text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARSHALL JONES et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—90—2562, 1—90—2843 cons.
    Opinion filed September 28, 1992.

      Michael J. Pelletier and James E. Chadd, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James F. Fitzgerald, and Andrew R. Dalkin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendants Jerry and Marshall Jones were charged by indictment with murder, armed robbery and burglary. Defendants were tried separately but simultaneously before two juries. Jerry Jones was convicted of all three counts and Marshall Jones of all charges, except the burglary charge. Defendant Jerry was sentenced to an extended term of 80 years, and defendant Marshall was sentenced to an extended term of 75 years.

On appeal defendants argue that: (1) they were denied a fair trial because the jury was allowed to view a close-up photograph of the decedent’s blood-covered face; (2) that the court erred in finding that their conduct was exceptionally brutal and heinous, indicative of wanton cruelty; and (3) that the sentencing mittimus must be amended to reflect credit for time served while in custody from the day they waived extradition from Tennessee to Illinois.

The following testimony was adduced at trial. Betty Brown testified that she was the owner of “Betty’s” lounge located on Clark Street in Chicago. Brown lived in an apartment on the second floor above the lounge. She testified that John Hood, the decedent, was employed as a bartender at the lounge on December 25, 1985. Brown stated that she made two trips from her apartment to the lounge on that date, at 5 p.m. and 9:45 p.m. There were no patrons in the lounge at 9:45 p.m., and Brown advised decedent that he could close the lounge at midnight if business did not pick up. She stated that at 2 a.m. the following morning she received a telephone call from the Chicago police, walked downstairs to the lounge with her husband, where they saw the decedent lying on the floor in a pool of blood. Brown testified that the cash register, money and liquor were missing from the lounge.

Carlos Bauer testified that on the morning of the incident he returned from a Christmas party and walked down Clark Street on his way to “Betty’s” to purchase cigarettes. He saw his neighbor, Miguel Biluje, leave “Betty’s” with another man, and one of the two told Bauer that the bartender had been shot and that the police had been called. Bauer ran into “Betty’s,” where he saw the decedent’s body lying on the floor. Bauer exited the bar and flagged down a police car.

Chicago police officer Timothy Hickey testified that he arrived at “Betty’s” lounge about 1 a.m. on December 26, 1985. He entered the lounge, where he observed the decedent lying behind the bar. Hickey stated that he observed stab wounds in the decedent’s back and blood in the area where his body lay. The cash register was missing, and a bar stool was tipped over inside the lounge. There were also red footprints on the floor.

Richard Mariner, a Chicago police detective, testified that he was called to the scene of the homicide on December 26, 1985. He interviewed four persons there and none of the four had blood on them. Detective Mariner also stated that he went to Tennessee to bring defendants back to Illinois for trial. They returned to Illinois on April 27, 1988. He testified that en route from Tennessee defendant Jerry stated that whatever defendant Marshall told him was exactly what happened on the night of the incident.

Sharon Tate was married to defendants’ brother, Carl Jones. Sharon and Carl lived in an apartment near “Betty’s” lounge. Sharon testified that about 6 p.m. on December 25, 1985, defendants came by their apartment, left the apartment shortly thereafter, and returned to the apartment at about 10 p.m. that evening. They left the apartment a second time and returned at about 1:30 a.m. Carl opened the door and defendants and Carl began talking in the kitchen. Carl later asked Sharon to bandage defendant Marshall’s leg. Sharon testified that, while in the kitchen, she observed blood on the defendants’ pants and boots, and observed a cash register on the stove and liquor bottles on the sink. There was also a cash register receipt with “Betty’s” lounge printed on it. She stated that these items were not in the kitchen before defendants came to the apartment.

Sharon testified that she heard Jerry say, “All this for a little of nothing — All this shit for little of nothing.” She observed a puncture wound in Marshall’s left leg. Sharon testified that Jerry changed his clothes and placed the old clothes into a duffel bag. The defendants also placed the cash register drawer and the liquor bottles in the bag.

Sharon testified before Marshall’s jury that she asked Marshall why they had committed the crime and Marshall replied that he would receive 40 years and that Sharon would never see him again. Sharon further testified that Marshall wrote several letters to her. She claimed that the first letter asked her to avoid being found so that she and Carl would not have to testify in court. In a second letter he instructed Sharon to keep all letters that he wrote her, and a third letter instructed Sharon not to appear in court.

Carl Jones, brother of the defendants, testified that at about midnight on December 25, 1985, defendants came to the back door of his apartment with a plastic garbage bag. Carl stated that defendant Jerry stated “Do you want to kick my ass now or later,” and that they had “fucked up.” The defendants removed a cash register drawer and liquor bottles from the bag. Jerry placed the cash register drawer on top of the stove and counted the money. Carl stated that Jerry said the money totaled only $100 or $200, which was not worth the trouble they were in. He also testified that Jerry stated the defendants had robbed a bar and stabbed the bartender and that he believed the bartender was killed. Carl testified that defendants’ clothes were full of blood and that they changed clothes, packed their soiled clothes in a duffel bag and left the apartment.

Carl testified before defendant Marshall’s jury that Marshall had blood on his pants when he came into the kitchen and that Marshall told him that he had “messed up” and stabbed the bartender at “Betty’s.” Carl stated that he saw Jerry count the money, after which Marshall stated, “It wasn’t worth the trouble.” Carl also observed both defendants with knives that they took with them when they left the apartment. He stated that he saw a cut on Marshall’s left leg and asked Sharon to assist with the injury.

Dr. Choi, assistant Cook County medical examiner, testified that he performed an autopsy on the decedent. He stated that decedent’s cause of death was multiple stab wounds and blunt trauma. He testified that while there were abrasions on decedent’s elbows, there were no other signs of defense wounds on his arms, hands or fingers. Dr. Choi also testified that the trauma depicted in the photographs during trial were consistent with a foot kicking on the body.

During trial the court allowed the State to enter into evidence a photograph that graphically depicted the injury to decedent’s head. Defense counsel objected to the admission of this evidence. The court overruled this objection.

At the close of trial, the jury for Jerry Jones found him guilty of murder, armed robbery, and burglary. The jury for defendant Marshall Jones found him guilty of murder and armed robbery. At Jerry’s sentencing hearing, the court found that the offense was accompanied by exceptionally brutal and heinous behavior and sentenced him to an extended term of 80 years’ imprisonment on the murder conviction, 30 years for armed robbery, and 7 years for burglary.

At Marshall’s sentencing hearing, the court also determined that the offense was accompanied by exceptionally brutal and heinous behavior and sentenced Marshall to an extended term of 75 years for murder and 30 years for armed robbery. Both defendants’ sentences were to run consecutively with any sentences they were serving in Nashville. This appeal followed.

Defendants first argue that they were denied a fair trial because of the State’s introduction of a photograph of the decedent into evidence. They assert that the photograph of the decedent’s bloody head had no probative value and was, therefore, prejudicial.

Whether or not a jury is allowed to see photographs of a decedent is a decision made by the trial court in the exercise of its sound discretion. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) If the photographs are relevant to prove facts at issue, they are admissible and can be shown to the jury unless their nature is so prejudicial and so likely to inflame the jurors’ passions that their probativeness is outweighed. (People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234.) When a defendant in a murder trial pleads not guilty, the prosecution is allowed to prove every element of the crime charged and every relevant fact, even if the defendant offers to stipulate to those same facts. (People v. Speck (1968), 41 Ill. 2d 177, 242 N.E.2d 208.) While the photographs may be cumulative of the testimony of a witness who described the condition and location of the body, they may also aid jurors in understanding this testimony. People v. Williams (1983), 97 Ill. 2d 252, 292, 454 N.E.2d 220; People v. Greer (1980), 79 Ill. 2d 103, 117, 402 N.E.2d 203.

Defendants maintain that because there was no dispute as to the amount of blood found on the decedent’s body, and because there were pictures other than that which showed a close-up view of the decedent’s head wound and the pool of blood, the picture was offered to inflame the jury. The State maintains that the picture was relevant to show the placement and extent of the decedent’s wound to the head and the amount of blood present at the scene of the crime. The State also contends that the photograph corroborated the testimony of the medical examiner.

