author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEEARLISE CHILDROUS, Defendant-Appellant.
    Fourth District
    No. 4—88—0796
    Opinion filed March 28, 1990.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial, defendant Deearlise Childrous was found guilty of murder and armed robbery and sentenced to natural life and 30 years’ imprisonment. Defendant raises the following issues for our consideration: (1) whether the trial court’s refusal to bar the admission into evidence of statements of defendant’s accomplice, Tommy Coleman, and the prosecutor’s highlighting of these statements during closing arguments, without any limiting instruction, denied defendant a fair trial; (2) whether the jury instructions for armed robbery were deficient; and (3) whether the victim-impact statement included as a part of the presentence report violated defendant’s rights under the eighth amendment of the United States Constitution and article I, section 11, of the Illinois Constitution. We affirm.

On June 2, 1988, a five-count information was filed, charging defendant Deearlise Childrous and Tommy Coleman with four counts of first degree murder and one count of armed robbery. The information alleged that on April 8, 1988, defendant and Coleman fatally shot Beth Akers after stealing her purse. Defendant and Coleman were tried separately. Defendant’s jury trial began on September 27,1988.

I. REVIEW OF THE EVIDENCE

A. STATE’S CASE

(1) DISCOVERY OF VICTIM AND POLICE ACTIVITY

Tracy Hamilton testified that on April 8, 1988, she lived at 726 North Seventh Street in Springfield. She had known 20-year-old Beth Akers for four years, and was a roommate of Akers’ boyfriend, Todd Nutt. On April 8, Akers arrived at Hamilton’s house at approximately 11:15 p.m. and left about 15 minutes later. When Akers left, Hamilton noticed she was carrying her purse and keys and was wearing her eyeglasses. Hamilton expected Akers to return in about 15 minutes. At approximately 11:45 p.m., Hamilton testified after she heard a scream and then two shots, she walked to the front door of her house to investigate. Hamilton testified she then heard Akers scream, “Tracy.” When Hamilton went outside, she found Akers on the sidewalk near a neighbor’s house. Hamilton initially saw no one else in the area.

Hamilton testified she then approached Akers and asked her what happened, and Akers said, “[Tjhey stole my purse.” Hamilton then went back inside her house, called the police, and came back outside to be with Akers. Hamilton testified Akers got up slowly and took five limping steps before falling face first into Hamilton’s yard. Hamilton testified she then saw four young black males, approximately 8 to 13 years old, walk by without stopping or offering help. Hamilton stated the area was “bright” and “always lit up.” Hamilton did not see Akers’ purse near her, but did see that her keys were in her hand and she had her eyeglasses on.

Springfield police officer Robert Crouch testified that he was called to the 700 block of North Seventh Street in Springfield at approximately 11:45 p.m. on April 8, 1988. Upon arriving at 726 North Seventh Street, Crouch and his partner found Akers lying on the sidewalk in front of that address. Akers was conscious at that time, and mumbled something to Officer Crouch which he testified was unintelligible. Crouch did not observe any injuries at first and called an ambulance.

Roy Mayfield was the ambulance paramedic who initially treated Akers at the scene on North Seventh Street and then transported her to St. John’s Hospital. Upon his arrival, Mayfield testified Akers was in “full arrest,” but was revived with CPR procedures. Mayfield noticed a small bullet wound in Akers’ abdominal region.

Dr. Robert Grover testified he performed the autopsy on Beth Akers on April 9, 1988. Akers had been pronounced dead at 1:37 a.m. on April 9, after unsuccessful surgery. Akers’ body displayed gunshot wounds to the abdomen, right thigh, and the backside of the right knee. Dr. Grover found and removed a bullet from the lower vertebrae region of Akers’ body. The doctor identified in court the bullet that he removed from Akers. Officer John Adleman attended the autopsy of Beth Akers. He observed Dr. Grover pull a spent bullet out of the lower spinal area. In court, Adleman identified the same bullet.

A set of car keys, a pair of prescription eyeglasses and a piece of blue nylon cloth were found in the vicinity of 726 North Seventh Street in the early morning of April 9,1988.

(2) EVIDENCE RE STATEMENTS ATTRIBUTED TO TOMMY COLEMAN .

Jeff Kimble, a convicted residential burglar, testified that on April 8, 1988, he lived with the defendant and the defendant’s aunt, Jackie Danley, who was Kimble’s girlfriend. Kimble testified he had been friends with the defendant for seven or eight years and had been friends with Coleman for two or three months. On April 8, 1988, Kimble was at home watching television with Danley, the defendant, and Coleman. Kimble stated defendant and Coleman arrived at the house at “11 or 9 *** I ain’t quite sure” and began to talk about “going to get some money” Kimble stated defendant and Coleman left the house on April 8 at approximately 10 p.m. and indicated that they were going to do a “robbery or take a purse.” Defendant and Coleman returned 1 to V-k hours later, and had a purse with them, the contents of which were emptied onto the kitchen table in Kimble’s house. Kimble stated Coleman took credit cards, which had Beth Akers’ name on them, and a wedding band; he (Kimble) took an ink pen; and the defendant took nothing from the purse.

After Coleman and the defendant returned to the house, Kimble testified Coleman reported that “they had snatched the purse and Tommy said that him and Deearlise had shot the woman because she wouldn’t let go of the purse.”

Kimble admitted while testifying that when he first spoke with the police, he told them in writing that he was told that Coleman, not the defendant, had done the shooting. Kimble stated he lied to the police because he was dating the defendant’s aunt. Kimble again reiterated his testimony that Coleman told him that the defendant was the shooter because “she wouldn’t let go of the purse and so Deearlise shot in the air once and then he said he shot her.” Kimble stated he changed his story to implicate the defendant only after the police told Kimble that they did not believe his story about Coleman being the shooter.

After the April 8 conversation, Kimble testified that Coleman then went across the street, threw Akers’ purse into a dumpster, and unsuccessfully attempted to get rid of the checks and credit cards in the purse.

Kimble testified further regarding the events of April 9, 1988, at defendant’s mother’s house. Kimble stated that on April 9 he read something in the newspaper about the Akers murder and then threw the paper to the defendant, who in turn threw the paper to Coleman. Kimble testified the following conversation then occurred between Coleman and the defendant:

“[By Kimble:] Tommy said that Deearlise had shot and killed a lady but he said well, if you wouldn’t never had snatched the purse I wouldn’t never have to shoot her ***.”

Kimble further testified that Coleman was at his house on April 10, 1988. Kimble testified as follows:

“Q. [By Prosecutor:] Okay. Did Tommy say anything about this case?
A. [By Kimble:] Yeah, he had told me that DeeArlise had shot this woman and took the purse again. He had told me this.
Q. Okay. Did he ever mention anything about his clothing?
* * *
A. Yeah, Tommy said that his jacket was tore [sic] and that she had like some of his skin and so he burned the jacket up * * *
Q. Did he indicate why he burned the jacket?
* * *
A. It was torn and the police had like some of his skin in the cloth off the jacket.
Q. Did he indicate what color jacket it was?
A. It was a blue windbreaker.”

Kimble further testified he was at the home of Theodis Williams on April 11, 1988, with Coleman and a third person, Mark Johnson. Kimble testified Coleman had a gun on the couch which Coleman stated had been used in a murder. Kimble described the gun as a .22 caliber, with a white handle and a holster. Kimble identified the gun in court, represented as People’s exhibit No. 16, as the same gun he saw on April 11 at Williams’ house. Kimble testified that on April 15, 1988, Coleman and the defendant told him they sold the gun to a girl named “Mopey.”

Cammona “Mopey” Gailes, an admitted prostitute for six years with a prior retail-theft conviction, testified about the purchase of a handgun from Coleman and the defendant. This purchase was made with the assistance of the Springfield police department. Mopey testified she had known the defendant for five or six years, and had known Coleman for a few months. On April 13, 1988, at 11:30 p.m., Mopey stated she was “working” a Springfield street corner when she flagged down Detective Tom Murphy and told him she knew something about the Akers murder. Mopey stated she used marijuana prior to this meeting. Murphy took Mopey to the police station, where she gave a statement. Mopey stated she told Murphy she knew where to get the gun used in the murder, and Murphy gave her $70 to buy the gun. Mopey stated she went to the home of Jackie Danley, where she found the defendant lying on the couch. Mopey asked him where she could get a gun “like a small .22.” Mopey stated the defendant told her to come back later. Mopey stated she went back to the house at 9:30 a.m. on April 14, and then again at 10:30 a.m., when she and the defendant went to Coleman’s house. Mopey stated she gave the money to the defendant and received the gun from Coleman. Mopey stated Coleman said, “[Wjhatever [you] do, don’t get caught with the gun,” and started laughing. Mopey identified People’s exhibit No. 16 as the same gun she purchased from Coleman and the defendant.

