author: JUSTICE LaPORTA

text:
    HI-TEK CONSULTING SERVICES, INC., Plaintiff-Appellant, v. MAX BAR-NAHUM et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-90-2307
    Opinion filed August 23, 1991.

      Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon and Lisa Thaviu, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Ruth E. VanDemark, Dale G. Wills, and Iren J. Ustel, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Hi-Tek Consulting Services, Inc. (Hi-Tek), brought this action against defendants, Max Bar-Nahum and Amoco Corporation, formerly Standard Oil Company of Indiana, alleging that defendant Amoco had tortiously interfered with plaintiff’s contractual relationship with Bar-Nahum and had breached its agreement not to hire or solicit the employment of Hi-Tek’s employees. The trial court granted summary judgment in favor of Amoco on both counts. Plaintiff has appealed only the trial court’s grant of summary judgment on count II of the amended complaint, which asserted tortious interference with plaintiff’s contractual relationships.

The record reveals that on February 10, 1984, Hi-Tek and Amoco executed a support services agreement under which Hi-Tek was to provide computer consulting services involved in the installation and implementation of a new computer software product in Amoco’s office computer system. The agreement included a provision which precluded either party from hiring or soliciting the employment of any persons employed by the other contracting party.

The Hi-Tek consultants assigned to work on the Amoco project were Itai Aaronson and Max Bar-Nahum. Aaronson owned 50% of the shares in Hi-Tek and served as its secretary. Wayne Cohen was the president of Hi-Tek and owned the remaining 50% of the shares in the corporation. Bar-Nahum was an employee of Hi-Tek but held no ownership interest in the corporation, and his employment by Hi-Tek was terminable at will.

Amoco also retained the services of Interactive Business Systems (IBS) to provide computer support services for the installation of the new software. IBS rendered essentially the same or similar services as those provided by Hi-Tek, but did so at a lower cost to Amoco.

From May to September 1984, Bar-Nahum worked for Hi-Tek on the Amoco project at the Amoco offices five days each week for eight hours each day. During this period of time, he became acquainted with the other Amoco and IBS consultants who were involved in the project, including Joe Szczubelek. In late August 1984, Bar-Nahum mailed a letter of resignation to Hi-Tek and provided a copy of this letter to Ben Lampert, the supervisor of systems development support for Amoco who was responsible for the new software project.

Bar-Nahum informed Cohen on approximately August 24, 1984, of his intention to leave Hi-Tek and ceased working for Hi-Tek on or about September 7, 1984. On September 13, 1984, Bar-Nahum commenced employment as an independent contractor with IBS and was again assigned to work on the Amoco project. The other IBS independent contractors assigned to this project included Joe Szczubelek and William McAllister.

Thereafter, Hi-Tek instituted this action, claiming that Amoco had breached its contract with Hi-Tek and had tortiously interfered with Hi-Tek’s contractual relationship with Bar-Nahum. Amoco filed a motion for summary judgment which was supported by the affidavit of Ben Lampert. The trial court subsequently granted Hi-Tek’s request to engage in discovery prior to responding to the summary judgment motion. During this discovery process, interrogatories and requests to produce were served, and the depositions of Ben Lampert, Wayne Cohen, Itai Aaronson, and Max Bar-Nahum were taken.

Cohen testified at his deposition that Bar-Nahum told him he had resigned because he had obtained a “better opportunity.” Although Bar-Nahum would not specify the nature of this offer, he made reference to a local opportunity with a compány based on the East Coast.

Cohen testified further that when he met with Lampert after Bar-Nahum resigned, Lampert indicated that the Amoco project was at a critical stage and that because Bar-Nahum’s continued participation was essential to the project’s success, Lampert desired to keep Bar-Nahum working on the project. Cohen also stated that Lampert told him that if Bar-Nahum stayed on the project, there was a very good chance that Bar-Nahum could get a permanent position with Amoco or a management position with one of its subsidiary companies. Although Cohen felt that these comments constituted improper solicitation of employment of Bar-Nahum, Cohen did not complain to Lam-pert because both Cohen and Lampert were interested in keeping Bar-Nahum on the project.

Cohen testified further that on at least one occasion, Lampert indicated that he wanted Hi-Tek to find employees for Amoco. Cohen also stated that after Hi-Tek had submitted to Amoco the names of Joe Szczubelek and William McAllister as possible members of the Hi-Tek consulting team, these individuals ended up working on the Amoco project for IBS. Cohen testified that after Szczubelek had verbally agreed to work as a subcontractor for Hi-Tek, but before he signed a written agreement, Szczubelek was hired by IBS and assigned to the Amoco project. Cohen acknowledged that Szczubelek and McAllister had never been employees of Hi-Tek and had never performed any services on behalf of Hi-Tek.

Cohen stated further that Lampert attempted to pressure Cohen to lower Hi-Tek’s rates and indicated that it was in Amoco’s best interests to obtain the same services from the same people at lower rates. Cohen also testified that Lampert had acknowledged that he solicited the employment of Aaronson.

Aaronson testified at his deposition that in February 1984, Lam-pert and another Amoco employee directly solicited him to work for Amoco while he was at the Omaha office on a project for Hi-Tek. Aaronson also stated that Lampert on other occasions indicated that it would be beneficial if Aaronson either worked for Amoco directly or indirectly through IBS. Aaronson indicated further that Lampert preferred to hire subcontractors through IBS because IBS was under his control. Aaronson also stated that Lampert acknowledged that he had encouraged representatives of IBS to solicit the employees or subcontractors of other consulting firms.

Aaronson testified further that several months before Bar-Nahum resigned from Hi-Tek, Aaronson was present during a conversation between Lampert and Bar-Nahum in which Lampert was discussing the possibility of Bar-Nahum working for Amoco. Aaronson stated that Lampert was “vaguely discussing [this possibility] without making a direct job offer” to Bar-Nahum.

Lampert testified at his deposition that he had never solicited Bar-Nahum to work for Amoco or for IBS. Lampert testified further that for certain projects, he had the authority to approve the consultants provided by Hi-Tek and by IBS. Lampert met both William McAllister and Joe Szczubelek through IBS. Szczubelek’s name and resume were submitted to him by IBS just one day before they were submitted by Hi-Tek. Both McAllister and Szczubelek worked on the Amoco project for IBS before Bar-Nahum left the employ of Hi-Tek.

Lampert’s affidavit, filed in support of Amoco’s motion for summary judgment, stated that he was the only employee of Amoco who had daily contact -with Bar-Nahum and that no offer of employment could or would be made to Bar-Nahum by any authorized employee of Amoco without Lampert’s recommendation and approval. Lampert’s affidavit stated further that he was not aware of any attempted solicitation or offer of employment to Bar-Nahum by any employee, representative, or agent of Amoco.

At his deposition, Bar-Nahum testified that when he interviewed with Cohen and Aaronson for a position with Hi-Tek, they indicated that he would be a “junior partner,” but this arrangement was never formalized in writing, and despite Bar-Nahum’s repeated inquiries, he was never made a “junior partner.” Bar-Nahum testified further that he decided to leave Hi-Tek for personal reasons which included inadequate compensation, sick leave and vacation days, and the lack of a good social package. Bar-Nahum stated that he was also unhappy because Wayne Cohen had asked him to retain documentation and copies of everything Hi-Tek developed on the Amoco project so that Hi-Tek could eventually package the software to sell to other companies. In addition, Aaronson and Cohen asked Bar-Nahum to do anything in his power to make the other independent consultants working at Amoco look bad. Bar-Nahum did not comply with these requests.

Bar-Nahum testified further that he contacted a number of individuals and firms to investigate employment opportunities. He spoke with Bruce Stopka of IBS and Ben Lampert of Amoco. Lampert told Bar-Nahum that Amoco could not hire him, in part, because of the terms of its support services agreement with Hi-Tek. Bar-Nahum testified that Lampert never solicited him to work for Amoco or for IBS.

Bar-Nahum stated that he interviewed with a firm named Data Services, Incorporated, which was located in Boston, Massachusetts. Bar-Nahum accepted an offer by Data Services for a position in Chicago, but subsequently changed his mind about accepting this position. Bar-Nahum was concerned that he might be transferred out of Chicago after the initial Chicago project was completed.

Bar-Nahum then contacted Stopka again and was hired as an independent contractor for IBS. Bar-Nahum was initially assigned to work for IBS on a project for Combined Insurance. Because a problem arose with that assignment, he was subsequently assigned to work at Amoco under a separate consulting agreement between IBS and Amoco. Bar-Nahum began working at Amoco for IBS on September 11, 1984, and continued to work on the Amoco project as a consultant for IBS until June 1985.