While there may have been another picture which the State could have used with less graphic impact, we cannot say that the defendants were denied a fair trial by the admission of the photograph into evidence. The State asserted that the picture was used to show relevant factors related to the injury decedent suffered. Photographs that are relevant to establish any fact in issue are admissible in spite of the fact that they may be of a gruesome or disgusting nature. (People v. Lucas (1989), 132 Ill. 2d 399, 548 N.E.2d 1003.) Therefore, we cannot say that the decision to submit the photograph to the jury was an abuse of discretion.

Defendants next argue that the trial court erred in finding that their conduct was exceptionally brutal and heinous. Specifically, they contend that their intent was not to murder the decedent, that they expressed regret that the decedent was killed, and that the murder occurred only after the decedent resisted the robbery and fought back.

In People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, the Illinois Supreme Court held that the phrase “exceptionally brutal or heinous behavior indicative of wanton cruelty” must be given its ordinary and popularly understood meaning. The court defined “heinous” as being “hatefully or shockingly evil: grossly bad.” “Brutal” was defined as “grossly ruthless, devoid of mercy or compassion: cruel and cold-blooded.” La Pointe, 88 Ill. 2d at 501.

Defendants cite to People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025, for the proposition that where remorse is expressed and where there was no intent to kill a victim, the court should not impose an extended-term sentence. In Andrews, the Illinois Supreme Court stated that every murder by nature is unnecessary, and that section 5 — 5—3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 5 — 5—3.2(b)(2)) requires that the murder be “exceptionally” brutal or heinous before an extended term should be imposed on a defendant. The court explained that section 5 — 8—2 of the Unified Code of Corrections was not intended to convert every offense into an extraordinary offense subject to an extended term.

In that case, the defendants, who had planned to commit armed robberies, shot and killed one victim while inside his car. After climbing into the car, one defendant placed a gun to the victim’s head and shot him at close range. During the sentencing hearing, the defendant expressed remorse and explained that he never intended to kill anyone. In finding that the trial court abused its discretion in sentencing defendant to an extended term, the supreme court reversed, stating that there was no evidence in the record that defendant indicated prior to the crime that he intended to kill the victim or that he exhibited a callous attitude and complete lack of remorse following the murder. Andrews, 132 Ill. 2d at 466.

In addition to Andrews, defendants cite three cases wherein they contend that the defendant’s behavior was more egregious than theirs, but where the court held that the crime was not accomplished by brutal or heinous conduct. (People v. Bedony (1988), 173 Ill. App. 3d 613, 527 N.E.2d 916 (where defendant arranged a meeting with his girl friend’s husband under false pretenses, then went to the man’s home taking a gun and a metal pipe with him; when the husband turned his back, the defendant repeatedly hit him over the head with the pipe and then fired four shots, one of which hit the victim in the head); People v. Holiday (1985), 130 Ill. App. 3d 753, 474 N.E.2d 1280 (where the defendant, during the course of an armed robbery, entered a room occupied by a number of people, including several small children, shot four people killing one of them, although the robbery was unresisted); People v. Price (1987), 158 Ill. App. 3d 921, 511 N.E.2d 958 (where a prostitute, after having placed a knife within easy reach, stabbed her intoxicated, unarmed customer in the neck four times and fled, leaving the victim bleeding to death).) Defendants argue that, in comparison to the authorities cited, their conduct was not so egregious that the trial court should have imposed extended-term sentences. They dispute the trial court’s summation that the decedent was held and tortured, arguing that there was no evidence in the record from which the court could make that conclusion.

When reviewing whether a defendant’s sentence is excessive, the entire, spectrum of facts surrounding the incident must be analyzed and evaluated; each case on its own particular facts and circumstances. (People v. Bishop (1989), 179 Ill. App. 3d 99, 103, 534 N.E.2d 401.) Here, the court provided an explanation for its action in sentencing defendants to extended terms. The court explained that the decedent had been held by one defendant and tortured with a knife by the second defendant. The court also explained that it felt defendants put the knife into decedent to induce him to come up with the money. Since the trial court heard the evidence and viewed the witnesses as they testified, it was in a superior position to make reasonable inferences therefrom. Based upon that superior position, the trial court is best able to determine an appropriate sentence, and absent a clear abuse of discretion, a reviewing court will not reverse that determination on appeal. (People v. Perruquet (1977), 68 Ill. 2d 149.) We find that the court considered the proper aggravating factors in determining that defendants’ conduct was exceptionally brutal. Therefore, we are unable to find that the trial court abused its discretion by sentencing defendants to extended terms.

Defendants’ final argument is that they are entitled to have the mittimus corrected to reflect credit for the time they served in custody from the day they waived extradition from Tennessee to Illinois.

In People v. Gardner (1988), 172 Ill. App. 3d 763, 527 N.E.2d 153, the defendant was arrested in Arkansas because of murders he committed in that State. A detainer was lodged against him and he waived extradition from Arkansas to Illinois for charges in Illinois. .The appellate court, in remanding the case for the purpose of determining when the defendant was held in Arkansas for the Illinois charges, stated that it could not determine the proper sentencing credit to be given defendant. The facts in Gardner are similar to the facts here.

In the instant case, defendants asserted that they waived extradition on April 20, 1988. The record reflects that there was some confusion as to that date:

“THE COURT: Did he fight extradition at any time?
Mr. Sincox [Defense Counsel]: No. He waived it from day one as soon as they chose to initiate it.
THE COURT: When did you file your extradition papers?
Mr. Goodfriend [Assistant State’s Attorney]: Judge, we might be able to get that information.
THE COURT: I think that is the key date.”

Based on this colloquy, the court here determined that the key date was the date the State filed its extradition papers. As in the Gardner case, once the date was established the defendants were given credit from that date. It is clear that the mittimus should be corrected to give defendants credit from the date that they waived extradition.

Accordingly, the judgment of the circuit court of Cook County is affirmed in part and remanded in part.

Affirmed in part and remanded in part.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    KUWAKO UEHARA, Plaintiff-Appellant, v. TERRY M. SCHLADE, Defendant-Appellee (Rene Rivero, Defendant).
    First District (2nd Division)
    No. 1—91—2494
    Opinion filed September 29, 1992.

      Stephen E. Vargo, of Chicago, for appellant.
    Bollinger, Ruberry & Garvey, of Chicago (Stuart A. Ringel and John P. Sullivan, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Terry M. Schlade owned a Chicago condominium, which he leased to Rene Rivero. Plaintiff Kuwako Uehara owned the condominium directly below Schlade’s. After a fire in Schlade’s unit, Uehara filed a negligence suit against Schlade and Rivero for damages to her condominium and to her personal property resulting from the fire department’s efforts in putting out the fire as well as for loss of use and incidental expenses while her unit was being repaired. With regard to Schlade, she claimed that her injuries occurred because he breached his duty to maintain his unit in accordance with the “Declaration of Condominium Ownership and of Easements; Restrictions, Covenants, and By-laws” (the Bylaws) of the condominium association and violated his duty to maintain the unit’s smoke detectors under the Smoke Detector Act (Ill. Rev. Stat. 1987, ch. 1271/2, par. 801 et seq.). The court granted Schlade’s motion for summary judgment, holding that Uehara had no standing to sue for violation of the Bylaws. Although we disagree with the circuit court’s rationale for its order, we nevertheless affirm.

Schlade’s motion for summary judgment contained a copy of his lease with Rivero and a transcript of the deposition and report of the fire department investigator. The investigator stated that as a result of his inspection of the fire scene and an interview with Rivero, a clamp-on lamp in the center bedroom of his unit was “the most logical source” of the fire. He also stated, however, that he had certified his report for further investigation of the apartment’s wiring and fuse box by an electrician. The investigator mentioned that Rivero had told him that the fuses had been malfunctioning, and he added that the smoke detectors were not operating when he examined the unit after the fire. Schlade argued that under the common law, Rivero had the duty to maintain the unit and thus he, as landlord, could not be held liable for any failure to maintain it. He also claimed that under the Smoke Detector Act, he was obliged only to furnish operable smoke detectors, not to maintain them, which was Rivero’s statutory duty as the tenant in possession. Moreover, he continued, he had no notice that the detectors were not operating, and absent such notice, he had no duty to repair or replace them.