Mopey testified she again met with Coleman and the defendant on April 28,1988, at 11 p.m. Mopey testified as follows:

“Yes, they asked me about if I knew anybody that would be interested in cashing some checks, like a white female about the ages of twenty or twenty-one. *** After that, a few hours later I seen them over in the John Hay Homes over by Jackie Bland’s house *** DeeArlise said that Mopey, I heard you know something about Tommy and I supposed to have killed the white girl. I asked them who shot her and he started laughing and didn’t say, asked me if I still had the gun and would I be willing to sell it back to them ***.”

Springfield detective Tom Murphy testified about the meeting with Mopey on April 13, 1988. He stated he gave Mopey $70 to buy a gun and stated he received a .22 caliber handgun from Mopey on April 14. Murphy identified People’s exhibit No. 16 as the same handgun. Murphy stated he arrested the defendant on May 3, 1988. Murphy stated the defendant became “agitated and nervous” when Murphy showed the defendant the gun that Murphy had obtained from Mopey.

Murphy stated he did not believe that Mopey was under the influence of drugs or alcohol when he met with her on April 13 and 14, 1988. Further, she was not promised anything in exchange for her cooperation. Mopey had no cases pending against her when she helped with the purchase of the gun, but did have pending cases at the time of the defendant’s trial.

(3) FORENSIC EVIDENCE

Kevin Horath, a State of Illinois forensic scientist specializing in fingerprint identification, testified that he examined People’s exhibit No. 16, the gun and holster, for latent fingerprints, and that he found no suitable latent fingerprints on either item. Michael Kreiser, a State of Illinois forensic scientist, testified he examined and compared People’s exhibit No. 12A, a mutilated bullet taken from Akers’ body, and People’s exhibit No. 16. Kreiser testified that the bullet “could not be identified or eliminated” as having been fired from the handgun. Kreiser testified the bullet’s mutilated condition contributed to the difficulty in the identification process. Kreiser stated the rifling characteristics of the bullet and the gun were similar, but were so common that the bullet could have come from any one of “thousands, if not millions” of other guns. Kreiser also noted that the gun contained three live cartridges, and two spent cartridges, as well as one empty chamber.

(4) EVIDENCE RE OUT-OF-COURT STATEMENTS ATTRIBUTED TO THE DEFENDANT

The State presented the testimony of six persons who had conversations with the defendant while he was incarcerated at the Sangamon County jail prior to his trial in this case, from May 1988 to August 1988.

Alfred “Gus” Dawson testified he was in Sangamon County jail with the defendant in July and August 1988. Dawson testified the defendant told him that if Coleman had not made any statements against him, “The State wouldn’t have a case to bring him to trial,” and that “maybe if Tommy hadn’t sold her (Mopey) the gun *** they wouldn’t be in jail.” Dawson further testified that after he called the defendant “a pistol-packing, purse snatching punk,” the defendant got mad and said “he wished he’d have shot me instead of her.” Dawson stated the defendant did not specify who “her” was. Dawson stated he recalled visiting the defendant’s house “maybe” on April 8, 1988, when the defendant showed Dawson the gun introduced as People’s exhibit No. 16. Dawson testified the jailhouse conversations took place in August 1988. Dawson admitted having two burglary convictions and a retail-theft conviction.

Scott Sheppard testified he had a conversation with the defendant at the end of May 1988, when both were in the county jail. Sheppard testified the defendant told him the following:

“[Defendant] said that on the night that the lady had got shot him and Tommy Coleman had been up on North Seventh Street looking for a hustle and that they had seen a lady with a purse and he had told Tommy to snatch the purse from the lady. Tommy snatched the purse from the lady but he couldn’t get it from her. She was struggling and making a big scene and that he had to help Tommy get the purse from her and she tried to grab him. He said I wasn’t going to let the bitch grab me so I had to ice her ass.”

Sheppard stated the defendant told him he tried to shoot the woman in the head, but shot her somewhere below the breast. Sheppard said defendant told him he shot twice but was unsure where the second bullet struck the woman. The defendant further told Sheppard about returning to “the projects” with the purse, emptying the contents, and disposing of the purse in the dumpster. Sheppard stated the defendant told him he wore his long trench coat or gangster coat on the night of the shooting because he could conceal a gun in the coat. Sheppard stated the defendant described the gun as a .22 caliber with a long barrel and white handle. Defendant told Sheppard he and Coleman sold the gun to a prostitute named Mopey. Defendant told Sheppard he received the money from Mopey and Coleman gave her the gun.

John Roth testified he had a conversation with the defendant in the county jail in late July 1988 during which, in response to questioning by Roth, the defendant said he had been arrested for shooting a girl, and the shooting had occurred after he and a buddy tried to steal a girl’s purse. According to Roth, the defendant further told him that they shot her because, when they went to take off running, he was scared and then turned and fired. Defendant told Roth he shot her twice and she died because one of the bullets must have hit a main artery. Roth was previously convicted of obstruction of justice and driving with a revoked license. Roth testified he reported the conversation with the defendant to the State’s Attorney after he was released from jail, having pleaded guilty to the charges of obstruction of justice and driving with a revoked license.

Willie Fisher testified he had a conversation with the defendant on May 29, 1988, in the county jail. Fisher testified as follows regarding what the defendant told him on May 29:

“A. Well, [defendant] discussed the fact that *** he had been in possession of a pistol and that the Akers girl had been shot, that she was shot twice and that they were trying to snatch her purse.
* * *
A. *** [H]e had a guy with him named Coleman and they had left and went down to St. John’s at first, went down through the parking lot down there to check things out and there wasn’t nobody down there to take care of what they wanted to do so they left and went up on Seventh Street.
* * *
A. [Defendant] [s]aid they was trying to make some money. * * *
A. [They saw] Miss Akers walking south — coming this way towards the hospital.
* * *
A. Mr. Coleman [grabbed the purse],
* * *
A. He [defendant] said that the girl screamed and he [defendant] shot her once and she still had hold of her purse and fell to the ground and screamed again and said Coleman had pulled the purse out of her hand and when she screamed the second time he [defendant] fired another shot.
* * *
A. [They went] [b]ack to the projects.
* * *
A. * * * First time he said there was a hundred and fifty dollars. Then one time he told me there was two hundred and eighty dollars.
* * *
A. [They used] a 22 caliber.
* * *
A. *** [H]e said they had sold it to — I don’t know her real name, but Mopey.”

Fisher had three misdemeanor theft convictions and at the time of trial had a case pending for unlawful use of weapons. On cross-examination, Fisher confirmed he was convicted of aggravated kidnapping in 1985. Fisher testified he was released on bond for the pending charges a few days after he told the Springfield police of his conversation with the defendant.

Titus White, who has a prior burglary conviction and who was in jail at the time of this trial for another burglary, testified he had a half-hour conversation with the defendant on August 20 or August 21, 1988, while in the county jail. This conversation occurred after the conviction of codefendant Coleman. There were 20 to 25 other prisoners around, but White stated none of them heard the conversation. White testified as follows regarding the statements made to him by the defendant:

“A. [Defendant] said, man, he said, he said I’m not on this shit that Tommy about, he said — he said Tommy went downstairs with that bullshit. If Tommy would have went downstairs like I told him to, then, you know, he wouldn’t have had the problems that he had. *** I’m going to beat this ***.
* * *
A. Oh, well, he told me, he said that Tommy didn’t have to go down there *** talking about the girl was going to give me the purse *** I didn’t have to shoot her *** because *** she would have let the pocketbook go.
. * * *
A. Well, after we talked about it, you know, I knew that it was a serious case because it’s murder, you know, and I asked him, I said DeeArlise, man, I said, did you shoot the girl.
* * *
A. *** [H]e said, oh, Titus, man, he said I shot the bitch but Tommy didn’t have to go *** telling them people ***.”

White testified the defendant told him the girl’s name was Beth Akers. White also testified the defendant told him the gun was “a .22 long” and that he (White) had not known what type of gun was used before the defendant told him the type. White testified he heard about the April 8 shooting in the projects.

Armin Bredemeyer testified he was in the county jail at the time of the defendant’s trial on charges of criminal damage to property and he had a prior conviction for residential burglary. Bredemeyer testified he overheard a conversation in the county jail on August 15, 1988, between Coleman and the defendant where the defendant talked to Coleman about “recanting his story that he previously gave and that if he didn’t, certain things could happen to him or his family.” Bredemeyer also testified he overheard inmate Dawson tease and upset the defendant in late July 1988, which caused the defendant to state “I wish I hadn’t shot that bitch, I wish I would have shot you instead ***.” Bredemeyer testified he overheard the defendant tell someone else in an August 1988 jailhouse conversation that “he didn’t mean to shoot the girl, that he turned around and the girl saw his face and he panicked and he fired two shots and he ran.”

