author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS TERRY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—2261
    Opinion filed March 28, 1991.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a trial without a jury, defendant, Louis Terry, was convicted of possession of a controlled substance with intent to deliver, and sentenced to a four-year term. Defendant appeals, alleging that he was not proved guilty beyond a reasonable doubt; that the trial court erred in denying defendant’s motion to suppress the evidence; and that defendant should have been allowed to introduce exculpating and prior inconsistent statements of the arresting officer.

The pertinent facts are as follows. Chicago police officer Israel Pacheco, narcotics division, testified that on the night of November 11, 1987, at approximately 11:30 p.m., the dispatcher assigned him and two partners to follow up on a report of narcotics being sold from empty apartments located on the third floor of 4844 W. Walton, Chicago. The officers, dressed in plain clothes, drove to that location without a search warrant.

Upon entering the building, the officers were involved in a narcotics arrest on the first floor. Within 10 minutes, Pacheco proceeded to the third-floor landing while his partners concluded the first-floor arrest.

Pacheco approached the apartment on the right side of the landing. A set of iron gates covered the apartment door. Pacheco testified that he shoved the gates to determine whether the door was locked. As Pacheco pushed his hands through the gates, the apartment door swung open. Pacheco saw a woman, later identified as the apartment tenant, Cynthia Miller, running toward the gates. According to Miller, Pacheco held a gun, informed her that they were the police, and demanded that she open the door. Miller went back to the kitchen, retrieved a key, and unlocked the gates.

Pacheco' further testified that upon entering the apartment, he found three or four men in the kitchen, and that he saw defendant exit from the bathroom. Upon observing the police officer, the defendant went back into the bathroom. Pacheco testified that he saw the defendant shaking a clear, plastic bag containing a number of smaller, knotted white packets onto the floor. Pacheco ordered defendant to leave the bathroom.

Pacheco picked up the small packets from the floor and out of the commode. A bucket of water had spilled onto the bathroom floor, causing both the small packets and the empty plastic bag to become wet. Pacheco testified that he counted the bags as he picked them up, and that there were 32 small, knotted packets containing white powder. Pacheco indicated that all the wet bags he recovered were identical and that he suspected that they contained cocaine.

Upon returning to the police station, Pacheco inventoried the packets, but did not recount them because they were so wet that he was afraid they would start to tear. Pacheco inventoried 32 packets, with an estimated weight of eight grams. Pacheco did not make any identifying marks on the large plastic bag containing the 32 smaller packets. Pacheco placed the inventoried plastic bag containing the packets in a brown manila envelope which he sealed and labeled with his name, signature, and star, along with defendant’s name and the inventory number. The sealed envelope was then placed inside a safe.

Chicago police department chemist Margaret Kampert conducted an examination of the inventoried narcotics. Kampert testified that after checking the contents of the manila envelope, she concluded that the contents did not match the inventory; rather, Kampert found 42 packets inside a clear plastic bag, as opposed to the 32 packets inventoried by Pacheco. Kampert indicated the weight of evidence as 12.0 grams, conflicting with Pacheco’s estimated weight of the evidence as 8.0 grams.

On November 16, 1987, Kampert analyzed the contents of the recovered evidence. Initially, Kampert noted that the outside clear plastic bag containing the 42 smaller packets was wet, and that the inside of the bag was wet with a yellow, uremic substance. Kampert recorded the weight of three individual packets, and performed color and crystal tests. In addition, Kampert performed infrared analysis on one bag. The results of the tests were indicative of cocaine. Kampert sealed the packets in a manila evidence envelope, and submitted it to the department of evidence and recovered property.

On May 12, 1989, Kampert weighed and tested an additional 17 packets of evidence. Kampert performed color tests and infrared analysis on all the packets, and the results were positive for cocaine. Kampert further testified that it was difficult to work with the evidence at that time because the packet contents were dry, crusty, and hard.

Defendant filed a pretrial motion to suppress the evidence, arguing that defendant’s search, seizure and arrest were made in violation of the fourth amendment, as the police had no warrant and no exigent circumstances existed to justify the warrantless search. Miller testified on behalf of defendant that she lived and paid rent on the apartment where the police seized the evidence. According to Miller, she invited defendant and his girl friend into her apartment at approximately 6 p.m. Defendant had a couple of drinks and was asleep on the sofa at the time the police arrived at her apartment.

The State objected to defendant’s motion on the basis of standing, citing Rakas v. Illinois (1987), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, for the proposition that fourth amendment rights are personal rights which another person cannot vicariously. assert, and that a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property cannot claim infringement of his fourth amendment rights. The trial court denied defendant’s motion, finding that the rationale of Rakas was controlling in this instance, and that defendant lacked standing to challenge the search of Miller’s apartment.

On appeal, defendant initially contends that he was not proved guilty beyond a reasonable doubt because the cocaine analyzed by the chemist and introduced at trial did not match the substance seized from the scene of the arrest. Upon our review of the entire record, we must agree that defendant was not proved guilty beyond a reasonable doubt. We need consider only the propriety of the admission of the cocaine into evidence.

Defendant claims that the State failed to prove that the cocaine recovered from the bathroom in Miller’s apartment was the same as that introduced at trial. Specifically, defendant argues that the discrepancy in the 32 packets of white powder with an estimated weight of 8 grams recovered at the scene of the arrest and inventoried by Pacheco conflicts with the 42 packets of wet, yellow substance weighing 12 grams analyzed by Kampert and introduced at trial. Defendant also asserts that the State’s failure to call the courier who transferred the evidence from the police station to the crime laboratory constitutes a missing link in the chain of custody, further supporting the reasonable probability that the State’s evidence was altered, exchanged or tampered with in some way before it was examined by Kampert. Defendant suggests that the cocaine earlier recovered in the first-floor arrest prior to his arrest must have been commingled with the substance recovered from Miller’s apartment.

Generally, real evidence is admissible when an adequate foundation is laid to establish that the item is the one involved in the alleged offense and is substantially unchanged since its seizure by authorities. (People v. Slaughter (1986), 149 Ill. App. 3d 183, 500 N.E.2d 662, citing People v. Irpino (1984), 122 Ill. App. 3d 767, 773, 461 N.E.2d 999.) When the evidence is not readily identifiable or is susceptible to alteration, the State must show a chain of custody of sufficient completeness to render it improbable that the item has been tampered with, exchanged, or contaminated. (People v. Shiflet (1984), 125 Ill. App. 3d 161, 465 N.E.2d 942.) The State must demonstrate a reasonable probability that the evidence has not been altered or substituted. People v. Schubert (1985), 136 Ill. App. 3d 348, 483 N.E.2d 600.

In this case, we find that the State failed to meet its burden to show that the evidence has not been altered or substituted. Pacheco inventoried 32 packets with an estimated weight of 8 grams, without any description of its condition. Conversely, when Kampert opened the sealed evidence envelope, she found 42 packets, weighing approximately 12 grams saturated in a yellow uremic substance. This disparity, in itself, casts more than a reasonable doubt that the evidence recovered from Miller’s apartment was not the same evidence analyzed by Kampert. Also, the record reveals that the first-floor arrest occurred within 10 minutes of the search and confiscation of the substance in Miller’s apartment, lending credence to defendant’s suggestion that the substances obtained from both arrests were commingled.

In denying defendant’s argument that he was not proved guilty because the evidence recovered was not the same evidence introduced at trial, the trial judge stated that Pacheco merely misspoke or miscounted. The statement is not supported by the record.

During direct examination, Pacheco testified:

“As I was picking them up, I was counting them and I remember counting 32 and that’s what I inventoried.”

On cross-examination, Pacheco testified:

“Q. Officer, you said that when you put this plastic bag, when you put some items in this plastic bag, you put down 32, 32 individual packets, is that correct?
A. On the inventory slip?
Q. Right. So you placed 32 packets in here, is that correct?
A. I remember counting 32 and as I was picking them up and that’s the figure I used.
Q. And you put in 32 packets of white powder, isn’t that correct?
A. That’s correct.
Q. And you also put in 32 packages of white powder, approximate weight, eight grams, is that correct?
A. Correct.”

That is not the testimony of a witness who misspoke in stating that he recovered 32 packets. Both as to number of packets and to the difference in weight, it is clear that the State failed to prove that the substance recovered in Miller’s apartment was the same as that introduced at trial.

We also note that the State did not provide any detail or testimony regarding the handling and safekeeping of the evidence from the time it left police custody until it was received by Kampert. It has been held that “[wjhere one link in the chain is missing but testimony describes the condition of the evidence when delivered which matches the description of the evidence when examined, the evidence suffices to establish a continuous chain of custody.” (People v. Irpino, 122 Ill. App. 3d at 775, 461 N.E.2d at 1005.) However, the evidence adduced at trial in this case is wholly insufficient to compensate for the missing link in the chain of custody because of the discrepancy in the weight and the number of packets.