Uehara responded that Schlade agreed under the Bylaws to maintain his unit and that this duty, which encompassed the clamp-on lamp, could not be delegated to Rivero because the Bylaws made no provision for doing so. She argued that Schlade’s express covenant in the Bylaws precluded application of the common law of landlord-tenant liability for injuries to third persons. She claimed too that Schlade’s lease agreement with Rivero provided that he retain control over his unit for the purpose of its maintenance. She also contended that factual issues existed concerning whether he had breached this duty and whether he had violated the Smoke Detector Act because, in his deposition, Schlade was unable to say how many smoke detectors were in the unit¡ and he admitted that he had not tested the detectors in the unit nor made an effort to verify that they were working when he leased the apartment to Rivero in October 1987, approximately three months prior to the fire.

In reply, Schlade contended that although Uehara’s complaint sounded in negligence, it was bottomed on a breach of contractual duty, and he argued-that breaches of contractual duty cannot support tort claims. Moreover, he asserted, Uehara presented no facts, just allegations, supporting her claims and thus summary judgment was proper because she had not raised an issue of fact. Schlade also argued that Uehara had no standing to bring her claim for breach of the Bylaws because under article XI, paragraph 1(b), of the Bylaws themselves, only the condominium association, not a unit owner, could take legal action for a breach of the Bylaws. As for Uehara’s argument that the lease agreement between Schlade and Rivero created a duty owed by Schlade to Uehara, Schlade contended, the lease did not expressly create such a duty nor did Uehara demonstrate that she was a third-party beneficiary of the lease. With regard to the Smoke Detector Act, Schlade maintained, his deposition testimony was that the unit was equipped with the number of detectors the Act required and that this testimony was unrebutted. He therefore concluded that there was no issue of material fact as to his violation of the statute.

After hearing argument, the circuit court granted Schlade’s motion for summary judgment, apparently basing its ruling on Uehara’s lack of standing. The court also commented in passing that “you can’t superimpose a tort on a contract action, on a breach of contract action.”

I

Before reaching the merits of Uehara’s appeal, we first must determine whether the circuit court correctly ruled that Uehara has no standing to bring a claim for any breach of the Bylaws. Uehara concedes that article XI of the Bylaws permits the Board to file such a suit, but she insists that this provision does not transfer wholesale an individual owner’s right to sue for damages personal to that individual owner, emphasizing that nowhere is this right said to be exclusive of the unit owners’ rights to pursue legal remedies for individual wrongs. She points in support to article XII, paragraph 3, of the Bylaws, which provides, among other things, that unit owners agree to waive claims against fellow unit owners for casualty damage to their units or to any personal property located therein if such damage is covered by insurance. Logically, she argues, this provision implies that article XI’s creation of the Board’s right to sue under certain circumstances should be seen as a grant of power expanding the association’s rights rather than as a limitation on the right of unit owners themselves to do so.

Schlade counters with the position he espoused successfully before the circuit court: article XI transfers to the Board the exclusive right to sue for any breach of the Bylaws. Parties have the power to limit their rights to seek legal remedies, he maintains, which the unit owners did here. The waiver provision is no help to Uehara either, Schlade continues, because it does not address claims like this one, which is based on a breach of the Bylaws. In Schlade’s view, whether the waiver provision would apply to a claim for breach of duty from a source other than the Bylaws is a question not before this court. Accordingly, he maintains, the rule of contract construction that specific terms govern over general terms is controlling here. Lastly, he claims that the waiver provision rests on section 9.1 of the Condominium Property Act (Ill. Rev. Stat. 1987, ch. 30, par. 309.1), which concerns claims made under statutorily required insurance, and that, additionally, the waiver provision is an agreement to relinquish the right to pursue claims against other owners for damage to personal property to the extent that the loss is insured, which implies that an owner like Uehara who allows her insurance coverage to lapse may not invoke the waiver provision here.

Uehara replies that under section 12 of article I of the Illinois Constitution, she has a right to sue in tort for injury to her property, and that condominium associations derive rights only from the Condominium Property Act and each association’s bylaws. Agreeing that parties may contract to limit their right to legal recourse, she insists that the intent to do so must be stated unambiguously. Uehara also quarrels with Schlade’s interpretation of the waiver provision as inapplicable to actions for breach of the Bylaws because it does not differentiate such breaches from other wrongs. Uehara agrees that specific contract terms take precedence over general terms, but she argues that this rule of construction applies only in the event, not relevant here, of inconsistency or ambiguity. She further contends that, with regard to waiver of insured losses of personal property, nothing in the record addresses the existence of insurance coverage for the loss of her personal property.

We must disagree with the circuit court’s interpretation of article XI and its effect on Uehara’s standing to bring her claims. Pursuant to this provision, the unit owners, including Schlade and Uehara, agreed that the Board “shall” have the right to sue to redress only “the continuance of any breach” of the Bylaws. (Emphasis added.) By its plain meaning, then, this provision would not apply to a one-time occurrence such as the fire here. Moreover, even if the provision applied to an injury arising from a single incident, under the circuit court’s interpretation, each unit owner’s right to recover for individual injuries from breach of the Bylaws would be at the mercy of the Board, and by extension, the unit owners would be required to subsidize any lawsuits filed to enforce individual rights. Were this unusual regime the unit owners’ objective, we cannot believe that they would have neglected to explicitly express their intent to depart so radically from the general practice of not merely allowing but rather requiring individuals to assert their own rights. Consequently, we hold that although in article XI the unit owners agreed to allow the Board to sue on their behalf for certain matters, this provision does not represent an agreement to strip the unit owners of their right to bring suit themselves. Thus, it does not preclude Uehara from bringing suit against Schlade for violation of the Bylaws. In addition, even if article XI were a bar to such claims, it would not have the same effect on an action arising from a statutory violation, such as Uehara’s claim for Schlade’s alleged noncompliance with the Smoke Detector Act. Having concluded that Uehara has standing, we turn to the merits.

II

Summary judgment has been defined as “a drastic means of disposing of litigation,” which will be granted “only when the right of the moving party is clear and free from doubt.” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) All evidence in the record must be construed “strictly against the movant and liberally in favor of the opponent.” (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Inferences may be drawn from undisputed facts, and if different inferences are reasonable, an issue of fact exists. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272, 586 N.E.2d 1211, 1215.) In considering a summary judgment motion, the circuit court’s task is not to try any issue of fact, but rather

“to determine whether any issues of material fact exist. [Citation.] Summary judgment is proper where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” (Winnetka Bank v. Mandas (1990), 202 Ill. App. 3d 373, 386-87, 559 N.E.2d 961, 969, citing Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).)

(See also American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 22, 594 N.E.2d 313, 316.) To survive a defendant’s motion for summary judgment, a plaintiff need not meet the burden of proof a trial demands; instead, he need only provide some factual basis that arguably would entitle him to judgment. (American Family Insurance Co. v. Village Pontiac-GMC, Inc. (1992), 223 Ill. App. 3d 624, 629, 585 N.E.2d 1115, 1119-20 (similar to burden on directed verdict motion).) In a negligence action, a plaintiff must therefore raise a question of material fact concerning the elements of the cause of action, that is, whether the defendant “had a duty to conform to a certain standard of conduct, [whether] he failed to meet that standard, and [whether] his failure was the proximate or legal cause of the plaintiff[’s] damage. *** Whether there was a legal duty *** is a question of law.” (Feventchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 480, 475 N.E.2d 822, 825.) We are also mindful that when the rights of an owner of a condominium are at issue, courts must harmonize the provisions of the Condominium Property Act (Ill. Rev. Stat. 1987, ch. 30, par. 301 et seq.) with the association’s bylaws and declaration, construing them as a whole. Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 532, 449 N.E.2d 151, 156.

This court reviews summary judgment orders de novo. (Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083, 1086.) We may affirm the circuit court’s result on any basis the record permits, even if not the ground on which the circuit court based its ruling. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9, 12.