Bar-Nahum stated that after he had resigned from Hi-Tek, he met with Wayne Cohen and Ben Lampert. At this meeting, Cohen told Bar-Nahum that Hi-Tek would match any offer he had received, but Bar-Nahum rejected this proposal because he did not want to work for Cohen anymore.

Upon consideration of Amoco’s motion for summary judgment, Hi-Tek’s response, and the depositions and affidavits presented, the trial court granted summary judgment in favor of Amoco on both counts I and II. As to count II, the court found that Hi-Tek had failed to offer any evidence to rebut the deposition testimony of Bar-Nahum that he left Hi-Tek for personal reasons.

On appeal, Hi-Tek argues that the trial court erred in entering summary judgment in favor of Amoco on count II, which alleged tor-tious interference with the employment contract between Hi-Tek and Bar-Nahum.

The tort of interference with contractual relations recognizes that a person’s business relationships constitute a property interest and are entitled to protection from unjustified tampering by another. Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 398, 515 N.E.2d 1047, 1051; Belden Corp. v. InterNorth, Inc. (1980), 90 Ill. App. 3d 547, 551, 413 N.E.2d 98, 101.

The malicious inducement of an employee to terminate his existing employment and enter the employ of another gives rise to a cause of action, and the fact that the contract of employment is terminable at will does not bar recovery. (Ancraft Products Co. v. Universal Oil Products Co. (1980), 84 Ill. App. 3d 836, 844, 405 N.E.2d 1162, 1168; B.R. Paulsen & Co. v. Lee (1968), 95 Ill. App. 2d 146, 153, 237 N.E.2d 793, 796.) The elements which establish a prima facie case of tortious interference with contractual relations are (1) the existence of a valid and enforceable contract; (2) the defendant’s awareness of the contractual relation; (3) the defendant’s intentional and unjustified inducement of breach of the contract; (4) a subsequent breach by the other contracting party caused by the defendant’s wrongful conduct; and (5) damages resulting from the breach. (R.J.N. Corp. v. Connelly Food Products, Inc. (1988), 175 Ill. App. 3d 655, 664-65, 529 N.E.2d 1184, 1190; Ancraft Products Co., 84 Ill. App. 3d at 844, 405 N.E.2d at 1168.) In the absence of a showing of malice or an express contract of employment, principles of free competition prevent liability on the part of a subsequent employer. Certified Mechanical Contractors, Inc., 162 Ill. App. 3d at 400-01, 515 N.E.2d at 1053-54; Ancraft Products Co., 84 Ill. App. 3d at 844, 405 N.E.2d at 1168; TAD, Inc. v. Siebert (1978), 63 Ill. App. 3d 1001, 380 N.E.2d 963.

Lack of legal justification for the conduct of the defendant is essential in establishing a claim for tortious interference with contractual relations. (H.F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 474, 322 N.E.2d 45, 50; R.J.N. Corp., 175 Ill. App. 3d at 664-65, 529 N.E.2d at 1190.) The third party claiming the privilege of legal justification must be acting to protect a conflicting interest that is considered to be of equal value to or greater than plaintiff’s contractual rights, and the third party’s acts to bring about the breach must be legal acts and not unreasonable in the circumstances. R.J.N. Corp., 175 Ill. App. 3d at 665, 529 N.E.2d at 1190.

In the instant case, the trial court was required to consider the various depositions, Lampert’s affidavit, the admissions, exhibits, and pleadings to determine whether the issue raised in count II of Hi-Tek’s amended complaint was supported by evidentiary facts. Ill. Rev. Stat. 1989, ch. 110, par. 2-1005.

Hi-Tek contends that several circumstances indicate that the trial judge erred in entering summary judgment in favor of Amoco. These circumstances include (1) the short interval of time between his resignation from Hi-Tek and his employment -with IBS; (2) the employment of Szczubelek and McAllister by IBS after their names had been submitted by Hi-Tek; (3) the contradictions contained in Bar-Nahum’s deposition testimony; and (4) Lampert’s prior solicitation of Aaronson. We find this argument unpersuasive.

The trial judge determined that summary judgment in favor of Amoco was proper based upon the evidentiary facts before him. We hold that the record contains ample support for the trial court’s conclusion.

Both Lampert and Bar-Nahum testified at their depositions that Bar-Nahum’s decision to leave Hi-Tek was made for personal reasons and that there was no inducement or solicitation on the part of Lam-pert or any other person employed by Amoco. This testimony is un-contradicted. This evidence is corroborated by Bar-Nahum’s statements that he was unhappy because Cohen had asked him to retain documentation and copies of everything Hi-Tek developed on the Amoco project so that Hi-Tek could eventually package the software to sell to other companies and because Aaronson and Cohen asked Bar-Nahum to do anything in his power to make the other independent consultants working at Amoco look bad.

Further corroboration for this evidence is found in Bar-Nahum’s deposition testimony that he was promised a “junior partnership” which was never formalized in writing and never realized despite Bar-Nahum’s repeated inquiries. Moreover, Bar-Nahum testified that while he was investigating employment possibilities, he contacted Lampert, who told him that Amoco could not hire him, in part, because of the terms of its support services agreement with Hi-Tek.

In addition, Cohen testified that when Bar-Nahum resigned, he told Cohen that he had a “better opportunity” with a firm that was based on the East Coast. This testimony corroborates the evidence that Bar-Nahum originally accepted an offer from Data Services, Incorporated, but later changed his mind and contacted Stopka at IBS. Cohen also acknowledged that Szczubelek and McAllister had never been employees of Hi-Tek and had never performed any services on behalf of Hi-Tek. This evidence is in accord with Lampert’s testimony that he met both William McAllister and Joe Szczubelek through IBS and that Szczubelek’s name had been submitted to him by IBS the day before it was submitted by Hi-Tek.

In addition, the solicitation of Aaronson and the alleged solicitation of Bar-Nahum took place several months before Bar-Nahum actually gave notice and terminated his employment with Hi-Tek. Plaintiff has presented no evidence to establish that Amoco’s alleged solicitation of Bar-Nahum actually caused him to leave the employ of Hi-Tek. As previously noted, the trial court found that Bar-Nahum left Hi-Tek for personal reasons, and the record does not include any evidence to the contrary.

A motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402.

We hold that the trial court correctly determined that there was no genuine issue of material fact as to whether Bar-Nahum left Hi-Tek’s employ for personal reasons. Bar-Nahum’s deposition testimony established that he had specific personal reasons which he clearly identified as his motivation to voluntarily leave Hi-Tek’s employ. The deposition testimony filed by Hi-Tek did not discredit this evidence. Bar-Nahum’s employment was terminable at will, and he was free to leave the employ of Hi-Tek for any reason. Bar-Nahum specifically denied that he was solicited by Lampert or any other person at Amoco. Based upon the evidence presented, the trial judge could conclude that there had been no intentional and unjustified inducement by Lampert or Amoco to cause Bar-Nahum to breach his employment contract with Hi-Tek. In the absence of these essential elements, the court properly found that Hi-Tek had failed to establish a prima facie case of tortious interference with contractual relations and correctly entered summary judgment in favor of Amoco. See R.J.N. Corp., 175 Ill. App. 3d at 664-65, 529 N.E.2d at 1190; Ancraft Products Co., 84 Ill. App. 3d at 845, 405 N.E.2d at 1168.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK DOWER, Defendant-Appellant.
    First District (1st Division)
    No. 1-88-1646
    Opinion filed August 26, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Anne C. Myles-Smith and Vickie Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gail O’Brien, and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from a jury verdict finding defendant, Frank Dower, guilty of murder. Defendant was sentenced to 40 years’ imprisonment. Defendant contends that (1) the voluntary manslaughter instruction erroneously stated the burden of proof on the issue of whether he acted under a reasonable belief in self-defense; (2) improper comments made by the prosecution in closing and rebuttal arguments deprived him of a fair trial; (3) his conviction should be reversed because the trial court refused to instruct the jury on a lesser included offense; (4) his guilt was not proved beyond a reasonable doubt because the evidence supports a conviction for voluntary manslaughter, not murder; and (5) the trial court abused its discretion in imposing a 40-year sentence on defendant.

On December 4, 1986, Officer James O’Donnell and Officer Joseph Edisic found the body of Constance Dillon in the apartment located at 4126 West 24th Place in Chicago. Officer Frank DeMarco of the Chicago police department crime laboratory testified that he went to the apartment and found the victim facedown on the bed with her head on the bed and her feet and legs on the floor. Alongside the bed on the floor, police found a metal blade knife with a wooden handle on the opposite side of the bed from where the victim was found, approximately six feet away from her. Officer DeMarco examined the knife and found no blood and no fingerprints on it. Additionally, there was no blood or brain matter on the floor near where the knife was found.