The State also presented the testimony of Rodney White, who testified he had a conversation with the defendant on April 9 or April 10, 1988, in the parking lot in the John Hay Homes. Rodney stated the defendant told him that he (the defendant) and Coleman had gone out the night before to make some money; that they had run across a young white woman; Coleman snatched her purse; and the defendant had fired a shot during a tug-of-war over the purse. Rodney testified the defendant told him “the bitch wouldn’t let go of the purse so he shot the bitch and then they took off running.” According to Rodney, the defendant stated that “they were out on the hustle.” The defendant told Rodney that he and Coleman were on North Seventh Street, and that they had approached Akers as she got out of her car. Rodney testified the defendant told him Coleman was the one who grabbed the purse and the defendant was the one who shot her two times. The defendant told Rodney he took $150 from Akers’ purse.

Rodney testified he and the defendant then went to Jackie Danley’s house on April 10 at 10 a.m., where defendant showed Rodney several guns, including a “long .22,” which defendant told Rodney was dirty. Rodney identified People’s exhibit No. 16 as the same gun defendant showed him on April 10, 1988. Rodney testified, “I think [the defendant] told me, he said this is the gun I shot that white bitch with.”

B. DEFENDANT’S CASE

Defendant presented several witnesses. William Lee, of 850 North Seventh Street, Springfield, testified that on April 8, he was inside his house when his wife came in and said that she heard two gunshots and a scream. Lee testified that he and his wife, along with Tommy Horrighs and a woman named Rosey, walked to within 60 feet of where the girl was lying. Lee stated he observed seven or eight black males heading down the street, and then turning down a side street. Lee stated he was not close enough to identify any of these people, but could tell they were all 17 to 20 years old. Lee stated they were in between the body of the victim and Mr. Lee himself. Lee recalled that the area was poorly lit. When he first saw the men, Lee testified they were very close to the victim’s body.

Thomas Horrighs was with William Lee on April 8, 1988, when he and Lee heard some shots. Horrighs testified he and Lee and some other people walked down toward the area where the body was lying and saw seven to nine black males come out from in between some houses. The men in this group were ages 15 to 19 years old. Horrighs, too, believed the lighting in the area was not very good. Horrighs did not see these black males real close to the body. Horrighs testified he thought the shooting occurred at 7 p.m. or 8 p.m. on April 8.

Margo Nelson, Mopey’s mother, also testified for the defense. On May 3, 1988, she had a conversation with her daughter. Nelson testified she asked her daughter if she had purchased a gun from the defendant, and her daughter told her that she had not. Mopey also testified for the defense and stated she did not recall the May 3, 1988, conversation with her mother. Mopey testified she might have had a conversation at some point with her mother about purchasing the gun, but thought she told her mother that she purchased it from both Coleman and the defendant.

Jacqueline Bland Danley testified as to an alibi for the defendant. During the evening of April 8, 1988, she testified she was at home with Jeff Kimble, the defendant, and several other individuals. Danley stated the defendant watched her children for her from 7:30 until 9 p.m. She testified she returned home at approximately 9 p.m. and Childrous stayed at the house the rest of the evening without leaving. She was certain of the date because she checked her pay stubs and also because this was her mother’s birthday. Danley acknowledged that the day of the trial was the first time she told anyone the defendant was home all evening with her on April 8, 1988.

C. REBUTTAL CASE

The State called Officer Steve Pellegrini in rebuttal to the testimony of Lee and Horrighs. Pellegrini testified he talked to both men about the shooting immediately after he arrived at the scene on the early morning of April 9. Pellegrini testified at the time of the interview both of the men were under the influence of alcohol.

Detective Tom Murphy testified that when he arrested the defendant on May 3, 1988, he advised him of his Miranda rights and defendant elected to talk to police. Murphy testified the defendant told the police Danley was working at Hope School on the evening of April 8, 1988.

Christine Hickey, an employee of the Inner City Mission, at 720 North Seventh Street in Springfield, testified regarding the events occurring on April 8, 1988. Hickey testified she looked out her window at 11:45 p.m., after hearing screams and shots, and saw Akers lying on the sidewalk. Hickey further testified she went outside with Tracy Hamilton from next door and waited near Akers’ body for the police to arrive. Hickey testified a group of five to six children walked by the area and she placed the age of these children at between 9 and 11 years old. Hickey testified the children walked north on Seventh Street and then turned west on Enos Street.

On July 29, 1988, the jury found defendant guilty of murder and armed robbery. The jury found the defendant was eligible for the death penalty, but declined to impose it. At the sentencing hearing on October 28, 1988, defense counsel objected to a “victim impact” letter written by the mother of Beth Akers and attached to the presentence report. The trial judge responded that it was “pretty hard ***, not to consider” that letter, but that other factors were of greater persuasion to the court. Defendant’s motion for a new trial was denied.

II. ADMISSIBILITY OF COLEMAN’S OUT-OF-COURT STATEMENTS

Defendant first argues that the introduction, over objection, of the out-of-court statements made by Coleman was highly prejudicial and improper and denied defendant his Federal and State constitutional rights of confrontation. Defendant also urges these statements were inadmissible under the coconspirator exception to the hearsay rule and, thus, the State had to establish the reliability of these statements through other independent evidence. This was not done in this case and, further, no limiting instruction was given regarding these statements. Therefore, defendant maintains his convictions must be reversed.

The State urges Coleman’s statements are admissible (1) under the coconspirator exception to the hearsay rule; (2) as adopted admissions by the defendant; and (3) under the principle of interlocking confessions and admissions. The State argues defendant waived any constitutional issue on the admission of these statements because this ground for objection was not raised at trial. Alternatively, the State argues any error in admitting Coleman’s statements was harmless, given the overwhelming evidence of defendant’s guilt.

A. HEARSAY

We first address the hearsay issue. Under the coconspirator exception to the hearsay rule, any act or declaration (1) by a coconspirator of a party, (2) committed in furtherance of the conspiracy, and (3) during its pendency is admissible against each and every coconspirator, provided that (4) a foundation for its reception is laid by independent proof of the conspiracy. (People v. Parmly (1987), 117 Ill. 2d 386, 512 N.E.2d 1213; People v. Eddington (1984), 129 Ill. App. 3d 745, 771, 473 N.E.2d 103, 121.) This exception does not extend to a recitation of past facts. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215; Dutton v. Evans (1970), 400 U.S. 74, 88-89, 27 L. Ed. 2d 213, 227, 91 S. Ct. 210, 219-20.) Declarations that are merely narrative as to what has been done or will be done are incompetent, however, and should not be admitted except as against the defendant making them or in whose presence they are made. Eddington, 129 Ill. App. 3d at 772, 473 N.E.2d at 122; Spies v. People (1887), 122 Ill. 1, 237, 12 N.E. 865, 907-08.

Of the eight statements attributed to Coleman, four statements relate to a continuation of the original conspiracy in crime: those of April 8 (two statements), April 13, and April 28. The actions of Coleman and the defendant on April 8, 1988, relate directly to the planning and execution of the robbery. We find the two statements attributed to Coleman on this day were admissible under the coconspirator exception. The State introduced independent evidence of the conspiracy through the testimony of six jailhouse informants, each with a criminal record. The credibility of these witnesses and the weight given to their testimony are within the prerogative of the trier of fact. (People v. Fields (1990), 135 Ill. 2d 18, 48.) A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of evidence or credibility of witnesses. Fields (1990), 135 Ill. 2d at 48.

On April 13, 1988, five days later, the defendant and Coleman were attempting to dispose of the gun used in the robbery. On April 28, defendant and Coleman were attempting to dispose of bank checks taken in the robbery. These actions amount to concealment of the crime, which may constitute a continuance of the original conspiracy for purposes of this exception. (People v. Link (1981), 100 Ill. App. 3d 1000, 427 N.E.2d 589; People v. McInnis (1980), 88 Ill. App. 3d 555, 411 N.E.2d 26; People v. Meagher (1979), 70 Ill. App. 3d 597, 388 N.E.2d 801.) However, only those concealment efforts proximate in time to the principal crime should be considered as part of the ongoing conspiracy. As stated in Meagher:

“When acts or declarations directed towards concealment are distant from the commission of the offense, they are subject to such grave doubts as to their trustworthiness that they should not be admissible under the co-conspirator exception.” Meagher, 70 Ill. App. 3d at 603, 388 N.E.2d at 805.

We find the actions of defendant and Coleman on April 13 and April 28 were not proximate enough to the robbery on April 8 to constitute an ongoing conspiracy. This court in Eddington discussed when the conspiracy relating to the original crime terminates and agreed with the Meagher court that concealment efforts must be proximate in time to the underlying offense. In Eddington, we relied in part on United States v. Floyd (2d Cir. 1977), 555 F.2d 45, where the Federal court stated:

“The established rule is that once ‘the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment.’ [Citations.] *** To include in the conspiracy an event, no matter how proximately related, occurring after the main objectives of a conspiracy have been accomplished would unnecessarily blur the relatively clear line drawn by the Supreme Court’s decisions on this subject.” (Floyd, 555 F.2d at 48.)

While the statements regarding actions taken on April 13 and 28 are not admissible under the coconspirator exception, they were admissible as admissions.