The first element a plaintiff must demonstrate in a negligence claim is that the defendant owed her a duty of reasonable care. As explained above, Uehara claims that Schlade owed her a duty to maintain his unit and that the source of this duty may be found in the Bylaws or, alternatively, in the Smoke Detector Act (Ill. Rev. Stat. 1987, ch. 1271/2, par. 801 et seq.).

The circuit court implied that had it been necessary to decide whether Uehara could recover from Schlade for a breach of the Bylaws, it would have been compelled to rule in Schlade’s favor because one generally cannot recover in tort for breaches of contract. Although this is the general rule under Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, we agree with Uehara that an exception exists when the breach results in personal or property damage from a “sudden and calamitous occurrence” such as the fire here. (Vaughn v. General Motors Corp. (1984), 102 Ill. 2d 431, 436, 466 N.E.2d 195, 196-97 (allowing strict liability claim for injury from contract breach).) The Smoke Detector Act imposes certain obligations as well. Consequently, Uehara is not barred at law from recovering in tort if Schlade breached his duty of reasonable care under the Bylaws or the statute.

As for Schlade’s duty to her under the Bylaws, Uehara cites article VII, paragraphs 2, 3, and 9, which state as follows:

“2. *** Owners shall be obligated to maintain and keep in good order and repair their respective Units;
3. *** Owners shall not permit anything to be done or kept in their respective Units *** which will result in the cancellation of insurance on the Building, or contents thereof, or which would be in violation of any law;
* * *
9. No noxious or offensive activity shall be carried on in any Unit ***, nor shall anything be done thereon, either willfully or negligently, which may be or become an annoyance or nuisance to the other Owners or Occupants.”

Uehara insists, as she did in the circuit court, that these provisions obligate Schlade personally and that he could not delegate these obligations to Rivero because the Bylaws expressly impose these duties on the unit owners and make no provision for delegation to others who may occupy the units. Uehara scoffs at Schlade’s narrow construction of the term “unit,” under which personal property such as the lamp is not included. She finds this interpretation contrary to article XII, paragraph ll’s caution that the Bylaws “shall be liberally construed to effectuate [their] purpose.” She also notes that in derogation of the common law, landlords may retain the duty to maintain and repair leased premises, as Schlade did here under the lease agreement, and that there is no difference in retaining the duty under a lease and retaining it under the Bylaws.

Uehara’s argument that Schlade could not, or did not, delegate to Rivero the duty under the Bylaws to maintain the unit is not persuasive. Indeed, the Bylaws themselves provide that tenants step into a unit owner’s shoes with regard to such obligations. Article XII, paragraph 7, provides that “each tenant under a lease for a Unit[ ] accepts the same subject to all restrictions, conditions, covenants, [and] reservations, *** and all impositions and obligations hereby imposed shall be deeded and taken to be covenants running with the land, and shall bind any Person having at any time any interest or estate in the Property.” This language tells us that the unit owners agreed that tenants in these units would assume the obligations that the Bylaws imposed on unit owners who leased out their units, including the duty to maintain the unit, as would occur at common law. Just as we could find no intent by the unit owners to deviate dramatically from the general rule in our analysis of article XI above, so too do we find no indication here of an intent to preempt the common law of landlord-tenant relations. Similarly, we find nothing in the lease agreement between Schlade and Rivero that indicates that Schlade retained the obligation to maintain the unit in derogation of the common law. Thus, from the documents before us, we hold that when Schlade leased his unit to Rivero, he could, and did, delegate all duty to maintain the unit, to refrain from doing or keeping things in the unit that were illegal or that would result in cancellation of insurance coverage, and to refrain from activities that are “noxious,” “offensive,” “annoying,” or a “nuisance.” As a result, absent such duties, Schlade cannot be held liable as a matter of law for injuries resulting from the breaches alleged.

Even if Schlade could not delegate his duties under the Bylaws, Uehara’s claims thereunder nevertheless would fail. Uehara presented no facts in support of her allegation that Schlade violated paragraphs 3 and 9 of article VII by allowing anything to be kept in his unit that did or would result in cancellation of insurance or that was in violation of the law, nor did she make an effort to explain how Schlade’s conduct would fall within the usual meaning of “noxious” or “offensive” or “annoying” or “a nuisance.”

In addition, the two items Uehara alleges that Schlade did not maintain under paragraph 2 are a clamp-on lamp and statutorily required smoke detectors. The lamp does not fall within the definition of “unit” in article VII, paragraph 2, of the Bylaws because its plain meaning includes only real property, not personal property like the lamp here. As a result, the duty under the Bylaws to maintain the unit did not encompass the lamp. Because Schlade had no duty with regard to the lamp, Uehara’s negligence claim for failure to maintain the lamp must fail as a matter of law. Contrary to Uehara’s view, we find no contradiction between enforcing the unambiguous definition in the Bylaws and the unit owners’ expressed desire for liberal construction of the Bylaws “to create a uniform plan for the operation of a first-class condominium building,” for we see little connection between expanding the definition of “unit” to include a piece of furniture and creating “a uniform plan” for keeping property values high.

Unlike the lamp, however, smoke detectors would not be excluded under the above interpretation of the word “unit,” because the latter are improvements to the real property, triggering the duty to maintain them, the standard for which is defined by the Smoke Detector Act. Violation of this statute, Uehara claims, would be prima facie evidence of negligence so long as the statute was designed to protect human life or property, she was within the scope of the statute’s protection, and her injury was a direct and proximate result of the violation. This statute unambiguously is intended to protect life and property, she argues, so Schlade’s violation constitutes prima facie negligence. She emphasizes that the fire department investigator testified at his deposition that the detectors were not working when he inspected them after the fire and Schlade testified at his deposition that he was unsure of the number of detectors, had not inspected or tested them prior to leasing the unit to Rivero, and did not know if they worked when Rivero moved in.

Schlade responds that Uehara has raised no issue of fact on his alleged violation of the Act, as opposed to Rivero’s possible violation. He claims that his duty was limited to installing detectors and that the evidence before the court on his motion supported his position: (1) he had installed smoke detectors as the statute required; (2) Rivero did not notify him that the detectors were inoperable or that the batteries did not work; (3) the fire inspector did not know if the detectors were operable at the time of the fire; and (4) he was not cited for noncompliance with the Act. To raise a question of fact that would survive his motion, he argues, Uehara had to supply evidence that he had not installed the detectors as required or that he disregarded notice from Rivero that the detectors were not working; his lack of recollection about particulars, he claims, is not enough to raise a factual question. Absent such evidence, he concludes, and in particular absent a citation for violation of the statute, Uehara has not met her burden of presenting facts that support her allegation that he violated the statute. As a result, the grant of summary judgment in his favor was proper.

Uehara replies that there is no evidence that the detectors at issue were ever “in an operating condition.” She claims that Schlade’s and the fire investigator’s testimony, outlined above, constitutes evidence to the contrary, raising a question of fact about his compliance with the statute.

For the standard of care applicable here under both the Bylaws and the statute, we look to the provisions of section 3 of the Smoke Detector Act (Ill. Rev. Stat. 1987, ch. 1271/2, par. 803), which required Schlade, as landlord, to provide operable smoke detectors at the outset of Rivero’s lease term. Under the Smoke Detector Act, a property owner is responsible for supplying and installing approved smoke detectors “in operating condition” and for “ensur[ing] that such batteries are in operating condition at the time the tenant takes possession of the dwelling unit.” (Ill. Rev. Stat. 1987, ch. 1271/2, par. 803(d).) At his deposition, Schlade stated that he had installed them as the statute required, but he also conceded that he did not verify that the smoke detectors were operable when he leased the unit to Rivero, an obvious violation of the statute.

Even though Schlade admitted the statutory violation, however, this is not enough to allow Uehara’s claim to survive summary judgment. One may bring a negligence action based on a statutory violation only if “ ‘(1) plaintiff is a member of the class for whose benefit the [statute] was enacted; (2) it is consistent with the underlying purpose of the [statute]; (3) plaintiff’s injury is one the [statute] was designed to prevent; and (4) it is necessary to provide an adequate remedy for violations of the [statute].’ ” (Rodgers v. St. Mary’s Hospital (1992), 149 Ill. 2d 302, 308 (doctor whose X ray defendant lost had private right of action under statute requiring hospitals to retain X rays), quoting Corgin v. Muehling (1991), 143 Ill. 2d 296, 312-13.) Here, the statute appears to be intended to protect the lives and property only of the occupants of the dwelling units in which the smoke detectors are required; Uehara, a non-occupant of the dwelling unit at issue, is therefore not a member of the class that the statute was intended to benefit and her injury was not one that the statute was designed to protect. Thus, she has not demonstrated how the statute imposed on Schlade a duty toward her in particular.

