text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SADAR ABDULLAH, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—2926
    Opinion filed September 25, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Robert D. Click, Assistant Public Defender, of counsel), for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Barbara A. Bailey, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a bench trial, defendant, Sadar Abdullah, was convicted of possession of a stolen motor vehicle (Ill. Rev. Stat. 1989, ch. 95½, par. 4—103(a)(1)) and was sentenced to 30 months’ probation. On appeal, he contends that the evidence was insufficient to support his conviction and that the trial court committed reversible error when it admonished a defense witness and entered judgment without permitting closing argument by defense counsel.

We affirm.

Officer Christopher Pledger testified that at approximately 2:20 a.m. on May 24, 1990, he stopped the vehicle in question because it matched the description of a van which had been reported to be involved in a hit-and-run accident. At that time, defendant was driving the van and Terrance Steiger, together with two women, were passengers in the van. The officer and defendant exited their respective vehicles and conversed beside the van. In response to the officer’s request for his driver’s license, defendant produced a faded and illegible traffic ticket. When the officer asked for proof of insurance, defendant reached into the vehicle and found a folder. Defendant searched through the folder but could not find any proof of insurance for the van.

Officer Pledger observed “jumbo wires” hanging from the steering column and plastic broken away from the column. There were no broken windows in the van and no other damage to the exterior of the van. Half of an unused, broken key was also found lodged in the steering column.

The officer then took defendant to the police station and questioned him. Defendant told the officer that he did not know the van was stolen, he had only been in the car for about one hour, and the steering wheel was in damaged condition when he entered the van. The officer further testified that defendant admitted knowing that the steering column was “peeled.”

The parties stipulated that Orad Gaston would testify that on May 24, 1990, he owned the van in question and that he did not authorize defendant or anyone else to drive or possess it.

At trial the 19-year-old defendant testified that at approximately 7 p.m. on May 24, 1990, he and a friend named Brandon Turner were walking down a street when Steiger, also a friend of defendant for many years, appeared in a van. When questioned by defendant about his possession of the van, Steiger stated that the van belonged to his boss, who owned a construction company. Defendant testified that since he did not know Steiger had a job, he was surprised by Steiger’s explanation and that Steiger further said it was his first day at the job for the construction company.

Defendant entered the front of the van, and Turner went in the back seat. With Steiger driving the van, the three men first rode to a nearby Burger King restaurant, then drove Turner home, and went to another person’s house where they picked up two women who were riding in the rear of the van at the time of the arrest. Steiger, with his three passengers, then drove to a White Castle restaurant where they all exited the van to go into the restaurant and left the motor running.

When they returned to the van, Steiger complained that he was tired and did not have a driver’s license. Defendant thereafter operated the van.

Defendant already knew Steiger did not have a driver’s license before Steiger picked him up earlier in the evening. Defendant further testified that when he entered the driver’s seat, he did not notice the steering column had been stripped until Steiger told him that the vehicle had been previously burglarized but had not yet been repaired. Defendant stated that no wires were hanging from the steering column and the damage consisted of only a hole in the lower neck of the steering wheel. The hole, according to defendant, was not readily visible to occupants of the car or the police.

At trial Steiger testified that after he picked up defendant and Turner in the van in question, Steiger initially told defendant that the van belonged to his boss but later told him that the van belonged to a high school acquaintance named Mark whose last name Steiger could not recall. A day or two before being stopped by the police, Steiger paid $50 to Mark to borrow the van to do errands for a prom, such as picking up a tuxedo. When he got the van from Mark, Steiger noticed that the steering column was damaged. According to Steiger, Mark told him that the damage occurred during a previous theft attempt and had not yet been repaired. Steiger further testified that Mark showed him how to start the van from the side of the steering column, which was peeled and, in turn, Steiger showed defendant the same method of ignition. Steiger also stated that he told defendant about borrowing the van from Mark and about Mark’s statement that the van had been stolen previously. Steiger maintained that he did not know the van was stolen until the police stopped them.

We first address defendant’s contention that he was not proved guilty beyond a reasonable doubt on the grounds that the State failed to establish an element of the crime, i.e., knowledge. We do not agree.

A person commits the offense of possession of a stolen motor vehicle when he receives or possesses that vehicle knowing it to have been stolen or converted and he is not otherwise entitled to its possession. (Ill. Rev. Stat. 1989, ch. 95½, par. 4—103(a)(1).) The General Assembly has taken great care to develop a statutory remedy to discourage the theft of motor vehicles. Section 4—103(a)(1) of the Illinois Vehicle Code provides:

“§4 — 103 *** (a) It is a violation of this Chapter for:
(1) A person not entitled to the possession of a vehicle *** to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted; additionally the General Assembly finds that the acquisition and disposition of vehicles and their essential parts are strictly controlled by law and that such acquisition and disposition are reflected by documents of title, *** and bills of sale. It may be inferred, therefore that a person exercising exclusive unexplained possession over a stolen or converted vehicle *** has knowledge that such vehicle *** is stolen or converted ***.” (Ill. Rev. Stat. 1989, ch. 95½, par. 4 — 103(a)(1).)

The statute, therefore, creates an inference that a person exercising exclusive and unexplained possession of a stolen vehicle has knowledge that that vehicle is stolen.

Knowledge is a question of fact to be resolved by the trier of fact. (People v. Santana (1987), 161 Ill. App. 3d 833, 838, 515 N.E.2d 715.) Moreover, the question of a witness’ credibility and the weight to be given the evidence are matters within the province of the trier of fact. (People v. Ambrose (1988), 171 Ill. App. 3d 87, 91, 525 N.E.2d 536.) To sustain a conviction based on circumstantial evidence, the trier of fact need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt. Santana, 161 Ill. App. 3d at 837-38, 515 N.E.2d 715.

Direct proof of the element of knowledge is not necessary but may be established by proof of circumstances that would induce a belief in a reasonable mind that the property was stolen. People v. Wehrwein (1989), 190 Ill. App. 3d 35, 41, 545 N.E.2d 1005; People v. Mijoskov (1986), 140 Ill. App. 3d 473, 477, 488 N.E.2d 1374.

Where possession has been shown, an inference of defendant’s knowledge can be drawn from the surrounding facts and circumstances. (People v. Ferguson (1990), 204 Ill. App. 3d 146, 151, 561 N.E.2d 1118.) A defendant may attempt to rebut the inference of guilty knowledge which arises from the possession of a stolen vehicle, but the defendant must offer a reasonable story or be judged by its improbabilities. (Mijoskov, 140 Ill. App. 3d at 477.) However, the trier of fact is not required to accept defendant’s version of the facts. Ferguson, 204 Ill. App. 3d at 151; Mijoskov, 140 Ill. App. 3d 473, 488 N.E.2d 1374.

The condition of the vehicle is one of the most significant factors which courts consider in determining whether or not the defendant had knowledge of the vehicle’s theft. The element of knowledge has been properly inferred where the steering column was peeled and the key in the ignition would not start the vehicle. (Ferguson, 204 Ill. App. 3d at 152.) In considering several factors regarding the question of knowledge, the Ferguson court stated that “most importantly, the steering column was visibly ‘peeled’ ” and yet the defendant claimed that he did not see the peeled column as he was driving. (Ferguson, 204 Ill. App. 3d at 152.) The Ferguson court also noted that the vehicle was running when defendant obtained possession and that the key in the ignition would not start the car. Ferguson, 204 Ill. App. 3d at 152.

Similarly, in the instant case the evidence presented at trial revealed that the steering column had been damaged and the broken key lodged in the ignition did not operate the van. Officer Pledger testified that wires were hanging from the steering column and plastic was broken away from the column. Steiger also testified that he noticed the steering column was damaged and that Mark showed him how to start the van from the side of the steering column which was peeled. Thereafter, Steiger showed defendant the method of ignition without use of the key. Although defendant stated that he did not notice the steering column had been stripped, he testified that Steiger specifically told him that the damage had been done at the time of a prior theft attempt. Defendant also acknowledged that there was a hole in the lower neck of the steering wheel. In addition, like the defendant in Ferguson, defendant testified that the van was already in operating condition when he first encountered Steiger on the street and that the van was left running when they went into the White Castle restaurant.

At trial defendant testified that he was surprised to hear that Steiger had a job and knew that Steiger did not have a driver’s license. Yet defendant submits that he accepted Steiger’s explanation that his new boss lent the van to Steiger, who did not have a driver’s license and who had just completed his first day on the job. In addition, inconsistencies exist between the testimony of defendant and Steiger as to who was the owner of the van (Steiger’s alleged boss or a high school acquaintance named Mark) and how defendant started the van after leaving the White Castle restaurant (with the motor already running or from starting the motor without a key).

In sustaining convictions for possession of a stolen motor vehicle, the court considers all surrounding circumstances and facts. People v. Wehrwein (1989), 190 Ill. App. 3d 35, 545 N.E.2d 1005 (the evidence was found to be sufficient where a police officer observed defendant driving a vehicle which had been reported stolen, the defendant abandoned the stolen vehicle on the shoulder of the road when the police began to follow him, and the stolen vehicle was tampered with and had parts missing); People v. Tucker (1989), 186 Ill. App. 3d 683, 542 N.E.2d 804 (a passenger was found to be properly convicted where the evidence showed that he acted as a lookout while his companion tampered with the stolen car and the car revealed damage including a peeled steering column and broken locks on the glove compartment and the trunk); People v. Santana (1987), 161 Ill. App. 3d 833, 515 N.E.2d 715 (the court found that even though one defendant was not specifically told that the car was stolen, this fact should have been apparent to him where he and another defendant were found with the partially disassembled car in a garage with windows painted black); People v. Mijoskov (1986), 140 Ill. App. 3d 473, 488 N.E.2d 1374 (the court concluded that the defendant knew or had reason to know that the car was stolen where the defendant attempted to explain his possession of the stolen car on the basis that he owned and operated an auto repair business but he was unable to produce any invoice or paperwork on the car and he did not have any way of contacting the owner); People v. Williams (1976), 44 Ill. App. 3d 143, 147, 358 N.E.2d 58 (the court found that the defendant “cannot ignore the obvious and then assert his ignorance as a defense” where the defendant claimed he did not know that the car from which he was removing parts was stolen).