Officer Terrence Thedford was assigned to investigate the murder. In an attempt to find defendant, Thedford went to the home of a woman who the officer thought might know where defendant was, to defendant’s recent places of employment and to defendant’s mother’s home. Defendant was not at any of these places. Thedford also went to defendant’s sister’s and brother’s homes and spoke with them. Defendant was not there and his sister and brother did not know where he was.

At 2:30 p.m., defendant turned himself in to a newscaster and was taken to the police department. Defendant revealed where he had thrown the gun. Police found a .38 revolver where defendant indicated it would be. The gun contained one spent bullet casing and one live bullet.

At 6:30 p.m., Assistant State’s Attorney Kelley informed defendant of his Miranda rights. Defendant told Kelley that prior to the shooting, he had been out with his friends drinking alcohol and snorting cocaine. Defendant claimed to have arrived home at 12:30 a.m. Defendant asserted that the victim was waiting for him at the back door. The couple argued about defendant being out late. Thereafter, defendant ate something and retired to the bedroom to watch television. Defendant claimed to have fallen asleep and awakened to find the victim standing over him with a knife. Defendant and the victim argued about the paternity of their youngest son. Defendant stated that the victim never raised or threatened him with the knife, but that she always kept it at her side. Defendant did not believe that he was the father of the child, so defendant and the victim continued to argue. During the argument, defendant reached under the mattress, pulled out the .38 revolver and shot the victim.

After Kelley and the police retrieved the gun, Kelley took a handwritten statement from defendant. Defendant explained what had happened and Kelley wrote it down; Kelley did not ask any questions during this time. Defendant and his mother read the statement out loud, made corrections and initialed the changes. Both defendant and defendant’s mother signed the statement.

After the close of the evidence at trial, the court denied defendant’s request to submit Illinois Pattern Jury Instructions, Criminal, Nos. 7.03 and 7.04 (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d), which are the instructions for voluntary manslaughter where the defendant suffers from sudden intense passion resulting from serious provocation by the victim. Instead, the jury received instructions for voluntary manslaughter where the defendant unreasonably believed circumstances did exist which would justify the killing of the victim.

The Illinois Supreme Court held in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, that IPI Criminal 2d No. 7.04 (voluntary manslaughter — provocation) and Criminal 2d No. 7.06 (voluntary manslaughter — belief of justification) erroneously state the burdens of proof on the issues of whether a defendant acted under sudden intense passion or unreasonable belief in justification. (Reddick, 123 Ill. 2d at 194, 526 N.E.2d at 145.) The Illinois Supreme Court found that either of the above IPI voluntary manslaughter instructions, when read in conjunction with the instruction for murder, fails to inform the jury that the burden to disprove the particular mitigating mental state rests upon the State. (Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 145.) In People v. Shields (1991), 143 Ill. 2d 435, the Illinois Supreme Court held that because the holding in Reddick is of constitutional dimension and because the appeals before it were pending on direct review when Reddick was decided, the Reddick decision applies retroactively. (Shields, 143 Ill. 2d at 445.) Similarly, we find that since this case was on direct appeal when Reddick was decided and since the Shields court found that the giving of the disputed instructions together is of constitutional dimension, Reddick applies retroactively to the case at bar.

Reddick, however, does not mandate automatic reversal of convictions arising from trials in which the disputed instructions were given. (Shields, 143 Ill. 2d at 445.) In determining the effect of faulty jury instructions on the validity of a defendant’s conviction, the instructions should not be judged in artificial isolation but must be considered in light of the record as a whole, including the evidence and arguments presented to the jury. (Shields, 143 Ill. 2d at 445-46; Cupp v. Naughten (1973), 414 U.S. 141, 146-47, 38 L. Ed. 2d 368, 373, 94 S. Ct. 396, 400.) Furthermore, the errors identified in Reddick may be harmless. (Shields, 143 Ill. 2d at 446-47; People v. Austin (1989), 133 Ill. 2d 118, 123-24, 549 N.E.2d 331; People v. Harris (1989), 132 Ill. 2d 366, 395, 547 N.E.2d 1241, 1254.) Constitutional errors may be deemed harmless if it can be shown that the errors were harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828.) The Illinois Supreme Court, in determining Shields, used the Chapman harmless error test to determine whether a retrial was necessary. Shields, 143 Ill. 2d at 447.

Those same principles of review apply to the circumstances in the case at bar. Here, defendant was found guilty of murder. Defendant claims that he was awakened by the victim standing over him with a knife in her hands. Defendant asserts that he and the victim argued about the paternity of their child. While arguing, defendant pulled out a gun and shot the victim. The jury was instructed on murder and on the unreasonable belief form of voluntary manslaughter and found defendant guilty.

There is no evidence to support defendant’s theory of the case. Defendant admitted that the victim did not threaten him and never raised the knife, but kept it by her side. The medical examiner testified that the victim was shot at close range and that the bullet entered her skull perpendicular to her skin. Defendant’s theory is further discredited by the physical evidence that established that defendant was not lying in bed when he shot the victim and that the victim was not standing over him. In fact, the evidence indicates that both defendant and the victim were standing near the dresser when defendant- shot the victim, because there was a pool of blood found there and a trail of blood from that location to the bed where the victim was found. Further, the knife did not have any fingerprints or blood on it and it was found on the opposite side of the bed from where the victim allegedly stood. Moreover, defendant never claimed that he was afraid of the victim, that he believed the victim was going to try to hurt him or that he believed that his safety was in any way threatened by the victim. The evidence supporting the defendant’s conviction is overwhelming, and therefore, does not constitute plain error. Further, we find that the evidence is so clear and convincing that the jury’s verdict would not have been different had correct instructions been used and that the erroneous instructions were harmless beyond a reasonable doubt. See Shields, 142 Ill. 2d at 451.

Defendant contends that improper and misleading statements made by the State improperly shifted the burden of proof to defendant. Defendant asserts that the following statements by the State were improper:

“The first thing they didn’t find was Frank Dower, because he fled. The police arrived on the scene. They were called there by some other people who had heard what went on ***. And they began then to look for Frank Dower. They went to his other addresses that they knew he had on past occasions used. He wasn’t there. They went to his former places of employment. He wasn’t there. They went to his sister’s, his brother’s. He wasn’t there, wasn’t in any of these locations. Then the police continued to look for him throughout the day, leaving cards, leaving messages with these friends, relatives, telling them that they wanted Mr. Dower; that his wife had been shot and killed; and that he was nowhere to be found.”

And:

“He killed his wife that evening, fled, then threw the gun in a gangway. The next day it was later recovered by the police, then he told them where it was, fled from the scene, stayed in a hotel until he decided that he knew what he wanted to do. Then he conjured up, in his own mind what he expected to tell the police ***.”

Defendant failed to object to these statements at trial. The Illinois Supreme Court has held that in order to preserve an issue for appellate review, defendant must make a contemporaneous objection at trial and a written post-trial objection. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; Ill. Rev. Stat. 1983, ch. 38, par. 116-1.) The plain error exception to this rule is that there is no waiver if the evidence is closely balanced. (Enoch, 122 Ill. 2d at 199, 522 N.E.2d at 1130.) We have, however, found that the evidence in this case is not closely balanced, and therefore, the error was not so egregious as to invoke the plain error exception. (See Enoch, 122 Ill. 2d at 199, 522 N.E.2d at 1130.) Thus, defendant has waived his right to appeal these comments. See Enoch, 122 Ill. 2d at 199, 522 N.E.2d at 1129.

Defendant argues that the following statement was improper because the evidence clearly showed that the wooden handle of the knife was too porous to hold any fingerprints:

“We submit to you, there were no fingerprints on that knife, ladies and gentleman, the evidence will show you, because Mr. Dower planted that knife there in an attempt ***.”

Defendant did object to this statement at trial. The trial court responded, “Alright this is the State’s opening, what they expect the evidence will show.” There was testimony that the handle of the knife was wooden and an unlikely conduit for fingerprints. Additional testimony, however, established that the knife had a metal blade and the evidence technician stated that “[t]he knife was clean, just like it had been washed.” Moreover, when the knife was discovered lying on the floor, there was not any blood or brain matter on or near the knife. The knife was found on the opposite side of the bed from where the victim allegedly stood. The deputy medical examiner testified that the bullet wound the victim received made her muscles relax immediately and that the victim died almost instantly. The victim, therefore, could not have thrown or moved the knife. The evidence taken as a whole indicates that defendant planted the knife. Thus, we hold that the State’s comment to that effect was not improper.