In addition, even though Schlade admitted violating the Act, Uehara has not provided any facts supporting her allegation that his breach of statutory duty was either the factual or legal cause of the fire and the subsequent water damage to her unit and her personal property. For example, she did not present evidence that when the fire began, anyone was in the vicinity of Schlade’s unit who would have heard the detector and summoned help quickly enough to stop the fire or to prevent the damage to her property. Without providing factual support for this element of her negligence suit against Schlade, Uehara’s claim could not survive his summary judgment motion. We note also that even if Uehara had demonstrated a causal connection between her loss of real and personal property and Schlade’s breach of duty to her, her consequent financial loss appears to be primarily the result of her own breach of the Bylaws, which require each owner to obtain insurance coverage for their personal property. As she admitted in her answers to interrogatories, however, Uehara lacked insurance coverage.

In sum, contrary to the circuit court’s ruling, Uehara did have standing to bring her action for violation of the Bylaws, and she could sue in tort for breach of contract under the circumstances here. As a matter of law, however, Schlade had no duty to her under either the Bylaws or the Smoke Detector Act, and even if he had such a duty, Uehara did not present facts supporting her allegation that her losses were caused by his breach of any duty toward her,, making summary judgment in Schlade’s favor proper. For these reasons, we affirm the judgment of the circuit court.

Affirmed.

SCARIANO and McCORMICK, JJ., concur.

       Uehara also sued the condominium association and the managing agent for the building. That claim has been settled.

       Article XI, paragraph 1, states as follows:
      “1. Abatement and Enjoinment. The *** breach of any restriction, covenant or provision herein contained, shall give the Board the right *** to enjoin, abate or remedy by appropriate legal proceedings, either at law or in equity, the continuance of any breach. *** Any and all of such rights and remedies may be exercised at any time and from time to time, cumulatively or otherwise, by the Board.”

       Uehara also claimed that Schlade was required to maintain the wiring, but article III, paragraph 1, of the Bylaws defines electrical wiring as part of the common elements, which, by definition, are not part of a unit.

       The Bylaws define a “unit” as follows:
      "A part of the Property within the building including one or more rooms, occupying one or more floors or part or parts thereof, designed and intended for any type of independent use permitted by the Declaration and having lawful access to a public way.”
      “Property” is further defined as “all land, property and space comprising the [tract of real estate], all improvements and structures constructed or contained therein or thereon ***.”


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM CICCIA, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—0411
    Opinion filed September 30, 1992.

      Joseph N. DiNatale, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William D. Carroll, and Sheila Macmanus, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, William Ciccia, was charged (as was codefendant Leonard Cemiglia) with one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2) of a Dominick’s grocery store in Chicago. Defendant was also charged with one count of unlawful use of a firearm by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1). The State nol-prossed this count. The court denied defendant’s motions to quash arrest and suppress evidence, and to suppress identification testimony.

Defendants’ cause was not severed. Cemiglia, tried by the court, was acquitted. Defendant was convicted by the jury and the court sentenced him to a term of 20 years in the Illinois Department of Corrections. Defendant’s motion for a new trial was denied. This appeal followed.

On appeal, defendant contends that (1) the trial court erred in denying his motion to quash arrest and suppress evidence (including identification); (2) he was not proved guilty beyond a reasonable doubt; and (3) he was denied a fair trial because of the following trial errors which alone or cumulatively prejudiced the jury against him: (a) improper admission of weapons; (b) improper use of a police sketch against him; and (c) prejudicial prosecutorial comment during closing argument.

We affirm.

At about 8 p.m. on March 29, 1988, defendant, dressed in pajamas, went to answer the door of his two-flat apartment building. The police were at the door. Defendant testified that one of the policemen showed him a badge while the other pushed him back and brought out a shotgun from under his trench coat. The officer kept the gun pointed at defendant’s feet and pushed him toward the stairway. Further, defendant testified that when he asked for an explanation, the officer stated: “Shut up, shut up, you know what is going on.” While the gun was still pointed at his legs, defendant was forced to walk upstairs past his father’s apartment to his own on the second floor.

Next, defendant testified that he was forced to open his apartment door. Further, he testified that when he asked to see a warrant the officers responded: “We don’t need a warrant, you know what happened.” Defendant was then told to get dressed, and the officer with the shotgun followed him into the bedroom.

Defendant testified that the officer searched his dresser drawers without his consent and found a .9 millimeter automatic gun. Defendant told the officer that he was holding it for a friend. The officer also found a shotgun in the closet registered to defendant’s wife. After defendant had finished dressing, he was handcuffed and placed in the squad car.

The witness stated that neither he nor his wife was ever shown a search warrant. He further testified that initially no consent was given for the officers to search the house or the garage. After being transported to the police station, defendant signed a consent form for the search of the garage but never for the apartment building.

Officer Neal Jack testified for the State. He stated that he and three other officers surveilled defendant’s residence for approximately 21k hours before entering the building. Defendant was already talking with two other officers when Officer Jack and a fellow officer reached the building. Then, at defendant’s request, he and the other three officers proceeded upstairs. Officer Jack testified that “[h]e [defendant] didn’t want to discuss anything in the hall because his parents lived on the first floor and he said his father was elderly and had been ill and he didn’t want to disturb him.”

Defendant was informed that a photograph identification had been made of him and that he needed to accompany the officers to the station to participate in a lineup. At that point, he was advised of his rights. Officer Jack testified that while defendant was changing his clothes the officers observed a semi-automatic handgun on top of the dresser in the bedroom. Consistent with defendant’s testimony, Officer Jack stated that defendant told them he was holding the gun for a friend. When asked about other weapons, defendant said there was a shotgun on the shelf in the bedroom closet.

After the shotgun was recovered, defendant was taken downstairs and put into a squad car. Since it was unclear who owned the handguns, and no one could produce any registration, defendant’s wife was also placed under arrest at that time.

The robbery occurred in the middle of the day at a grocery store. David Hobo was robbed at shotgun point around 2:15 or 2:30 p.m. on March 28, 1988, at a Dominick’s located at Devon and Nagel in Chicago. Detective Hugh Conwell was assigned to the case on the same day. He was given information on the pick-up truck in which the offenders fled the scene. It was reasonable to believe that the two people who took the truck were the same two people who committed the armed robbery.

Anthony Gaspatione, Dominick’s store manager that day, was unable to identify defendant as the robber in a lineup or in photographs. Despite defense objections, the State on cross-examination elicited that the witness described the individual with a shotgun to a police sketch artist. The sketch was made the day after the robbery.

Cheryl Calandrino was working at Dominick’s customer service desk on the day of the robbery. She was able to describe a man with a shotgun who stood about 15 feet from her. The defense claims defendant did not look like the man described.

Salvatore Muffoletto, a pharmacist technician, was employed at Edfors Irving Park Pharmacy for 14 years and had known defendant for all of these years. He testified that on the day of the robbery defendant and his father entered the store sometime between noon and 2 p.m. The witness stated that they stayed in the store talking to the owner for another 20 to 25 minutes. Other witnesses, including defendant’s mother, testified as to defendant’s whereabouts at the time of the robbery.

Defendant also testified as to his whereabouts on the day of the robbery. He spent the morning downtown with his father and then took a quick trip to the grocery store with both of his parents. After dropping them off at home, he went to eat at “Chitchat and Crackers,” a restaurant located about five minutes from his home. He testified that he arrived at the restaurant around 2 p.m. and stayed there for 1 to lVz hours before going home. The witness stated that his father has Alzheimer’s disease. He denied committing the robbery and stated that he had never been in the Dominick’s on Nagel and Devon. In closing argument, the prosecutor referred to defendant’s failure to call his wife as a witness. The court overruled the motion by the defense for a mistrial. A guilty verdict was given by the jury, and defendant was sentenced to a term of 20 years in the Illinois Department of Corrections.