B. ADMISSIONS

When a statement is made in the presence and hearing of an accused, incriminating in character, and such a statement is not denied, contradicted or objected to by him, both the statement and the fact of his failure to deny it are admissible in a criminal trial as evidence of his acquiescence in its truth. (People v. Morgan (1976), 44 Ill. App. 3d 459, 462, 358 N.E.2d 280, 283.) Acquiescence or assent may be manifested by silence or by an evasive, equivocal, or unresponsive reply. People v. Allen (1983), 119 Ill. App. 3d 186, 194, 456 N.E.2d 336, 341.

The State argues all of the statements were admissible as implied admissions because they were made in defendant’s presence. We find, with two exceptions, that six of the statements attributable to Coleman were made in the presence of the defendant: the statements Coleman made to Kimble on April 8; the statements Coleman made to Kimble on April 9 at the defendant’s mother’s house; and the statements made on April 14, April 15, and April 28. Defendant argues the State failed to establish the “degree” to which defendant was present when Coleman made the incriminating statements. We find no merit in this argument. The evidence established that the defendant and Coleman on April 8 stated they were going to get some money. After the robbery, defendant and Coleman returned to Kimble’s house whereupon they told Kimble they snatched a purse. On April 9, Kimble testified regarding a conversation between the defendant and Coleman after Kimble tossed a newspaper to defendant which contained a story regarding the Akers murder. Similarly, defendant was present (1) when the gun was sold to Mopey; (2) on April 15 when defendant and Coleman told Kimble they sold the gun to Mopey; and (3) on April 28 when defendant and Coleman talked to Mopey about who shot the victim and the possible return of the gun to them. All these statements were admissible against the defendant.

Two statements attributed to Coleman on April 10 and April 11 were made outside the defendant’s presence and were not admissible as admissions. Further, these statements do not qualify under the coconspirator exception because Coleman was relating past facts and not engaging in any concealment efforts. However, an objection to the April 11 statements on hearsay grounds was sustained. It was error to admit the April 10 statement. However, in light of the other statements which were admissible and the overwhelming evidence of defendant’s guilt, we find any error attributable to this statement was harmless beyond a reasonable doubt. People v. Arman (1989), 131 Ill. 2d 115, 124, 545 N.E.2d 658, 662.

Based on our conclusion that Coleman’s statements were admissible as exceptions to the hearsay rule and as admissions, we need not address the alternate arguments raised by the parties on this issue.

III. JURY INSTRUCTIONS ON ARMED ROBBERY

Defendant next argues the jury instructions for armed robbery were deficient because they failed to include a mental state. Defendant contends the instructions relieved the State of its burden of proof with respect to an essential element of the crime and constitute plain error. The defendant acknowledges this court’s decisions in People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139, and People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141, holding a mental state is not an essential element for jury instructions on robbery and armed robbery. However, the defendant urges this court to reconsider the decisions in Talley and Avant.

The State argues the defendant waived this argument because defense counsel did not tender alternate instructions, did not object to the tendered instructions, and did not raise this issue in a post-trial motion. On the merits, the State argues Talley and Avant are dispositive of this issue and the other cases cited by the defendant are distinguishable.

Defendant did not object to the armed robbery instruction or offer alternate instructions and, therefore, this issue is waived. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141.) On the merits, defendant’s argument has previously been considered and rejected by this court on numerous occasions and we see no reason to depart from our previous holdings on this issue.

IV. VICTIM-IMPACT EVIDENCE

Defendant also argues the receipt into evidence of a victim-impact letter from Akers’ mother denied defendant a fair sentencing hearing. Thus, defendant asks for a remand for a new sentencing hearing.

The State argues this is not a capital offense case and the impact statement was not received into evidence at the death-penalty hearing. Further, the State argues the record clearly shows the judge considered other matters, such as defendant’s criminal background and the circumstances surrounding the commission of the robbery, and in fact stated he was not relying heavily on the impact evidence in sentencing the defendant.

In Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, the Supreme Court held the presentation at a capital sentencing hearing of evidence of the victim’s personal traits and the impact of the offense on the victim’s family violates the eighth amendment proscription against cruel and unusual punishment. In Booth, the State trial court allowed the introduction of victim-impact evidence at the stage of the trial where the jury passed upon the question as to whether the death penalty should be imposed.

Booth is inapposite to the case presented. Here, the handwritten victim-impact letter was attached to the presentence report. It was not presented to the jury in its deliberations on the imposition of the death penalty. Further, this court in People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, held the introduction of such evidence at sentencing does not violate the eighth amendment.

For the foregoing reasons, defendant’s convictions and sentences for armed robbery and murder are affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM JOSEPH BENGE, Defendant-Appellant.
    Fourth District
    No. 4—89—0426
    Opinion filed March 28, 1990.
    Daniel D. Yuhas and Jane Raley, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

The issue presented is whether a cabin, used primarily on weekends, is a dwelling for purposes of the residential burglary statute. Ill. Rev. Stat. 1987, ch. 38, par. 19—3.

The Adams County circuit court convicted defendant of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19—3) and burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19—1) on February 16, 1989. During the early morning hours of October 4, 1988, defendant, Ronnie Smith, and Robert Ruby were returning to Quincy, Illinois, from Carthage, Illinois. They drove along North Bottoms Road, a road which parallels the Mississippi River. Smith indicated his mother owned a cabin in the area and suggested they could break into the cabin, remove items of value, and sell them in order to purchase narcotics. Defendant, who was driving, left the road and drove over a levee. They drove around the area until they found a cabin Smith believed belonged to his mother. He had never seen the cabin and did not know its exact location.

Smith testified they got out of the car and went to the cabin door. The cabin was unoccupied. Defendant returned to his car, removed a pair of bolt cutters from the trunk and cut the padlock on the cabin door. They entered the cabin and removed items of value, including a Coleman lantern and cook stove. They loaded the items in the trunk of defendant’s car and returned to the road to Quincy. Defendant testified he was in the outhouse behind the cabin for 10 minutes. When he returned to his car, Smith and Ruby were loading various items into the trunk.

Adams County sheriff’s deputies on routine patrol spotted defendant’s car traveling on North Bottoms Road heading toward Quincy. After assisting another motorist, they attempted to catch up to defendant. The deputies drove at 105 miles per hour but never caught up to the defendant’s car. They went to his home in Quincy and found his car parked in front of his home. A Coleman lantern sat on top of the car along with what appeared to be a blanket. Defendant remained on the porch of the house while two other men carried the items to the house.

Quincy police watched the house while the deputies returned to the levee area. There, they found the burglarized cabin and learned it belonged to Robert Voss. They summoned Voss, who identified items missing from the cabin. A search warrant was obtained and the defendant’s house and car searched. None of the missing items were located in the house or car but police did find a Coleman lantern and a bag containing other items stolen from the Voss cabin in a garage behind defendant’s house. The Coleman stove and bolt cutters were never located.

Defendant testified he ordered Smith and Voss to remove the stolen items from his home as soon as he learned they were stolen. He took the Coleman cook stove out of the trunk of his car, apparently fearing the imminent police search. He claimed he drove to Quincy at a high rate of speed because he has a “lead foot” and always drives well over the speed limit.

Defendant was convicted of residential burglary and burglary. He filed a timely notice of appeal and now contends the cabin was not a dwelling for purposes of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1—1 et seq.).

The Code defines “dwelling” for purposes of section 19—3. (Ill. Rev. Stat. 1987, ch. 38, par. 2— 6(b).) The legislature amended the definition, effective January 1, 1987, and it now includes: “a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” (Ill. Rev. Stat. 1987, ch. 38, par. 2—6(b).) Defendant contends this definition does not include cabins such as the one here because the owner did not reside there at the time of the offense and spent limited time there. We reject this argument. The circuit court, commenting on this issue, stated:

“Based upon the statutory definition, I think that it was, because the witness testified that he intended to be there the next weekend, so I think he intended to reside there, and he said he didn’t always stay over, but most of the time did. So, I think it does fit the definition of a dwelling.”

Testimony from the victim also indicates he had been there the weekend before the burglary. The burglary occurred in October. The victim testified he frequently stayed at the cabin during the fall and tried to go there once a week every week. This certainly falls within the “reasonable period of time” portion of the statutory definition.

An examination of the legislative history of the amendment to section 2 — 6(b) of the Code supports the circuit court’s conclusion.

“[I]t was even brought to our attention by the Illinois Supreme Court in a number of cases that there’s *** there should be a better definition to the dwelling house. We are having people prosecuted for residential burglary for breaking into *** into unoccupied buildings such as garages. Therefore, very simply, we have redefined dwelling to mean a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside in or their *** in their absence intend within a reasonable period of time to reside. So that still covers, in my opinion, the vacation home; you intend to reside in that and if you burglarize that, you would still be committing residential burglary.” 84th Ill. Gen. Assem., Senate Proceedings, June 18, 1986, at 66 (statements of Senator Sangmeister).