We find that admission of the cocaine without positive identification or continuity of possession was error. (People v. Maurice (1964), 31 Ill. 2d 456, 202 N.E.2d 480.) Without this evidence, there is no proof that the substance found in Miller’s apartment was the same as that tested by the chemist and found to contain cocaine.

Having concluded that defendant was not proved guilty beyond a reasonable doubt, we need not address the merit of defendant’s remaining contentions.

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

Judgment reversed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    B AND Y HEAVY MOVERS, INC., Plaintiff-Appellee and Cross-Appellant, v. FLUOR CONSTRUCTORS, INC., Defendant-Appellant and Cross-Appellee.
    First District (6th Division)
    No. 1—89—3385
    Opinion filed March 28, 1991.

      Hedberg, Tobin, Flaherty & Whalen, of Chicago (William T. Coleman, of counsel), for appellant.

      Hostein, Mack & Klein, of Chicago (Jewel N. Klein, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, B&Y Heavy Movers, Inc. (B&Y), filed a complaint against Fluor Constructors, Inc. (Fluor), and Union Oil Company of California (Union) for breach of a bailment agreement. After a bench trial, the judge entered judgment in favor of B&Y against Fluor but judgment in favor of Union against the plaintiff. Fluor appeals, contending that B&Y failed to establish that it owned the bailed property and that the judge improperly allowed a witness to testify for B&Y in rebuttal. B&Y cross-appeals, contending that the award of damages was inadequate. B&Y asks that this court fix the damages in a specific amount or, alternatively, to remand the case for a new trial on damages only. B&Y does not appeal the judgment in favor of Union.

Fluor was hired by Union as the general contractor on a job at Union’s refinery in Lemont, Illinois. One of Fluor’s responsibilities as general contractor was to move several enormous oil refinery vessels from Louisiana, up the Mississippi River, to the jobsite in Lemont. The vessels were approximately 100 feet long and weighed about 450 tons each.

Fluor entered into a contract with B&Y whereby B&Y agreed to provide a transport system for moving the vessels. B&Y’s transport system consisted of 12 large dollies, each of which was capable of lifting 50 tons. B&Y also provided Fluor with saddle supports which were custom designed to fit the vessels.

On May 9, 1985, B&Y’s transport system was used to move the vessels onto a barge in Lake Charles, Louisiana. The barge arrived in Lemont sometime during the week of June 13 or 14, 1985. The operators of the dollies were primarily employees of Fluor. The contract required B&Y to provide one “field serviceman” who would be present during all operations involving the dollies; however, all field labor for the operational phase was provided by Fluor. B&Y’s field serviceman was Marvin Schmitt. Schmitt advised Kent Goodman, Fluor’s rigging engineer, about the operation of B&Y’s equipment, but Goodman supervised the craftsmen who actually operated the system.

On June 12, 1985, B&Y’s President, Ron Nation, sent mailgrams to the people he had dealt with at Fluor’s home office in Irvine, California, and to John Ervin, Fluor’s on-site project manager in Lemont, Illinois. The mailgrams instructed Fluor that the B&Y equipment in Fluor’s custody was “to be released only to Ronald V. Nation, President of B&Y[.] *** Marvin Schmitt, Technician, is not an authorized agent of B&Y Heavy Movers, Inc.” The mailgrams also requested that Fluor advise B&Y by phone or telegram when the equipment would be available for pick up.

Fluor responded to B&Y on June 21, 1985, acknowledging receipt of the mailgrams and stating Fluor’s understanding that “Marvin Schmitt is on site to act as technical consultant and does not have authority to act in behalf of B&Y Heavy Movers.” The response also stated that the equipment would be available for pick up on June 24,1985.

When B&Y’s mailgram was received by John Ervin, Fluor’s project manager at Lemont, Ervin discussed the mailgram with two administrators at Fluor’s headquarters in Irvine, California. Ervin then made copies of the mailgram and distributed them at the Lemont jobsite to his subordinates, including Kent Goodman. Ervin also discussed the mail-gram with Marvin Schmitt. Fluor’s work site was surrounded by a fence, and equipment could be removed from the site only with a gate pass signed by certain Fluor employees. To prevent removal of the dollies, Ervin instructed Fluor employees not to sign gate passes for removal of B&Y’s equipment from the site.

When Fluor’s employees were finished using the B&Y equipment on June 21, 1985, they moved the equipment from that portion of the Lemont site which was under Fluor’s control and placed the equipment in a “laydown area” under Union’s control. Ervin knew that a gate had been removed from Union’s portion of the site in May 1985, and therefore the laydown area was not completely enclosed by a fence. The lay-down area was patrolled by roving guards employed by Union. However, Ervin did not notify the guards or anyone from Union about the mailgram.

Schmitt arrived at the Lemont site around 7:15 a.m. on June 22, 1985, and entered Union’s portion of the site through the open gate. He removed the steel support structure from the dollies, attached chains to the dollies and used an available pump truck to pull the dollies off the Lemont site, six at a time. Schmitt completed this task at 1 or 1:30 in the afternoon. He then used a truck and truck crane, which he had previously ordered, to load the dollies. He finished loading the dollies around 5 p.m., and then shipped them to Jake’s Crane and Rigging (Jake’s) in Las Vegas. During the removal, Schmitt saw a few Union guards who passed by every V-k to 2 hours.

Kent Goodman testified that he knew that the gate in the laydown area was open on the day that Schmitt took the dollies, and John Ervin testified that he knew that pump trucks were routinely left in the lay-down area with keys in their ignitions.

The next Monday after he took the dollies, Schmitt sent the following telegram to B&Y:

“Please be advised that 12 dollies on a loan to B and Y Heavy Movers by myself for transporting vessels 501 and 502 and 503/ 504 were removed on 6-22-85 from the Union Oil Refinery holding area at Lemont, Illinois, without knowledge or permission of Fluor Constructors, Inc.
Marvin G. Schmitt”

Nation made several attempts to locate Schmitt and the dollies. He worked with the Lemont police and insurance investigators; he asked a friend in Alaska to look for Schmitt there; he chased after a truck hauling dollies on a California expressway; and he inquired about the dollies at Jake’s in Las Vegas. Kent Goodman testified that he knew that Sch-mitt had taken the dollies to Jake’s during the latter half of 1985 and that Jake’s had used the dollies on a job for Fluor in 1986.

On the issue of liability, Fluor depends entirely on its claim that B&Y failed to prove that it had a greater possessory interest in the dollies than Schmitt did. It does not argue that the evidence is insufficient to establish a violation of the bailment agreement.

Nation and Schmitt had first met in 1980, and Nation hired Schmitt to do some design work relating to a system for transporting oil-drilling rigs. At the end of 1982, Nation and some members of his family purchased B&Y Stanton House Movers, and renamed it B&Y Heavy Movers. Shortly after that, Nation and Schmitt met again. Schmitt was having financial troubles, and he asked Nation if he could store his equipment and machinery at B&Y’s facility and use an office and a desk. Nation and Schmitt struck a casual agreement, and Schmitt moved in with 12 dollies, three pallets of dolly parts, and a fairly complete machine shop. Most of the equipment was stored at the B&Y facility on Batavia Avenue in Orange, California.

Schmitt testified in his evidence deposition that he developed, designed and built the 12 dollies for a Canadian company. In the late 1970s, he began using the dollies in his own business called the “Bolometer Company.” The parties stipulated at trial that, when Schmitt brought the 12 dollies to B&Y’s premises, they were fully assembled, but they did not have tires, rims or brakes, and eight of the dollies were lacking steering cylinders.

Schmitt was given the title of “Chief . Engineer” of B&Y; however, Nation testified that Schmitt never actually became an employee of B&Y. Schmitt’s job was to obtain business for B&Y and for himself; the dollies would be used only on jobs Schmitt obtained. Schmitt was taken off B&Y’s payroll a few months after he began working with B&Y, after B&Y received notice from the Internal Revenue Service that Schmitt owed $22,000 to $25,000 in back taxes and was facing about $26,000 liability in judgments or lawsuits. Schmitt continued to work with B&Y, however, and B&Y paid Schmitt’s expenses. Schmitt agreed to allow B&Y to use his dollies until the dollies became profitable, and then to consider a “fixed agreement” with B&Y.

Nation testified that he wanted to buy Schmitt’s dollies and use them to get into the heavy hauling business, but B&Y’s board of directors refused to spend the $150,000 to $200,000 needed to make the dollies “whole and useable.” Nation worked out an agreement with Schmitt to trade 10 of B&Y’s dollies to Schmitt in exchange for Schmitt’s 12 dollies. Nation further agreed that if the dollies were profitable, B&Y would assist Schmitt with the IRS and his creditors, put him on the payroll, and give him a share of the profits.

