a person has a duty to speak, his failure to disclose material information is equivalent to a fraudulent concealment. 124 Ill. App. 3d at 1063.

At issue are settlements made during a SVs-month period, between April 3, 1985 (when the consolidated class action complaint, In re Salmonella, No. 85 — L—000000, was filed), and July 25, 1985 (when a class was certified in that case). Plaintiffs in this case are Norma Jankousky, Daniel and Cindy Nagle, and Timothy Reed. Plaintiffs Daniel and Cindy Nagle and Timothy Reed were among the plaintiffs who filed the petition to intervene in the consolidated class action, Albrecht v. Jewel, No. 85 — L—16454, alleging that defendants fraudulently concealed information concerning the pending class action (No. 85 — L—000000) from plaintiffs when they executed settlements prior to class certification. Minors and adults under legal disability who set-tied without court approval were permitted to intervene as class members in No. 85 — L—000000. The petition to intervene was dismissed as to all other plaintiffs.

Plaintiffs in this action, Norma Jankousky et al, are all adults under no legal disability who settled their claims between April 3, 1985, and July 25, 1985, prior to class certification in case No. 85 — L— 000000. Again, plaintiffs alleged that defendants fraudulently failed to disclose the existence of the pending class action prior to settlement. However, there is no specific allegation that plaintiffs were not aware of the pendency of the consolidated class action prior to making their individual settlements with defendants.

There is no prohibition against communications, negotiations, or settlements with persons who fall within the proposed class prior to class certification. The only limitation in such situations is when the settlements affect the rights of the nonsettling class members. (Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc. (2d Cir. 1972), 455 F.2d 770, 775; Vernon J. Rockier & Co. v. Minneapolis Shareholders Co. (D. Minn. 1977), 425 F. Supp. 145, 149-50.) Although courts have uniformly allowed defendants, prior to class certification, to communicate with and settle the claims of proposed class members, plaintiffs have produced no authority requiring such defendants to make the affirmative disclosures concerning the pendency of the proposed class actions. In addition, there is no authority cited characterizing a defendant’s failure to make such disclosures as an act of fraud.

Allegations of fraud must be made with “specificity, particularity and certainty” (Trautman v. Knights of Columbus (1984), 121 Ill. App. 3d 911, 914, 460 N.E.2d 350; see also Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054, 1065, 403 N.E.2d 555), including “what the representations were, when they were made, by whom they were made, and to whom they were made” (Waterford Condominium Association v. Dunbar Corp. (1982), 104 Ill. App. 3d 371, 376, 432 N.E.2d 1009). Actions based on fraud are not generally appropriate subjects for class action treatment. (Langson v. Goldberg (1940), 373 Ill. 297, 26 N.E.2d Ill.) Such an action is usually personal to the individual bringing suit and, as such, cannot be made the basis of a class action.

Although plaintiffs allege “misrepresentations” by defendants or their agents, they fail to support these allegations with specific facts, other than failure to disclose the pendency of the class action. The sole basis for the alleged fraud is the alleged failure of defendants to disclose the pendency of the consolidated class action (No. 85 — L— 000000) prior to settlement, even though no class was certified and plaintiffs did not allege specifically that they were not aware of the pending class action.

A settlement release is presumed to be valid (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639; see also Great American Federal Savings & Loan Association v. Grivas (1985), 137 Ill. App. 3d 267, 484 N.E.2d 429), and plaintiffs must allege facts sufficient to establish a cause of action for invalidating the releases.

Public policy favors and encourages settlements. (Birbalas v. Cuneo Printing Industries, Inc. (7th Cir. 1944), 140 F.2d 826.) They promote peace (Bingham v. Browning (1902), 197 Ill. 122, 64 N.E. 317) and discourage needless litigation (Ham v. Marshall (1964), 46 Ill. App. 2d 92, 196 N.E.2d 377). Accordingly, settlements have long been recognized and enforced by the courts (McDole v. Kingsley (1896), 163 Ill. 433, 45 N.E. 281), and the settlements at bar are no exception.

At bar, plaintiffs are all adults under no legal disability who accepted settlements and executed releases. They make no specific allegation that they were not aware of the pending class action when they settled.

Under the facts alleged, we are asked to impose a duty upon the defendants to disclose the pendency of the class action prior to certification of a class when settling with a potential class member. In addition, we are asked to hold that failure to comply with this newly created duty constitutes fraud per se. No authority has been cited to support this argument and we have not been able to find any. We therefore decline to comply with plaintiffs’ request.