We conclude the cabin involved in this case was a dwelling within the meaning of section 2 — 6(b) and affirm defendant’s conviction.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


text:
    RON SMITH TRUCKING, INC., Plaintiff-Appellant, v. SALLY JACKSON, Director, Department of Employment Security, Defendant-Appellee.
    Fourth District
    No. 4—89—0911
    Opinion filed March 28, 1990.
    Gary L. Smith, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, P.C., of Springfield, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307) from an order denying plaintiff’s request for a preliminary injunction against the Department of Employment Security (Department). Plaintiff sought to enjoin the Department from holding a hearing on the issue of the status of the drivers engaged by plaintiff in its trucking business because the Department utilized unpublished rules to determine the status under section 212 of the Unemployment Insurance Act (Unemployment Act) (Ill. Rev. Stat. 1987, ch. 48, par. 322). On appeal, plaintiff contends the circuit court abused its discretion in denying the injunction on the basis that plaintiff has an adequate remedy at law. We affirm.

In 1985, defendant, Director of the Department, conducted an audit of the plaintiff, Ron Smith Trucking, Inc. (RSTI), to determine if plaintiff was in compliance with the provisions of the Unemployment Act which required contributions for employees. (Ill. Rev. Stat. 1985, ch. 48, par. 300 et seq.) The purpose of the audit was to determine whether RSTI’s workers were independent contractors or employees. On September 28, 1987, as a result of the audit, defendant issued a notice of determination and assessment and demand for payment (notice), finding that RSTI failed to pay required unemployment insurance for its employees under the Unemployment Act and assessing unpaid contributions for the period beginning during the third quarter of 1983 through the second quarter of 1985. On October 13, 1987, plaintiff filed a protest and petition for hearing with the Department, claiming that it was exempt from unemployment insurance contributions. A hearing was scheduled for April 26, 1989.

On April 20, 1989, plaintiff filed a three-count complaint for declaratory judgment and a motion for temporary restraining order. In count I of the complaint, plaintiff alleged that when determining whether it used employees or independent contractors, the Department utilized an unpublished rule in violation of the Illinois Administrative Procedure Act (Procedure Act) (Ill. Rev. Stat. 1987, ch. 127, par. 1001 et seq.). Specifically, plaintiff alleged that a “worker relationship questionnaire” (WRQ) amounted to an unpublished rule and was improperly used as the basis of the Department’s determination of whether a worker is an employee or an independent contractor. In count II, plaintiff alleged that the Department is required to publish rules for matters involving agency discretion and that it did not implement any valid rule to determine whether a worker is an employee or an independent contractor. In count III, plaintiff claimed section 212 of the Unemployment Act is unconstitutional because it improperly delegates legislative power to the Department, is vague and indefinite, and violates due process and the equal protection clauses of the Illinois and United States Constitutions. Plaintiff requested a temporary and permanent injunction to prevent the Department from holding a hearing or collecting money, a declaration that the WRQ is void, a stay of the scheduled hearing, a declaration that section 212 is unconstitutional, and attorney fees.

On April 27, 1989, the circuit court granted plaintiff a temporary restraining order, and restrained the Department from holding a hearing until the preliminary injunction was heard. On May 8, 1989, the Department filed a motion to dissolve temporary restraining order or in the alternative to dismiss the complaint and an answer to plaintiffs complaint. Accompanying the motion were three affidavits from the Department employees. Two affidavits attested that the WRQ is used to gather information and not to determine whether a worker is an employee or independent contractor. The third affidavit from the auditor in charge of the audit of RSTI attested that the WRQ was not used in the audit of RSTI. In support of its motion, the Department argued plaintiff failed to establish the criteria necessary to obtain injunctive relief.

At a hearing on June 2, 1989, Mark Nussmeyer testified he was the auditor in charge of the RSTI audit. Nussmeyer explained that the audit was initiated after an unrelated investigation by a Department auditor revealed that RSTI carried workers’ compensation insurance on its drivers and that it has some approval over the selection of drivers. Nussmeyer and three other auditors subsequently audited RSTI to determine whether RSTI drivers were employees or independent contractors. At the time of the audit, Nussmeyer testified there was no manual to direct the procedures used by auditors, but guidelines were provided to determine which records should be examined. Nussmeyer stated that in 1985, he determined whether a worker was an employee or independent contractor by using the criteria set forth in section 212 of the Unemployment Act. Nussmeyer further testified he looked at numerous factors to determine if the criteria were met, including whether the worker reported to the employer every day rather than working for a short period of time and leaving, whether the employer maintained some degree of control in the selection and supervision of drivers, and whether the worker owned one or two trucks.

As a result of the audit, the Department found that RSTI used both employees and independent contractors. Nussmeyer stated that there were no “clear-cut” guidelines in determining whether a worker was an employee, and expressed doubts about the audit to RSTI. Nussmeyer also stated he informed RSTI that it could appeal the results. Nussmeyer explained that the WRQ was not used during the audit of RSTI and was not used by the Department until April or May 1988. Whten the WRQ was used, it was used only to “gather information about employees.”

On September 26, 1989, the trial court denied the defendant’s motion to dismiss, removed from advisement the motion for preliminary injunction, the answer of defendant, and considered the evidence, arguments, and authority submitted. The trial court found that plaintiff failed to establish it would suffer irreparable injury without the issuance of a preliminary injunction and that plaintiff had an adequate remedy at law. Accordingly, the motion for preliminary injunction was denied. On October 19, 1989, a written order was entered allowing defendant’s motion to dissolve the temporary restraining order, denying defendant’s motion to dismiss the complaint, and denying plaintiff’s motion for preliminary injunction.

Plaintiff argues it established the requisite criteria for an injunction and the trial court’s denial of the injunction was an abuse of discretion and against the manifest weight of the evidence. In its brief, plaintiff argues a hearing before the Department is not an adequate remedy at law because plaintiff is assailing the Department’s authority to act and the constitutionality of a provision of the statute the Department administers. Plaintiff contends the Department was without authority to utilize the WRQ as an agency rule for determining the worker’s status, and points out that since this case began, the Department has adopted rules for deciding similar eases. These rules, effective January 2, 1990, parallel provisions in the WRQ. (14 Ill. Reg. 673, 675-80 (56 Ill. Adm. Code §2732.200, adopted Jan. 2, 1990).) Plaintiff states that since it cannot reasonably raise these issues in an agency hearing, such a proceeding is futile and will cause plaintiff irreparable harm. Further, plaintiff argues that since the WRQ clearly falls within the definition of “rule” set forth in section 3.09 of the Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1003.09), it will likely prevail on the merits of its action for declaratory judgment. In its constitutional claims, plaintiff contends section 212 of the Unemployment Act is void for vagueness, the retroactive application of the WRQ to plaintiff’s case is a denial of due process, and the classifications the Department used to determine the status of the drivers are unreasonable and violative of the equal protection guarantees.

During oral argument, plaintiff repeatedly stressed that even though it is true that the WRQ was not used in the audit of plaintiff’s business, the standards set forth in the WRQ will be used in an administrative hearing against plaintiff. Additionally, plaintiff stated the affidavits attached to the motion were not admitted into evidence, were not considered by the trial court when deciding the motion, and, therefore, should not be considered by this court.

The Department maintains plaintiff did not meet the criteria for injunctive relief. Moreover, the Department argues the focus must be on the actions it took in the audit of RSTI in 1985 and not on subsequent actions in promulgating rules for these types of cases. The Department contends the WRQ is not a rule, it was not used in this case, and the Department was not required to promulgate a rule for interpreting section 212 of the Unemployment Act when there was existing case law which did just that.

We first address plaintiff’s evidentiary issue raised during oral argument. We direct plaintiff to the record where the trial judge notified the parties on September 26, 1989, of his decision on the motion to dissolve or dismiss. It clearly shows the decision was based on the documentary and testimonial evidence presented.

A preliminary injunction is a provisional remedy granted to preserve the status quo. (Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1002, 516 N.E.2d 1313, 1317.) A party seeking a preliminary injunction must establish by a preponderance of the evidence that (1) he possesses a certain and clearly ascertainable right needing protection; (2) there is no adequate remedy at law; (3) irreparable harm will result if it is not granted; and (4) there is a reasonable likelihood of success on the merits. (Illinois Consolidated Telephone Co. v. Aircall Communications, Inc. (1981), 101 Ill. App. 3d 767, 770, 428 N.E.2d 747, 750.) In addition to the above criteria, the trial court must determine whether the benefits of granting an injunction outweigh the possible injury defendant may suffer if injunctive relief was denied. (Lee/O’Keefe, 163 Ill. App. 3d at 1003, 516 N.E.2d at 1317.) The decision to grant or deny injunctive relief rests within the sound discretion of the trial court, and its findings will not be disturbed absent a showing that the discretion was abused. (Carriage Way Apartments v. Pojman (1988), 172 Ill. App. 3d 827, 835, 527 N.E.2d 89, 94.) The role of the reviewing court is limited to a determination of whether these findings are contrary to the manifest weight of the evidence. Lee/O'Keefe, 163 Ill. App. 3d at 1003, 516 N.E.2d at 1317.