In contrast, the evidence was held to be insufficient to uphold a conviction for possession of a stolen motor vehicle in People v. Gordon (1990), 204 Ill. App. 3d 123, 561 N.E.2d 1164. In Gordon, the police discovered the stolen car with the defendant in the driver’s seat, Chris Jackson in the passenger seat, and a third person in the back seat. The owner of the car testified that he was very close to Jackson, had often given Jackson permission to drive his car, and would not have reported the car stolen if he had known it was Jackson who had the car. The evidence also revealed that the defendant had ridden with Jackson in the car at issue on at least one previous occasion.

Defendant seeks to hide behind a facade of benign ignorance. He urges that we exonerate him from culpability because of his reliance on the representations of his companion. While most of the cases cited sustaining convictions for possession of a stolen motor vehicle suggest a more suspicious or sinister circumstance, we believe that this defendant had sufficient facts before him to reasonably conclude that the van was stolen.

It is well established that the trier of fact evaluates the credibility of the witnesses, weighs the evidence, and resolves any inconsistencies. (People v. Robinson (1989), 199 Ill. App. 3d 24, 556 N.E.2d 1204.) This principle is founded on the premise that the trier of fact hears the evidence presented and observes the demeanor of the witnesses. (People v. McKendrick (1985), 138 Ill. App. 3d 1018, 1024, 486 N.E.2d 1297; People v. Fleagle (1984), 129 Ill. App. 3d 298, 302, 472 N.E.2d 155.) In a bench trial, the trial court is entitled to believe or reject a defendant’s testimony. Ferguson, 204 Ill. App. 3d at 151 (the trier of fact is not required to accept defendant’s version of the facts).

A reviewing court has neither the duty nor the privilege to substitute its judgment for that of the trier of fact. (People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182; Robinson, 199 Ill. App. 3d at 30-31.) Thus, a reviewing court will not disturb the findings of the trier of fact unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. Ferguson, 204 Ill. App. 3d at 151; Ambrose, 171 Ill. App. 3d at 91; Santana, 161 Ill. App. 3d at 838.

Given the inference of guilty knowledge raised under the possession statute, the evidence considered in its totality, and the standard of review mandated on appeal, we find that defendant knew or had reason to know that the van was stolen. Accordingly, we conclude that the evidence was not so unsatisfactory as to leave a reasonable doubt of defendant’s guilt.

Defendant also contends that he was deprived of his right to a fair trial when the court entered judgment without permitting closing argument by defense counsel. (See People v. Smith (1990), 205 Ill. App. 3d 153, 562 N.E.2d 553.) The following exchange transpired at the close of defense testimony:

“[PROSECUTION]: Nothing further, Judge.
THE COURT: All right. Redirect.
[DEFENSE]: I have nothing further.
THE COURT: Take him into custody.
Mr. State’s Attorney, prepare a criminal information against this man [Steiger] charging him with unlawful possession of stolen motor vehicle.
All right. What else do you have?
[DEFENSE]: Nothing further.
THE COURT: Finding of guilty. Take him into custody, top. Pre-sentence investigation, post trial motions, October 5th. All right. Take him back, Mr. Sheriff.”

A review of the record does not disclose that the trial court prevented closing argument. Defense counsel indicated that she had “nothing further” at the close of her case. She did not object to the lack of a closing argument or raise that issue in her post-trial motion. Under the circumstances, we believe that defendant’s contention is unfounded and waived for purposes of review. People v. Hickox (1990), 197 Ill. App. 3d 205, 215, 553 N.E.2d 1166.

Lastly, defendant asserts that the trial court committed reversible error when it admonished his witness that the penalty for perjury or participation in the crime would be arrest. Defendant’s contention is based on the following exchange which occurred immediately after Steiger was called as a defense witness.

“THE COURT: Have you warned him?
[DEFENSE COUNSEL]: Yes, Judge. But I’ll do it on the record.
THE COURT: If he commits perjury now, I’m going to jam him.
[DEFENSE COUNSEL]: I understand, Judge.
(Brief pause.)
THE COURT: Raise your right hand.
(Witness sworn.)
THE COURT: Sir, has this lady told you if you get on this stand and, under oath, testify to something that is a violation of the law, I’m going to take you into custody?
THE WITNESS: Yes.
THE COURT: She’s told you that?
THE WITNESS: Um-hum.
THE COURT: And has she told you that if you get up here and you testify falsely, that I’m going to arrest you and take you into custody? She told you that?
THE WITNESS: Yes.
THE COURT: You wish to have your own lawyer to represent you and tell you when you are in danger of implicating yourself in the commission of a crime?
THE WITNESS: No.
THE COURT: You don’t want a lawyer?
THE WITNESS: No.
THE COURT: How old are you?
THE WITNESS: 18.
THE COURT: Sit down.
[DEFENSE COUNSEL]: I didn’t hear the age.
THE COURT: He said 18.”

Defendant argues that these remarks by the trial judge intimidated the witness, prejudiced defendant, and thus denied defendant a fair trial. Defendant also submits that the trial court demonstrated prejudice against him because it had Steiger arrested for possession of a stolen motor vehicle after Steiger completed his testimony. We disagree.

A trial court has discretion to examine witnesses provided it does not become an advocate and does not abandon its function as an impartial tribunal. (People v. Griffin (1990), 194 Ill. App. 3d 286, 296, 550 N.E.2d 1244.) To constitute reversible error, the defendant must show that the trial judge’s remarks were prejudicial and that he was harmed by them. (People v. Garcia (1988), 169 Ill. App. 3d 618, 623, 523 N.E.2d 992.) The danger of prejudice due to judicial questioning decreases sharply in cases tried without a jury. (Griffin, 194 Ill. App. 3d at 296.) The relevant inquiry in a bench trial is whether the tenor of the trial judge’s questioning indicates that the court has prejudged the verdict before hearing all the evidence. Griffin, 194 Ill. App. 3d at 296.

A trial judge’s warning about perjury to a defense witness was found not prejudicial to the defendant in People v. Bucciferro (1976), 37 Ill. App. 3d 211, 345 N.E.2d 738. At the start of the testimony of a defense witness in Bucciferro, the trial judge told the witness, “If I find you are lying you are going to jail for perjury. I want the truth.” The Bucciferro court held that the trial judge’s statements did not evidence hostility and did not prevent a fair and impartial trial. Bucciferro, 37 Ill. App. 3d at 215.

Similarly, we believe that the comments of the trial judge in the present case do not evidence prejudice against defendant but rather demonstrate the court’s concern for the witness’ rights. The trial judge’s remarks ensured that the witness had been informed and understood the consequences of perjury, the danger of self-incrimination, and his right to counsel. We find that the judge’s statements to the defense witness in this bench trial did not prejudice defendant and did not preclude him from receiving a fair trial.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    CHICAGO PARK DISTRICT, Plaintiff-Appellee, v. PRINCE ERICK RICHARDSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—2907
    Opinion filed September 26, 1991.
    Rehearing denied October 31, 1991.

      Michael H. Cole & Associates, of Chicago, for appellant.
    James C. Murray, Jr., and Frank J. Saibert, both of Katten, Muchin & Zavis, of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Defendant, Prince Erick Richardson (Richardson), appeals from summary judgment for plaintiff, the Chicago Park District (the District), ruling that the parties had entered into a binding and enforceable contract of settlement of Richardson’s claims against the District and ordering Richardson to execute the agreement and claims release. On appeal, Richardson contends that the court improperly denied his motion for leave to file a counteraffidavit in opposition to the District’s motion for summary judgment, and that the court therefore erred in granting summary judgment for the District.

In January 1986, the District filed a declaratory judgment action for a declaration that, under “An Act relating to the civil service in park systems” (the Illinois Civil Service in Parks Act) (Ill. Rev. Stat. 1985, ch. 24½, par. 78 et seq.) the District was required to administer a civil service examination for the position of Class II Animal Keeper. Pursuant to the judgment entered in the declaratory judgment suit on July 15, 1986, an examination was given in November 1986. Richardson, employed by the District as a zookeeper, took the examination, and, in July 1987, was notified that he failed it.

In January 1988, the trial court entered an order (a) declaring that the District had complied with the July 1986 judgment and (b) ruling that any persons objecting to the manner, method or rating of the examination for the position of Class II Animal Keeper state those objections on or before March 14, 1988. On March 17, 1988, attorney Sally Stix filed her appearance on behalf of Richardson. On March 29, 1988, after dismissing all other defendants, the trial court granted Richardson leave to intervene as a supplemental defendant. Richardson then filed a counterclaim against the District alleging, inter alia, that the examination was not competitive, fair or practical; that it did not bear a reasonable relationship to the duties and responsibilities of a Class II Animal Keeper; that it was improperly graded; and that it violated various statutes and ordinances. Richardson also filed a discrimination complaint with the Illinois Human Rights Commission.

After the District filed its answer in May 1988, discovery and settlement negotiations ensued. On August 30, 1988, Stix sent a settlement proposal to counsel for the District. The settlement agreement provided that Richardson would receive a specified amount of monetary compensation and be accorded civil service status. According to Stix’s deposition, taken on June 15, 1989, the proposal was the product of two conversations she had with Richardson; he authorized her to submit the settlement proposal; and a copy of the letter in which it was transmitted to the District’s counsel was sent to him.