The last statement that defendant contends was improper was made by the State in its closing argument as follows:

“This is nonsense. It never happened like that. Ladies and gentleman, this was a cold blooded thought-out, planned execution * * * >f

The State is granted wide latitude in making closing arguments, and the trial court’s determination as to the prejudicial effect will generally be followed absent a clear abuse of discretion. (People v. Bracy (1986), 152 Ill. App. 3d 566, 575-76, 504 N.E.2d 764, 770.) The medical examiner testified that the victim was 5 feet 2 inches tall and weighed 120 pounds. Defendant is 6 feet 1 inch tall and at the time weighed 185 pounds. The victim was shot from a distance of 18 to 24 inches, and the bullet entered her skull perpendicular to the skin, just abové her left eye. This evidence indicates that defendant was holding the gun level to victim’s head within two feet of her. The evidence of the position in which the knife was found in relation to the body and the fact that the knife was “clean” establish that the victim was an unarmed, 120-pound girl. Even if defendant’s testimony was believed by the jury, defendant testified that the victim never raised or threatened defendant with the knife. The State’s comment was a reasonable inference and, therefore, a proper comment.

In rejecting defendant’s request that the jury be instructed as to voluntary manslaughter based on sudden and intense passion resulting from serious provocation, the trial judge found that there was not any evidence to support a verdict based on the above. It is within the trial court’s discretion to determine which instructions to render to the jury. (People v. Jacobs (1976), 44 Ill. App. 3d 290, 357 N.E.2d 821.) The voluntary manslaughter instruction based on sudden and intense passion will not be given unless the defendant produces some evidence that, if believed by the jury, would reduce the crime from murder to voluntary manslaughter. (People v. Handley (1972), 51 Ill. 2d 229, 282 N.E.2d 131.) The defendant bears the burden of showing at least some evidence of serious provocation and actual sudden and intense passion. (People v. Neal (1983), 112 Ill. App. 3d 964, 446 N.E.2d 270.) The evidence upon which defendant relies must rise above the level of a mere factual reference or witness’ comment, otherwise, the defendant could force the trial court to include unlimited instructions which are not related to the case. Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334.

Relying on People v. March (1981), 95 Ill. App. 3d 46, 419 N.E.2d 1212, 1217, and People v. Crews (1967), 38 Ill. 2d 331, 231 N.E.2d 451, defendant asserts that courts have recognized that mutual combat is serious provocation. The courts consider mutual combat to be a “fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results.” (Austin, 133 Ill. 2d at 125, 549 N.E.2d at 334.) In the case at bar, there was no evidence of mutual combat. The record shows that defendant shot an unarmed, 120-pound girl. Even though defendant argued that the victim had a knife and was quarreling with him, defendant himself testified that the victim never raised or threatened him with the knife and that he was not afraid of the victim.

In considering whether defendant has met the threshold burden of proving some evidence of mutual combat, the alleged provocation on the part of the victim must cause the same passionate state of mind in an ordinary person under the same circumstances. (Austin, 133 Ill. 2d at 126, 549 N.E.2d at 335.) A slight provocation is not enough, because the provocation must be proportionate to the manner in which defendant retaliated. (Austin, 133 Ill. 2d at 126-27, 549 N.E.2d at 335.) This is especially true if the murder is committed with a deadly weapon. (Neal, 112 Ill. App. 3d at 967-68, 446 N.E.2d at 274.) Where a defendant attacks a victim on slight provocation with disproportionate violence, the mutual combat aspect of provocation does not apply as a matter of law. (People v. Ford (1987), 163 Ill. App. 3d 497, 503, 516 N.E.2d 766, 770.) The trial court was within its discretion to find that defendant’s retaliation, if that was, in fact, what it was, was disproportionate to the slight provocation on the part of the victim and that there was no mutual combat in defendant’s case, as a matter of law.

A trial court’s refusal to give an instruction will not justify a reversal when the evidence in support of the conviction is so clear and convincing that the jury’s verdict would not have been different. (People v. Bailey (1986), 141 Ill. App. 3d 1090, 1104, 490 N.E.2d 1334, 1344.) As stated previously, the evidence in support of defendant’s conviction is so clear and convincing that the jury’s verdict would not have been different.

Defendant argues that in order for a jury to reject a defendant’s claim of self-defense and to convict him of murder rather than manslaughter, the State must prove beyond a reasonable doubt that the defendant had no belief of imminent danger. Defendant argues that this was not done in his case. The jury had the opportunity to weigh the evidence and the credibility of the testimony presented. Determining the mental state of the defendant is within the province of the jury. (People v. Slaughter (1980), 84 Ill. App. 3d 1103, 405 N.E.2d 1295.) The applicable standard of review is whether when viewing the evidence in a light favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, 472.

The jury had sufficient evidence upon which to determine that defendant acted with the requisite mental state to find him guilty of murder and to reject defendant’s claim of self-defense. The jury’s verdict is supported by the physical evidence, testimony elicited at trial and defendant’s own statement. Defendant’s conviction is supported by the evidence, and he was found guilty beyond a reasonable doubt.

Defendant asserts that the sentence imposed by the trial court was excessive. Defendant was convicted of murder. The sentencing guidelines used by the trial court in this court for first degree murder specify that the term shall not be less than 20 years, and not more than 40 years. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—1.) The trial court’s sentencing decision is entitled to substantial weight and deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) This is especially true when a sentence is within the statutory limits. (People v. Stambor (1975), 33 Ill. App. 3d 324, 337 N.E.2d 63.) A sentence alleged to be excessive will not be disturbed upon review unless it is grossly disproportionate to the nature of the offense. People v. Moore (1988), 178 Ill. App. 3d 531, 533 N.E.2d 463.

Defendant argues that due to the facts that he had no prior felony convictions, was employed, is the father of two children and is 23 years old, the trial court abused its discretion in sentencing. The sentencing judge, however, is in the best position to consider matters relating to sentencing determinations and is allowed wide discretion in making a reasoned judgment as to the penalty appropriate to the particular circumstances of each case. (People v. O’Neal (1988), 125 Ill. 2d 291, 531 N.E.2d 366.) Additionally, defendant argues that because the trial court did not articulate the consideration of defendant’s potential for rehabilitation his sentence should be reduced. The trial court, however, is not required to give rehabilitative potential more weight than it gives the seriousness of an offense in its sentencing decisions. People v. Tatum (1989), 181 Ill. App. 3d 821, 537 N.E.2d 875.

Defendant cites cases in which the appellate court reduced a defendant’s sentence. In People v. Golden (1974), 18 Ill. App. 3d 633, 310 N.E.2d 172, the appellate court only reduced the minimum portion of defendant’s indeterminate sentence for possession of heroin. In People v. Gill (1972), 7 Ill. App. 3d 24, 286 N.E.2d 516, the defendant had only graduated from the ninth grade, was from a “cultural backwater” and there was uncontradicted testimony that he was a good father and husband. Similarly, the appellate court reduced that defendant’s indeterminate sentence. In the case at bar, there was no evidence that defendant was from a “cultural backwater.” Here, defendant was not given an indeterminate sentence. More importantly, we know defendant was not a good boyfriend because he killed the mother of his children with whom he was living. Furthermore, it can be inferred that he was not a good father because he was supposedly arguing that he was not the father of his youngest son, he admitted snorting cocaine and left the infant, whose paternity he was disputing, with his dead mother while he fled the scene of the crime. The trial court did not abuse its discretion in sentencing defendant.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALPHONSO CANET, Defendant-Appellant.
    First District (1st Division)
    No. 1-89-0502
    Opinion filed August 26, 1991.

      Marc Davidson, of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial, defendant Alphonso Canet was found guilty of possession with intent to deliver more than 15 grams of a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401), and he was sentenced to ten years’ imprisonment. The defendant appeals both the conviction and sentence.

In his search warrant affidavit, Chicago police officer Michael Plovanich swore to the following facts: On August 27, 1987, he spoke with a confidential informant (Cl). The Cl told Officer Plovanich that cocaine was being sold from a third-floor apartment at 1351 West Carmen Avenue. Officer Plovanich and the Cl formulated a plan whereby the Cl would purchase cocaine at 1351 West Carmen. The officer searched the Cl for money and contraband, but neither was found. In an undercover vehicle, Officer Plovanich drove the Cl to 1351 West Carmen and gave the Cl $50. The officer watched the Cl walk to and enter the 1351 West Carmen building. The Cl entered a third-floor apartment and met with an individual by the name “Alphonso.” Alphonso was described as being 28 years old, 5 feet 10 inches tall, 210 pounds, with dark brown hair and brown eyes. After a brief time, the Cl exited the building and sat in the car. Then, the Cl gave the officer one clear plastic bag containing white powder. The powder tested positive for cocaine.