Beginning with the first injunction criterion, plaintiff asserts it has a right to a fair hearing before the Department and it will not receive this because of the Department’s practice of using an unpublished rule to determine worker status under section 212. Whether or not a court would find the WRQ is a rule, the record shows the Department’s auditors did not use the WRQ in the audit of plaintiff’s business. Further, the record does not support plaintiff’s contention that the standards in the WRQ will be used in an administrative hearing to plaintiff’s detriment. The evidence established WRQ was not used by the Department until 1988, more than two years after the audit in this case was completed. Plaintiff is asking the courts to determine an issue not presented in the administrative proceedings conducted in this case. Plaintiff has not established any right or interest which needs protection.

Further, plaintiff has failed to exhaust its administrative remedies, which provide plaintiff an adequate remedy at law. Administrative remedies must be exhausted before one can seek judicial review. (Dock Club, Inc. v. Illinois Liquor Control Comm’n (1980), 83 Ill. App. 3d 1034, 1037, 404 N.E.2d 1050, 1053.) The exhaustion doctrine allows full development of the facts before the administrative tribunal and allows the administrative agency to utilize its expertise. Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358, 326 N.E.2d 737, 742.

There are several exceptions to the exhaustion doctrine which plaintiff argues apply to this matter. Where a statute is attacked as unconstitutional in its entirety or irreparable harm will be suffered from pursuit of the administrative remedies or it would be futile to pursue the remedies, equitable relief may be sought. (Graham v. Illinois Racing Board (1979), 76 Ill. 2d 566, 573, 394 N.E.2d 1148, 1151.) Plaintiff does not fall within any of these exceptions. The constitutional attack on section 212 does not involve the entire Unemployment Act. We find plaintiff will not suffer irreparable harm in proceedings before the agency and further conclude such proceedings would not be futile. Plaintiff’s assertion that the Department will find adversely to plaintiff is not supported by anything in the record. Additionally, the record shows the Department has agreed not to pursue any collection procedures through lien enforcement against plaintiff until all litigation concerning this matter is concluded. This fact distinguishes this case from Peoples Energy Corp. v. Illinois Commerce Comm’n (1986), 142 Ill. App. 3d 917, 492 N.E.2d 551.

Regarding plaintiff’s claim that the lack of published rules renders the Unemployment Act void for vagueness, we point out that the Department is not required to enact rules. Section 1701 dictates general and special rules may be adopted. (Ill. Rev. Stat. 1987, ch. 48, par. 611.) Administrative agencies may establish standards of conduct in applying statutes by either rulemaking or adjudication. (Boffa v. Department of Public Aid (1988), 168 Ill. App. 3d 139, 145, 522 N.E.2d 644, 648.) The choice lies within the agency’s sound discretion. (Boffa, 168 Ill. App. 3d at 145-46, 522 N.E.2d at 648.) However, if an agency decides to adopt a rule, it must comply with the provisions of the Procedure Act. Ill. Rev. Stat. 1987, ch. 127, pars. 1004 through 1007.01.

As stated, we conclude plaintiff did not establish its right to injunctive relief and the trial court did not abuse its discretion in denying the request for injunctive relief. Accordingly, the order of the trial court is affirmed.

Affirmed.

LUND and SPITZ, JJ., concur.


text:
    M.H. STEIN, Plaintiff-Appellee, v. GAREL SPAINHOUR et al., Defendants-Appellants.
    Fourth District
    No. 4—89—0681
    Opinion filed March 28, 1990.

      Kelly D. Long, of Hillsboro, for appellants.
    Marshall A. Susler, of Lowe, Moore, Susler, McNutt & Wrigley, of Decatur, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following the affirmance by this court of a judgment for damages in plaintiff’s favor, including attorney fees incurred in the trial court, plaintiff filed a motion in the trial court for additional attorney fees and costs incurred in the post-judgment proceedings and in the appeal. The trial court awarded plaintiff additional attorney fees and costs in the amount of $7,000 in accordance with provisions in the lease involved in these proceedings. Defendants appeal and argue the trial court was without jurisdiction to enter the order. We affirm.

This is the second time this case has been before this court. Previously, this court affirmed the trial court’s finding that defendants, Garel Spainhour, Verneal Spainhour, and T.A. Spainhour, had breached the lease entered into with plaintiff, M.H. Stein, and the trial court’s assessment of plaintiff’s damages at $66,067.60 and attorney fees and costs at $11,177.39. (Stein v. Spainhour (1988), 167 Ill. App. 3d 555, 521 N.E.2d 641.) The amount of attorney fees represented attorney fees incurred up to May 31, 1987, and were payable by defendants in accordance with a lease provision which states:

“In the event of a default in any of the terms of this lease, whereby the Lessors are caused to hire legal counsel, then the Lessees hereby agree to pay reasonable attorneys fees incurred by the Lessors for such legal services.”

While the first appeal in this matter was pending, defendants tendered payment of the judgment to stop the further accrual of interest. The receipt of tender and release of lien of judgment, dated April 15, 1988, stated the release was entered without prejudice to the rights of the parties to appeal and

“the rights of the Plaintiff to seek attorneys fees and costs for post-judgment proceedings upon conclusion of all appeals.”

The order, dated August 23, 1988, releasing defendants’ appeal bond, stated:

“This order does not affect the right of defendants or plaintiff to pursue any appeal, or the right of the parties to take further action or actions to obtain post-judgment attorney fees or costs.”

The mandate of this court was issued on November 1, 1988, and stated:

“It is the decision of this court that the order on appeal from the circuit court be AFFIRMED and stand in full force and effect.
Costs, if any, to be taxed in accordance with the law.”

On December 22, 1988, plaintiff filed a motion in the trial court to fix additional attorney fees. Following an evidentiary hearing, the trial court, on March 28, 1989, awarded plaintiff $7,000 in additional attorney fees pursuant to the terms of the lease.

Defendants first point out that attorney fees are not considered court “costs” and, thus, the attorney fees awarded herein are not allowable as costs. Defendants argue the trial court was without authority to take action not dictated by this court’s November 1988 mandate. Because this court’s mandate did not direct a remand, defendants contend the controversy between these parties came to an end on November 1, 1988. Defendants argue plaintiff should have asked this court on the first appeal to award additional attorney fees or for a remand to the trial court for consideration of the issue.

Plaintiff argues the additional attorney fees in this matter were awarded pursuant to the lease provisions and not as court costs. Further, the lease provision includes attorney fees incurred on appeal as well. Plaintiff points out this court is without jurisdiction to fix and determine attorney fees and, therefore, the trial court was the proper tribunal to hear plaintiff’s motion. Further, plaintiff asserts the affirmance by this court in the first appeal brings this case within the provisions of Supreme Court Rule 369(b), which states:

“Dismissal or Affirmance. When the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the circuit court, enforcement of the judgment may be had and other proceedings may be conducted as if no appeal had been taken.” 107 Ill. 2d R. 369(b).

Initially, it is clear from the record the attorney fees were awarded pursuant to the lease provisions governing legal fees in the event the lessee-defendants defaulted. The order states:

“Legal services for the appeal are all part of the fees for legal services which Defendants agreed to pay upon entering into the lease agreement.”

There is no merit to defendants’ contention the fees were awarded as court costs.

Defendants’ argument regarding the necessity of a remand order in the mandate to revest the trial court with jurisdiction in this case ignores the plain language of Rule 369(b). This rule applies to this case and does not state a remand is required before “other proceedings may be conducted.”

Defendants cite cases where the cause was remanded by the reviewing court to the trial court and the trial court did not comply with specific directions in the mandate. (Independent Voters v. Illinois Commerce Comm’n (1987), 117 Ill. 2d 90, 510 N.E.2d 850; PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 427 N.E.2d 563; Relph v. Board of Education of DePue Unit School District No. 103 (1980), 83 Ill. App. 3d 1139, 404 N.E.2d 922; Hagopian v. Board of Education of Tampico Community Unit School District No. 4 (1980), 83 Ill. App. 3d 1097, 404 N.E.2d 899; Mid-West National Bank v. Metcoff (1974), 23 Ill. App. 3d 607, 319 N.E.2d 336.) The case before us presents a different circumstance. As plaintiff points out, the focus must be on whether the trial court proceedings in this matter after the first appeal constitute “other proceedings” within Rule 369(b).

In Perrin v. Pioneer National Title Insurance Co. (1982), 108 Ill. App. 3d 181, 438 N.E.2d 1359, the court discussed Rule 369(b) in a case where no remand order was entered. The Perrin court noted the principle of law embodied in Rule 369(b) was enunciated in Watkins v. Dunbar (1925), 318 Ill. 174, 149 N.E. 14, and contemplated proceedings which are appropriate after the entry of a final judgment. In Perrin, the plaintiff sought to amend pleadings after the dismissal of the pleadings was affirmed on appeal. Such proceedings were held not to be within Rule 369(b).