Since plaintiffs did not allege an individual cause of action, there is no basis for a class action. See Schlessinger v. Olsen (1981), 86 Ill. 2d 314, 427 N.E.2d 122.

II

When the dismissal orders were entered, plaintiffs did not ask the trial court for leave to amend their complaint. They elected to stand by their complaint and proceeded with this appeal.

In their opening brief, plaintiffs state:

“At the very worst, plaintiff should be allowed to replead to further specify the incidents of fraud and misrepresentation.”

If this is intended to be a motion for leave to file an amended complaint, it must be denied. Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 384 N.E.2d 91; Krachock v. Department of Revenue (1949), 403 Ill. 148, 85 N.E.2d 682, cert. denied (1949), 338 U.S. 804, 94 L. Ed. 487, 70 S. Ct. 72.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and EGAN, JJ., concur.

      Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


author: JUSTICE EGAN

text:
    STEVEN B. RUSS, Plaintiff-Appellant, v. PENSION CONSULTANTS COMPANY, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—0330
    Opinion filed April 25, 1989.

      Ernest T. Rossiello, of Chicago, for appellant.
    Sachnoff, Weaver & Rubenstein, Ltd., of Chicago (Charles R. Watkins and Judi A. Lamble, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Steven B. Russ, appeals from orders of the circuit court of Cook County granting the defendant’s motion to dismiss the first amended complaint with prejudice and denying the plaintiff leave to file a second amended complaint on the ground that neither stated a cause of action for retaliatory discharge of an at-will employee.

In his first amended complaint the plaintiff alleged that he was an expert in the composition, structuring and interpretation of pension and employee benefit plans and he was hired on or about June 12, 1984, by the defendant Pension Consultants Company, Inc. (PCC), as an actuary and vice-president. On or about April 9, 1985, an agent of the defendant asked the plaintiff to create pension plans for two PCC clients and backdate them to an effective date of January 1, 1984, so that the plans could take advantage of the tax deductions for the calendar year 1984. Such deductions would have been illegal under section 401(b) of the Internal Revenue Code (Code) (26 U.S.C. §401(b) (1985)) and its accompanying regulation, regulation 1.401(b) — 1 (Treas. Reg. §1.401(b) — 1, reprinted in 26 C.F.R. §1 — 401(b)—1 (1988)) and under sections 102, 402(b) and 403(a) of the Code (26 U.S.C. §§102, 402(b), 403(a) (1985)), since the pension plan was not actually in existence during the tax year for which the deduction was sought.

The amended complaint further alleged that the plaintiff informed the defendant that he would not backdate the plans because, “according to his knowledge and belief,” a pension plan must be in existence by the end of the tax year during which any deductions are taken by the holder of the plan. “In retaliation for [the] plaintiff refusing to violate the federal laws,” on a date not alleged, the defendant discharged the plaintiff from his employment.

The allegations in the second amended complaint differ somewhat. Rather than alleging that he was asked to “establish” pension plans for two PCC clients and “backdate” those plans to January 1, 1984, the plaintiff avers only that he was asked to perform certain unspecified actuarial calculations which would be used by the defendant to establish the plans. The plaintiff claims that such conduct would violate a different set of statutes and regulations than alleged in the first amended complaint. In the second amended complaint, the plaintiff relies upon 18 U.S.C. §1027 (18 U.S.C. §1027 (1982)), and Internal Revenue Service rulings 81 — 114 (Rev. Rul. 81 — 114, 1981 — 1 C.B. 207) and 76 — 28 (Rev. Rul. 76 — 28, 1976 — 1 C.B. 106), which regulate the deductibility of employer contributions to qualified pension plans under section 404(a)(6) of the Internal Revenue Code (26 U.S.C. §404(a)(6) (1985)).

After the defendant moved to dismiss the original complaint, the parties entered an agreed order granting the defendant’s motion and giving the plaintiff leave to file an amended complaint. The defendant then moved to dismiss the amended complaint and filed a memorandum in support. Although neither the motion nor the memorandum indicated under which section of the Code of Civil Procedure the defendant was moving, the parties agree that the defendant was asserting that the plaintiff had not pleaded a cause of action, which would be a section 2 — 615 motion. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.

After the motion had been briefed and argued and the court took the matter under advisement, the plaintiff filed a motion for leave to file a second amended complaint, which the plaintiff asserted remedied the defendant’s objections to the first amended complaint. A copy of the proposed complaint was attached. A few days thereafter, the court granted the defendant’s motion to dismiss with prejudice. The order entered by the court was drafted by the defendant’s counsel and apparently submitted to the court at an earlier date; it refers only to the amended complaint and makes no mention of the proposed second amended complaint.