Nation testified that his agreement with Schmitt was contained in an “Agreement to Trade.” The agreement was originally drafted between B&Y and the Holometer Company, owned by Schmitt. Nation’s attorney expressed concern that perhaps Schmitt was the owner of the dollies, rather than the Holometer Company. Therefore, Nation had the agreement retyped so that it would be between B&Y and Schmitt individually.

Nation identified a document, first produced at Schmitt’s evidence deposition, as the earlier version of the agreement. That document, signed only by Nation, states as follows:

“B&Y Heavy Movers Inc. hereby agrees to trade 10 (ten) of our McMillan Heavy duty house moving dollies, all warranteed [sic] to be in excellent condition for the following equipment belonging to the Holometer Company.
One lot of partially completed dollies and related parts.”

There is a blank space for Schmitt’s signature above a line entitled “Holometer Company.”

Nation testified that a later agreement, between B&Y and Schmitt individually, was signed by himself and by Schmitt. Nation said that his practice was to have two of everything typed and that he believed he and Schmitt signed an original and one copy of the agreement. After his memory was refreshed by his March 1989 deposition testimony, however, he conceded that there was only one typed version of the later agreement with Schmitt.

Nation stated that he believed he put the signed agreement in his safe at B&Y’s office in Orange, California. The safe was often kept unlocked for hours at a time, and Nation discovered that the agreement was missing a few days after the dollies were taken. He testified that, in addition to the signed agreement, Schmitt’s machinery, drafting equipment and file drawers were also removed from B&Y’s property without Nation’s knowledge at or about the time the dollies were taken.

Nation was unable to locate the document or his former secretary who had typed it. Consequently, the only version of the agreement presented at trial was the earlier version, between B&Y and the Holometer Company, which was signed only by Nation.

Schmitt denied ever signing or agreeing to the later agreement. He testified that he never sold, traded, or gave his dollies to Nation or B&Y. Schmitt admitted that he knew that the B&Y safe was occasionally unlocked but denied taking the agreement. Schmitt admitted that he had rented a truck from Jake’s and removed his files and equipment from B&Y’s premises at Orange, California. He said that he took the equipment in early June of 1985, before the barge carrying the dollies arrived at the jobsite in Lemont, and that he and Nation discussed his plans to go work for Jake’s in Las Vegas.

B&Y called Lou Hislop as a rebuttal witness, over Fluor’s objection. Hislop was a business associate of B&Y, and he was one of the persons named by Nation as having been told about Schmitt’s signing of the agreement. Hislop testified that he had seen an original version of the agreement on B&Y’s black and red letterhead and that the document was signed by both Schmitt and Nation. However, he could not remember what Schmitt’s first name was, how his last name was spelled, or whether his signature contained a middle initial.

Fluor first maintains that B&Y had the burden of proving that it had title to the dollies as against Schmitt and failed to do so. We judge that, as a matter of law, B&Y did not have the burden of proving it had title to the dollies as against Schmitt and that the finding of the judge that B&Y had a possessory right superior to Schmitt was not against the manifest weight of the evidence.

Two Illinois cases address the bailee’s right to give possession of the goods to a third party. In Follett v. Edwards (1889), 30 Ill. App. 386, the court stated the following rule:

“The bailee *** can not set up a paramount title of a third person as a defense against the action of the bailor, unless expressly or impliedly authorized to do so by the owner. But if the latter demands the property of the bailee before he parts with the goods, and the bailee yields to the demand, he is protected against all claims of the bailor.” (Follett, 30 Ill. App. at 388.)

The court restated the rule in Agnew v. Baker (1917), 204 Ill. App. 56, as follows:

“As a general rule a bailee may not, for his own benefit, deny the right of the bailor or avail himself of the title of a third person, although that person be the true owner. [Citation.] He cannot claim title in himself or title in another except that he may show as against the claim of the bailor that he has been deprived of the property by process of law or has yielded possession to one having paramount title, or that he is defending on the title and right and by the authority of a third person.” 204 Ill. App. at 59-60.

Fluor concedes that it did not “yield” possession of the dollies to one claiming to be the true owner. Nevertheless, Fluor argues that it should be able to defend the case on the ground that the true owner actually took possession of the dollies. Fluor does not cite any law in support of this proposition.

Other jurisdictions have decided the issue adversely to Fluor’s position. The supreme court of Minnesota explained that a bailee is estopped from denying title of the bailor in Blackorby v. Friend, Crosby & Co. (1916), 134 Minn. 1, 158 N.W. 708:

“A bailee, when he receives the property by virtue of the bailment, legally admits the right of the bailor to make the contract of bailment. After this subservient relation of the bailee to the bailor in respect to the property is established, the law forbids him to dispute the title of the bailor.” 134 Minn, at 3, 158 N.W. at 709.

Some jurisdictions follow the rule that the bailee may yield possession of the bailed goods to one claiming to be the true owner, but the bailee does so at his own risk. The burden is then on the bailee to establish that the third party is indeed the true owner. See Yokohama Specie Bank, Ltd. v. Geo. S. Bush & Co. (1922), 121 Wash. 272, 209 P. 676; see also Atlantic & Birmingham Ry. Co. v. Spires (1907), 1 Ga. App. 22, 57 S.E. 973.

The supreme court of California has stated the rule as follows:

“When the bailor has obtained the property by some fraud practiced upon the true owner, the bailee can, upon the authority of such true owner *** defend upon such true owner’s title; but he always assumes such defense at his peril, and takes upon himself the burden of showing the right to retain the property under such instructions.” (Wetherly v. Straus (1892), 93 Cal. 283, 287, 28 P. 1045,1046.)

The rule was limited by Branch v. Bekins Van & Storage Co. (1930), 106 Cal. App. 623, 290 P. 146, in which the court held that “a bailee is liable in conversion for delivering goods upon the claim of a third party, except under valid legal process in a suit in which the bailor is himself a party and then only after due notice has been given the bailor.” 106 Cal. App. at 630, 290 P. at 150.

We agree with B&Y’s argument that to place the burden upon a bailor to prove his title to the bailed goods in an action for breach of a bailment agreement would lead to consequences far-reaching and manifestly unfair. If goods were removed from the possession of a bailee, the bailee could merely deny the validity of the bailor’s contract and make the bailor provide proof of his ownership of the goods. For example, if a customer took an item of jewelry to be repaired, the jeweler could deny the validity of the claim ticket and could assert that the jewelry belonged to one of his employees. The customer would have to prove his possession right to the jewelry through some means other than the claim ticket in order to get it back. Fluor cites no legal authority or public policy reasons to support its position. We are confident that no such authority exists. We are more confident that there are no policy reasons to support Floor’s argument.

The trial judge heard conflicting evidence regarding the ownership of the dollies. Ron Nation testified that he and Schmitt both signed an agreement to trade, whereby title to the dollies passed from Schmitt to Nation. Lou Hislop testified that he saw the agreement to trade and that it was signed by both Nation and Schmitt. Schmitt denied signing the agreement. The trial judge also evaluated the conduct of the parties with respect to the dollies and determined that Nation’s conduct was consistent with ownership. Nation spent a considerable sum of money improving the dollies. Additionally, Nation used the dollies on several projects for B&Y. Schmitt’s conduct, on the other hand, was inconsistent with ownership. Schmitt conceded that he did not have authority to take the dollies from Floor’s refinery site. After he took the dollies, Sch-mitt sent a mailgram to B&Y stating that he had taken the dollies and specifically noted that he took them without Fluor’s knowledge or permission.

From all of the evidence presented, the trial judge found that B&Y was the owner of the dollies. This finding is not against the manifest weight of the evidence. Because Fluor failed to meet its burden of proving that it was owner of the dollies, and that B&Y had no right to bail the property, the trial judge correctly held Fluor liable for breach of the bailment contract.

Fluor next maintains that the court erred in permitting the testimony of Lou Hislop; it argues that that testimony should have been barred as a discovery sanction. Fluor objected to Hislop’s testimony under Supreme Court Rule 219 (107 Ill. 2d R. 219), arguing that Hislop’s name had not been disclosed before trial.

The attorneys for B&Y and Fluor had discussions regarding the identity of their witnesses. B&Y’s attorney mentioned that she would call Kenneth Heusser to identify the persons who had signed the later agreement to trade. The day before trial began, however, B&Y’s attorney informed Fluor’s attorney that she had made a mistake, and that Lou Hislop, rather than Kenneth Heusser, would testify regarding the signatures on the agreement.