Stix further testified that on September 8, 1988, the District’s counsel met with her at her office to discuss discovery matters and her settlement proposal. The substance of the conversation at that meeting, including the District’s rejection of her settlement proposal and the District’s counteroffer to award only civil service status to Richardson, was memorialized in a letter drafted by the District’s counsel on September 9, 1988. Stix conveyed the counteroffer to Richardson, who rejected it.

On November 29, 1988, pursuant to two or three discussions with Richardson, and with his authorization, Stix sent counsel for the District a second written settlement proposal which contained a reduced demand for monetary compensation and civil service status for Richardson. A copy of the letter was also sent to Richardson.

On or about December 9, 1988, Stix received a written counteroffer from the District which proposed civil service status and $1,000 for attorney fees in return for Richardson’s dismissal of this action and his Human Rights Commission complaint. Richardson met with Stix at her office on December 30, 1988, to discuss the District’s offer. Stix advised Richardson that she believed it to be a fair offer and recommended that he accept it. Richardson agreed and authorized her to accept it on his behalf. Richardson remained in her office while she telephoned counsel for the District and advised him of Richardson’s decision to accept the December 8 settlement offer. At no time during or after the telephone call that day did Richardson object to Stix’s acceptance of it.

However, in mid-January 1989, Richardson advised Stix of his decision to reject the December 8 offer. On January 23, Stix sent Richardson a letter in which she reminded him that on December 30, 1988, he had agreed to accept the offer and that she had conveyed his acceptance to the District in his presence. She expressed problems she had with his decision not to honor the settlement agreement, outlined his options, and stated her decision to withdraw as his attorney. She had no further communication with Richardson regarding the settlement of his claims against the District.

On February 27, 1989, Stix appeared at the Illinois Human Rights Commission to withdraw as Richardson’s attorney in his discrimination case against the District. While there, she informed counsel for the District of Richardson’s decision not to execute the settlement agreement they had reached. The following week Stix also filed a motion to withdraw as Richardson’s attorney in the case at bar, which was granted; and, on March 23, 1989, Richardson’s substitute counsel filed his appearance in this case.

On March 24, 1989, the District tendered to Richardson’s substitute attorney a $1,000 check payable to Richardson together with a “Settlement Agreement and General Release” of Richardson’s claims against the District. Richardson’s attorney returned the check to the District on April 10,1989.

The District thereafter amended its answer, raising settlement of the case as an affirmative defense. The District also filed a counterclaim against Richardson seeking enforcement of the settlement agreement reached on December 30, 1988, and a subpoena for the deposition of Stix. As noted above, Stix’s deposition was taken on June 15, 1989; counsel for Richardson had been notified of the deposition but did not appear for the taking of it.

The District sought to depose Richardson regarding the existence of a settlement agreement, but counsel for Richardson refused, stating that Richardson had already been deposed in May 1988. The trial court granted the District’s motion to compel Richardson’s deposition, and Richardson and his attorney appeared for it on June 30, 1989. However, on the advice of counsel, Richardson invoked the attorney-client privilege and refused to answer any questions pertaining to his discussions with Stix.

On July 10, 1989, the District filed its motion for summary judgment. In its supporting memorandum, the District argued that the undisputed facts and evidence conclusively established that Richardson had voluntarily entered into a binding and enforceable contract of settlement with the District. The District also filed a motion to bar Richardson from filing a counteraffidavit or other evidentiary material in response to the motion for summary judgment. The trial court entered an order barring Richardson from filing a counteraffidavit without leave of court. In his July 25 answer to the District’s counterclaim, Richardson denied the existence of a settlement agreement and invoked the attorney-client privilege in response to the District’s allegations that Richardson had authorized Stix’s acceptance of the settlement offer.

On August 16, 1989, Richardson moved for leave to file a counteraffidavit and for an extension of time to respond to the District’s motion for summary judgment. At a hearing on the motion for leave to file a counteraffidavit, Richardson argued that the mere fact that he invoked the attorney-client privilege at his deposition should not prevent him from waiving the privilege in an affidavit, thereby raising an issue of material fact. Richardson’s motion to file the counteraffidavit was denied, but he was granted additional time in which to file his response to the District’s motion for summary judgment. In that response, Richardson denied that he authorized Stix to settle his cases and requested that the matter be set for trial.

A hearing on the motion for summary judgment was held on September 26, 1989. The trial court stated that it had reviewed all the pleadings, deposition testimony and other documents on file. After argument by counsel, the trial court granted the District’s motion for summary judgment, finding that the parties had entered into a binding, enforceable contract of settlement. The court ordered Richardson to execute the settlement and release. Richardson’s timely appeal followed.

Opinion

Richardson contends that the trial court improperly denied him his right to waive the attorney-client privilege when the court barred him from filing a counteraffidavit in opposition to the District’s motion for summary judgment. Richardson correlatively argues that summary judgment should not have been granted because the court did not have all of the evidence before it on the issue of whether he authorized Stix to accept the settlement offer on his behalf. He maintains that the counteraffidavit would have raised a genuine issue of material fact requiring resolution by way of an evidentiary hearing.

The District asserts that Richardson has waived any appeal from the order barring his counteraffidavit because he did not submit a proposed affidavit or otherwise make an offer of proof concerning what the contents of the affidavit would have been. We agree.

The purpose of an offer of proof is to disclose the nature of the offered evidence to which an objection is interposed for the information of the trial judge and opposing counsel, and to enable the reviewing court to determine whether the exclusion was erroneous and harmful. (Wright v. Stokes (1988), 167 Ill. App. 3d 887, 522 N.E.2d 308.) To be adequate, an offer of proof must apprise the trial court of what the offered evidence is or what the expected testimony will be, by whom it will be presented and its purpose (Piano v. Davison (1987), 157 Ill. App. 3d 649, 510 N.E.2d 1066.) Statements by counsel which are unsupported speculation, lacking in specificity or conclusory are insufficient to preserve the issue of the exclusion for review. (Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 502 N.E.2d 315; Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 486 N.E.2d 385.) Thus, a party claiming he has not been given the opportunity to prove his case must provide a reviewing court with an adequate offer of proof of what the excluded evidence would have been. (Lukas v. Lightfoot (1985), 131 Ill. App. 3d 566, 476 N.E.2d 1.) In the absence of an offer of proof, the issue of whether evidence was improperly-excluded will be deemed waived. Tarshes v. Lake Shore Harley Davidson (1988), 171 Ill. App. 3d 143, 524 N.E.2d 1136.

In the instant case, defense counsel did not submit a copy of the counteraffidavit he sought leave to file nor did he even orally inform the court what Richardson would assert in it. Counsel stated only that it was Richardson’s position that he did not give Stix express authority to settle his case. Counsel’s remarks were nothing more than a restatement of the essence of the suit, i.e., that Richardson contested the District’s claim that Stix had been given authority by him to enter into a settlement of his case, which was the ultimate issue to be resolved. Counsel’s suggestion that Richardson’s affidavit would raise a genuine issue of material fact was conclusory and unsupported by any indication as to what specific factual averments Richardson would rely upon. There is simply nothing in Richardson’s motion to file a counteraffidavit, in the transcript of the hearing on the motion, or anywhere in the record which would serve as a sufficient basis upon which the trial court could have determined that Richardson had evidence to controvert the District’s evidence of a binding settlement contract. Neither the trial court nor we may speculate as to what evidence a party might have proffered. Without an offer of proof, we are unable to determine whether the barring of Richardson’s affidavit was erroneous or harmful. No offer of proof having been made, the issue of the propriety of the trial court’s order barring Richardson’s counteraffidavit has not been properly preserved for our review.

We do not agree with Richardson’s assertion that by barring his affidavit, the trial court denied him his right to waive the attorney-client privilege. The record reveals that the trial court entered an order compelling Richardson to submit to a deposition after he refused to do so. Richardson appeared at the deposition but invoked the attorney-client privilege in response to every question posed pertaining to the issue of Stix’s authority to enter into a settlement agreement with the District. In fact, even after the District moved for summary judgment, Richardson declined to waive the privilege. In his answer to the District’s counterclaim, which he filed approximately two weeks after the motion for summary judgment had been filed, Richardson once again invoked the attorney-client privilege in response to the District’s allegations that Richardson had authorized Stix to settle his case. Richardson had numerous opportunities throughout the discovery stage of this action to waive the privilege. He chose not to do so. It was only after the District’s discovery efforts were exhausted and the case was presented to the court for resolution that Richardson asserted his desire to waive the privilege by way of an affidavit which would be impervious to scrutiny or challenge by the District. The trial court did not prevent Richardson from waiving the attorney-client privilege.

For the same reasons, we find no merit in Richardson’s assertion, unsupported in the record, that “[although the trial Judge did not state his reasons *** it can only logically be inferred” that the trial court barred the filing of Richardson’s affidavit as “punishment” for his refusal to answer questions at his deposition.

We find that Richardson waived review of the order barring his counteraffidavit and that he was neither denied his right to waive the attorney-client privilege nor improperly “sanctioned” for invoking it. The entry of summary judgment in favor of plaintiff is, therefore, affirmed. Summary judgment should be entered without delay when the pleadings and evidence properly before the court show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1005.) The uncontradicted deposition testimony of Richardson’s attorney, Sally Stix, together with the written correspondence exhibits pertaining to the negotiations and settlement of Richardson’s claims, establish that Richardson agreed to and conferred upon Sally Stix, his attorney, the authority to accept on his behalf the December 30, 1988, settlement offer; that she exercised that authority; and that a binding and enforceable settlement contract was thereby created.