Within 30 days of the court’s ruling, the plaintiff filed a “Motion to Vacate, to Reconsider and for Leave to File Second Amended Complaint Instanter.” The plaintiff asked the court to vacate the order dismissing the first amended complaint and to grant leave to file the second amended complaint or, in the alternative, “[t]o grant leave to thfe plaintiff to file the second amended complaint and making final and appealable the dismissal of the second amended complaint, in lieu of the amended complaint, for whatever reasons the trial court may believe warrant said dismissal.” Before the court could rule on this motion, the plaintiff filed a “Motion for Clarification” of the dismissal order, asking the court to state whether it considered the proposed second amended complaint and 18 U.S.C. §1027 when it ruled that the amended complaint failed to state a cause of action. The trial court denied the motion for clarification on the basis that the order dismissing the amended complaint was clear and also denied the motion to vacate and for leave to file the second amended complaint. The court denied leave to file apparently on the ground that it had previously dismissed the amended complaint with prejudice.

The defendant first argues that the plaintiff’s tendering of the second amended complaint estops him from asserting the adequacy of the amended complaint. The defendant’s argument would be tenable, if the trial court had allowed the motion for leave to amend and then dismissed the second amended complaint, since, by pleading over, the plaintiff would have waived any objection to the court’s dismissal of the amended complaint. (Adamcyzk v. Forest Preserve District (1986), 151 Ill. App. 3d 320, 323, 502 N.E.2d 1197, 1199; Robins v. Lasky (1984), 123 Ill. App. 3d 194, 198, 462 N.E .2d 774, 777.) However, since the court did not grant leave to file the second amended complaint, the plaintiff may properly seek review of the order dismissing the amended complaint as well as the order denying him leave to file the second amended complaint; and the adequacy of both complaints is properly before this court.

In order to maintain an action for retaliatory discharge, the plaintiff must allege: (1) that he was discharged; (2) in retaliation for his activities; and (3) the discharge violates a clear mandate of public policy. Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.

Because the judgment below was entered upon allowance of the defendant’s motion to dismiss, all properly alleged facts in the complaint must be taken as true. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E .2d 790, 794.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiff to recover. Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill. 2d 128,133, 361 N.E .2d 575, 578.

Prior to 1978, Illinois adhered to the rule that an at-will employment relationship, such as existed between the plaintiff and defendant here, could be terminated by either party at any time, with or without cause. Beginning with Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, Illinois recognized the tort of retaliatory discharge as an exception to the employment-at-will doctrine. In Kelsay, the supreme court held that an employer violated the public policy embodied in the Illinois Workers’ Compensation Act by discharging an employee for bringing a worker’s compensation claim.

Since Kelsay, several courts have attempted to define the scope of the doctrine. (See, e.g., Hinthorn, 119 Ill. 2d 526, 519 N.E.2d 909; Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 485 N.E .2d 372, cert. denied (1986), 475 U.S. 1122, 90 L. Ed. 2d 187, 106 S. Ct. 1641; Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 478 N.E.2d 1354; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E .2d 876; Petrik v. Monarch Printing Corp. (1982), 111 Ill. App. 3d 502, 444 N.E.2d 588 (Petrik I), appeal after remand (1986), 143 Ill. App. 3d 1, 493 N.E.2d 616 (Petrik II).) Much of the discussion has been focused on defining what constitutes a “clear mandate of public policy.” The supreme court, in Palmateer (85 Ill. 2d at 130, 421 N.E.2d at 878-89), commented:

“There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State’s constitution and statutes and, when they are silent, in its judicial decisions. (Smith v. Board of Education (1950), 405 Ill. 143, 147.) Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen’s social rights, duties, and responsibilities before the tort will be allowed.”

Thus far, Illinois has found a clear mandate of public policy in only two situations: (1) where the discharge stems from the employee asserting a worker’s compensation claim or (2) where the discharge is for what some cases and commentators refer to generally as “whistle-blowing,” that is, refusing to engage in illegal conduct and/or reporting the illegal conduct of others. (Abrams v. Echlin Corp. (1988), 174 Ill. App. 3d 434, 443, 528 N.E.2d 429, 435.) The “whistle-blowing” class of cases includes situations where an employee is dismissed for reporting that illegal or wrongful activities have been engaged in by a fellow employee or employer (Palmateer, 85 Ill. 2d 124, 421 N.E.2d 876; Petrik, 111 Ill. App. 3d 502, 444 N.E.2d 588), as well as where the employee himself refuses to perform an illegal or wrongful act (Wheeler, 108 Ill. 2d 502, 485 N.E.2d 372).