A trial court has broad discretion in determining whether to impose sanctions under Rule 219 for a party’s failure to comply with discovery requests. (Ashford v. Ziemann (1984), 99 Ill. 2d 353, 368, 459 N.E.2d 940.) The exercise of such discretion will not be disturbed unless an abuse is apparent. (Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc. (1984), 122 Ill. App. 3d 504, 514, 461 N.E.2d 44.) Therefore, the party seeking reversal of a trial judge’s ruling on an evidentiary matter has the burden of establishing prejudice. Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 477, 519 N.E.2d 1073.

Discovery sanctions are appropriate when noncompliance with discovery requests is unreasonable and amounts to “a deliberate and pronounced disregard for the rules and the court.” (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 415, 476 N.E.2d 1232.) Fluor concedes that B&Y’s failure to disclose Hislop prior to trial was inadvertent. Therefore, B&Y’s actions cannot be characterized as a deliberate disregard for the rules and the court.

Counsel for Fluor was aware that a witness would testify regarding the signatures on the later agreement to trade; he simply thought that the witness would be Heusser rather than Hislop. However, he did not even depose Heusser. Additionally, when Fluor was notified that Hislop would testify, the judge offered Fluor the opportunity to question Hislop before he testified, but Fluor did not avail itself of that opportunity. We conclude that the judge did not abuse his discretion in allowing Hislop to testify.

For these reasons, the judgment in favor of B&Y on the question of liability is affirmed.

In its cross-appeal B&Y maintains that the judge erred in his award of damages. A trial judge’s award of damages will not be reversed unless it is clearly erroneous or against the manifest weight of the evidence. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569.) To reverse a finding of damages, the reviewing court must find that the trial judge ignored the evidence, or that the measure of damages was erroneous as a matter of law. MBC, Inc. v. Space Center Minnesota, Inc. (1988), 177 Ill. App. 3d 226, 234, 532 N.E.2d 255.

Fluor maintains that the judge’s award should be sustained, because, it argues, the judge properly considered all of the testimony presented and then reduced the value of the dollies to reflect inflation and depreciation. We disagree. There is no evidence in the record from which the judge could have calculated the proper amount of inflation and depreciation by which to reduce the award. In fact, depreciation and inflation were not raised as issues at the trial. Therefore, the judge could not have relied on them in calculating B&Y’s damages.

Fluor next contends that the correct measure of damages for breach of a bailment agreement is the market value of the goods at the time of the loss. (Mueller v. Soffer (1987), 160 Ill. App. 3d 699, 706, 513 N.E.2d 1198.) However, B&Y correctly notes that when market value is difficult to ascertain, for example, where the property converted is unique, a court may award damages using some other reasonable calculation of value, such as replacement cost. Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App. 3d 915, 934-35, 419 N.E.2d 578; Williams v. Board of Education of Clinton Community Unit School District No. 15 (1977), 52 Ill. App. 3d 328, 333, 367 N.E.2d 549.

The parties both agree that the dollies are unique and state of the art. Schmitt designed the dollies, and he holds a patent on his design. Each of the 12 dollies is capable of supporting at least 50 tons. The feature which sets these dollies apart from ordinary dollies is a casteredsteering system, similar to the wheels on a grocery cart: when the front wheels turn, the rear wheels follow. Additionally, the dollies have a unique leveling system which allows them to carry a load in a level manner, regardless of the condition of the terrain on which the dollies are traveling. The dollies are usually used in sets, rather than individually. A large frame is custom designed for each moving job, and the frame is then mounted onto the dollies. The dollies and the frame together are referred to as a “transport system.”

Nation testified that there were two ways to value the replacement cost of the dollies: (1) calculate the cost of building them “from scratch”; or (2) calculate the cost of purchasing a standard dolly and modifying it with the state-of-the-art elements (“self-propulsion, a bunk jack, brakes, self-steering mechanism, a castered-steering modification and wheels and tires”). He testified that the dollies would cost $32,755 each, or $393,060 if made “from scratch.” Counsel for Fluor objected to Nation’s testimony regarding the cost of purchasing standard dollies and modifying them, and the trial judge sustained the objection. No issue is made of this ruling. In its post-trial motion, B&Y conceded that some of the dollies taken by Schmitt did not have brakes or steering cylinders, thereby reducing the claimed total value of the dollies to $354,508.

Schmitt testified that in 1981, before he began working with B&Y, he sold a complete set of 12 dollies for $15,600 each. He also sold 11 dollies plus some ancillary equipment at a “fire sale” for $97,000. Sch-mitt conceded that the price obtained at the fire sale “doesn’t reflect the retail price.”

Nation testified in rebuttal that the 10 dollies he traded to Marvin Schmitt were worth $100,000. He also said that B&Y invested an average of $21,000 per dolly in additions and modifications to the dollies acquired from Schmitt.

Kent Goodman testified for Fluor that he was not familiar with the distinction between the various types of dollies that had been discussed at trial (the castered-steering dollies, “Callahan” dollies and “McMillan” dollies). He stated that he understood that the Callahan dollies were basically the same as the dollies taken by Schmitt, except they did not have castered steering. He estimated the value of Callahan dollies at $14,000 to $18,000 each. The trial judge awarded B&Y damages in the amount of $110,000.

The record shows that the judge based his calculation of damages on the replacement cost of the dollies. He considered Nation’s testimony that the cost of rebuilding the dollies from scratch would be approximately $360,000. He also relied heavily on the testimony of Kent Goodman. Goodman testified that a Callahan dolly was very similar to the stolen dollies, except that the Callahan dolly did not have castered steering, and he said that a Callahan dolly could be purchased for $14,000 to $18,000 at the time of trial in 1989. Goodman did not testify about the cost of a Callahan dolly in 1985. The judge also considered Schmitt’s testimony that he sold 12 dollies in 1981 for $186,200, and that he sold 11 complete dollies plus parts for a twelfth for $97,000 at a fire sale.

B&Y argues that the judge erred in relying on Schmitt’s testimony, because “eleven (11) dollies at a ‘fire sale’ cannot be compared to twelve (12) dollies in 1985.” The judge, however, felt that it was appropriate to consider Schmitt’s testimony. The judge conceded, as Schmitt did, that the price paid at a fire sale would not be equivalent to a retail sale; however, he noted that because Nation was an expert in the business he would probably be able to replace the dollies at a price below retail. Therefore, the judge’s mere consideration of Schmitt’s testimony was not erroneous.

We believe, however, that the judge did err in calculating the value of the dollies at the time B&Y acquired them from Schmitt, rather than at the time of the loss. The proper measure of damages is the value of the dollies on June 22, 1985, the date that Schmitt took the dollies from the Union site in Lemont. (Mueller, 160 Ill. App. 3d at 706.) The judge, however, calculated the damages as of the date that B&Y originally received the dollies from Schmitt, approximately IV2 years before they were taken. When B&Y received the dollies from Schmitt in December of 1983, they were only partially completed. Nation testified that B&Y had to invest approximately $20,000 on each dolly to make the dollies “whole and useable.” As a result of B&Y’s investment, the dollies were presumably more valuable on the date of the loss than they were when Schmitt originally traded them to B&Y The trial judge, however, considered only the value of the unimproved dollies. The judge stated as follows:

“[T]he Court does state that any improvements made by B&Y to these dollies [were] for their own benefit and voluntarily and they really can’t be reimbursed for any of those improvements ***.”

The burden is always on the plaintiff to prove his damages to a reasonable degree of certainty. (Jensen, 94 Ill. App. 3d at 933.) However, a damage award is contrary to the manifest weight of the evidence if the reviewing court finds that the trial court ignored the evidence or that its measure of damages was erroneous as a matter of law. (MBC, 177 Ill. App. 3d at 234.) In this case, the judge calculated the damages as of the date that B&Y acquired the dollies, rather than as of the date of the loss. Because the judge used an incorrect legal standard in calculating the damages, his measure of damages is erroneous as a matter of law, and the case must be remanded with directions to determine the value of the dollies at the time Schmitt took them from the Lemont site. B&Y has asked this court to fix the damages. We decline to do so. We believe the trial judge is in a better position to evaluate the property under the proper measure of damages.

Judgment affirmed in part, reversed in part and remanded with directions.

McNAMARA and LaPORTA, JJ., concur.


text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR JUDGMENT AND ORDER OF SALE AGAINST LANDS AND LOTS RETURNED DELINQUENT FOR NONPAYMENT OF GENERAL TAXES FOR THE YEAR 1985 AND PRIOR YEARS (D.S. Associates, Petitioner-Appellant, v. Associates Finance, Inc., et al., Respondents-Appellees).
    First District (6th Division)
    No. 1—90—0803
    Opinion filed March 28, 1991.