For the reasons stated, we affirm the trial court’s order granting summary judgment in favor of the District and ordering Richardson to execute the settlement agreement and release.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.


author: JUSTICE LINN

text:
    THOMAS ALLEN ST. LOUIS, Plaintiff-Appellant, v. ROCKWELL GRAPHIC SYSTEMS, INC., et al., Defendants-Appellees.
    First District (4th Division)
    Nos. 1—90—0202, 1—90—0863 cons.
    Opinion filed September 26, 1991.

      Katz, Friedman, Schur & Eagle, of Chicago, and Becker, Baizer & Rapoport, of Highland Park (Harold A. Katz, David E. Rapoport, and Edward G. Proctor, Jr., of counsel), for appellant.
    Sweeney & Riman, Ltd., of Chicago (Michele J. Braun, of counsel), for appellee Skidmore & Mason, Inc.
    Mayer, Brown & Platt, of Chicago (Thomas B. McNeill and George J. Tzanetopoulos, of counsel), for appellee Rockwell Graphic Systems, Inc.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Thomas St. Louis, brought an action in the circuit court of Cook County against defendants, Rockwell Graphic Systems, Inc. (Rockwell), and Skidmore & Mason, Inc. (Skidmore). Defendants were involved in various stages of the design, manufacture, or installation of a printing press at a newspaper publishing plant. Plaintiff sought damages for injuries that he sustained in operating the press.

In separate orders, the trial court dismissed several counts of plaintiff’s amended complaint, ruling that those claims were time barred. (See Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b).) Plaintiff appeals, assigning error to the dismissal.

We affirm the orders of the trial court.

Background

The trial court dismissed the relevant counts pursuant to section 2—619(a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(5)), formerly section 48(1)(e) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(e)). In ruling on a section 2 — 619 motion to dismiss, the trial court may consider the pleadings, affidavits in support of the motion, answers to interrogatories, depositions, and other proofs presented by the parties. Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 232, 542 N.E.2d 435, 438 (and cases cited therein).

The record shows that the Kankakee Daily Journal Company undertook an expansion project for its newspaper printing plant. In 1972, Rockwell designed and manufactured an offset printing press for the newspaper, sold the press to the newspaper, and assisted in installing the press as part of the newspaper’s plant expansion. Skid-more was a contractor for the newspaper’s expansion project. Skid-more furnished the materials and services required to install the press and appurtenant structures.

On December 12, 1984, plaintiff was an employee of the Kankakee Daily Journal. On that day, plaintiff’s arm became caught between two rollers on the press and was crushed.

Plaintiff filed his original complaint on August 11, 1986, naming Rockwell as a defendant. On October 10, plaintiff filed an amended complaint that added Skidmore and others as defendants. Plaintiff alleged that Rockwell was negligent in the design, manufacture, and installation (count I), and subsequent maintenance (count III) of the printing press; and that Rockwell breached statutory warranties of merchantability and fitness for a particular purpose (count II). (See Ill. Rev. Stat. 1985, ch. 26, pars. 2—314, 2—315.) Plaintiff alleged that Skidmore negligently installed the press (count V) and that another defendant also negligently installed the press (count IV).

Rockwell moved to dismiss counts I and II of the complaint, and Skidmore moved to dismiss count V, pursuant to section 2—619(a)(5) of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(5).) They contended that those claims were time barred under the 10-year statute of repose for construction activity found in section 13—214(b) of the civil procedure code. Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b).

In separate orders, the trial court granted defendants’ motions to dismiss. The court subsequently found no just cause to delay the enforcement or appeal of the dismissal. (See 134 Ill. 2d R. 304(a).) Plaintiff appeals.

Opinion

The trial court dismissed the complaint pursuant to civil procedure code section 2—619(a)(5). The primary purpose of section 2—619 is to afford a means of obtaining, at the outset of a case, a summary disposition of issues of law or of easily proved questions of fact, with a reservation of jury trial as to disputed questions of fact. (Inland Real Estate Corp. v. Lyons Savings & Loan (1987), 153 Ill. App. 3d 848, 853-54, 506 N.E.2d 652, 657.) Subsection (a)(5) provides as a ground for dismissal “[tjhat the action was not commenced within the time limited by law.” Ill. Rev. Stat. 1989, ch. 110, par. 2—619(a)(5).

The statute of limitations is an affirmative defense that cannot be raised by a section 2 — 619 motion unless it affirmatively appears from the pleading attacked that the cause of action is time barred. (Marvel Engineering Co. v. Matson, Driscoll & D’Amico (1986), 150 Ill. App. 3d 787, 792, 501 N.E.2d 948, 950.) However, dismissal of a complaint is proper under section 2—619(a)(5) if it appears from the face of the complaint that the action is time barred. Altevogt v. Brinkoetter (1981), 85 Ill. 2d 44, 50, 421 N.E.2d 182, 185.

In the dismissed counts, plaintiff sought recovery based on defendants’ alleged negligence in the design, construction, and installation of the printing press. Defendants’ alleged negligence occurred in 1972; plaintiff was injured in 1984, 12 years later; he filed his complaint in 1986, 14 years later. Section 13—214(b) of the Code of Civil Procedure is a statute of repose for construction activity. The section provides in pertinent part:

“(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.” Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b).

Strictly speaking, a statute of repose differs from a statute of limitations. A statute of limitations governs the time within which lawsuits may be commenced after a cause of action has accrued. (Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 726, 425 N.E.2d 522, 525; see, e.g., Ill. Rev. Stat. 1989, ch. 110, par. 13—214(a).) However, a statute of repose extinguishes the action itself before it arises. In other words, the statute prevents what might otherwise be a cause of action from ever arising. Thus, referring to section 13—214(b), an injury that occurs more than 10 years after the alleged negligence does not form a basis for recovery. Thornton, 99 Ill. App. 3d at 726, 425 N.E.2d at 525, quoting Rosenberg v. Town of North Bergen (1972), 61 N.J. 190, 199-200, 293 A.2d 662, 667; 54 C.J.S. Limitations of Actions §4, at 20-21 (1987).

The trial court found that defendants’ acts, described in counts I, II, and V, constituted “an improvement to real property” under section 13 — 214(b). Since plaintiff was injured after 10 years from defendants’ alleged negligence, the trial court ruled that those counts were time barred.

I

Plaintiff first contends that the trial court applied the wrong statute of repose to the case at bar. He contends that the 12-year statute of repose for product liability claims (Ill. Rev. Stat. 1989, ch. 110, par. 13—213(b)) applies to the present case and not section 13—214(b). If applicable, section 13—213(b) would not have run by the time plaintiff filed his original complaint. Plaintiff asserts that “a printing press is a product, not an improvement to realty.” Plaintiff concludes simply: “Since a printing press is a product, the applicable statute of repose is found at Section 13—213.”

We cannot accept plaintiff’s contention. Plaintiff essentially bases his argument on the following supposition:

“Obviously, a product does not include real estate or improvements to real estate. Section 13—214 applies only to ‘real estate or improvements to real estate.’ It is respectfully submitted that there can be no overlap in the coverage of these statutes. They are mutually exclusive. Products are covered by Section 13—213, real estate by Section 13—214.”

In support of his position, plaintiff refers to product liability and fixture law. He reasons that the printing press “lacks a sufficiently permanent nexus to the real property to be considered an improvement thereof.” In other words, “[t]he press was a chattel, divisible from the building.”

These statements are error. The short answer is that a product, under certain circumstances, can constitute an improvement to real property. In Cross v. Ainsworth Seed Co. (1990), 199 Ill. App. 3d 910, 557 N.E.2d 906, relying on Hilliard v. Lummus Co. (7th Cir. 1987), 834 F.2d 1352, we rejected plaintiff’s exact argument. We held that “the peculiar definitions of fixture law” did not apply to section 13—214. Product liability law is equally inapplicable. In Cross, the plaintiff’s argument essentially concentrated on the press’ permanence, as with plaintiff in the present case. We rejected the argument, explaining as follows:

“ ‘Taken to its logical conclusion, [plaintiff’s] argument would mean that nothing could be considered an “improvement to real property” if there were any possibility that the structure might be redesigned or rebuilt at any time ***. We do not think this is a reasonable interpretation of the statutory language.’ ” (Cross, 199 Ill. App. 3d at 922, 557 N.E.2d at 913, quoting Hilliard, 834 F.2d at 1355.)

Rather, the relevant inquiry should concentrate on the entire system and not on a single component of the system. Hilliard, 834 F.2d at 1356.

In Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, 483 N.E.2d 613, we defined an “improvement to real property” as “an addition to real property amounting to more than a mere repair or replacement, and which substantially enhances the value of the property *** [including] buildings and substantial additions or changes to existing buildings.” (136 Ill. App. 3d at 613, 483 N.E.2d at 616.) The court in Cross, relying on Hilliard, described an improvement as follows:

“ ‘[a] valuable addition made to property *** or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.’ ” Cross, 199 Ill. App. 3d at 921, 557 N.E.2d at 913, quoting Hilliard, 834 F.2d at 1354 n.3.

Thus, the court in Cross expanded the definition of “improvement” found in Calumet Country Club. Based on Cross, an improvement need not only enhance the value of property; the improvement may also enhance the beauty or utility of that property, or adapt the property to different or further purposes. Billman v. Crown-Trygg Corp. (1990), 205 Ill. App. 3d 916, 921, 563 N.E.2d 903, 906, explaining Cross, 199 Ill. App. 3d 910, 557 N.E.2d 906.

Applying these principles to the case at bar, we conclude that the printing press was an improvement to real property within the meaning of civil procedure code section 13—214(b). Referring to the definition of “improvement” in Cross, the record shows that the press was a valuable addition to the newspaper printing plant. The press, as part of the newspaper’s expansion project, required an expenditure of labor and capital, and amounted to more than a mere repair or replacement. Also, the newspaper intended for the press, as part of the expansion project, to enhance the value and utility of the newspaper’s property, and also to adapt the property for further purposes, i.e., to print more newspapers. See Cross, 199 Ill. App. 3d at 921, 557 N.E.2d at 913, quoting Hilliard, 834 F.2d at 1354 n.3.