In Russell v. Klein (1977), 46 Ill. App. 3d 660, 361 N.E.2d 65, cited in Perrin, the appellate court affirmed a portion of a judgment and reversed another portion. No remand order was entered. After the mandate was filed, the trial court in Russell reentered the order the appellate court had reversed due to the trial court’s lack of jurisdiction when the order was first entered. The plaintiff appealed the second order of the trial court, arguing the trial court was without authority to enter the order because no remand was ordered. The Russell court found the proceedings the trial court conducted were permitted pursuant to Rule 369(b) as “other proceedings.”

We believe the proceedings in this matter for the award of attorney fees incurred on appeal were authorized by Rule 369(b). Prior to the first appeal in this case, plaintiff was awarded attorney fees incurred at trial. The trial judge declined to award plaintiff fees for 20 hours of additional future time plaintiff anticipated he would spend on this case. Moreover, as noted, defendants were advised that plaintiff was preserving his right to seek additional attorney fees after the appeals.

In Darnall v. City of Monticello (1988), 168 Ill. App. 3d 552, 522 N.E.2d 837, this court held there was no specific grant of authority to appellate courts to award attorney fees and costs on appeal. Defendants’ reliance on Village of Lakemoor v. First Bank (1985), 136 Ill. App. 3d 35, 482 N.E.2d 1014, is misplaced. That case is distinguishable on its facts because the issue involved the appropriateness of awarding attorney fees in a contempt proceeding.

Defendants next argue that even if the trial court had jurisdiction to award additional attorney fees, it was error to do so based on the provisions of the lease which merged into the judgment. Because the lease ceased to exist when it merged with judgment, defendants argue plaintiff cannot maintain an action for attorney fees based on the lease. Plaintiff argues the merger doctrine does not apply to this case because there was no previous judgment awarding attorney fees for the first appeal in this case.

The merger doctrine states that when a judgment based upon a contract or instrument is obtained, the instrument becomes entirely merged in the judgment. (Doerr v. Schmitt (1941), 375 Ill. 470, 31 N.E.2d 971.) By the judgment of the court, the instrument loses its vitality and ceases to bind the parties to its execution. Once becoming merged into the judgment, no further action at law or suit in equity can be maintained on the instrument. Doerr, 375 Ill. at 472, 31 N.E.2d at 972, citing Wayman v. Cochrane (1864), 35 Ill. 152.

Defendants cite several other cases where the courts determined the merger doctrine applied and section 18 of the Restatement of Judgments. The Restatement states:

“When a valid and final personal judgment is rendered in favor of the plaintiff:
(1) The plaintiff cannot thereafter maintain an action on the original claim or any part thereof, although he may be able to maintain an action upon the judgment.” Restatement (Second) of Judgments §18, at 151-52 (1982).

The doctrine of merger is applied to causes of action to bar relitigation of the same cause. In the case presented, plaintiff did not seek to relitigate any of defendants’ liability regarding the breach of the lease but rather sought attorney fees which are ancillary to the primary cause of action. Further, as plaintiff points out, no judgment regarding any attorney fees incurred on appeal was rendered in the trial court before the first appeal was filed or raised and considered by this court in the first appeal. We find the merger doctrine inapplicable in this case.

A second district case, Losurdo Brothers v. Arkin Distributing Co. (1984), 125 Ill. App. 3d 267, 465 N.E.2d 139, supports our conclusion. There, a lessor obtained judgment for possession in a forcible entry and detainer action and was awarded attorney fees for the trial. The lessor requested additional attorney fees in the appellate court for the appeal. The appellate court in Losurdo determined the lease agreement expressly provided the lessee would have to pay all reasonable attorney fees incurred by the lessor in enforcing the lease covenants and this provision included fees on appeal when the lessor was successful. (Losurdo, 125 Ill. App. 3d at 277, 465 N.E.2d at 146.) However, the court found the issue was properly determined by the petition presented to the trial court and, thus, remanded the cause for consideration of this issue.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J„ concur.


text:
    DENNIS R. BODEN et al., Plaintiffs-Appellees, v. MARCUS E. CRAWFORD, Defendant-Appellant.
    Fourth District
    No. 4—89—0790
    Opinion filed March 29, 1990.

      Howard L. Snowden, of Snowden & Snowden, of Quincy, for appellant.
    Keefe, Gorman & Brennan, of Quincy (Jerry L. Brennan, of counsel), for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Dennis Boden, formerly a police officer, filed a personal injury action against defendant Marcus Crawford, claiming defendant caused plaintiff’s back injuries. Plaintiff was injured while on duty investigating a child-abuse complaint involving defendant’s child. A jury found defendant liable for the injuries and awarded plaintiff $204,793.40 in damages. Defendant appeals, arguing (1) the prohibition' against introducing any evidence regarding disability benefits plaintiff is receiving prejudiced the defendant and the benefits should be considered an exception to the collateral-source rule; and (2) the award for damages was excessive and was the result of passion and prejudice. We affirm.

It is first noted that with respect to plaintiff Linda L. Boden, the parties agreed that insofar as her actions are concerned, it has been resolved and she is not a party to this appeal.

Plaintiff was a police officer for the Quincy police department (department) and 36 years of age at the time of his injury on February 6, 1987. He had, before joining the police force, served two years in the Marines, and had also worked as a truck driver and heavy equipment operator. He is presently a captain in the Army Reserves.

Plaintiff testified that on February 6, he was called by the principal of a grade school to see a young man named Jerod Crawford for possible child abuse. Plaintiff decided to question the defendant, the father of the child. Plaintiff was told defendant drove a green pickup truck and would be arriving at the school soon. Defendant arrived at the grade school in his truck, and the plaintiff approached the truck. Plaintiff testified he identified himself as a police officer and asked, “Are you Marcus Crawford?” After the defendant responded, “Yes,” plaintiff reached for the door handle, whereupon defendant started the truck, put it in gear, and pulled away at a high rate of speed down an alley. Plaintiff stated he was on the running boards of the truck and attempted to reach inside defendant’s truck to turn off the ignition. Plaintiff testified he eventually jumped into the back of defendant’s truck after deciding the truck was going too fast for him to jump off. Plaintiff stated he was tossed around in the back of the truck while defendant continued to travel at a high rate of speed while turning around corners. Plaintiff estimated defendant was traveling 30 miles per hour in the alley, 40 to 45 miles per hour after leaving the alley and continued to speed up thereafter. Plaintiff eventually ordered defendant to stop driving by putting his fist through the rear window of the truck and pointing his weapon at defendant’s head. Plaintiff admitted that at no time did defendant say or do anything to indicate that defendant knew plaintiff was in the truck.

Defendant testified he saw plaintiff approaching him, but that he heard no commands or statements. Defendant stated he has a partial hearing impairment in his left ear. Defendant stated that when he saw plaintiff coming at him on the day of the incident, he just “took off.” Defendant pleaded guilty to possession of a controlled substance and reckless conduct, and was sentenced to three years’ probation and fined. Defendant testified he did not know anyone was in his vehicle until a hand came through the top part of the window, and he stopped within five seconds of the hand coming through the window.

Officer Gilbert Feld testified he was patrolling the area near the school on February 6. He observed defendant’s truck traveling at a high rate of speed with a man in the back holding a gun. Feld testified he saw the truck pull over and he noted the man in the back was the plaintiff. The back window of the truck was broken, and plaintiff was holding his weapon on the defendant. After defendant was arrested, a passing motorist told Feld that “baggies” had been thrown from the truck and showed the officer the location of the baggies. The parties stipulated that two plastic bags thrown from defendant’s vehicle during the course of the incident contained apparently 26.6 and 27.9 grams of cocaine.

Plaintiff testified he saw the department physician, Dr. Thomas Westerhoff, on February 9, 1987, complaining of pain in the rib area and cuts and bruises on his left hand. Westerhoff gave plaintiff pain pills and muscle relaxers and ordered plaintiff to take a week off from work. Several weeks later, plaintiff saw Dr. Dalai, who ordered lower lumbar X rays and a CAT scan and directed plaintiff to begin physical therapy. Dalai told plaintiff to take several more weeks off from work. Plaintiff continued to work as a juvenile officer for the department on light duty until April 1988, when he was told to take a leave of absence. At the time of trial, plaintiff was no longer a police officer.

Dr. Westerhoff, the department physician, board certified in internal medicine with 23 years of experience, testified that he examined plaintiff on February 10, 1987, and found muscle spasms in plaintiff’s back. Westerhoff stated he prescribed pain pills and muscle relaxers for plaintiff. Westerhoff saw plaintiff again on July 1, 1987, when plaintiff reported he continued to experience back pain. Westerhoff observed plaintiff stood with a lift to the left. He advised plaintiff to continue light-duty work for the department. Westerhoff continued to treat plaintiff through 1988 and, in April 1988, advised the department plaintiff would never be able to resume the normal duties of a patrolman. Westerhoff stated plaintiffs back problems were permanent and related to the incident on February 6, 1987. Westerhoff testified an X ray taken of plaintiff’s lower back showed bulging in the lower spine, between the fourth and fifth lumbar discs. On cross-examination, Westerhoff admitted that there was no way to tell when the bulging of the discs occurred, not having any information on the condition of plaintiff’s back before the accident. He testified the plaintiff could “technically” not be liaison officer for the department because no police officer is allowed on the department unless capable of combat duty.