      Joel Ostrow, of Chicago (Richard D. Glickman, of counsel), for appellant.
    Arvey, Hodes, Costello & Burman, of Chicago (Donald E Spak, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, D.S. Associates, appeals from an order of the circuit court granting summary judgment to respondents, Associates Finance, Inc., and Legear and Sullivan, trustees, and denying its petition for tax deed for failure to strictly comply with the notice provisions of section 263 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 744). The precise issue on appeal is whether a tax deed purchaser must attempt to personally serve the property owner before notice by publication is authorized under the Revenue Act.

The facts in this case are not in dispute. On June 2, 1987, Dewey Suster, d/b/a D.S. Associates Inc., purchased property improved with a single-family home for $527 at the county’s annual tax sale for delinquent 1985 real estate taxes. The property is located at 114 Linden in Bellwood, Illinois, and is owned by Jesse and Mildred Stiff. Respondents, Associates Finance, the mortgage holder, and the trustees are also interested parties. A certificate of purchase was issued to petitioner.

On April 11, 1989, petitioner filed a petition for a tax deed in the circuit court of Cook County alleging that the taxes had not been redeemed and that the period of redemption would expire on September 7, 1989. Petitioner then caused the sheriff to serve Associates Finance, Sullivan and Legear with notice on May 18, May 16, and April 13, 1989, respectively. The sheriff served Jesse Stiff personally on April 19, 1989.

At issue in this case is the notice to Mildred Stiff. Petitioner published statutory notice in the Chicago Daily Law Bulletin on April 13, 14 and 17, 1989. The sheriff’s return of service indicates that the sheriff unsuccessfully attempted personal service on Mildred Stiff twice: first, on the afternoon of April 17, and again on April 19. The return states that Jesse Stiff told the sheriff that Mildred moved three years before. The sheriff sent notice to Mildred by certified mail which was returned unclaimed on May 1,1989.

Dewey Suster testified at his deposition that he and his agents inspected the property twice during 1988 and learned from a voting list that Jesse and Mildred Stiff were the registered voters at that address. On April 11, 1989, Suster filed the petition for tax deed, placed the order for publication with the Law Bulletin and then went to the sheriff’s office and placed service. After he learned that the sheriff’s return of service on Mildred was returned not found, he went to the property on a weekday afternoon in late April or early May to try to locate her. He knocked on the door and when no one answered, he left. He did not visit any adjacent buildings, or try to contact neighbors, nor did any of his agents ever attempt to contact neighbors in order to locate Mildred. Suster thereafter attempted to telephone Jesse Stiff, but the telephone number was not listed. He made no other attempts to locate Mildred and never personally served her.

The property was not redeemed from the tax sale during the statutory period and on September 20, 1989, petitioner applied to the circuit court for an order for the issuance of the tax deed pursuant to section 266 of the Revenue Act. (Ill. Rev. Stat. 1987, ch. 120, par. 747.) Pursuant to Circuit Court Rule 10.3(b)(6), petitioner presented the affidavit of its attorney to prove compliance with statutory requirements. In his affidavit, the attorney stated that he “gave or caused to be given” the required notice to interested parties and owners and that he “visited or caused to be visited” the property prior to the expiration of the redemption period. The affidavit also indicated that he tried to locate Mildred Stiff by “inquiry of persons residing in the vicinity of the property.”

The attorney stated at Suster’s deposition that he did not become involved in this case until several days before he signed the affidavit and that Suster sent the notices and visited the property. Petitioner subsequently filed an amended affidavit signed by Suster which was substantially the same as the original affidavit.

Respondents thereafter moved for summary judgment on the following grounds: (1) the application contained a false affidavit; (2) the notice contained defective language; and (3) petitioner improperly served Mildred Stiff by publishing before attempting personal service.

Relying on Burton v. Perry (1893), 146 Ill. 71, 34 N.E. 60, the trial court granted summary judgment to respondents on the ground that petitioner published prior to attempted service and thus did not strictly comply with the statutory requirements. The court found the false affidavit issue moot and the notice proper.

The dispositive issue on appeal is whether section 263 of the Revenue Act authorizes constructive service of the statutory notice upon a property owner by publication before personal or substituted service is attempted. Section 263 provides in pertinent part:

“The purchaser or assignee shall give the above notice by causing it to be served by a sheriff *** of the county in which the real property, or any part thereof, is located upon owners who reside on any part of the real estate sold by leaving a copy of the notice with such owners personally.
Such notice shall be served upon all other owners and parties interested in the real estate sold, if upon diligent inquiry they can be found in the county, and upon the occupants of the real estate [by personal or substituted service.]
* * *
If any owner or party interested upon diligent inquiry and effort cannot be found and served with notice as herein provided in the county, then the person making the service shall send a copy of the notice by registered or certified mail, return receipt requested, to such party at his residence, if ascertainable. If the real estate is located in a municipality in a county with a population under 2,000,000, such purchaser or assignee shall also publish a notice as to such owner or party interested, in some newspaper published in the municipality. If the real estate is not in such municipality, or if no newspaper is published therein, or if the real estate is in a county with a population of 2,000,000 or more, then the notice shall be published in some newspaper in the county.” Ill. Rev. Stat. 1987, ch. 120, par. 744.

Under our reading of the statute and cases interpreting its notice requirements, the statute authorizes service by mail and publication only after tax buyer makes “diligent inquiry and effort” to find the owner and fails. Moreover, tax buyer must strictly comply with the notice requirements. In re Application of Cook County Collector (1981), 100 Ill. App. 3d 178, 426 N.E.2d 947 (Ohr v. Prairie).

Like the trial court, we find Burton v. Perry dispositive of this issue. In Burton, the tax buyer purchased the subject property at a tax deed sale in August 1879. The required statutory notice was published on May 19, 20 and 21, 1881, and the first attempt to serve owner was made on May 21, after notice had already been published twice. Our supreme court found the deed void because tax purchaser did not make a diligent inquiry before publication was made. The court stated:

“The making of diligent inquiry, and the failure to find as a result thereof, must precede the publication. *** The statute does not contemplate, that the purchaser shall first publish his notices, and then afterwards make diligent inquiry. *** The statute does not permit the holder of the tax certificate to postpone his diligent inquiry, until after he has published his notice. The publication in such case has no legal foundation to rest upon, because it is not justified or authorized until there has first been diligent inquiry resulting in a failure to find.” (Burton v. Perry, 146 Ill. at 121-22, 34 N.E. at 74.)

The court concluded that the tax deed was void because the affidavits did not show that publication was preceded by a diligent inquiry to find the owner.

Petitioner contends that the Burton case is “irrelevant law” because the current statute differs significantly from that applicable in 1893. We disagree. The relevant statute in Burton required the tax buyer to serve notice on every person in actual possession or occupancy; in addition, it required service on the person in whose name the property was taxed, owners and interested persons if “upon diligent inquiry” they could be found in the county. The statute described the contents of the notice, then provided as follows:

“If no person is in possession or occupancy of such land or lot and the person, in whose name the same was taxed or specially assessed, upon diligent inquiry, cannot be found in the county, or the owners of, or parties interested in said land or lot, upon diligent inquiry, cannot be found in the county, then such person, or his assignee, shall publish such notice in some news-paper printed in such county, *** which notice shall be inserted three times, the first not more than five months, and the last time not less than three months, before the time of redemption shall expire.” Ill. Rev. Stat. 1880, ch. 20, par. 216.

We find this notice provision almost identical to that in section 263. The two statutes differ primarily in that the modern statute requires service by registered or certified mail in addition to publication when interested parties cannot be found after diligent inquiry and effort. Petitioner unpersuasively argues that the current statute differs because it authorizes registered or certified mail as an additional type of effective service. The current act, however, authorizes service by mail in conjunction with publication as an alternative to personal service and only after tax buyer’s diligent effort and failure to locate and serve interested parties. Indeed, petitioner’s reading of the statute would require publication even when personal service is made.

Petitioner also suggests that the language “shall also publish” in the modern statute demonstrates that the order of attempted service and publication is not important. Petitioner’s interpretation, however, plainly misconstrues the statute. The language “shall also” refers to notice by mail; that is, the buyer must serve notice by mail and “shall also” publish notice. The statute does not dictate whether mail or publication must occur first, but expressly requires both. The statute, however, authorizes such alternate service only after making a diligent attempt at personal service, just as the statute in Burton only authorized publication after a diligent attempt at personal service. Contrary to petitioner’s assertions, the differences between the two statutes are minor and do not allow us to disregard Burton.