Plaintiff further contends that Rockwell and Skidmore do not fall within the class of defendants intended to be protected by section 13—214(b). This argument completely lacks merit. Plaintiff himself alleged in his complaint that Rockwell designed, manufactured, and installed the press. The statute expressly applies to the design and planning of the construction of an improvement to real property. Likewise, plaintiff alleged that Skidmore installed the press. The statute expressly applies to the “supervision, observation or management” of the construction of an improvement to real property. (Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b).) We hold that section 13—214(b) of the Code of Civil Procedure applies to the case at bar.

II

Plaintiffs next claim involves the 1985 amendment to section 13—214, which shortened the period of repose from 12 to 10 years. (Compare Ill. Rev. Stat. 1983, ch. 110, par. 13—214(b), with Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b).) Plaintiff claims that the amendment does not apply retroactively to his lawsuit.

The record shows, however, that plaintiff did not present this issue to the trial court. It is quite settled that “an issue not presented to or considered by the trial court cannot be raised for the first time on review.” (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417, 420.) Accordingly, we deem this issue waived, and plaintiff is precluded from raising this argument on appeal. (See Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 26, 473 N.E.2d 588, 594; D. Nelsen & Sons, Inc. v. General American Development Corp. (1977), 51 Ill. App. 3d 62, 67-68, 366 N.E.2d 381, 386.) We hold that counts I, II, and V of plaintiff’s amended complaint were time barred under the 10-year statute of repose for construction activity, found in section 13—214(b) of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 13—214(b).

For the foregoing reasons, the orders of the circuit court of Cook County are affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
    GRANITE PROPERTIES LIMITED PARTNERSHIP, Plaintiff-Appellee, v. GRANITE INVESTMENT COMPANY et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—90—2047
    Opinion filed September 26, 1991.
    Rehearing denied October 24, 1991.
    Howard M. Hoffman and Dan Gregus, both of Holleb & Coff, of Chicago, for appellants.
    David G. Lynch, of Rudnick & Wolfe, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendants, Granite Investment Company (Granite Investment) and James C. Green, appeal from a judgment of the circuit court confirming an arbitration award in favor of the plaintiff, Granite Properties Limited Partnership (Granite Properties). The defendants contend on appeal that the judgment was void from its inception because the trial court lacked personal jurisdiction over the defendants. Specifically, the defendants maintain that they were not properly served with summons and that the attorney who entered a general appearance on their behalf lacked the authority to do so. The plaintiff conceded in the trial court that service was improper. Thus, the sole issue on appeal is whether an agency relationship existed between the defendants and the attorney who filed a general appearance on their behalf.

The defendant Granite Investment is a limited partnership whose general partner is codefendant James C. Green. In 1988, Granite Properties and Granite Investment entered into an agreement involving a loan. The details of this transaction are not pertinent to this appeal except to the extent that the agreement provided that any dispute between the parties would be submitted to binding arbitration.

On May 5, 1989, the plaintiff filed a petition in the circuit court of Cook County to compel arbitration of a dispute that had arisen under its agreement with the defendants. Although the plaintiff attempted to serve the defendants with summons, it was later determined that this service was improper. The defendants did not file a response to the petition to compel arbitration. However, defendant Green agreed to submit the dispute to arbitration and participated in the arbitration proceedings pro se. The arbitration hearing took place on November 15, 1989, and on December 20, 1989, the arbitrators issued an award in favor of the plaintiff. Between those two dates, on November 27, 1989, the defendants filed an action in the circuit court of Madison County against the plaintiff and certain third parties alleging fraud in connection with the same loan transaction that was being arbitrated. It is not clear who represented the defendants in the Madison County lawsuit. However, as will be more fully detailed later, one of the pleadings in the lawsuit was signed by an associate in the law firm of attorney Rex Carr.

On December 28, 1989, the defendants received a Federal Express mail package which contained a notice of hearing on a petition to confirm arbitration filed by the plaintiff in Cook County. The notice stated that the hearing was scheduled for January 2, 1990. According to his deposition testimony, Green took the package to the office of his attorney, Rex Carr, with whom he had an 18-year relationship. Green knew that Carr was out of town on vacation but did not know when he would return. He stated that he “might have or might not have” known that Carr was not expected to return before the scheduled hearing date. Green gave the package containing the notice of hearing to Carr’s secretary and told her that he wanted to talk to Carr when he called in to “decide what we are going to do about this.” He left no further instructions, but stated in his deposition that he “would assume” that he wanted the hearing postponed.

Carr’s secretary gave the documents to Staci M. Yandle, an associate in the law firm. Yandle stated in her deposition that she did not discuss the matter with Green or Carr and did not know whether Green was a regular client. Nevertheless, believing that “something” needed to be done, Yandle filed a general appearance on behalf of the defendants on December 29, 1989, accompanied by a motion for a continuance. She signed the appearance, “SMY Rex Carr.” Green testified at his deposition that he had been notified sometime after January 2, 1990, that “Staci was handling it or something or did something on it.” Green said nothing and did not discuss the matter with Yandle. The record reveals that one day before Yandle filed the appearance on behalf of the defendants in Cook County, the defendants filed an application in their Madison County action seeking to stay the arbitration proceeding and vacate the arbitrator’s award in favor of the plaintiff. The application was signed “SMY Rex Carr.”

On January 2, 1990, the date scheduled for a hearing in the Cook County action, the plaintiff filed its petition to confirm the arbitration award. The matter was continued to January 9, 1990. On that date, the plaintiff filed a motion for a temporary restraining order to prevent the defendants from prosecuting their Madison County lawsuit. No one appeared to represent the defendants at the scheduled hearing. On January 12, 1990, the trial court entered orders confirming the arbitration award and restraining the defendants from prosecuting the Madison County lawsuit.

The defendants subsequently filed a special appearance in Cook County through different attorneys and moved to vacate the orders on the grounds that Yandle was not authorized to appear for the defendants and the court accordingly lacked personal jurisdiction. In lieu of an evidentiary hearing, the parties asked the court to review the pleadings, affidavits and deposition testimony. After doing so, the court denied the defendants’ motion to vacate the orders based on its finding that Yandle had authority to file the general appearance.

The issue on appeal is whether attorney Yandle had the authority to file a general appearance on behalf of the defendants, thereby submitting them to the personal jurisdiction of the court.

The law of principal and agent is generally applicable to the relationship between a client and an attorney. (In re Estate of Maslowski (1990), 204 Ill. App. 3d 379, 383, 561 N.E.2d 1183.) An agent’s authority may be actual or apparent, actual being either express or implied. (Wasleff v. Dever (1990), 194 Ill. App. 3d 147, 156-57, 550 N.E.2d 1132.) Apparent authority arises when a principal, through words or conduct, creates a reasonable impression that the agent has authority to perform a certain act. (Crawford Savings & Loan Association v. Dvorak (1976), 40 Ill. App. 3d 288, 292, 352 N.E.2d 261.) Implied authority, on the other hand, is defined as "actual authority circumstantially proved” and is regarded as authority implied from the facts and circumstances. (Devers v. Prudential Property & Casualty Insurance Co. (1980), 86 Ill. App. 3d 542, 546, 408 N.E.2d 462, 465.) The existence of an agency relationship is a factual question which must be determined by the trier of fact. (Richter v. Northwestern Memorial Hospital (1988), 177 Ill. App. 3d 247, 256, 532 N.E.2d 269.) The party alleging an agency relationship must prove it by a preponderance of the evidence. In re Estate of Maslowski (1990), 204 Ill. App. 3d 379, 561 N.E.2d 1183.

In the case at bar, defendant Green received a copy of the plaintiff’s motion to confirm arbitration and a notice that a hearing had been scheduled for January 2, 1990. He took the documents to the law office of Rex Carr, an attorney with whom Green had a longstanding relationship. Green admitted in his deposition that he knew Carr was on vacation and “might have or might not have” known that Carr was not expected to return until after the date scheduled for the hearing. Although he left no instructions other than asking to talk to Carr if Carr called the office, Green admitted that he “would assume” that he wanted the hearing postponed until Carr’s return. Green took no other action regarding the matter. Sometime after January 2, 1990, when Green learned that Carr’s associate, Staci M. Yandle, was “handling it” or “did something on it,” Green said nothing and did not discuss the matter with Yandle. The record shows that during this same time frame, Yandle signed a document filed by the defendants in their Madison County action. We believe that the facts and circumstances of this cause are sufficient to establish that at the time she filed the general appearance in this cause, Yandle had implied authority to act on behalf of the defendants.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v. WILLIAM HERNANDEZ, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—2748
    Opinion filed September 30, 1991.
    Michael J. Pelletier and Janice Lynn Triptow, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

The defendant, William Hernandez, along with codefendant Antonio Silva, was charged by indictment with murder, attempted murder, armed violence, and aggravated battery. Silva entered pleas of guilty to murder and attempted murder for which he was sentenced to 20 years’ imprisonment. He is not a party to this appeal. Following a jury trial, Hernandez was convicted of all charges and was sentenced to 40 years’ imprisonment for murder to be served consecutively with two 30-year concurrent sentences imposed on each attempted murder count. On appeal defendant argues that the trial court: (1) improperly denied his motion to suppress statements; (2) erred in barring a third party’s confession into evidence; (3) committed reversible error in its jury instructions on attempted murder; (4) erred in allowing the prosecutor to make inflammatory comments; (5) erred by refusing to allow him to question a prospective juror about her race; and (6) abused its discretion in sentencing him to 70 years’ imprisonment. The pertinent facts relevant to our disposition of this case are set forth below.