The amended complaint alleges that the plaintiff was discharged not for reporting illegal or wrongful activities, but for refusing to engage in them himself. The plaintiff alleged that he was ordered to create and backdate pension plans, structuring them with an effective date of January of the previous year in order to secure certain tax benefits. The plaintiff does not explain why such activity would be illegal but instead simply points to section 401(b) of the Internal Revenue Code and its accompanying regulation, regulation 1.401(b) — 1, and sections 102, 402(b) and 403(a) of the Code.

The supreme court has held that public policy may be found in Federal law. (Wheeler, 108 Ill. 2d at 511, 485 N.E.2d at 377.) However, sections 102, 402(b) and 403(a) do not contain any declaration of public policy relevant here. They do not appear to govern, much less prohibit, the activity to which the plaintiff refers. Thus, the only potentially relevant statute is section 401(b) and regulation 1.401(b) — 1. As the defendant notes, these provisions do allow some retroactive changes by the employer in regard to these pension plans. But, as the defendant also acknowledges, regulation 1.401(b) — 1 imposes the restriction that such pension plans “can not be created out of whole cloth in one taxable year and then backdated to the previous taxable year.”

In order to allege a clearly mandated public policy, the law “must strike at the heart of a citizen’s social rights, duties, and responsibilities” (Palmateer, 85 Ill. 2d at 130, 421 N.E.2d at 878-89) and not merely involve a purely “private and individual grievance” created by private contract (Price v. Carmack Datsun, Inc. (1985), 109 Ill. 2d 65, 69, 485 N.E.2d 359, 361). Although the amended complaint does not specifically allege how section 401(b) and regulation 1.401(b) — 1, which by their terms appear directed to the taxpayer, also apply to the plaintiff and his employer, compliance with the terms of the Internal Revenue Code and its regulations does strike at the heart of the plaintiff’s social duties and responsibilities. As the court stated in Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746, 754, 498 N.E.2d 575, 580:

“We have found public policy favors, and in certain instances statutes require, full disclosure, truthfulness, and accuracy in financial reports made by businesses to the government and to the public. Public policy favors employees attempting to ensure management’s compliance with the requirements of the law and public policy.”

The defendant now cites a case decided on the same day that this case was argued in this court. In Naqvi v. Oudensha America, Inc. (N.D. Ill. 1988), 702 F. Supp. 671, the district court decided that compliance with Federal laws requiring the payment of Federal income taxes does not amount to clearly mandated public policy for Illinois citizens because (1) enforcement does not have a “direct and substantial” effect on the citizens of Illinois; (2) Illinois citizens do not require protection from Federal tax evaders in order to remain safe and healthy; and (3) Illinois has little interest in enforcing the Internal Revenue Code. In so holding, the court dismissed a complaint alleging retaliatory discharge.

We observe first that decisions of Federal district and appellate courts construing State laws are not binding on Illinois courts. (Kelsay, 74 Ill. 2d at 182, 384 N.E.2d at 357; The Ray Schools-Chicago-Inc. v. Cummins (1957), 12 Ill. 2d 376, 381, 146 N.E.2d 42, 45.) Second, we must express respectful disagreement with the district court. We believe that an Hlinois citizen’s obedience to the law, including Federal law, is a clearly mandated public policy of this State under the principles enunciated in Wheeler (108 Ill. 2d 502, 485 N.E.2d 372). In addition, Illinois has an interest in the enforcement of the Federal tax laws because falsification of Federal tax records could also mean the falsification of State tax records, since the legislature has adopted the Federal taxable income as the starting point for calculating the State corporate income tax. (Ill. Rev. Stat. 1985, ch. 120, par. 4 — 403; Bodine Electric Co. v. Allphin (1979), 70 Ill. App. 3d 844, 847-48, 389 N.E.2d 168, 171-72, aff’d (1980), 81 Ill. 2d 502, 410 N.E.2d 828.) Therefore, the underpayment of Federal income taxes could result in the underpayment of State taxes.