Indeed, this court in In re Application of County Treasurer (1975), 32 Ill. App. 3d 161, 336 N.E.2d 167 (Ohr v. Hoffman), cited Burton with approval. In Hoffman, the tax buyer unsuccessfully attempted personal service on the owner at his office on December 5, 1972. The statutory notice was published on December 7, 8 and 11, 1972. After the first publication, buyer made five failed attempts to serve owner at his office, then sent a certified letter. This court reversed the trial court’s issuance of a tax deed and remanded, concluding that “the single attempt to serve [the owner] in his office when his residence was ascertainable was not the diligent inquiry and effort required by the Revenue Act before he could be served by publication.” (Emphasis added.) (Hoffman, 32 Ill. App. 3d at 165, 336 N.E.2d at 170.) The court wrote, citing Burton: “The Revenue Act does not permit the holder of a tax certificate to postpone his diligent inquiry concerning a tax payer until after he has published his notice.” (Hoffman, 32 Ill. App. 3d at 165, 336 N.E.2d at 170.) Although, as petitioner points out, the specific issue in Hoffman is whether buyer displayed diligence in service, not whether publication may properly precede attempted service, the court’s language unmistakably indicates its understanding that diligent inquiry must precede publication.

Other recent cases, while not precisely addressing this issue, support this interpretation of the statute’s notice requirements. (In re Application of the County Collector (1987), 163 Ill. App. 3d 461, 516 N.E.2d 736 (La Salle Street v. Caldwell); In re Application of the County Collector (1971), 2 Ill. App. 3d 737, 277 N.E.2d 532 (Cruikshank v. Burroughs).) In La Salle, the issue on appeal was whether a nonresident estate administrator was entitled to notice of pending tax deed proceedings. After concluding that estate administrators are entitled to notice, this court found that although buyer published notice, he made no effort to serve agent. The court stated: “Notice by publication is authorized only to those owners and interested parties who, upon diligent inquiry, cannot be found and personally served.” La Salle, 163 Ill. App. 3d at 464, 516 N.E.2d at 737.

In Cruikshank, this court described the exercise of due diligence as a “condition precedent” to service by mail and publication. In that case, the tax buyer made five unsuccessful attempts to serve the owner, then sent notice by certified mail, which owner’s wife signed. The trial court found that buyer did not exercise diligence in serving notice personally and thus denied its request for tax deed. This court affirmed, finding that notice by certified mail and publication was not proper because buyer “failed to comply with the condition precedent thereto namely the exercise of due diligence in serving the notice personally.” (Emphasis added.) (Cruikshank, 2 Ill. App. 3d at 742, 277 N.E.2d at 535-36.) The court’s reference to due diligence as a “condition precedent” to publication supports our view that the statute requires attempted service before it authorizes notice by certified mail and publication.

Petitioner argues that by both publishing and attempting to serve, regardless of the order, it strictly complied with the statute’s notice requirements. We disagree. The mandatory notice provisions are designed to provide actual notice of the right of redemption pursuant to the constitutional mandate for reasonable notice in tax deed cases. (Ill. Const. 1970, art. IX, §8(c).) Constructive notice by publication is authorized by the legislature only as a last resort, if upon diligent inquiry and effort, owners and interested parties cannot be found and served.

Moreover, the General Assembly’s amendment, effective in 1970, which requires strict compliance with the notice provisions (Ill. Rev. Stat. 1987, ch. 120, par. 747), demonstrates its recognition that great injury and sacrifice may result from the forfeiture of one’s property rights. This court, in interpreting the strict compliance requirement in In re Application of Cook County Collector (1981), 100 Ill. App. 3d 178, 426 N.E.2d 947 (Ohr v. Prairie Material Sales, Inc.), held that tax buyer failed to strictly comply with the notice requirements when the notice, although otherwise proper, referred to the wrong municipality. The court assumed prejudice to respondent without regard to whether the defective notice actually misled respondent. If an interested party who receives timely and otherwise proper notice, although with a minor error, is assumed to be prejudiced by the notice, Mildred Stiff, who never received actual notice of the proceedings either personally or by certified mail, was also prejudiced. Under Prairie Material Sales, petitioner here failed to strictly comply with the statute.

Petitioner’s reliance on Rosewell v. Chicago Title & Trust Co. (1984), 99 Ill. 2d 407, 459 N.E.2d 966, is misplaced. In Rosewell, the issue was whether mortgagees and other interested parties were entitled to the same notice before a tax sale as assessees, that is, notice by mail. We do not believe that the dicta quoted by petitioner out of context contradicts our conclusion.

We thus conclude that section 263 requires attempted personal service before publication is authorized. Under these circumstances, where one of the owners never received the mandatory statutory notice, and petitioner intentionally placed notice for publication before attempting personal service, petitioner was not entitled to the issuance of a tax deed.

Petitioner additionally maintains that summary judgment was improper because the question of düigence in service was a question of fact which required an evidentiary hearing and therefore precluded summary judgment. We disagree. As we concluded above, due to petitioner’s failure to strictly comply with the notice provisions, it was not entitled as a matter of law to a tax deed.

Summary judgment may be granted when the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The tax petition, along with Suster’s deposition and affidavit, revealed petitioner’s defective notice. Suster’s deposition plainly shows that statutory notice was published prior to any attempted service on Mildred Stiff. Neither the deposition nor the affidavits on file presented any evidence that prior to publication petitioner used diligent inquiry and effort to locate and serve Mildred Stiff. Nor did petitioner file an affidavit in response to respondents’ request for summary judgment suggesting that additional evidence or witnesses would be presented to demonstrate such diligent inquiry prior to or even after publication. Although diligence is generally a question of fact, it was unnecessary for the trial court to reach the question of whether petitioner tried to locate Mildred Stiff with diligent efforts. Petitioner’s failure to forego publication until after it made any attempt, let alone a “diligent inquiry and effort,” to personally serve Mildred did not constitute strict compliance with the statute. The trial court thus properly found that petitioner was not entitled to a tax deed as a matter of law and properly granted summary judgment. Even assuming that petitioner’s attempt at service on Mildred occurred prior to the publication, such single ineffective inquiry would not constitute diligent effort as a matter of law. See Hoffman, 32 Ill. App. 3d at 165, 336 N.E.2d at 170 (not diligent “to go to a home four times to serve a taxpayer *** but make no effort to ascertain his whereabouts).”

Finally, we reject petitioner’s contention that, we should limit summary judgment in tax deed cases because such proceedings are summary by their very nature. To the extent that the Revenue Act does not regulate matters of procedure, the Civil Practice Act applies. (Ill. Rev. Stat. 1987, ch. 110, par. 1—108(b).) While section 266 of the Revenue Act requires petitioner to prove his case, it does not preclude summary judgment denying issuance of a deed where, as here, the application discloses fatal procedural errors in serving notice.

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

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE CAMPBELL

text:
    SACKETT ENTERPRISES, INC., Plaintiff-Appellee, v. JOHN F. STAREN, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—1502
    Opinion filed March 28, 1991.

      Braun & Rivkin, Ltd., of Chicago (Lee M. Weisz, of counsel), for appellant.
    Holleb & Coff, of Chicago (Howard J. Stein and Bradley S. Block, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant John Staren appeals an order of the circuit court of Cook County granting plaintiff Sackett Enterprises, Incorporated’s (Sackett’s), petition to register a default judgment rendered against Staren in the circuit court of Gibson County, Indiana. For the reasons stated below, we affirm.

The record on appeal indicates the following. Defendant is a resident of Illinois. Plaintiff is the lessee of certain oil wells located in Indiana. In 1986, plaintiff solicited defendant by telephone and mail to invest in these oil wells. Face-to-face negotiations concerning this investment took place in Chicago, Illinois. Plaintiff and defendant entered into an agreement under which defendant received an undivided fractional interest in oil wells in Knox County, Indiana. Defendant’s purchase of this interest was financed by a loan from an Illinois bank.

On August 1, 1986, plaintiff filed suit against defendant in the circuit court of Gibson County, Indiana, for services and expenses which were allegedly incurred in the operation of the oil wells. The trial court entered a default judgment of $19,365.18 against defendant on October 7, 1986.

Plaintiff then petitioned the circuit court of Cook County for registration of the Indiana judgment pursuant to section 12—602 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 12—602), which is also part of the Uniform Enforcement of Foreign Judgments Act (Foreign Judgments Act) (Ill. Rev. Stat. 1987, ch. 110, par. 12—617). Defendant contested the registration on the ground that the Indiana courts lacked jurisdiction over him. Following a hearing on the matter, the circuit court of Cook County granted plaintiff’s petition.

Defendant now appeals, continuing to argue that the circuit court of Gibson County, Indiana, lacked personal jurisdiction over him, thus preventing the registration of the Indiana judgment.