Defendant’s first argument on appeal is that his conviction was improper and that the court should have granted his motion to quash arrest and suppress evidence. This panel has stated that the factors to be considered in determining whether a warrantless arrest of a defendant would be permitted due to exigent circumstances are as follows:

“(1) whether a grave offense, particularly a violent crime, is involved; (2) whether there is a clear showing of probable cause; (3) the existence of a strong reason to believe the suspect is present; (4) the likelihood of escape absent a prompt arrest; and (5) whether the police entry was peaceable. [Citation.] These and other factors cited by the courts, however, are only guidelines, with the overall consideration being the reasonableness of the police action in light of what they knew.” People v. Knight (1985), 139 Ill. App. 3d 188,192-93.

On balance, the determining factors support the determination that exigent circumstances did exist. First, this was a violent crime of armed robbery. Somewhere between 50 to 75 people were in his vicinity as he stood wielding a shotgun. It was clear that the suspects were armed. Several witnesses had described the weapon. After defendant and Cemiglia had been identified, the police investigated and found the home addresses for both suspects. Surveillances were set up at both addresses. A computer check showed that a Chevrolet with a current license plate was registered to defendant or his wife. Detective Jack believed that he observed that automobile at defendant’s address. Thus, defendant had a clear means to quickly escape. There is no evidence of a violent entry into defendant’s home. We therefore agree with the finding of the trial court that there were exigent circumstances supporting the warrantless arrest of defendant.

Defendant argues that the initial entry into his dwelling was nonconsensual and therefore the evidence recovered should have been suppressed. Yet, the record indicates that there was testimony contrary to this argument. In the face of conflicting evidence, it is the function of the trier of fact to ascertain the truth. (People v. Hammond (1970), 45 Ill. 2d 269.) Defendant himself testified that he heard the doorbell, looked through the peephole and opened the door. Detective Jack testified that before the police were able to state their purpose, the defendant asked them to follow him. He indicated that he wanted to go to the second floor so as not to disturb his parents, who lived on the first floor.

There is no question that the police were visibly armed when they came to defendant’s dwelling. Yet, as defendant led them upstairs, the officer who was directly behind him did not have his shotgun drawn. Defendant was asked to describe the manner in which the shotgun was displayed. He answered that the officer “kind of had it pointed down at my feet.” The colloquy between the prosecutor, Mr. Shultz, and Detective Jack went as follows:

“Q. So then you know that one of the officers was carrying a shotgun and in fact he was showing that shotgun when you and the detectives saw Mr. Ciccia, isn’t that right?
A. What do you mean by showing counsel?
Q. Well, you had the shotgun visible where the defendant could see it?
A. Yes, sir.
Q. Now would you consider that to be a position where the weapon is drawn?
A. Not with a shotgun, no.”

A consensual search does not require a warrant or probable cause. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043-44.) Consent is determined from the totality of the circumstances. Schneckloth, 412 U.S. at 227, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048.

Officer Jack testified that defendant was told he had been identified from a photograph as a participant in an armed robbery. Defendant was then advised of his rights. Detective Jack and a fellow officer followed him into the bedroom while he changed into some clothes. At that point the officers observed the handgun on top of the dresser in the bedroom. Defendant also informed them about the shotgun in the bedroom closet. Officer Jack further testified that this gun fit the description of the shotgun used in the crime. This evidence was gathered as a result of a warrantless entry with consent.

Given the facts presented, the trial court found that both the entry and search were consensual. Thus defendant’s motion to suppress was denied. A court of review will not disturb a trial judge’s decision on a motion to quash an arrest and suppress evidence unless it is found to be manifestly erroneous. (People v. King (1991), 218 Ill. App. 3d 248, 252.) We agree with the decision of the trial court and do not find it to be manifestly erroneous.

Defendant’s second contention on appeal is that he was not proven guilty beyond a reasonable doubt. To support his contention, he claims that two eyewitnesses failed to identify him. Defendant argues that he is a victim of mistaken identity. The standard of review to be used in challenges to the sufficiency of the evidence is as follows:

“ ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

There were three positive identifications given of defendant as the offender. Diane Konczyk, Joseph Pascente, and Nick Sarno all testified as occurrence witnesses. It has been established by our supreme court that “the identification testimony of a single eyewitness is sufficient to sustain a conviction.” People v. Hayes (1990), 139 Ill. 2d 89, 147.

Ms. Konczyk, Mr. Pascente and Mr. Samo all testified that they identified defendant out of a six-person lineup. The testimony of all three witnesses described defendant as holding a shotgun on the armored guard. There was also witness identification based on the police sketch. Store manager Gaspastione identified the actual shotgun used in the robbery.

Besides his own testimony, defendant argues that there was convincing alibi evidence from other witnesses. It is clear that the witnesses who testified as to defendant’s whereabouts on May 28, 1988, were not related to him. However, the record indicates that Helen and Earl Jones, who testified as to defendant’s activities at the time of the robbery, had been friends of his for quite some time.

At the time of trial, Helen and Earl Jones owned a restaurant called “Chitchat and Crackers,” located on West Grand in Chicago. Mrs. Jones testified that she and her husband had owned the restaurant for about eight years. She further testified that she had known defendant, whom she and her husband referred to as “Billy,” for 10 to 12 years. Mrs Jones testified that defendant arrived at the restaurant around 2 p.m. When asked how long he stayed, she replied, “[a] good hour, hour and a half.”

Defendant cites cases such as People v. Gardner (1966), 35 Ill. 2d 564, People v. Laurenson (1971), 131 Ill. App. 2d 2, People v. McGee (1961), 21 Ill. 2d 440, and People v. Hister (1975), 60 Ill. 2d 567, to support his contention that the eyewitness identification was not sufficient to convict him beyond a reasonable doubt. Yet, these cases involved blatantly inconsistent testimony, questionable identification procedures, solid alibis, and witnesses never having a clear look at the assailant. In this case, the identification testimony was consistent. Both photographs and lineups were used to identify defendant. Finally, the alibi testimony concerning the time of the robbery was given by long-time friends of defendant.

Our supreme court has held the following:

“The credibility of witnesses is for the jury to assess, and a court of review will not set aside a jury’s verdict unless the evidence presented at trial is so improbable as to raise a reasonable doubt of guilt.” (People v. Richardson (1988), 123 Ill. 2d 322, 353.)

Here, the jury found the testimony of the detectives to be more credible. Viewing the evidence in the light most favorable to the prosecution (People v. Young (1989), 128 Ill. 2d 1, 49), we find that the trial court properly found defendant guilty beyond a reasonable doubt of the offense of armed robbery.

Defendant’s final argument on appeal is that he was denied a fair trial because several trial errors, considered alone or cumulatively, prejudiced the jury against him. The errors defendant alleges are improper admission of weapons, improper use against him of a police artist’s sketch of the alleged assailant, and a prejudicial comment by the prosecutor in closing argument.

Specifically, defendant contends that the admission of the two weapons not related to the charge was prejudicial. We agree that it was error to admit into evidence weapons and other items unrelated to the charge. However, in light of the overwhelming evidence of defendant’s guilt, we find that this error does not constitute a basis for reversal.

Here there were three eyewitness identifications of defendant. All described him as wielding a shotgun. There were also four witnesses who positively identified the shotgun found in defendant’s bedroom closet. A court of review must consider the trial record in its entirety and ignore harmless error, including some constitutional violations. (People v. Schmitt (1989), 131 Ill. 2d 128, 140.) Looking at the totality of the evidence in the record, we find that any prejudice to defendant as a result of the admission of unrelated weapons does not warrant a reversal.

Next, we examine defendant’s claim that the police artist sketch of the alleged assailant was used in violation of his right to confrontation. Defendant argues that the police sketch and related testimony should not have been admitted into evidence. Current law no longer requires an in-court identification to corroborate an out-of-court identification. (People v. Holveck (1990), 141 Ill. 2d 84, 104.) The applicable portion of the statute provides:

“Substantive Admissibility of Prior Identification. A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.” Ill. Rev. Stat. 1987, ch. 38, par. 115 — 12.