A view contrary to that of the district court in Naqvi was expressed by another Federal district court in Adler v. American Standard Corp. (D. Md. 1982), 538 F. Supp. 572, 580, aff'd in part & rev’d in part (4th Cir. 1987), 830 F.2d 1303, in which the district court stated:

“In short, the interlocking and pervasive requirements of business taxation and record-keeping indicate that, when bribes of the sort alleged are paid, violations of the above-mentioned federal statutes will result. And since Maryland tax law and Maryland tax returns are based, in large part, on federal tax law and federal tax returns, Maryland is directly affected if federal taxes are evaded.”

Neither Naqvi nor the Illinois Appellate Court case upon which it relies, Pratt v. Caterpillar Tractor Co. (1986), 149 Ill. App. 3d 588, 500 N.E.2d 1001, referred to Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746, 498 N.E.2d 575, in which the court, relying on Wheeler, held that Federal securities statutes which were national in scope established a clearly mandated public policy of this State and supported a cause of action on behalf of an employee discharged allegedly for refusing to violate those statutes. Therefore, the amended complaint does allege a clearly mandated public policy.

The defendant also contends that the amended complaint does not contain sufficient factual allegations that the discharge was in retaliation for certain protected activities. This element basically requires that the plaintiff allege a causal relationship between his activities and the discharge. Hinthorn, 119 Ill. 2d at 532, 519 N.E.2d at 912.

We disagree with the defendant’s contention that the plaintiff has not pleaded sufficient facts to apprise the defendant that it was being charged with firing the plaintiff for refusing to engage in illegal conduct. The plaintiff has pleaded the ultimate facts that the backdating of the plan (or plans) was a violation of Federal law; that he informed the defendant that he would not backdate the plans because to do so would be illegal under the Federal laws; and that the defendant discharged him in retaliation for refusing to violate the Federal laws. These are sufficient allegations which the motion to dismiss accepts as true. While the allegations lack the specificity present in other cases, such as Petrik I (111 Ill. App. 3d at 503, 444 N.E.2d at 589) and Johnson (147 Ill. App. 3d at 749, 498 N.E.2d at 577), they reasonably inform the defendant that the plaintiff claims he was discharged in retaliation for refusing to perform certain acts. As the supreme court has held, the complaint need not explicitly delineate the conduct on the part of the defendant which led to the discharge, so long as it spells out the course of events which did so. (Hinthorn, 119 Ill. 2d at 532, 519 N.E.2d at 912.) Whether the alleged backdating here was, in fact, legal, as the defendant argues, cannot be resolved in the present posture of the case. If the evidence supports the defendant’s position, then summary judgment may be appropriate. (Petrik, 143 Ill. App. 3d at 6-10, 493 N.E.2d at 620-23.) The amended complaint does inform the defendant of the crux of the claim (Hinthorn, 119 Ill. 2d at 532, 519 N.E.2d at 912) and sufficiently alleges a cause of action. Therefore, the trial court incorrectly granted the defendant’s motion to dismiss the amended complaint.

The plaintiff also argues that the court abused its discretion in denying him leave to file the second amended complaint. A reviewing court will not reverse the denial of leave to amend unless it is an abuse of discretion (Talas v. Youngstown Sheet & Tube Co. (1985), 134 Ill. App. 3d 103, 107, 479 N.E.2d 1052, 1055.) Among the factors this court must consider in determining whether discretion was properly exercised is whether the proposed amendment could cure the defective pleading; whether it could cause prejudice or surprise to other parties; the timeliness of the proposed amendment; and whether previous opportunities to amend the pleadings could be identified.

In the second amended complaint, the plaintiff cites to 18 U.S.C. §1027 and IRS revenue rulings 81 — 114 and 76 — 28, which regulate the deductibility of employer contributions to qualified pension plans under 26 U.S.C. §404(a)(6). The two revenue rulings make it unlawful for an employer to deduct its contributions to the pension plan unless the plan was actually in existence during the tax year. They state that contributions may be made at the close of a taxable year but further provide that the new rules do not, however, “change the requirement that a plan must be in existence as of the last day of the employer’s taxable year with respect to which a contribution is made.” Therefore, in order to lawfully obtain the tax deduction, the pension plan must have been in existence no later than December 31, 1984. These two rulings embody the same clearly mandated public policy expressed in section 401(b) of the Code and regulation 1.401(b) — l.