A “foreign judgment” is defined as “any judgment, decree or order of a court of the United States or of any State or Territory which is entitled to full faith and credit in this state.” (Ill. Rev. Stat. 1987, ch. 110, par. 12—601(a).) The purpose of the Foreign Judgments Act is to implement the full faith and credit clause of the United States Constitution. (Ace Metal Fabricating Co. v. Arvid C. Walberg & Co. (1985), 135 Ill. App. 3d 452, 481 N.E.2d 1066; Ayers Asphalt Paving, Inc. v. Allen Rose Cement & Construction Co. (1982), 109 Ill. App. 3d 520, 522, 440 N.E.2d 907, 909; Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 916, 385 N.E.2d 702, 705.) The Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” (U.S. Const., art. IV, §1.) The intended purpose of the full faith and credit clause is “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” (Milwaukee County v. M.E. White Co. (1935), 296 U.S. 268, 277, 80 L. Ed. 220, 228, 56 S. Ct. 229, 234, cited in Wisconsin v. Ubrig (1984), 128 Ill. App. 3d 743, 745, 470 N.E.2d 1297, 1299.) The Uniform Enforcement of Foreign Judgments Act was adopted in Illinois to aid the enforcement of judgments across State lines. Light v. Light (1957), 12 Ill. 2d 502, 505, 147 N.E.2d 34, 37; Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 250, 364 N.E.2d 926, 928, cert. denied (1978), 435 U.S. 968, 56 L. Ed. 2d 59, 98 S. Ct. 1605.

“Under the doctrine of full faith and credit, the forum court will not rehear a case on its merits because the judgment is res judicata.” (All Seasons Industries, Inc. v. Gregory (1988), 174 Ill. App. 3d 700, 703, 529 N.E.2d 25; Thompson, 67 Ill. App. 3d at 916, 385 N.E.2d at 705.) When a party seeks to register a foreign judgment in Illinois, however, the trial court may inquire into the proceedings of a sister State to determine whether the court had subject matter and personal jurisdiction. (Ace Metal, 135 Ill. App. 3d at 457, 481 N.E.2d at 1070; Grant, Schon, Wise & Grant, P.C. v. R.W. Borrowdale Co. (1983), 114 Ill. App. 3d 89, 92, 448 N.E.2d 574, 576; Evans v. Advance Schools, Inc. (1979), 70 Ill. App. 3d 947, 950, 388 N.E.2d 1003, 1005; Davis v. Nehf (1973), 14 Ill. App. 3d 318, 321, 302 N.E.2d 382, 385.) If this inquiry reveals a jurisdictional defect which would either render the foreign judgment void according to the law of the foreign State, or deprive the foreign court of jurisdiction over the nonresident under the general constitutional standards of due process, the foreign judgment has no constitutional claim to full faith and credit. Grant, Schon, Wise & Grant, 114 Ill. App. 3d at 92, 448 N.E.2d at 576; Evans, 70 Ill. App. 3d at 950, 388 N.E.2d at 1005, citing Kolman v. National Racing Affiliates, Inc. (1965), 64 Ill. App. 2d 61, 64, 212 N.E.2d 313, 315.

Nevertheless, a judgment rendered by a court of general jurisdiction of a sister State carries a strong legal presumption that the court had jurisdiction and that its proceedings conformed to the law of the State in which it was rendered. (Ace Metal, 135 Ill. App. 3d at 457, 481 N.E.2d at 1070; Evans, 70 Ill. App. 3d at 950-51, 388 N.E.2d at 1005; Watts v. Barrett Industries Corp. (1978), 59 Ill. App. 3d 1009, 1011, 376 N.E.2d 691, 692; Nelson v. Sutton (1924), 232 Ill. App. 93, 100.) In Evans, the court held that this presumption prevailed where the defendant failed by certain and positive averments to negate every fact from which the jurisdiction of the court could arise. Evans, 70 Ill. App. 3d at 951, 388 N.E.2d at 1006.

In determining whether an Indiana court has personal jurisdiction over a nonresident defendant, Indiana courts ask: (1) whether the Indiana long-arm statute authorizes the exercise of jurisdiction over the nonresident; and (2) whether the exercise of personal jurisdiction pursuant to the long-arm statute would violate the nonresident’s due process rights under the fourteenth amendment to the United States Constitution. See Reames v. Dollar Savings Association (Ind. App. 1988), 519 N.E.2d 175; Bryan Manufacturing Co. v. Harris (Ind. App. 1984), 459 N.E.2d 1199.

The parties are in dispute as to whether defendant submitted himself to the jurisdiction of the Indiana courts pursuant to Indiana’s long-arm statute (Ind. Rules of Procedure, Trial Rule 4.4(A)(Burns 1991)), which provides in relevant part:

“(A) Acts serving as a basis for jurisdiction. Any person or organization that is a nonresident of this state, a resident of this state who has left the state, or a person whose residence is unknown, submits to the jurisdiction of the courts of this state as to any action arising from the following acts committed by him or his agent:
(1) Doing any business in this state;
* * *
(5) Owning, using, or possessing any real property or an interest in real property within this state ***.”

The courts of Indiana have often addressed the issue of personal jurisdiction over nonresident defendants on the basis of their business activities within Indiana. (E.g., Condos v. Sun State Painting, Inc. (Ind. App. 1983), 450 N.E.2d 86; Woodmar Coin Center, Inc. v. Owen (Ind. App. 1983), 447 N.E.2d 618; Tietloff v. Lift-A-Loft Corp. (Ind. App. 1982), 441 N.E.2d 986.) Although the purpose of the Indiana long-arm statute is to extend jurisdiction to the outer limits of due process (Dura-Line Corp. v. Sloan (Ind. App. 1986), 487 N.E.2d 469), Indiana courts generally seem to require that the act be “substantial” and “business related.” See Bryan Manufacturing, 459 N.E.2d at 1203-04, discussing Griese-Traylor Corp. v. Lemmons (Ind. App. 1981), 424 N.E.2d 173 (stock transfer, consulting services and payments in Indiana to Indiana residents), and Suyemasa v. Myers (Ind. App. 1981), 420 N.E.2d 1334 (discussion of sale, negotiation and sale of stock to Indiana resident in Indiana).

In this case, defendant trades pork bellies on the Chicago Mercantile Exchange. The interest at issue here is the only oil investment held by defendant. Defendant was solicited by plaintiff and never visited Indiana in the course of negotiating the transaction. The agreement was negotiated, executed and financed in Chicago. Telephone calls, by themselves, are not sufficient to fall within the “business” provision of the Indiana long-arm statute. See Subacz v. Town Tower Motel Corp. (N.D. Ind. 1983), 567 F. Supp. 1308 (interpreting similar provision of Michigan law).

We therefore consider whether defendant has submitted himself to the jurisdiction of the Indiana courts by owning, using or possessing real property or an interest therein in Indiana. The Indiana legislature has generally defined “real property” as including lands, tenements and hereditaments. Ind. Code Ann. §1 — 1—4—5 (Burns 1990).

The interest at issue in this appeal is a “working interest,” which has been defined as the interest of the lessee under an oil and gas lease, i.e., an undivided interest in the gas and oil produced on a given parcel of land (see Williams v. Sohio Petroleum Co. (1958), 18 Ill. App. 2d 194, 198, 151 N.E.2d 645, 647), but is also commonly used to denote a fractional portion of the oil and gas produced from a well after an amount (such as an “overriding royalty,” “oil payment,” “net profit interest” or “carried interest”) is retained for the lessor. See Illinois Natural Oil & Gas Co. v. Sinclair (1940), 373 Ill. 581, 27 N.E.2d 450; 8 Williams & Meyers, Oil & Gas Law, Manual of Terms (1987 ed. & Supp. 1990).

Our sister States classify “working interests” in a number of different ways for different purposes; Indiana generally classifies them as incorporeal hereditaments. (Halbert v. Hendrix (1950), 121 Ind. App. 43, 95 N.E.2d 221.) Moreover, the Halbert court held that an overriding royalty remains an incorporeal hereditament after the interest is divided. (Halbert, 121 Ind. App. at 48, 95 N.E.2d at 223.) A sublease or assignment of a fractional interest also retains its classification as a hereditament. (See 3 W. Summers, The Law of Oil & Gas §556, at 666 (1938 & Supp. 1990) (“In determining the nature of the interest *****, the courts have relied upon what has been held in the particular jurisdiction to be the nature of the lessee’s interest”).) Consequently, a “working interest” or a fractional interest thereof constitutes “real property” or an “interest in real property” under the laws of Indiana, thus placing defendant within the scope of Indiana’s long-arm statute. This conclusion is consistent with the decisions of other courts as to whether oil and gas royalties are considered real property for jurisdictional purposes. See Fairbairn v. Eaton (1935), 6 Cal. App. 2d 264, 43 P.2d 1113; Echols v. Wells (Tex. Civ. App. 1973), 508 S.W.2d 118, rev’d on other grounds (1974), 510 S.W.2d 916.