On September 22, 1985, around midnight, defendant Hernandez, then 16 years of age, Sal Esquivel, Pablo Alvarez, Frank Herrera, Ralph Tamez and other Two-Two Boys gang members, as they were walking home from a party, were approached by a rival gang member who pulled out a gun and shot and wounded Sal Esquivel in the back. At approximately 2:45 a.m., three members of that gang, the Latin Kings, were shot, resulting in the death of Rogelio Valdez and permanent injuries to Adrian Guerrero and James Lilly. The next day defendant Hernandez and Antonio Silva were charged in the second incident wherein the three Latin Kings were shot. Prior to trial, defendant moved to quash his arrest and suppress evidence contending that the police lacked probable cause to arrest him. He also moved to suppress his statements, alleging they were involuntary and that his rights under the Juvenile Court Act (111. Rev. Stat. 1985, ch. 37, par. 703 — 2(2)) were violated because neither his parent nor legal guardian was notified nor was he turned over to a juvenile officer.

The court held separate hearings on the motion to quash arrest and suppress evidence and the motion to suppress statements. Detective Miller testified at the hearing on the motion to quash arrest that on September 22, 1985, he and his partners, Detectives Jim Hanrahan and Ben Wieclawek, were assigned to investigate a shooting that occurred about 2:45 a.m. in which Rogelio Valdez was murdered and Adrian Guerrero and James Lilly were wounded. While conducting his investigation, Detective Miller learned that a related shooting had occurred about 12 a.m. that morning involving a victim named Sal Esquivel. Miller stated that Detective Thomas O’Connor was assigned to investigate that shooting.

Miller testified that he read a report prepared by Detective O’Connor regarding the Sal Esquivel shooting and that the report gave the names and addresses of witnesses to the shooting. The report also gave a description of the clothing and physical features of the assailants. Miller stated that the defendant was listed in that police report as a witness and that he was advised that defendant and a second witness to the Esquivel shooting wore clothing similar to that described in the report, to wit: tan pants and a dark, hooded sweater. Miller testified that he was also informed that the defendant had discussed possible retaliatory action against the shooter of Sal Esquivel while at the hospital. Detective Miller further testified that he reviewed the police report prepared in the Rogelio Valdez shooting. In that report the offender was described as a white Hispanic male, 18 to 19 years old, 5 feet 8 inches, 140 pounds, wearing tan pants and a black-hooded sweatsuit.

Miller testified that about 1 p.m. that afternoon, he talked with Ralph Tamez, then went to the home of Carlos Hernandez, defendant’s uncle. Miller stated that Hernandez did not know defendant’s whereabouts and told him “if you find him, he’s yours.”

Detective Miller testified that about 3 p.m., on September 22, 1985, he and his partner picked defendant up at Marshall Boulevard and 23rd Street. They told defendant that they wanted to question him about both shootings which had occurred the previous evening. Defendant agreed to go voluntarily. The officers did not tell him that he was a suspect in the murder. Defendant was not immediately advised of his Miranda rights, and he was left alone in an interview room that may have been locked. About one hour later, Officers James Hanrahan and Dan Wieclawek questioned defendant for approximately 15 minutes about the shootings. Miller testified that defendant was arrested at 5 p.m., at which time he was advised of his Miranda rights. Miller ended his shift at 7 p.m., and defendant remained in the interview room when he left.

Hanrahan testified at the hearing on the motion to quash arrest and suppress evidence that at about 2:45 a.m. on September 22, 1985, he was assigned to investigate a fatal shooting. Hanrahan stated that he, accompanied by Detective Miller and a Hispanic male, drove to Marshall Boulevard and 23rd Street, the area in which the shooting occurred. Hanrahan saw the defendant, Frank Herrera and Pablo Alvarez standing on the corner. Officers Hanrahan and Miller exited the car, approached the three, then Detective Miller asked defendant to accompany them to the station.

Hanrahan testified that at the station defendant was placed in a second-floor interview room but was not handcuffed at that time. Hanrahan stated that he and Officer Wieclawek talked with defendant for about 15 minutes and that they did not strike the defendant.

Hanrahan further testified that at approximately 6:30 p.m. on September 23, 1985, defendant was placed in a lineup for 10 minutes. Hanrahan stated that neither he nor Officer Wieclawek struck the defendant.

Defendant testified that on September 22, 1985, he and Frank Herrera were standing on the corner of 23rd and Marshall Boulevard when an unmarked police car drove up. He stated that the officer driving the car asked him his name and asked if he would ride to the police station to view a lineup of suspects in the Sal Esquivel shooting. Defendant stated that he voluntarily accompanied the officers to the station. However, upon arrival at the station, defendant was placed alone in a small room behind locked doors and, despite his constant banging on the door, the officers did not return for seven to eight hours. Defendant testified that he never viewed a lineup and was later questioned about the Valdez murder. Defendant told the officers that he had been at his uncle’s apartment, as well as with his mother. Defendant testified that the officers never advised him of his Miranda rights.

The following day defendant was placed in a lineup with other Hispanic males. Neither of the two witnesses identified him as the assailant. Defendant stated that he attempted to speak to one of the participants, but Detective Miller grabbed him by the throat, threw him against the wall and kneed him in the groin. On September 23, 1985, at approximately 10 p.m., about 30 hours after his arrest, defendant made an oral inculpatory statement. Subsequently, he gave a statement to the assistant State’s Attorney which was recorded by a court reporter and signed by defendant after transcription. Following the presentation of evidence, defendant’s motion to quash arrest and suppress evidence was denied.

Next, a hearing was held on the motion to suppress statements. The following evidence was adduced.

Three of the lineup participants testified that Miller physically abused defendant while he was in the lineup. Daniel Sanchez testified that he was a lineup participant with defendant on September 23, 1985. He stated that while in the lineup, Officer Miller grabbed defendant by the throat, threw him against the wall and hit defendant in his groin area. Eddie Perez corroborated Sanchez’s testimony. Robert Gambots, a third participant in the lineup, testified that the defendant attempted to talk with him while they stood in the lineup when Officer Miller grabbed defendant by the throat, pushed his head against the wall then kicked him in the groin area with his knee.

There was a stipulation between the parties that Frank Herrera would also testify that Miller, in fact, did physically abuse defendant. Miller claimed that he never entered the room while the lineup was in progress, and he denied ever choking defendant or kneeing him in the groin. Miller stated that he did not contact defendant’s mother or uncle after defendant was arrested, but explained that he did contact a juvenile officer who was present at the time defendant confessed. Miller explained that he had previously contacted defendant’s uncle and the uncle advised him that if he found defendant “he’s yours.” The uncle denied making this statement.

Carmen Johnson, defendant’s mother, testified that in September 1985, she was not advised that defendant had been arrested and taken into custody until three days after his arrest. She explained that defendant was the oldest of her three children and had lived with her brother the past two years. At the conclusion of the evidence, the court denied the motion to suppress statements.

At trial, Officer Miller’s testimony was substantially similar to his testimony on the pretrial motions. The testimony of Detectives Hanrahan and Wieclawek substantially corroborated Detective Miller’s testimony. Detective Hanrahan testified that he was the only officer stationed in the interview room with the seven participants in the lineup. He stated that the lineup lasted about 15 minutes and that he did not leave the room until he was informed that the lineup was completed. At that point, he may have left briefly to determine the outcome of the lineup, but the participants remained alone in the room. Hanrahan stated that he never raised his knee into defendant’s groin, nor grabbed him by the neck or struck him.

Hanrahan also testified that there was a two-way mirror separating the participants from the victims and that Detective Miller may have been in the opposite room with the victims during the lineup, but that he never entered the room with the participants. Hanrahan stated that defendant never told him that he had been struck by Detective Miller.

Officer Louis Caesar testified that on September 21, 1985, he went to Mt. Sinai Hospital, where Sal Esquivel was taken, and there talked with defendant. Defendant told Officer Caesar that he was a member of the Two-Two Boys Gang and that the victim was shot by a rival gang member. Officer Caesar stated that he asked defendant if he wanted to tour the area where the shooting had occurred to look for the assailant and defendant replied, “[F]uck it, I will handle it myself.”

Frank Herrera and Ralph Tamez, also Two-Two Boys Gang members, were at the hospital on the day the victim was shot. Herrera testified that while at the hospital defendant told him that he wanted “to pull a hit” and that he wanted to get some guns. Herrera and other gang members left the hospital, drove to Cornell Park, then drove to 63rd Street and Western Avenue where they assembled with other gangs. Herrera stated that as they drove, defendant again stated that he wanted to pull a hit and get some guns. He testified that defendant also told Tamez that he wanted to pull a hit because “my boy got shot.” Herrera drove to 23rd Street and Oakley Avenue and defendant exited while Herrera remained inside the car. About 20 minutes later defendant returned, made hand gestures of a gun and told Herrera “I got one but I don’t know about the others.”

Defense counsel attempted to elicit testimony from Ralph Tamez regarding an alleged statement that Pablo Alvarez made to him. The State objected to this attempted testimony, but the court allowed defense counsel to make an offer of proof. Defense counsel made an offer of proof that Ralph Tamez would testify that five weeks after the shooting, Pablo Alvarez admitted to Ralph Tamez that Pablo Alvarez shot the individuals that defendant was accused of shooting. The State had been given a statement to this effect signed by Ralph Tamez, but not Pablo Alvarez, who was not available at trial. After hearing the offer of proof, the court sustained the State’s objection.

Assistant State’s Attorney Michael Kelly testified that about 1:45 a.m. on September 24, 1985, in the presence of himself, Officer Wieclawek, Assistant State’s Attorney Gerber and a youth officer, defendant gave a statement explaining the shooting. Defendant stated that on the day of the incident he and other members of the Two-Two Boys Gang were walking home from a party when members of a rival gang approached them and began shooting, striking Sal Esquivel, a Two-Two Boys Gang member, in the back. Defendant described how he later returned to Cornell Park, fired several shots into a crowd, then threw the gun away and fled. Defendant stated that while in custody he was given water, coffee, food and was allowed to use the washroom. Defendant further stated that no promises or threats were made and that he gave the statement because he was tired of lying.