See Holveck, 141 Ill. 2d at 104.

Mr. Pascente testified at trial that he went to view a lineup at the police station on March 30, 1988, the day after the armed robbery. The witness further testified that he identified defendant out of a six-person lineup. He also stated that defendant was the man carrying the shotgun. He was also cross-examined by defense counsel. Mr. Pascente was able to identify defendant after perceiving him. Thus, according to the statute, both the police sketch and the applicable testimony are admissible. Further, the prosecutor’s reference to it was appropriate. See Ill. Rev. Stat. 1987, ch. 38, par. 115 — 12.

Finally, defendant contends that the prosecutor’s comment during closing argument regarding defendant’s failure to have his wife testify was prejudicial. Defendant’s wife invoked her fifth amendment privilege against self-incrimination. The trial court sustained her position and the State would not grant immunity. It was then agreed that the court would inform the jury that Mrs. Ciccia would be withdrawn as a witness pursuant to the court’s ruling.

A prosecutor is afforded much latitude in the closing argument. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 322.) Here, the State argued as follows:

“And let’s talk about calling witnesses and fair play. According to the defendant, his wife’s a witness. He went home, he talked about what he did all morning with his father, his mother shopping, this and that, I went home, I was with my parents. Understandably his father is somewhere else, he can’t be here. But his mother came in and testified, yeah, I was with him, and other people that met him that morning came in [sic] he said I went home, met my wife, my wife was still there. Did they call her? Have you heard from her?”

Though we agree that the prosecutorial comment in this instance was improper, it does riot constitute reversible error due to the overwhelming evidence of defendant’s guilt, and it was not so prejudicial that it materially contributed to defendant’s conviction. People v. Terry (1984), 99 Ill. 2d 508, 517.

In this case there was positive identification of defendant by several witnesses. There was also positive identification of the shotgun brandished by defendant during the armed robbery. Given the overwhelming evidence of defendant’s guilt, the cumulative effect of the two errors at trial does not constitute reversible error.

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

Affirmed.

LINN and McMORROW, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE NICHOLLS, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—2422
    Opinion filed September 30, 1992.

      Martin Carlson, of State Appellate Defender’s Office, and Thomas J. Donovan and John T. Gabrielides, both of Laff, Whitesel, Conte & Saret, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Brian Clauss, and Annette Milleville, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Wayne Nicholls, was found guilty of attempted armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2) and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2). Defendant’s motion for a new trial was denied. The trial judge sentenced defendant to nine years in the Illinois Department of Corrections.

On November 3, 1989, Billy Nicholls drove a blue Ford to a location in Markham, Illinois, known for drug deals. An unidentified person sat in the passenger seat. Someone in Billy’s car shot Xavier Chambers (victim), a drug dealer, in the back. Chambers said the name of the person who shot him was “George.” However, defendant, Wayne Nicholls, was found guilty of attempted armed robbery and armed violence. Defendant is the brother of Billy’s father, Clarence Nicholls, Sr., and he is Billy’s uncle.

The passenger in Billy’s car beckoned to Chambers. Chambers approached the blue Ford and was directed to come to the driver’s side. Chambers testified that after a short conversation, the passenger said, “This is a stick-up.” When Chambers attempted to escape, he was shot in the back with a gun owned by Clarence Nicholls. Chambers testified that he was shot by the passenger. Nevertheless, at trial, he could not identify defendant as the person who shot him.

When Officer John McLaughlin arrived on the scene, he was informed by Chambers that he had heard the name “George” used to address the person who shot him. Of the two people in the blue Ford, Chambers could only identify the driver, Billy Nicholls. Yet, he Specifically described the passenger as a white male who was slightly overweight, wearing a mustache. He testified that the passenger’s hair was unkempt, balding on top and appeared to be dark in color.

Clarence Nicholls testified that on November 6, 1989, he discovered that his .38 special was missing. He testified that defendant was familiar with that particular gun and knew where Clarence kept his guns. Clarence also testified that his relationship with defendant had become strained since defendant’s involvement with drugs.

Defendant testified that on November 3, 1989, he and Billy were drinking at a bar called the “Worst Pub” located at 139th Street and Western Avenue between 3:30 and 7:30 p.m. Defendant did not leave the bar during that time. However, for IV2 hours Billy was not in the company of defendant. Defendant spent that time sitting at a table chatting with some of the other patrons of the bar. When Billy returned to the bar, defendant did not question him as to his whereabouts for the past V-lz hours.

Defendant further testified that he had not seen or handled his brother’s guns and that he did not use cocaine. Clarence Nicholls testified to the contrary with respect to both the handling of guns and the use of cocaine. Defendant testified that he did not have a mustache on the day in question and that his hair was longer on the day in question than it was at trial. In police photographs taken of defendant on October 27, 1989, he did have a mustache. The parties stipulated that these photographs were taken from the arrest file of defendant at the Posen police department. Defendant also testified that he had lost weight since November 3,1989.

Billy Nicholls also testified as to the whereabouts of defendant on Friday, November 3, 1989. Sometime after 3 p.m., at the direction of defendant, Billy drove to a bar located at 139th and Western Avenue. While at the bar, Billy and defendant shared a pitcher of beer. Billy left his seat to call his girl friend. When he returned, defendant asked Billy to take him to Robbins to buy some drugs. Billy refused and also refused to allow defendant to use his car. Defendant then suggested that they go to Markham. Billy agreed and drove defendant to a neighborhood called Bel Air, located at 155th and Kedzie. Defendant gave Billy directions as to where to turn.

Billy drove to a location where two men in a brown car motioned him to follow them. When the cars stopped, the driver of the brown car approached Billy’s car, going toward the passenger side. Since the passenger side window was broken, he had to approach on Billy’s (the driver) side.

Billy further testified as to the conversation between defendant and the driver of the brown car. Defendant said, “Did you get anything[?]” The driver responded, “What do you need[?]” and produced a small container from his pocket. At that point, defendant, armed with a gun, lunged across the seat, held the gun out the driver’s side window and told the man to give him everything he had. The driver turned to run away, but was shot by defendant. Billy also testified that defendant shot the driver of the brown car from a distance of about two feet. After the incident, defendant said to Billy, “Go.” Billy left promptly. He dropped off defendant at another bar. This one was located at 147th and Kedzie.

The testimony of Billy Nicholls was questioned by the defense for several reasons. First, the charges against him were dropped in exchange for his giving a truthful statement. Second, at the time of his testimony, he was on reporting supervision for the charge of battery of a police officer. Then, when Billy was charged, he gave the police three different statements. Only the last statement implicated defendant. Officer McLaughlin was told that Billy frequented the area where the shooting took place. Billy denied this but did admit knowing of the area. It was also clear that Billy was familiar with the location of the gun used in the shooting as well as with the gun itself. Finally, Chambers identified his assailant as someone named “George.”

Defendant also finds it questionable that Chambers was never shown photographs taken of defendant at the Cook County jail on November 8, 1989. In that photograph (People’s exhibit No. 8), defendant had no mustache and his hair was shorter than in the photograph taken on October 27, 1989. However, defendant testified that he could not remember whether or not he had his hair cut between November 3 and November 6, 1989. Further, the record states that defendant testified that he periodically shaved his mustache and then let it grow back.

On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt, and (2) the trial court erred by applying the doctrine of completeness and admitting the out-of-court statement of a State’s witness.

We affirm.

The first issue on appeal is whether defendant was properly found guilty beyond a reasonable doubt. When reviewing the sufficiency of the evidence presented at trial, the inquiry on appeal is whether, “ ‘after viewing the evidence in the light most favorable to the prose cution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Young (1989), 128 Ill. 2d 1, 49, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

Defendant argues that Billy’s uncorroborated testimony is to be viewed with caution and skepticism. He correctly notes that Billy’s status as an accomplice should be viewed as a weakness against his testimony. However, as stated by the Elinois Supreme Court, the important role of scrutinizing accomplice testimony is given to the jury. The court’s discussion of this type of testimony is as follows:

“The testimony of an accomplice witness ‘has inherent weaknesses, being testimony of a confessed criminal and fraught with dangers of motives such as malice towards the accused, fear, threats, promises or hopes of leniency, or benefits from the prosecution.’ [Citation.] Because it is attended with serious infirmities, accomplice testimony ‘should therefore be accepted only with the utmost caution and suspicion and have the absolute conviction of its truth.’ [Citation.] While we recognize that such testimony is subject to careful scrutiny, the testimony of an accomplice witness, whether corroborated or uncorroborated, is sufficient to sustain a criminal conviction if it convinces the jury of the defendant’s guilt beyond a reasonable doubt.” (Emphasis in original.) People v. Young (1989), 128 Ill. 2d 1, 47-48.