Based upon Officer Plovanich’s affidavit, a search warrant was issued to search the man described above as Alphonso. The search warrant also specified the third-floor apartment at 1351 West Carmen. On August 28, 1987, Officer Plovanich and other officers executed the search warrant and, subsequently, arrested the defendant.

Before trial, defendant moved to quash the search warrant, contending that it lacked probable cause. After the trial court heard arguments, the court heard the defendant’s motion and stated “[b]ased upon the totality of the circumstances indicated in the search warrant I think there was sufficient probable cause for the issuance of the search warrant.”

Preceding the defendant’s trial, the court ruled that the assistant State’s Attorney could elicit testimony that the search warrant directed the search of a person named Alphonso and the third-floor apartment at 1351 West Carmen. However, the court would not allow testimony with respect to the substance of the search warrant.

At trial, the assistant State’s Attorney referred to a “court-ordered search warrant” five times. The assistant State’s Attorney began his opening statement with the following:

“Good police work, a little bit of luck, and a court-ordered search warrant is why we’re here today. *** On August 28, 1987, in the afternoon hours Chicago Police Officer Mike Plovanich appeared in court before a judge and obtained a court-ordered search warrant. The search warrant called for the search of a person by the name of Alphonso *** and *** the third floor apartment [at 1351 West Carmen].”

Then, the prosecutor informed the jury that Officer Plovanich would testify that he conducted the search and that, after entering the 1351 West Carmen apartment, the defendant sat in the kitchen. At this time, the prosecutor stated that “[the defendant] was handed a copy of the search warrant, the court-ordered search warrant.” After the assistant State’s Attorney described the search of the third-floor apartment and described some items that were found, the assistant State’s Attorney stated “[g]ood police work, a little bit of luck, and a court-ordered search warrant.” Subsequently, when the prosecutor described that cocaine was discovered, he stated “[g]ood police work, a little bit of luck, and a court-ordered search warrant.”

Additionally, Officer Plovanich testified that when he, Officers Joseph DiGiacomo and Patrick Feeney arrived at 1351 West Carmen, they went to the building’s gangway, where they saw a man who fit the warrant’s description.

Officer Plovanich also testified to the following: He approached the man on the gangway, identified himself as a police officer, and asked the man his name. The man said his name was Alphonso Canet. He told the defendant that he had a search warrant for him and the third-floor apartment. Officer Plovanich searched the defendant and found a clear plastic bag containing a white chunky substance in his coat pocket and a set of keys. Then, he went to the third-floor apartment, sat the defendant in the kitchen and handed him a copy of the search warrant. After the defendant read the search warrant, he said “what your [sic] looking for is in the office” and the defendant pointed toward the rear or middle bedroom. In the room the defendant described as an office, the officer found a triple beam scale, a plastic grinder, two clear plastic bags containing a “white chunky substance,” a shoe box that contained two larger clear plastic bags of a “white chunky substance” and a bank statement with the defendant’s name on it. The apartment had a living room, dining room, kitchen, bathroom and probably two other bedrooms. In an enclosed porch area, he thought there was a single bed and some children’s toys. On cross-examination, Officer Plovanich testified that he thought a child was living in the porch area and that at the time of the search, he knew that other people were living on the premises.

Also during the State’s case in chief, Officers DiGiacomo and Feeney testified. Their testimony was substantially similar to Officer Plovanich’s testimony.

Additionally, the State called Lori Lewis as a witness. She testified as an expert in forensic science chemistry. She testified to the following: She is employed as a forensic science chemist by the Chicago police department. She identified the bags of the “white chunky substance” as cocaine. She determined that the cocaine that was found on the defendant weighed 8.59 grams and that the cocaine found in the apartment’s “office” weighed 255.86 grams.

The State also called two other witnesses who testified that the Community Bank of Edgewater’s and the Peoples Gas’ records indicated that the defendant resided at 1351 West Carmen.

Thereafter, the defense called Martin Delboccio. He testified: He lives at 1351 West Carmen. Five people lived in the third-floor apartment, Delboccio, the defendant, Roger Hayes, Bernadette Fairchild and John Gomez. Usually, Gomez would sleep on the floor because there were only three bedrooms. However, sometimes the defendant stayed in the first-floor apartment with his mother and his 10-year-old brother. There was a sofa bed in the middle bedroom/office. Mrs. Fairchild lived in the middle bedroom/office half of the week. Her clothes were in the bedroom/office. Delboccio lived in the front bedroom and the defendant lived in the rear bedroom. Delboccio’s 18-year-old brother and the other individuals who lived at the third floor apartment had keys to the apartment, as did the defendant’s mother and brother. After Delboccio testified, the defense and the State rested.

During closing arguments, the prosecutor stated that “Officer Plovanich informed the [defendant that he had a court-order[ed] search warrant authorizing the search of his person and his apartment” and that “the [defendant sat down in the kitchen, presented with the search warrant, the court authorized search warrant.”

After jury deliberations, the defendant was found guilty of possession with intent to deliver more than 15 grams of a controlled substance, and he was sentenced to 10 years’ imprisonment. The defendant appeals the conviction and the sentence.

Initially, the defendant argues that he was denied a fair trial, contending that (i) the prosecutor’s references to the “court-ordered search warrant” in his opening statement and closing argument and (ii) the following colloquy between the prosecutor and Officer Plovanich constituted prejudicial error. In pertinent part, the following were the prosecutor’s questions and Officer Plovanich’s answers.

“Q. Directing your attention, Officer, to August 28th, 1987, at approximately 2:30 p.m., where were you sir?
A. I was in this building in front of Judge Bailey.
Q. And what was your purpose for being there?
A. Having a search warrant signed.
Q. Did that search warrant contain a description of a person to be searched in a location to be searched?
A. Yes, it did.
Q. What was that description?
A. Male white Hispanic, approximately five, ten, two hundred to two hundred and ten pounds by the name of Alphonso.
Q. Was there a location to be searched?
A. Yes.
Q. And that was indicated on the search warrant?
A. 1351W. Carmen, third floor.”

As support for his argument, the defendant cites People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368, and People v. Blissitt (1973), 12 Ill. App. 3d 551, 299 N.E.2d 562. In Turner, the court held that a prosecutor’s closing argument was improper and prejudicial because the prosecutor’s statement implied that charges would not have been placed against defendant Turner unless the prosecutor thought he was guilty. (Turner, 127 Ill. App. 3d at 792.) Similarly, in Blissitt, the court held that error occurred when a prosecutor stated that he recommended that the defendant Blisset be charged with murder. (Blissitt, 12 Ill. App. 3d at 554.) Turner and Blissitt do not support the defendant’s argument because, in the case at bar, the prosecutor did not expressly or implicitly convey his opinion to the jury that he believed that the defendant was guilty of the crime charged or comment on what charges should have been filed against the defendant.

We believe that the various references throughout the trial about the issuance of a search warrant were so crucially intertwined with the defendant’s arrest as to form part of one chain of relevant circumstances. “It has uniformly been held that evidence concerning acts which are closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible.” (People v. Olivas (1976), 41 Ill. App. 3d 146, 150, 354 N.E.2d 424.) The testimony elicited concerning the issuance and execution of the search warrant solely demonstrated to the jury the formal procedure required of the law enforcement officials before they could properly (i) search the defendant and the third-floor apartment and (ii) arrest the defendant when the controlled substance was found. Similarly, in People v. Olivas (1976), 41 Ill. App. 3d 146, 150, 354 N.E.2d 424, the appellate court held that various references throughout the trial about the issuance of a search warrant were so crucially intertwined with the police officers’ surveillance of the premises, as well as defendant’s arrest, that they formed part of the chain of relevant circumstances. Moreover, the case at bar is clearly distinguishable from People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, cert. denied (1983), 460 U.S. 1040, 75 L. Ed. 2d 792, 103 S. Ct. 1433, and People v. Okundaye (1989), 189 Ill. App. 3d 601, 545 N.E.2d 505, appeal denied (1990), 129 Ill. 2d 569, 550 N.E.2d 563, because in those cases prosecutors repeatedly related to the jury the confidential informant’s hearsay allegations that compromised the grounds for the search warrant. In contrast, during the defendant’s trial, the prosecutor did not mention that the Cl purchased cocaine from the defendant and did not offer those hearsay allegations into evidence.