Adrian Guerrero, James Lilly, Robert Romo, Rene Martinez and Hector Duminquez each gave accounts of the shooting. Guerrero described the shooter as a Hispanic male, 5 feet 11 inches tall, weighing 140 pounds. The shooter wore dark pants and a black-hooded sweatsuit. They testified that on their way to a party, they were approached by two males, who first asked whether they were “Kings,” then fired several shots which hit three of the men. Five spent cartridges were found but no gun was recovered from the crime scene. James Lilly identified defendant as the shooter from an array of photographs and also identified him in court.

Dr. Barry Lifschwultz, a forensic expert, testified that the decedent’s death was caused by an injury to a major blood vessel from a gunshot wound to the right shoulder.

During closing argument the prosecutor compared defendant to A1 Capone and repeatedly made general comments about gang problems in the city.

Defendant has raised a Batson issue, and we shall proceed with that issue before addressing the others raised.

During voir dire by the court of prospective juror Sol Ayala, the assistant State’s Attorney exercised his right to peremptory challenge and excused Ayala. Defense counsel objected and the following colloquy occurred:

“MR. CALABRESE [Assistant State’s Attorney]: Your Honor, with thanks the People would excuse Leslie Jacobs and Sol Ayala.
THE COURT: Leslie Jacobs and Sol Ayala is [sic] excused.
MR. GREEN [defense attorney]: Excuse me, your Honor, may I ask for a sidebar, please.
THE COURT: Surely.
* * *
THE COURT: What is it[?]
MR. GREEN: Your Honor, I object to the State’s use of a peremptory challenge against Ms. Sol Ayala. I believe under the recent supreme court case of Batson versus Kentucky we have a right to object to the use of the peremptory challenge.
I believe that the record should reflect that Ms. Sol Ayala is
a member of apparently a Hispanic minority group.
* * *
THE COURT: I don’t know whether either of them are [sic] Spanish. What you are saying is that their names seem to be.
MR. GREEN: Yes, your Honor, they appear to be Hispanic certainly. If the Court wishes to make the record clear that is why I asked that Ms. Ayala remain.
THE COURT: Make the record clear as to what[?]
MR. GREEN: Minority status, if any.
THE COURT: I can’t tell from looking at her.
What does the State got [sic] to say[?]
MR. CALABRESE: Judge, I think that counsel has a burden to demonstrate some kind of an effort on the part of the State to prevent people from his defendant’s minority from being on the jury. He has made no showing that the State is intentionally doing that. There were two as I understand it, two female white Hispanics or potentially two female white Hispanics.
THE COURT: You mean with Hispanic names. I don’t know whether they are Hispanic.
MR. CALABRESE: Yes. We kept Ms. Cynthia Villarreal. If she is Hispanic we certainly kept her.
THE COURT: Well, both sides accepted her. When you say ‘we kept her’ I don’t know what that means. She was accepted by both sides.
MR. CALABRESE: I don’t think that counsel has met his initial burden.
THE COURT: Well, I don’t think so either.
MR. GREEN: May I respond very briefly.
THE COURT: To what?
MR. GREEN: To the overruling of our objection.
THE COURT: Well, I overrule your objection, yes, I don’t know whether this lady is Hispanic or not.
Is there anything else?
MR. GREEN: Your Honor, if I remember Batson correctly we only have to show the exclusion of an individual who is of the same [cognizable] group as the defendant. At that point the burden shifts to the State. We have no burden to prove an intentional exclusion. We have no peremptory to prove, based on race or any other factor.
Once it occurs, and I wish I had Batson with me there is a quotation with it—
THE COURT: I am familiar with it, yes.
MR. GREEN: Which says that the appearance itself where it may occur — can’t remember the language I will not take a chance on misquoting it.
I do believe, however, that Batson says that once it occurs, once that excluded juror is a member of the same [cognizable] group that the burden then shifts with the State.
MR. GREEN [sic]: Right and you have not established that it is a person of the same [cognizable] group.
Let’s proceed with the trial.
MR. GREEN: I would ask that Ms. Ayala be called in to make clear.
THE COURT: Counsel, it is your obligation to do so and I find that you have not done so.
Let us proceed with the selection of the jury. I have overruled your objection.
MR. GREEN: I would ask for an opportunity to have Ms. Ayala called in and questioned.
THE COURT: Counsel, I’ve overruled your objection. Let’s proceed with the selection.”

Reviewing the above testimony, it is clear that the court was confused as to the procedure necessary to establish a prima facie case of purposeful discrimination under Batson. Pursuant to Batson, to establish a prima facie case of race discrimination, the defendant must prove three elements: (1) defendant is a member of a cognizable racial group; (2) the State exercised its peremptory challenges to remove members of that cognizable racial group from the venire; and (3) other relevant circumstances raise an inference that the State used peremptory challenges to exclude minority venirepersons. Batson v. Kentucky (1986), 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87, 106 S. Ct. 1712, 1723.

Recently, the United States Supreme Court relaxed the prima facie requirements of the Batson test and held that racial identity between the defendant and the excluded juror is not necessary to establish a prima facie case of race discrimination. (Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364.) As a result, in order to prove a prima facie case of race discrimination in the State’s use of peremptory challenges, defendant must now prove relevant circumstances (which may include racial identity between the defendant and the excluded venireperson) which raise an inference that the State used its peremptory challenges to exclude members of the venire for race-based reasons. The Powers court specifically noted that its decision is not inconsistent with Batson. Racial identity between the defendant and the excluded venireperson remains a factor in that, when present, it is a relevant circumstance to be considered by the court.

In the instant case, defense counsel immediately challenged the State’s use of a peremptory challenge to exclude Sol Ayala. He explained to the court that he believed that the excluded juror was Hispanic and desired to establish that fact for the record. The State replied that defense counsel had the burden of showing that the State made an intentional effort to prevent people of defendant’s minority from being selected for the jury, then explained that one of two female white Hispanics, or potentially Hispanic, was selected for the jury. The State concluded that it did not believe that defense counsel had met his initial burden. The trial court agreed with the State and overruled defense counsel’s objection.

The first part of the Batson test mandates that defendant establish a prima facie case of racial discrimination. (Batson, 476 U.S. at 93, 90 L. Ed. 2d at 85, 106 S. Ct. at 1721.) Once the court finds that such a case has been established, the burden shifts to the State to provide a race-neutral explanation for each peremptory challenge to which defendant objected. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.

The facts in the instant case are unique. Defense counsel argues that he was deprived of the opportunity to establish his prima facie case. Because of the manner in which the colloquy took place, it is simply not ascertainable from the record whether the defendant was denied that opportunity. Although Powers relaxed the requirement that defendant and the excluded juror share the same race, that decision clearly stated that it was not inconsistent with Batson. Thus, the race of the excluded juror may still be a factor in determining whether the defendant has established a prima facie case. The court’s denial of affording defense counsel the opportunity to question the juror about her race, when the court itself admitted that it was not certain of her race, was error.

We, therefore, remand the cause to the trial court for a Batson hearing and retain jurisdiction to review the trial court’s decision following that hearing, and for consideration of the other issues raised in this appeal, but not decided. People v. Jones (1988), 177 Ill. App. 3d 663, 532 N.E.2d 543.

Accordingly, the decision of the circuit court of Cook County is remanded.

Remanded.

BUCKLEY and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODOLFO CANO, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0206
    Opinion filed September 30, 1991.
    Michael J. Pelletier and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter Piltehner, Howard D. Wiesman, and Alexandra C. Buzanis, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant Rodolfo Cano was convicted of criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 12—13(a)(1), (a)(2)), and sentenced to eight years in prison. On appeal the defendant argues that he was denied effective assistance of counsel and denied his right to conflict-free representation.

Defendant and Jackie Cano were divorced prior to 1984. Jackie Cano received custody of their two sons, one, six years of age and the other eight years of age. No visitation rights were provided in the dissolution order, although defendant occasionally visited with the children at Jackie Cano’s home.

In September 1985, Jackie Cano married George Blanton and defendant married Marjorie. The two boys continued to live with Jackie and George. Defendant often took the boys to his trailer home in Lynwood, Illinois, to visit with him and his wife.

Jackie testified that about July of 1986 the two children’s behavior changed. She explained that the six-year-old son (hereinafter the victim) was frequently involved in fights, refused to follow instructions, had problems at school and no longer wanted to visit with his father. Jackie talked with him about his behavior change, but he gave her no explanation for his actions.

On September 6, 1986, defendant took the children to his home for a visit. Jackie testified that defendant took the children on Saturday afternoon and brought them back to her home on Sunday, September 7, 1986. One week later, Jackie again talked with the victim about his behavior change and advised him that she was concerned and would help him. She testified that while assisting the victim shampoo his hair he told her not to touch him “down there,” and pointed to his genitals. He then stated that he did not like it when people touched him in that area. Jackie asked the victim who had touched him in that area and he replied his dad, “Ralph.” Jackie testified that she did not observe any physical marks on the victim or take him to receive medical treatment. However, the victim did receive counseling.

The victim testified that on September 6, 1986, he and his brother visited with the defendant at his trailer home and stayed overnight. He explained that on Saturday, while he was taking a bath, the defendant entered the room, sucked the victim’s penis, then pulled down his own pants and placed his penis in the victim’s mouth. The victim stated that this incident happened after the first week of school; however, he did not tell anyone until one week later.