18 U.S.C. §1027 imposes criminal penalties upon a person who “knowingly conceals, covers up or fails to disclose any fact the disclosure of which is required *** or is necessary to verify, explain, clarify or check for accuracy and completeness any report required by [the Employee Retirement Income Security Act (ERISA)]”. (18 U.S.C. §1027 (1982).) Although the plaintiff here has not alleged that the pension plans to which he refers were ERISA plans or that the documents he was called upon to prepare were integral to the plan, the necessary elements for prosecution under section 1027 (United States v. Martorano (E.D. Penn. 1984), 596 F. Supp. 621, 624-25, aff’d (3rd Cir. 1985), 767 F.2d 63, cert. denied (1985), 474 U.S. 949, 88 L. Ed. 2d 296, 106 S. Ct. 348), such may be inferred from the second amended complaint. Therefore, section 1027 also constitutes a clearly mandated public policy which was violated when the plaintiff was discharged for refusing to disobey its provisions.

Contrary to the defendant’s assertions, the plaintiff has adequately alleged the element of retaliation even though he no longer alleges that he was ordered to “establish” and “backdate” two pension plans but only that he was asked to make “certain actuarial calculations to be used by the defendant to establish” a pension plan which he “had reasonable grounds to believe” would be used to form the two plans to be established and structured with the January 1, 1984, effective date. A fair reading of the second amended complaint reasonably informs the defendant that the plaintiff alleges that he was discharged in retaliation for refusing to perform certain actions which he avers would lead to the establishment of an illegal pension plan or plans.

We repeat that, while the evidence may show that the actions requested of the plaintiff were lawful, the plaintiff has made well-pleaded allegations to the contrary, and this dispute cannot be resolved on a motion to dismiss. Therefore, the second amended complaint adequately alleges a cause of action for retaliatory discharge, and the circuit court’s denial of leave to file the second amended complaint was error.

In reversing the trial court we do not sanction the lackadaisical approach taken by the plaintiff in prosecuting his case and responding to the defendant’s motions. We observe that the complaints were not models of draftsmanship, even though there are several appellate and supreme court cases discussing the elements of the cause of action and setting forth portions of the well-pleaded complaints (e.g., Hinthorn, Petrik I and Johnson). We note further that the plaintiff did not cite to any Illinois retaliatory discharge cases in the trial court.

Accordingly, for the reasons expressed, we reverse the order of the circuit court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BILANDIC, P.J., and HARTMAN, J., concur.

      Justice Egan participated in the decision of this case prior to his assignment to the sixth division.

      The complaint itself refers to 29 U.S.C. §§102, 402(b) and 403(a). This would appear to be an error. Title 29 relates to labor laws. It appears that the plaintiff intended to cite to provisions of the Internal Revenue Code, which is Title 26.

      Despite the apparent applicability of section 401(b) and regulation 1.401(b) — 1, the plaintiff does not allege them in his second amended complaint.

      “Four essential elements must be proved beyond a reasonable doubt before a defendant may be found guilty under 18 U.S.C. §1027: (1) that the defendant made a false statement or representation of fact, or concealed, covered-up or failed to disclose a fact; (2) that the defendant did so knowingly; (3) that the false statement or representation of fact was made in a document required by Title I of ERISA to be published, or kept as part of the records of any employee welfare benefit plan, or certified to the administrator of any such plan, and any concealment, cover-up, or failure to disclose was of a fact the disclosure of which is required by Title I or is necessary to verify, explain, or check for accuracy and completeness any information required by such title to be published or certified; and (4) that the employee welfare benefit plan in question was an employee welfare benefit plan within the meaning of and subject to Title I of ERISA.” United States v. Martorano, 596 F. Supp. at 624-25.

      Moreover, the plaintiff also could have alleged that had he complied with his instructions and prepared the actuarial figures, he would be subject to prosecution under section 7206(2) of the Internal Revenue Code (26 U.S.C. §7206(2) (1982)), which imposes criminal liability on any person who aids or abets in the preparation of a knowingly false or fraudulent income tax return or related document. The backdating of documents for the fraudulent purpose of obtaining a deduction constitutes an offense. (United States v. Crum (9th Cir. 1976), 529 F.2d 1380, 1382-83.) In order to prove a violation of section 7206(2), the government need only establish that either the information was supplied with the intent to deceive or that the information was false in the sense of being fraudulent. (United States v. McGee (5th Cir. 1978), 572 F.2d 1097, 1099.) Prosecution under the statute is not limited to those who actually prepare the return but to all those who knowingly participate in providing information that results in a materially fraudulent tax return. Crum, 529 F.2d at 1382; United States v. Siegel (N.D. Ill. 1979), 472 F. Supp. 440, 444.