Additionally, the defendant argues that he was denied a fair trial because the prosecutor’s closing argument inflamed the jury’s passions and improperly bolstered the police officers’ credibility. His argument is based upon the two following passages:

“It’s kind of amazing *** when you look at this *** this looks as harmless as your grandmother’s baking soda and powder and sugar. *** It’s amazing, it really is. No, it’s not, what it is, your [sic] looking at something else, your [sic] looking at a business, your [sic] looking at an industry right now, it’s not amazing, it’s disgusting, it’s disgusting because most of business and most of industry in this country is unlike this, this is not honest, this is not hard work your [sic] proud of, this is not something that benefits you, this is not something that makes your life better, it’s something that ruins your life. It isn’t, none of this is about dedication to yourself, respect for yourself, dedication and respect for your work, dedication and respect for the people who benefit from what you do, this is not about any of that, this is about easy money, this is about lying and cheating and doing whatever you can to keep that easy money coming in. There are people who deal in this business and that’s how they are and then on the other hand there are people like Officer Plovanich, Officer DiGiacomo [and] Officer Feeney *** who are not like that, it’s their job to put those people in this business out of business.
None of those people who supposedly lived in that apartment lived there, Fairchild, yeah, you have Marty [Delboccio] telling you there were women’s clothes there and you have officers with over twenty years of experience telling you there were no women’s clothes there, well, you think they’re going to come in here and lie to you, you think that they’re going to trump this whole thing against Marty [Delboccio] — or against Alphonso [the defendant], they don’t even know them.”

The defendant’s argument, however, is waived because defense counsel did not object to the prosecutor’s comments. Even if the argument had not been waived, there was no error. In the first passage, the prosecutor was referring to and “dwelling” upon the evil which results from the defendant’s crime. (People v. Jones (1982), 108 Ill. App. 3d 880, 439 N.E.2d 1011, appeal denied (1983), 92 Ill. 2d 576.) In the second passage, the prosecutor was arguing that the police officers did not have a motive to lie about the existence of women’s clothes in the middle bedroom/office. Thus, we do not believe that the second passage improperly bolstered the police officers’ credibility.

In conclusion, the defendant was not denied a fair trial by any one of or any combination of the claimed errors.

Defendant also argues that he was denied effective assistance of counsel when his attorney failed to tender an instruction on possession with intent to deliver less than 15 grams of cocaine when his trial counsel conceded that the defendant was found with 8.59 grams of cocaine in his pocket and argued that the defendant did not control or possess the cocaine that was found in the third-floor apartment. We disagree. As authority for his argument, defendant cites United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798, in which the Seventh Circuit reversed the Illinois Supreme Court’s prior decision in People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005. The Seventh Circuit held that trial counsel’s failure to tender instructions of justification and manslaughter instructions, in the face of the jury’s clear reluctance to return a guilty verdict on a murder charge, constituted ineffective assistance of counsel. Apparently, the Seventh Circuit was persuaded that the defendant was denied effective counsel under the sixth amendment, because the jury appeared to be confused. The Seventh Circuit noted that “after deliberating for a little more than three hours, the jury sent three questions to the court” and “four-and-a-half hours later the jury reported that they were deadlocked.” (United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798, 804.) However, we are not bound to follow the Seventh Circuit’s decision.

We agree with the Illinois Supreme Court’s earlier decision in Barnard. (People v. Barnard (1984), 104 Ill. 2d 218, 470 N.E.2d 1005.) The Illinois Supreme Court held that jury confusion was the defense attorney’s strategy. Before the writ was granted, the Illinois Supreme Court found that defendant’s trial counsel’s failure to tender manslaughter instructions was a tactical decision. The defendant’s trial counsel’s strategy was to present the jury with only the option of finding the defendant guilty or not guilty and not to give the jury an opportunity to compromise by finding the defendant guilty of manslaughter. (People v. Barnard, 104 Ill. 2d at 237.) The Illinois Supreme Court elected not to enunciate a per se rule that the failure to tender instructions on a lesser included offense constituted ineffective assistance of counsel.

Moreover, in People v. Maxwell (1980), 89 Ill. App. 3d 1101, 413 N.E.2d 95 (where the defendant was convicted of indecent liberties with a child), the Illinois Appellate Court held that defense counsel’s failure to request jury instructions on the lesser included offense was a tactical decision lying properly within the trial counsel’s province and, thus, did not constitute ineffectiveness. Therefore, in the case at bar, we find that the defendant was not denied effective assistance of counsel because defense counsel failed to tender instructions on the lesser included offense. The defendant was charged with possession of over 15 grams and, throughout the trial, the defense counsel’s strategy was to prove that the defendant did not have knowledge or possession of more than 15 grams. Thus, the defense attorney was hoping for an acquittal and not tendering instructions on a lesser included offense was a tactical decision.

Defendant also argues that the trial court abused its discretion when it sentenced him to 10 years’ imprisonment, contending that the court improperly considered, as aggravating factors, (i) that the defendant’s conduct caused or threatened serious harm and (ii) that the defendant received monetary compensation for committing the offense. As support for his argument, the defendant relies upon the prosecutor’s and the trial court’s comments that were made at the defendant’s sentencing hearing. In pertinent part, the prosecutor stated:

“I point out in aggravation, Judge, Chapter 38 section 1005— 5 — 3.2 subparagraph 1; defendant’s conduct caused or threatened serious harm. Judge, everyone knows the inherent danger of drugs especially cocaine and the serious effect of crime [on] society today. I also point out as to subparagraph seven in that same section, that the sentence is necessary to deter others from committing the same crime. Judge to be quite frank, I submit we are losing the war on drugs today. And the reason we are losing the war [sic] the profits that are made in drugs today. You have heard from the evidence in this case *** [that] there is a lot of money to be made out there. In order to deter people like this defendant from going out and committing crimes like this the penalties should be strictly enforced and severely imposed.”

In sentencing the defendant, the trial court stated:

“There is absolutely no question in our mind that you were in the business of possessing controlled substances for sale. That you were in the business of selling cocaine. *** [T]he legislature *** has [set] *** certain guidelines[] [and] [w]e consider those guidelines. We consider the facts of the case, and we sentence you, sir, to the Illinois Department of Corrections for a period of ten years, and we impose a fine of thirty thousand dollars.”

The trial court did not abuse its discretion. The trial court did not rely upon and incorporate the prosecutor’s comments. See People v. Glass (1981), 98 Ill. App. 3d 641, 424 N.E.2d 936.

Additionally, the defendant argues that the trial court abused its discretion when sentencing him because the court failed to consider that he did not have a prior conviction. We disagree. “[W]here mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary.” (People v. Bergman (1984), 121 Ill. App. 3d 100, 109, 458 N.E.2d 1370.) Thus, the trial court acted within the scope of its discretion when it sentenced the defendant to 10 years’ imprisonment.

Additionally, the defendant argues that the trial court erroneously denied his motion to suppress his statement, “what you are looking for is in the office,” contending that he made the statement before he received his Miranda warning and that he was prejudiced when the statement was allowed into evidence. We disagree. After determining that the defendant was not subject to a custodial interrogation, the trial court properly denied the defendant’s motion. Miranda warnings are only compulsory when a suspect is in custody and subject to an interrogation, where such interrogation is a measure of compulsion above and beyond that inherent in custody itself. (People v. Winchel (1987), 159 Ill. App. 3d 892, 909, 512 N.E.2d 1298, appeal denied (1987), 117 Ill. 2d 552, 517 N.E.2d 1094.) The defendant simply was not being interrogated when Officer Plovanich handed him a search warrant. The defendant was searched and taken into custody, but he was not asked any questions nor was he compelled or coerced into making a statement. The police merely showed the defendant the search warrant to communicate that the search was authorized.