At the request of the department, plaintiff was examined by several other physicians, each of whom testified at trial. Dr. del Castillo, a specialist in neurosurgery, testified he examined plaintiff on August 23, 1988. He stated he saw signs of muscle spasm, but the sciatic nerve was not damaged. He found no atrophy in plaintiff’s thighs or calves, but some weakness in plaintiff’s left side. He reviewed a magnetic resonance image (MRI) test taken of plaintiff’s back in 1987, which showed degeneration of cartilage between the fourth and fifth lumbar discs. He testified that back pain may not be experienced immediately after an accident. He reviewed the CAT scan which was taken a few days after the accident and testified it showed bulging between the fourth and fifth lumbar discs. He further testified that the degeneration takes a long period of time, but bulging can occur at a point of trauma. Dr. del Castillo found a causal relationship between the incident on February 6 and plaintiff’s back problems, which he stated were permanent. Dr. del Castillo stated the repeated twisting, turning, and tumbling plaintiff was subjected to in the defendant’s truck weakened the discs and caused the bulging between the discs to develop. He stated surgery would alleviate the constant pain plaintiff suffers. Dr. del Castillo testified plaintiff’s prior activities would definitely have a bearing on the degeneration of the intervertebral disc at any level and that 95% of all ruptured discs occur at the fourth and fifth discs and lower.

Dr. Gwaltney, a specialist in orthopedic surgery, testified that he examined the plaintiff on May 6, 1988. He testified plaintiff showed no atrophy on circumferential measurements and no evidence of sensory disturbance. Gwaltney testified the MRI report showed disc disease at the fourth and fifth lumbar interspace. He further testified surgery might relieve pain, but would not strengthen plaintiff’s back.

On cross-examination, Gwaltney admitted he did not take a history from plaintiff but read the emergency room report taken on the day of injury. He further testified the emergency report indicated plaintiff had no complaints in his lower extremities. Gwaltney also identified a CAT scan taken on February 18, 1987, of plaintiff’s back, which also showed bulging between the fourth and fifth lumbar discs. Gwaltney testified there was some degeneration between the fourth and fifth discs at the time of the accident on February 6.

Dr. Dennis Abernathie, an orthopedic specialist, testified in a deposition for the defendant that he examined plaintiff on August 18, 1987. Abernathie concluded plaintiff sprained his lumbosacral joint. Abernathie reviewed the MRI report taken in December 1987 and stated it did not change his diagnosis of plaintiff’s injury. Abernathie further stated that disc degeneration must start at least six months before a test to show up on the test. Abernathie stated that the plaintiff could continue his activities without restriction and danger to himself but might suffer some discomfort.

John LaTour, deputy chief of operations for the department, testified that he had known the plaintiff since 1981 and that plaintiff served under his command. LaTour testified that plaintiff was a good police officer who enjoyed his job and was one of the officers chosen for the elite SWAT unit. LaTour stated that there were no jobs in the department which were available to someone with a disability. LaTour testified the normal retirement age for police officers is 65. On April 21, 1988, the LaTour told plaintiff he could not work anymore as a police officer for the reason that a report had been received from the department’s doctor stating plaintiff was disabled. The plaintiff’s last day of employment was July 1, 1988. On cross-examination, LaTour testified his action was subject to appeal to the Board of Fire and Police Commissioners, but plaintiff did not appeal.

Brenda Williams, a police officer in the juvenile department, testified plaintiff was a reliable partner and good with kids. Williams further testified she remembered plaintiff’s last day. She stated plaintiff had a meeting with his supervisor and, when he came out, his face was gray. Williams and plaintiff then went to a restaurant and plaintiff started crying and was very upset. Plaintiff ordered a milkshake but could not hold it because his hands were shaking.

Plaintiff’s wife and daughter testified regarding plaintiff’s normal activities with his family prior to the February 6 incident. Both stated plaintiff was very athletic and engaged in many sporting activities. Both also stated plaintiff never complained of back pain before February 6 and since then did not participate in many activities because of the pain in his lower back.

Plaintiff testified he was paid $27,500 in 1986 as a police officer and since the injury had been employed part time in only two minimum-wage jobs.

Prior to trial, plaintiff filed a motion in limine to prohibit defendant from asking any questions regarding the disability benefits plaintiff is receiving from the department as a result of his disability leave. The trial court granted the motion, stating evidence regarding disability benefits was barred by the collateral-source rule.

Defendant argues the trial court erred in granting the motion in limine based on the collateral-source rule. Defendant contends that the fact that the benefits are not gratuitous and plaintiff does not have to pay the benefits back to the department distinguishes this case from other cases discussing the collateral-source rule. Defendant maintains the evidence left the jury with the impression plaintiff was discharged by the department without any pay or benefits and against his will when in fact plaintiff asked for his disability benefits and was receiving more than 50% of his 1986 salary at the time of trial. Defendant also maintains the jury’s damage award was excessive and the determination of plaintiff’s 5% contributory negligence was against the manifest weight of the evidence. Defendant asks for a remittitur of $100,000.

Illinois recognizes the collateral-source rule, under which the amount of damages for a plaintiff in a civil action is not decreased by the amount of benefits received by the plaintiff injured-party from a source wholly independent and collateral to the wrongdoer. (Peterson v. Lou Bachrodt Chevrolet Co. (1978), 61 Ill. App. 3d 898, 906-07, 378 N.E.2d 618, 625.) The entire theory behind this rule is to keep the jury from learning anything about collateral income which could influence the decision of the jury. Wolfe v. Whipple (1969), 112 Ill. App. 2d 255, 267, 251 N.E.2d 77, 82.

Defendant, by his argument, admits that evidence plaintiff is receiving disability benefits from the department would have influenced the jury to award a lesser amount. Allowance of any evidence regarding the benefits would render this long-standing rule meaningless. Further, we reject defendant’s attempt to distinguish disability benefits an employer may be required to pay an injured employee from the gratuitous income received in Wolfe, Peterson, and Fear v. Smith (1989), 184 Ill. App. 3d 51, 539 N.E.2d 1297. The fact remains the income plaintiff receives from the department is collateral to defendant. Therefore, we find it falls squarely within the collateral-source rule and the trial court correctly barred any evidence on these benefits.

Next, defendant contends the damage award is excessive, the result of passion and prejudice, and unsupported by the evidence. It is generally stated that the amount of damages to be awarded is within the jury’s sound discretion. (Stamat v. Merry (1979), 78 Ill. App. 3d 445, 397 N.E.2d 141.) A reviewing court should not reduce or overturn a verdict unless it is shown to be erroneous or the result of passion or prejudice, or where it clearly appears from the uncontroverted evidence that the amount of the verdict bears no reasonable relationship to the loss suffered by the plaintiff. Rapp v. Kennedy (1968), 101 Ill. App. 2d 82, 86, 242 N.E.2d 11, 14.

The jury awarded plaintiff a total of $215,572 in damages as follows: $110,000 disability; $5,000 past pain and suffering; $20,000 future pain and suffering; $5,572 past medical expenses; $25,000 past loss of earnings; and $50,000 future loss of earnings. The award was reduced 5% to $204,793.40. Defendant suggests the finding that plaintiff was only 5% negligent evidences the prejudice of the jury. Specifically, defendant points out plaintiff elected to take the risk of jumping into the back of defendant’s truck when another alternative was available. Defendant also contends the amount of damages awarded for disability represents a finding based on loss of employment, not based on the back injury plaintiff suffered. Defendant also states this case is not unlike House v. Stocker (1975), 34 Ill. App. 3d 740, 340 N.E.2d 563, where a jury verdict of $157,500 for a back contusion in the lumbar region was found excessive and reduced to $50,000.

We do not agree. At trial, plaintiff testified defendant was going too fast down the alley for him to safely jump off the truck. The House case is distinguishable. In the case before us, three physicians concluded plaintiff suffers from a permanent back injury, not a bruise to the lower back, which caused him to lose his job as a police officer. Plaintiff also presented the testimony of a psychologist who stated that in the future, most employers will not hire plaintiff because of his back injury. Plaintiff was a young, physically fit officer at the time of the injury, was reported to be good at his job, well liked by the community, and looking forward to a long career as a police officer. We find the jury’s award of $171,000 for future pain and suffering, future lost earnings, and disability is supported by the evidence and not excessive for the possible 28 years of future employment as a police officer plaintiff could have enjoyed but for his injury.

Accordingly, the judgment for the plaintiff is affirmed.

Affirmed.

LUND and SPITZ, JJ., concur.