Kathleen Kelly testified at trial that she was employed as a social worker in Cook County. Her speciality was “play therapy.” On October 20, 1986, she met with the victim and was advised that he had talked with the police because his father had given him “bad touches.” Kelly stated that at a later session with the victim, using anatomically correct dolls, the victim demonstrated for Kelly how he and the defendant performed fellatio. Kelly testified that the victim took the adult male doll and placed its penis inside the male child doll’s mouth. He then reversed the dolls and placed the penis of the male child doll inside the adult male doll’s mouth. Kelly explained that the victim then lifted the male doll, hit it and threw it while stating “this is what Ralph did.” Kelly concluded that the victim’s doll demonstration was his recollection of a past experience.

Officer William Windsor testified that on September 14, 1986, he initially spoke with the victim and his mother at the Lynwood police station, but that he later spoke with the victim alone. He stated that the victim told him that on the night of the incident the defendant came into the bathroom while he was bathing and kissed and licked his penis. Windsor stated that the victim also told him that the defendant forced him to lick and kiss the defendant’s penis. Windsor did not examine the victim for physical marks.

Defendant’s wife Marjorie testified that on September 6, 1986, she and the defendant arranged to meet the victim and his brother at Jackie’s home. They met the boys about 2:30 p.m. and drove to a video store where they purchased a videotape. They then drove to her mother’s home in Indiana, visited with her about five hours, then left. She testified that they made several stops before arriving home about 10:30 p.m. She stated that defendant had a headache, took medication and went to bed. Marjorie testified that the victim and his brother later fell asleep on the sofa bed after watching a videotape. She testified that they did not take a bath before going to bed that night. She further testified that when she went to bed that night defendant was asleep and the following morning he was still in bed when she awoke. He later left the bed, took medicine and returned, while the children remained on the sofa bed.

Defendant testified that about 3 p.m. on September 6, 1986, he and Marjorie drove to the victim’s home and took the victim and his brother to their home for a visit. He stated that they made several stops before they returned home about 10 p.m. that night. He claimed that he was ill that night and took medicine before he went to bed. Defendant testified that he did not get out of bed until the following morning when he again took medicine and returned to bed. He stated that after taking the children to lunch about 12 noon, he and Marjorie took the children home. He stated that he did not assist the children dress that morning, and denied having any sexual contact with them.

Following defendant’s trial but before sentencing, he filed a complaint with the Attorney Registration and Disciplinary Commission (ARDC) against Thomas Pavletic, the assistant public defender representing him. Defendant alleged that the assistant public defender was ineffective in his representation because he failed to call defendant’s brother as a witness. Defendant also alleged ineffective assistance of counsel in his pro se post-trial motion. Pavletic informed the court that he was ready to proceed on his motion for new trial and sentencing; however, he advised the court that he was not sure if he could properly represent defendant with the ARDC complaint pending against him. The court considered appointing another public defender to represent defendant in his motion for a new trial; however, Mr. Carmody, Pavletic’s supervisor, assured the court that Pavletic was the most competent attorney to handle the case. Carmody, however, advised the court that it should appoint the State Appellate Defender to handle any appeal. The court then allowed Pavletic to represent defendant in his motion for a new trial, which motion was denied. Pavletic then presented the court with defendant’s pro se motions for appointment of a bar association attorney; for appointment of counsel other than the public defender; and defendant’s motion to reopen the trial and present additional evidence. The court denied defendant’s first two motions, but appointed Carmody to handle defendant’s motion to reopen the trial.

On January 18, 1989, the cause came on for disposition of the motion regarding trial counsel’s failure to present the additional evidence and for sentencing. Defendant sought to introduce: (1) evidence that he had purchased medicine which he had taken the weekend of September 6, 1986; (2) evidence that he had purchased a videotape the same day of the alleged offense; and (3) transcripts of another case wherein defendant’s brother was convicted for sexually abusing the victim. Carmody informed the court that the motion alleged the incompetence of his subordinate and stated that, “I would ask the court not place me in a position of arguing on behalf of the defendant and against Pavletic, of whom I am his supervisor.” The defendant later withdrew his ineffective assistance of counsel allegation and his pro se motion to reopen his trial. The matter proceeded to sentencing at which Pavletic resumed his representation of the defendant. The court heard evidence in mitigation and aggravation before sentencing defendant to eight years in prison.

Defendant first argues that his right to effective assistance of counsel was violated. Specifically, he contends that defense counsel’s failure to introduce evidence that two months prior to the alleged incident the victim had been sexually abused by someone else resulted in prejudice sufficient to meet the test established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. We disagree.

In Strickland, the court held that in order for a defendant to succeed on an ineffective assistance of counsel claim he must first show that counsel’s performance was so deficient that it fell below an objective standard of reasonableness and that the performance prejudiced the defense of the case. (466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) In determining whether a defendant has been prejudiced, the defendant must show that there was a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) In determining the adequacy of legal assistance, a reviewing court will not focus on isolated instances of alleged deficiencies, but, rather, must consider the totality of circumstances. People v. McNutt (1986), 146 Ill. App. 3d 357, 496 N.E.2d 1089.

Defendant’s initial claim here is one that attacks defense counsel’s trial strategy. A reviewing court will not generally inquire into defense counsel’s exercise of judgment, discretion, trial tactics or strategy, even where the court might have handled the matter differently. (People v. Schmidt (1988), 168 Ill. App. 3d 873, 882, 522 N.E.2d 1317.) Defendant maintains that the victim’s behavioral change resulted from an earlier sexual assault by the defendant’s brother. He contends that because this fact was not brought to the court’s attention, he was prejudiced thereby.

Even if the court had known this fact, there is overwhelming evidence in the record of defendant’s guilt, independent of the victim’s behavioral change. The victim himself testified to the assault; the therapist explained the victim’s condition and the court weighed the credibility of the witnesses.

For the foregoing reasons, we find that defendant’s claim is without merit, and we decline to reverse the conviction.

Defendant next argues that he was denied effective assistance of counsel because a per se conflict existed. Defendant maintains that the trial court should not have allowed the assistant public defender to represent him on the motion for a new trial, and that the supervisor should not have handled defendant’s pro se post-trial motions. He asserts that the supervisor’s interest in protecting the professional reputation of his subordinate conflicted with defendant’s interest in advancing his claim of ineffective assistance. We agree.

Normally, to prevail on a claim of ineffective assistance, an accused must show prejudice. (People v. Owens (1989), 129 Ill. 2d 303, 544 N.E.2d 276.) However, when the claim of ineffective assistance constitutes an allegation of a conflict of interest, an accused need not always show prejudice. (People v. Holmes (1990), 141 Ill. 2d 204, 220, 565 N.E.2d 950.) A per se conflict of interest arises where, by its nature, the conflict subjects counsel to subtle pressures adversely affecting his representation of the accused. People v. Taylor (1988), 165 Ill. App. 3d 1016, 1021, 520 N.E.2d 907.

Here, the defendant filed a complaint with the Attorney Registration and Disciplinary Commission against public defender Pavletic, alleging incompetency. The complaint was filed after trial, but before sentencing. By filing the complaint, defendant and Pavletic were placed in an adversarial relationship. Pavletic advised the court of this fact, but his supervisor, Mr. Carmody, assured the court that Pavletic was the most competent attorney to handle the case. With the court’s approval and the ARDC charge pending, Pavletic argued defendant’s motion for a new trial. The motion was denied.

Defendant then filed pro se motions for appointment of counsel outside the public defender’s office; appointment of a bar association attorney; and to reopen trial and present additional evidence. After the court denied defendant’s first two motions, Carmody accepted appointment as counsel and asked for a continuance. Carmody advised the court that defendant’s third motion would be treated as an ineffective assistance claim.

At the hearing on that motion, Carmody requested that the court “not place [him] in a position of arguing a motion on behalf of the defendant and against Mr. Pavletic [assistant public defender], of whom I am his supervisor.” The court instructed Carmody that he would have to argue the motion unless it was withdrawn. The following colloquy then occurred:

“Mr. Carmody [supervisor]: Mr. Cano, you and I have spoken, is that correct?
[Defendant]: Yes, sir.
Q. I have interviewed you regarding your motion regarding incompetency, is that correct?
A. Yes, sir.
Q. You have filed it before this court, is that correct?
A. Yes, sir.
Q. Is it your desire to not have a hearing on that matter today?
A. Yes.
Q. And you do that understanding that you may or may not raise it in the future after the sentencing, is that correct?
A. Yes, sir.
Q. Judge, at this time I’d ask leave to withdraw the pro se motion of the defendant.”

By nature of their adversarial position, it was impossible for Pavletic to render allegiance to defendant. The ARDC charge was pending when Pavletic argued the motion for a new trial, and, obviously, this fact created competing interests that hindered Pavletic’s allegiance. Although Carmody assured the court that Pavletic was the most competent attorney to handle the case, Carmody’s interest in protecting the professional reputation of his subordinate conflicted with defendant’s interest in advancing his claim of ineffective assistance. Further, by Carmody’s own admission he recognized a conflict and requested that the court not force him to argue on behalf of defendant and against Pavletic. It appears from the record that the court’s alternative placed before Carmody unduly influenced Carmody to persuade the defendant to drop his ineffective assistance charge.

Effective assistance means assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations. (People v. Spreitzer (1988), 123 Ill. 2d 1, 13, 525 N.E.2d 30.) Defendant was not given total allegiance here as there were pressures on Carmody and Pavletic to protect their personal interest, which was in direct conflict with defendant’s interest. Therefore, we find that a per se conflict existed at the sentencing hearing.

For the foregoing reasons, the sentence is vacated and remanded for a new hearing on post-trial motion and sentencing, at which an attorney unassociated with the public defender’s office shall be appointed.

Affirmed in part; vacated in part and remanded for further proceedings.

BUCKLEY and O’CONNOR, JJ., concur.