Defendant argues that the trial court’s determination not to quash the search warrant was manifestly erroneous, because Officer Plovanich’s warrant affidavit lacked probable cause. Specifically, the defendant contends that Officer Plovanich’s affidavit does not establish that the Cl was credible and reliable. We disagree. The trial court properly considered the “totality of the circumstances” when it determined that there was probable cause to issue the search warrant. (People v. Tisler (1984), 103 Ill. 2d 226, 238, 469 N.E.2d 147; Illinois v. Gates (1983), 462 U.S. 213, 230-31, 76 L. Ed. 2d 527, 543-44, 103 S. Ct. 2317, 2328.) “It is the probability of criminal activity, not proof of the crime beyond a reasonable doubt, which is the standard for determining whether probable cause is present.” (People v. Waddell (1989), 190 Ill. App. 3d 914, 922, 546 N.E.2d 1068, appeal denied (1990), 131 Ill. 2d 566, 553 N.E.2d 401.) The police officer need not have personally observed the facts forming the basis of probable cause. His statements may be based on hearsay, such as an informant’s tip. An informant’s tip becomes reliable when independent police investigation corroborates some of the tip’s details. (Waddell, 190 Ill. App. 3d at 923.) The trial court’s finding of probable cause was not manifestly erroneous because Officer Plovanich corroborated portions of the Cl’s accusations which, in this case, provided an adequate basis for crediting the hearsay information. (See, e.g., People v. Morrison (1988), 178 Ill. App. 3d 76, 83, 532 N.E.2d 1077, appeal denied (1989), 126 Ill. 2d 564, 541 N.E.2d 1112 (an officer’s warrant affidavit contained sufficient facts to support a finding of probable cause where the officer stated that he gave an individual money, watched that individual enter a residence and saw the individual return with cocaine); see also People v. Friend (1988), 177 Ill. App. 3d 1002, 1019, 533 N.E.2d 409, appeal denied (1989), 126 Ill. 2d 563, 541 N.E.2d 1110.) The Cl’s information was corroborated because Officer Plovanich swore that prior to driving the Cl to 1351 West Carmen, he searched the Cl for money and contraband, but neither was found; that he drove the Cl to 1351 West Carmen and gave the Cl $50; that the officer watched the Cl walk to and enter the 1351 West Carmen building; and that after a brief time, the Cl exited the building with a bag containing cocaine.

Based upon the foregoing, the defendant’s conviction and sentence are affirmed.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    RICHARD ORES et al., Co-Ex’rs of the Estate of Ronald E. Sproull, Deceased, et al., Plaintiffs, v. PHILIP KENNEDY et al., Defendants and Third-Party Plaintiffs-Appellants (Alvin J. Golden, Third-Party Defendant-Appellee).
    First District (1st Division)
    No. 1-89-2598
    Opinion filed August 26, 1991.

      Phelan, Pope & John, Ltd., of Chicago (Donald B. Hilliker and Stanley Y. Figura, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (George W. Spellmire, Jr., Nancy G. Lischer, and Caroline A. Mondschean, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiffs, Richard Ores and Harriet Sproull acting as executors of Ronald Sproull’s estate, sued Phillip Kennedy and the law firm of Vedder, Price, Kaufman & Kammholz (Vedder Price) for alleged legal malpractice. Subsequently, Kennedy and Vedder Price, Illinois attorneys, acting as third-party plaintiffs sought contribution and filed a third-party complaint against Alvin Golden, a Texas attorney. The trial court dismissed the third-party plaintiffs’ complaint against Golden for lack of personal jurisdiction. The third-party plaintiffs appeal the dismissal.

Third-party plaintiff Kennedy is a member of the third-party plaintiff law firm Vedder Price. The third-party plaintiffs prepared decedent Ronald Sproull’s will and trust agreement when the decedent was an Illinois resident. After the decedent’s will was executed, he moved to Texas. Subsequently, on October 19, 1982, Ronald Sproull died in a plane crash. Harriet Sproull, the decedent’s widow and a Texas resident, was named as an executor. Additionally, Ores, an Illinois resident, was named as an executor. Ores acted as the family’s accountant and financial advisor. Between December 1982 and November 1983, the executors sold approximately 625,000 shares of Tel-lab stock which was worth over $18 million.

After selling the Tellabs stock, the executors filed a legal malpractice complaint against the third-party plaintiffs alleging that the third-party plaintiffs negligently drafted decedent Ronald Sproull’s -will and trust agreement which allegedly caused Ronald Sproull’s estate to incur approximately $1,500,000 excess tax liability.

Subsequently, the third-party plaintiffs filed a third-party complaint against Golden for contribution. The third-party plaintiffs alleged that Golden negligently advised the executors to sell the Tellabs stock. Specifically, the third-party plaintiffs contended that Golden failed to read and consider the will and trust agreements, that Golden failed to structure the stock sale to minimize the estate’s tax liability and that the estate would not have incurred the alleged excess tax liability if the Tellabs stock had not been sold.

Pursuant to the Illinois long-arm statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209), Golden was purportedly served in Texas. Subsequently, Golden filed a motion to quash and dismiss the service of summons alleging that the Illinois trial court lacked personal jurisdiction. Golden’s affidavit was included with his motion to quash and dismiss.

Golden’s affidavit stated the following: He is a citizen and resident of Texas. While he is licensed to practice law in Texas, he is not licensed in Illinois. On or about November 4, 1982, Golden was contacted by Charles Wiggins, a Vedder Price attorney. Wiggins informed him that Harriet Sproull and Ores had been named co-executors of Ronald Sproull’s estate, that “Ronald and Harriet Sproull were Texas residents, with property in Texas, and that as a result, it was necessary to retain Texas counsel to have the estate admitted to probate in Texas.” Between November 4 and November 11, 1982, Harriet Sproull contacted Golden to discuss the estate. After Golden spoke with Harriet Sproull and before November 15, 1982, Ores called Golden. On or about November 15, 1982, the executors retained Golden for the purpose of admitting the decedent’s will and trust agreement to probate in Texas. Golden admitted that between November 9, 1982, and January 1984, he corresponded and had telephone conversations with Ores, with attorneys at Vedder Price and with the trust department at the First National Bank of Chicago. He never met with Ores or Harriet Sproull in Illinois. All of his activity on behalf of the estate occurred in Texas. He never traveled to Illinois for any reason connected with his representation of the estate.

In response to Golden’s motion to quash and dismiss the service of summons, the third-party plaintiffs introduced Golden’s billing records as evidence of Golden’s contacts with Illinois. The third-party plaintiffs introduced the following evidence. Golden participated in conference calls with Ores on December 3, 6, 15 and 23 of 1982 concerning the estate’s sale of Tellabs stock. Golden also participated in telephone conferences with Ores on January 12, 14, 19, 20, March 10 and May 4 of 1983 concerning the estate’s sale of Tellabs stock. In a June 2, 1983, letter and a June 14, 1983, conference call, Golden sought advice from third-party plaintiff Kennedy and Wiggins, Vedder Price attorneys, regarding the estate’s tax liability as a consequence of the stock sale. Golden also had similar telephone calls with Wiggins on June 29 and July 18,1982.

Additionally, the third-party plaintiffs introduced the following: On July 27, August 8 and September of 1983, Golden participated in telephone conversations with Ores regarding investments and the Tellabs stock. On July 25 and 26, 1983, Golden sent a letter by Federal Express to the Continental Bank in Chicago regarding letters necessary to complete a stock transfer. Furthermore, there were other telephone conversations and correspondences between Golden and Ores.

On August 25, 1989, after hearing Golden’s motion to quash and dismiss the service of summons and the evidence introduced by the third-party plaintiffs, the trial court granted Golden’s motion to quash and dismiss on the grounds that Golden’s activities were insufficient to confer jurisdiction on Illinois courts, relying on the Illinois long-arm statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209). The long-arm statute provided, in relevant part, the following:

“(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209.

In 1989, an amendment to the long-arm statute became effective. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209, amended by Pub. Act 86— 840, eff. Sept. 7, 1989.) The amended long-arm statute specifically provides that Illinois courts “may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209(c).

The third-party plaintiffs appeal the dismissal of their complaint, asserting that the Illinois courts can assert personal jurisdiction over Golden pursuant to the amended long-arm statute. In particular, the third-party plaintiffs argue that the amended long-arm statute should be applied retroactively to validate the service upon Golden and, thus, contend that Illinois courts have personal jurisdiction over Golden. We agree. Additionally, we are not persuaded that Golden must be served again because the original service gave him notice of the complaint and allowed him sufficient opportunity to prepare his defense.

The third-party plaintiffs correctly argue that the amended long-arm statute applies retroactively, contending that the presumption of prospectivity is rebutted because “the Illinois long-arm statute merely specifies a procedure for enforcing existing rights.” While the general rule is that statutory changes are presumed to be prospective, the presumption of prospectivity can be rebutted by demonstrating that the amendment merely affects procedural matters. (Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 89, 568 N.E.2d 18, appeal denied (1991), 139 Ill. 2d 606, citing Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309-10, 522 N.E.2d 1195, cert. denied (1988), 488 U.S. 909, 102 L. Ed. 2d 250, 109 S. Ct. 262.) A procedural change in law generally prescribes methods of enforcing rights and embraces pleading, evidence and practice, i.e., legal rules which direct the means to bring parties into court or the manner in which the court process shall proceed. It facilitates suit against a party. (See Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 93, 568 N.E.2d 18.) In contrast, a substantive change in law establishes, creates, defines or regulates rights, and thus could actually “ ‘make[ ] one a party to a suit.’ ” (Rivard, 122 Ill. 2d at 310-11, quoting Ogdon v. Gianakos (1953), 415 Ill. 591, 596, 114 N.E.2d 686.) In the case at bar, the amended long-arm statute was certainly not part of the law which creates, defines, or regulates rights and is not what makes one a party to a suit. See Ogdon, 415 Ill. at 596.