The basis of defendant’s argument for reversal is found in People v. Wilson (1977), 66 Ill. 2d 346. In that case, defendant’s conviction for armed robbery was affirmed by the appellate court. At issue for the Illinois Supreme Court was whether the testimony by an accomplice was sufficient to sustain a verdict of guilty beyond a reasonable doubt.

The court reversed for two reasons. First, it did not find the testimony of the accomplice to be truthful. This is because he was incarcerated pending the results of other indictments, had admitted being the catalyst behind the act in question, and was promised immunity. Second, on three separate occasions, the victim had identified another man in a police lineup. Yet, despite its reversal in this case, the law on accomplice testimony did not change. “Our supreme court has stated that ‘the uncorroborated testimony of an accomplice is sufficient to sustain a conviction if such testimony convinces the jury of defendant’s guilt beyond a reasonable doubt.’ ” People v. Byrd (1986), 139 Ill. App. 3d 859, 865, quoting People v. Newell (1984), 103 Ill. 2d 465, 469-70, 469 N.E.2d 1375, 1377.

In the case at bar, Billy was not incarcerated at the time of trial. He was on reporting supervision for an unrelated incident. Though present at the time of the shooting, there is no evidence that he had prior knowledge that the crime was to occur. With respect to victim identification, the defense emphasizes Chambers’ testimony that his assailant was called “George.” However, Chambers testified that it was the passenger who shot him. He also described the passenger as a chubby white male with a mustache and a balding head of “wild” hair which appeared to be darker than blonde. This description was similar to pictures taken of defendant on October 27, 1989. These pictures were People’s exhibits Nos. 6 and 7. It was stipulated by the parties that they were taken from the arrest file of defendant at the Posen police department. Despite more recent photographs being available, defendant’s testimony indicated some question as to whether he might have changed his appearance between the time of the incident and the time that the most recent photographs were taken. For example, defendant could not remember whether or not he had his hair cut between November 3 and November 6. He was photographed at the Cook County jail on November 8, 1989.

Despite the fact that Billy was present and involved in the shooting of Chambers, the jury still believed his testimony. Billy’s uncorroborated testimony as an accomplice is to be evaluated by the jury. The evaluation of accomplice testimony has been described as follows:

“Even though the court may view uncorroborated testimony of an accomplice with suspicion and scrutinize it carefully on review, the fact that a witness is an accomplice or expects leniency does not destroy his credibility, but rather, affects the weight to be given his testimony and is, therefore, a matter for the trier of fact.” People v. Beals (1988), 165 Ill. App. 3d 955, 960.

The jury heard all of the evidence and found the testimony of Billy to be the more credible. In reviewing the evidence in a light most favorable to the prosecution (People v. Young (1989), 128 Ill. 2d 1, 48-49), we affirm the jury determination of defendant’s guilt beyond a reasonable doubt.

The second issue on appeal is whether the trial court erred by improperly applying the doctrine of completeness and admitting the out-of-court statement of Billy, a witness for the State. His out-of-court statement was made to Officer Wright when Billy was being held in an investigating room in the Markham Police Station. The statement was recounted in a colloquy between the prosecutor and Billy. It proceeded as follows:

“Q. When you say, ‘Told them exactly what happened,’ what was it you told them?
A. That I did — I was being accused of driver [sic], shoot— and a shooting taking place. And I was there. I told them, yes. At first I told them I wasn’t. But I did tell them I was indeed there.
Q. And what did you tell them about being there?
A. That I drove through there. I was taking Wayne there to get drugs and that we — I pulled through there, that a shooting had taken place.
Q. Did you tell them who in fact did the shooting?
A. Yes.
MR. KLOAK [Defense Counsel]: Objection! Leading.
THE COURT: Overruled.
Q. [Prosecutor]: Who [sic] did you tell them?
A. I told them that Wayne shot him.”

The out-of-court statement discussed in the colloquy above occurred about IV2 hours after Billy’s first statement to the police officers.

Here, we find that the trial court improperly applied the doctrine of completeness in admitting Billy’s out-of-court statement. However, the error was not such to merit a reversal in this case.

The doctrine of completeness applies to the testimony of a witness. The basis of its application is as follows:

“Furthermore, it is well established that where a conversation is related by a witness, the opposing party has a right to bring out all of the conversation on cross-examination. [Citations.] One cannot introduce a portion of a conversation and then bar the opposing party (emphasis added) from bringing out the rest of that conversation. [Citation.] The doctrine of completeness permits a party to introduce the remainder of a conversation or writing in order to explain, qualify, or otherwise shed light on that portion of a statement introduced by an opponent [citation], so as to correctly convey its true meaning to the trier of fact [citation].” In re W.D. (1990), 194 Ill. App. 3d 686, 702.

In the instant case, the out-of-court statement was made during direct examination of Billy. Second, the two statements could not be considered contemporaneous as there was an approximate two-hour time difference between them. Thus, the doctrine of completeness was inapplicable. Finally, the first two statements did not link defendant to the crime. The third statement identified defendant as the person who shot Chambers. The first and last statements are independent of each other and, therefore, the later statement is not needed under the doctrine of completeness to help better inform the jury-

In this instance, the doctrine of completeness was not applicable. Thus, we hold that the out-of-court statement by Billy was not admissible pursuant to the doctrine of completeness. Still, the decision of the trial court to admit this evidence was not reversible error.

Generally, a witness may not testify as to his out-of-court statements to corroborate testimony at trial. (People v. Hayes (1990), 139 Ill. 2d 89, 138.) “An exception to this rule is recognized where the prior consistent statement is introduced to rebut a charge or inference that the witness is motivated to testify falsely or that his in-court testimony is of recent fabrication.” Hayes, 139 Ill. 2d at 138.

The record indicates that defense counsel’s opening statement alluded to the idea that Billy fabricated his testimony. During a sidebar, defense counsel stated that his cross-examination would be limited to the first two statements given by Billy. He objected to the admission of a third statement. Yet, defense counsel’s opening statement referred to the first two statements and implied that the third was a falsehood. Thus, the prior consistent statement was admitted to rebut the inference of a fabrication. We hold that the trial court was correct in admitting this evidence to rebut an inference that Billy’s testimony was fabricated.

When inadmissible hearsay is merely cumulative of trial testimony, its admission does not constitute reversible error. (People v. Griffin (1988), 175 Ill. App. 3d 111, 118.) Here, Billy’s out-of-court statement matched his testimony at trial. Further, he was present for cross-examination and was cross-examined by defense counsel.

Though defendant objected to the admission of Billy’s prior consistent statement at trial, the witness was specifically cross-examined as to his third statement implicating defendant. The colloquy between defense counsel and Billy went as follows:

“Q. Now when you made your first two statements to the Markham Police that wasn’t the truth was it?
A. No it wasn’t.
Q. Now, the third statement is the truth, isn’t it?
A. Yes it is.
Q. You got to stick to that truth so you don’t get the charges reinstated; isn’t that right?”

The rule with respect to cross-examination concerning objectionable testimony is as follows:

“Where defendant objects to the admission of testimony on direct examination but then questions the witness on cross-examination concerning the allegedly inadmissible testimony, any error caused thereby is waived for purposes of appeal.” People v. Lee (1988), 173 Ill. App. 3d 181, 185.

Since defense counsel cross-examined Billy as to his third statement, any error is now waived for purposes of appeal.

In considering the evidence in a light most favorable to the prosecution (People v. Young (1989), 128 Ill. 2d 1, 48-49), this court will uphold the jury verdict of guilty beyond a reasonable doubt. For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.