In support of their contention that the amendment is procedural, the third-party plaintiffs correctly rely on Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673, and Sunday v. Donovan (1958), 16 Ill. App. 2d 116. In Miller, the court applied the original long-arm statute retroactively where the plaintiff’s cause of action arose before the effective date of the statute’s provisions and the nonresident defendant, who transacted business in Illinois, was served after the original statute’s effective date. The Miller court determined that the long-arm statute affected the law of procedure and stated that “[the statute] merely establishes a new mode of obtaining jurisdiction of the *** defendant in order to secure existing rights, which are unaffected by [the] amendment.” (Miller, 11 Ill. 2d at 383.) Similarly, in Sunday v. Donovan (1958), 16 Ill. App. 2d 116, 120-21, the court stated that the long-arm statute “indicates a procedure by which legal rights may be enforced, and should be distinguished from an amendment which creates a new right. It is, in effect, simply an addition to the legal machinery used to acquire jurisdiction over a defendant and does not add new legal rights to the body of substantive law.” Sunday, 16 Ill. App. 2d at 121.

The third-party plaintiffs’ cause of action against Golden exists independently of the new mode of obtaining jurisdiction. The amended statute merely provides a means of obtaining jurisdiction over a nonresident defendant to the full extent permitted by the due process clause of the United States Constitution. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 209 amended by Pub. Act 86 — 840, eff. Sept. 7, 1989.) “The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant.” World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 291, 62 L. Ed. 2d 490, 497, 100 S. Ct. 559, 564.

When the legislature expanded the long-arm statute to the extent permitted by the due process clause of the fourteenth amendment, it effectively overruled Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 427 N.E.2d 1203. In Green, the Illinois Supreme Court stated that “[a] statute worded in the way ours is should have a fixed meaning without regard to changing concepts of due process,” and the court required a party’s actions to fall within the ambit of the pre-amended long-arm statute (Green, 86 Ill. 2d at 436), e.g., that the nonresident transacted business within Illinois or committed a tortious act in Illinois.

Pursuant to the amended Illinois long-arm statute and before exercising in personam jurisdiction, due process requires that a nonresident defendant have certain minimum contacts with the forum State such that maintenance of the suit there does not offend “traditional notions of fair play and substantial justice.” (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) Therefore, the following three criteria must be considered to determine whether the court’s exercise of jurisdiction over Golden satisfies due process: (1) whether the nonresident defendant had “minimum contacts” with the forum State such that he had “fair warning” that he may be required to defend himself there; (2) whether the action arose out of or relates to the defendant’s contacts with the forum; and (3) whether it is reasonable to require the defendant to litigate in the forum State. Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 471-78, 85 L. Ed. 2d 528, 540-44, 105 S. Ct. 2174, 2181-85.

The first criteria is satisfied. Golden had “minimum contacts” with Illinois such that he had “fair warning” that he may be required to defend himself here. The “fair warning” requirement is satisfied if Golden either “purposefully directed” his activities at Illinois residents; reached out beyond one State to create continuing relationships and obligations with citizens of another State; or purposefully derived benefit from his interstate activities. (Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 472-73, 85 L. Ed. 2d 528, 540-41, 105 S. Ct. 2174, 2182.) We find that Golden had fair warning that he may be required to defend himself in Illinois because he “purposefully directed” his activities at Illinois residents. Golden directly corresponded and conversed on the telephone with Ores and Illinois banks many times while performing his fiduciary duties to the estate and the estate’s executors. See Vishay Intertechnology, Inc. v. Delta International Corp. (4th Cir. 1982), 696 F.2d 1062, 1065-67 (due process was satisfied when nonresident on five occasions directed either telephone calls or letters to forum resident); Brown v. Flowers Industries, Inc. (5th Cir. 1982), 688 F.2d 328, 332-33, cert. denied (1983), 460 U.S. 1023, 75 L. Ed. 2d 496, 103 S. Ct. 1275 (jurisdiction was supported by a single telephone call initiated by nonresident defendant to forum resident); McGee v. Riekhof (D. Mont. 1978), 442 F. Supp. 1276, 1279 (jurisdiction was found when plaintiff sued nonresident surgeon for malpractice when he misdiagnosed forum plaintiff’s illness by telephone).

Golden, however, attempts to distinguish Vishay and Brown, contending that in those cases the defendants’ intentional conduct was significant in determining whether the nonresident defendants purposefully availed themselves to the benefits and protections of the forum State’s laws. Golden’s contention is meritless for two reasons: (1) whether a nonresident defendant intentionally caused a wrong to a plaintiff in the forum is only one factor that may be considered in determining jurisdiction, other factors include whether a nonresident defendant had repeated business contacts with the forum (McGee v. Riekhof (D. Mont. 1978), 442 F. Supp. 1276, 1277); and (2) the McGee court held that a nonresident doctor’s alleged negligence in rendering medical service over a telephone was sufficient for the court to exercise personal jurisdiction in a medical malpractice case, rather than nonresident’s intentional conduct. (McGee, 442 F. Supp. at 1279.) Golden had repeated business contacts with the third-party plaintiffs in Illinois, which contacts gave rise to the alleged malpractice.

Additionally, we find that Golden had fair warning that he may be “hailed into court” in Illinois because of his conduct and connections with Illinois. Golden purposefully derived a financial benefit from his activities that were directed at Illinois residents, e.g., Golden billed the decedent’s estate for his time spent on numerous calls and correspondences with Ores and Illinois banks.

After determining that Golden’s conduct established “minimum contacts,” we find that the third-party plaintiffs’ cause of action arose out of Golden’s contacts with Illinois, the forum State. Based upon the record, it is clear that Golden represented Ores in his capacity as an executor and extensively communicated with Ores from November 1982 through August 1984. Significantly, the essence of the third-party plaintiffs’ complaint is the nature or quality of Golden’s representation and communications to Ores during that time.

Finally, we must determine whether it is reasonable to require Golden to litigate the cause of action in Illinois. In determining whether it is reasonable, the following factors should be considered: “the forum State’s interest in resolving the dispute, the plaintiff’s interest in obtaining relief, and the interests of the several States, including the forum State, in the efficient judicial resolution of the dispute and the advancement of substantive social policies.” (Wiles v. Morita Iron Works Co., Ltd. (1988), 125 Ill. 2d 144, 152, 530 N.E.2d 1382, citing Asahi Metal Industry Co., Ltd. v. Superior Court (1987), 480 U.S. 102, 113, 94 L. Ed. 2d 92, 105, 107 S. Ct. 1026, 1033.) Because Golden has purposefully directed his activities at Illinois residents, he must present a “compelling case” that jurisdiction is unreasonable. Burger King Corp. v. Rudzewiez (1985), 471 U.S. 462, 477, 85 L. Ed. 2d 528, 544, 105 S. Ct. 2174, 2184-85.

We find that it is reasonable to require Golden to litigate the cause of action in Illinois. Illinois has a substantial interest in resolving the third-party plaintiffs’ contribution action which arose from Ores’, an Illinois resident, claim for damages. There is a public policy in Illinois which favors contribution (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, cert. denied (1978), 436 U.S. 946, 56 L. Ed. 2d 787, 98 S. Ct. 2849; Ill. Rev. Stat. 1987, ch. 70, par. 302 (Contribution Among Joint Tort-feasors Act); Moon v. Thompson (1984), 127 Ill. App. 3d 657, 658-59, 469 N.E.2d 365), and which favors litigating contribution actions in the same proceeding as the injured party’s claim (Laue v. Leifheit (1984), 105 Ill. 2d 191, 195-97, 473 N.E.2d 939). Additionally, the third-party plaintiffs obviously have a substantial interest in obtaining relief in Illinois. They do not want to be liable for more than their pro rata share. While Texas certainly has an interest in the controversy since Golden is a Texas resident, judicial economy dictates that the action against the third-party plaintiffs, which was filed in Illinois, and the third-party plaintiffs’ action against Golden should be consolidated into one action. The actions involve common facts, parties and witnesses who will already be in Illinois to litigate the suit against the third-party plaintiffs. Consequently, we do not find that Golden presented a “compelling case” that jurisdiction is unreasonable, and we do not believe that he would be unduly burdened by litigating the contribution action in Illinois.

The order of the circuit court of Cook County is reversed on the grounds that Illinois may assert in personam jurisdiction over Golden pursuant to the amended long-arm statute.

Reversed.

CAMPBELL and BUCKLEY, JJ., concur.