The ultimate issue, then, is whether the exercise of jurisdiction over defendant by the courts of Indiana offends the concept of due process of law guaranteed by the fourteenth amendment to the United States Constitution. Under the standard as elucidated by the United States Supreme Court in International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154, and its progeny, the defendant must have certain minimum contacts with the State so that the maintenance of a suit in that state does not offend “traditional notions of fair play and substantial justice.”

In regard to the minimum contacts requirement, a mechanical, quantitative evaluation of a defendant’s activities in a State is not determinative of the exercise of personal jurisdiction. Rather, it depends upon the quality and nature of the defendant’s activity in relation to the matter in dispute and the relationship of those activities to the forum. (Rush v. Savchuk (1980), 444 U.S. 320, 62 L. Ed. 2d 516, 100 S. Ct. 571; Kulko v. California (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690; Shaffer v. Heitner (1977), 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569; Reames, 519 N.E.2d at 177-78.) At a minimum, the court must find an act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. (Hanson v. Denckla (1958), 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298, 78 S. Ct. 1228, 1240.) The focus is on the defendant’s activities within the forum State, not on those of the plaintiff. World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 297, 62 L. Ed. 2d 490, 501,100 S. Ct. 559, 567.

The presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. (Reames, 519 N.E.2d at 178.) When claims to the property itself are the source of the underlying dispute between the plaintiff and the defendant, it would be common for the State where the property is located to have jurisdiction; however, when claims to the property are not the underlying source of the controversy, the presence of the property alone will not support the State’s jurisdiction unless other ties with the State exist. Reames, 519 N.E.2d at 178, discussing Shaffer, 433 U.S. at 207-09, 53 L. Ed. 2d at 699-701, 97 S. Ct. at 2581-82.

Thus, in Bryan Manufacturing Co. v. Harris (Ind. App. 1984), 459 N.E.2d 1199, the court found sufficient contacts to exercise jurisdiction over a nonresident defendant in a suit alleging breach of a real estate sales contract. The court noted that the contract was for real property located in Indiana and after the contract was consummated, the defendant would acquire rights and responsibilities under Indiana law. The court concluded:

“[D]efendants may not contract to purchase property in [Indiana], become entitled to all the rights and privileges as an equitable owner, and then deny they had the necessary minimal contacts when certain responsibilities as property owners are asserted against them.” Bryan Manufacturing Co., 459 N.E.2d at 1202-03.

By contrast, in Reames, the court held that it had no personal jurisdiction where plaintiffs sought no determination regarding either the ownership of the land or the rights and responsibilities of the parties under the mortgage instrument itself. The court also noted that the contract in that case was negotiated and executed in Pennsylvania, and defendant’s only action in Indiana regarding the mortgage in the case was a brief visit to the Clark County property which lasted a couple of hours. (Reames, 519 N.E.2d at 175.) The Reames court distinguished Bryan Manufacturing Co., noting that the underlying source of the controversy in Bryan was the land itself and the nonresident purchaser therefore was held to have contacts sufficient to satisfy the due process test. (Reames, 519 N.E.2d at 178.) Such a limitation is entirely consistent with the plain language of Trial Rule 4.4(A) itself, which refers to suits “arising from” the enumerated list of acts.

In this case, defendant established minimum contacts with Indiana, because the underlying source of the dispute is a “working interest,” which we have concluded falls within the definition of “real property” or an interest therein under Indiana law.

Having decided that defendant purposefully established minimum contacts with the forum, we then evaluate those contacts in light of other factors to determine whether the exercise of personal jurisdiction comports with the notions of “fair play and substantial justice.” These other factors are:

“The burden on the defendant ***; the forum State’s interest in adjudicating the dispute ***; the plaintiff’s interest in obtaining convenient and effective relief ***; the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental social policies [citations].” (World-Wide Volkswagen Corp v. Woodson, 444 U.S. at 292, 62 L. Ed. 2d at 498,100 S. Ct. at 564.) (Citations omitted.)

These factors may support the exercise of personal jurisdiction where the showing of minimum contacts is questionable. Burger King Corp. v. Rudzewicz (1985), 471 U.S. 462, 477, 85 L. Ed. 2d 528, 543-44, 105 S. Ct. 2174, 2184.

In this appeal, these factors seem to favor the exercise of personal jurisdiction. Indiana has a clear interest in adjudicating disputes involving an Indiana resident and also involving Indiana law on some or many of the issues. (Bryan Manufacturing Co., 459 N.E.2d at 1203-04.) Plaintiff also has a compelling interest in obtaining effective relief in a convenient forum. Consequently, the exercise of personal jurisdiction over defendants comports with due process.

In summary, defendant has failed to demonstrate that the Indiana courts lacked personal jurisdiction over him. For all of the reasons stated above, we affirm the decision of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

      It appears that Gibson County, Indiana, is not the preferred venue for a claim involving real property located in Knox County; nevertheless, venue could be had in Knox County so long as the opposing party did not object to it. See Indiana Rules of Procedure, Trial Rule 75(A)(Burns 1991).


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL MILTON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—2290
    Opinion filed March 28, 1991.
    Rehearing denied April 23, 1991.

      Michael Pelletier and Maria Harrigan, both of State Appellate Defender's Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gayle Terry, and Margaret Iwerbon, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

A jury found defendant Darrell Milton guilty of delivery of more than 1 but less than 15 grams of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b).) He was sentenced to years in prison concurrent with an identical term for another delivery of controlled substances charge to which he pleaded guilty. He was also fined $11,500. Defendant appeals from the jury conviction, presenting the following issues: (1) whether the trial court erred in requiring defendant to submit an affidavit to establish an entrapment defense in support of his motion to produce information about the police informant; (2) whether defense counsel’s failure to object to the State’s use of the affidavit for impeachment purposes constituted ineffective assistance of counsel; and (3) whether the State’s closing argument improperly shifted the burden of proof to defendant.

At trial, Willie Davis, a special agent with the Illinois Department of State Police, testified on behalf of the State. On March 12, 1987, Anthony McDuff, who had been introduced to Davis by another police officer, introduced Davis to defendant in a trailer. McDuff informed defendant that Davis was the person who “wanted to purchase the cocaine.” Defendant asked how much Davis wanted and was told one-sixteenth of an ounce. As defendant pulled a clear plastic bag from his pants pocket, someone pulled up in a car and sounded the horn. Defendant put the plastic bag back into his pants pocket, left the trailer, entered the car, and sat in the passenger seat. Davis saw defendant give the plastic bag in his pants pocket to the person in the car, take money from him, exit the vehicle, and return to the trailer.

Inside the trailer, defendant reached into his coat and retrieved another clear plastic bag containing a white powdery substance. Defendant measured the cocaine, gave Davis the amount he had requested, and took $150 from him. At the end of the transaction, defendant and Davis discussed the possibility of a five-ounce-cocaine transaction and defendant gave Davis a piece of paper containing defendant’s pager number. Defendant was never charged with this March 12 transaction.

When Davis contacted defendant through defendant’s pager, they arranged to meet for another cocaine transaction on March 24, 1987. Davis met defendant at a Shell gas station located at 87th and State Streets at approximately 3:55 p.m. on March 24, 1987. Two other special agents acted as surveillance officers. Defendant approached Davis and informed him that he did not have the cocaine but that it would take him 20 minutes to get it. He told Davis to meet him at 98th and Halsted Streets.

After Davis arrived at that location, defendant entered his vehicle and requested that he park around the comer. When Davis did so, defendant handed him a clear plastic bag containing a white powdery substance, which was later determined to be seven grams of a substance containing cocaine. In return, Davis paid defendant $500. After the transaction, Davis drove defendant back to 98th and Halsted, dropped him off, and departed. This March 24 transaction was the charged offense in the jury trial.

When called as a rebuttal witness, Davis further testified that he contacted defendant again on March 26, 1987, and arranged a meeting to conduct another cocaine transaction. Davis met defendant on March 27, 1987, at 87th and Lafayette at approximately 7:15 p.m. and purchased eight ounces of cocaine from him for $11,600. This transaction constituted the offense to which defendant pleaded guilty.

Defendant testified on his own behalf that he was a track driver and tree trimmer for the City of Chicago. He stated that in 1985 he met Anthony McDuff, who worked for a tracking company, in 1985 through his job. During the latter part of 1986, defendant had an allergic reaction to trees which caused him to take a disability leave. He had been earning $10.40 per hour but did not receive any income from the city while on leave. Defendant applied for disability but only part of it was approved after he went back to work.

Defendant testified that he worked “odd jobs” during his leave and that his car was repossessed during that period. He decided that he would have to find either a better paying job or a second job. After he returned to work, he approached McDuff and asked him if his employer was hiring. McDuff stated that he was acquainted with an employee at Brown and Lambert, a construction company, and that he could ask that the employee assist in securing a job for defendant.

Defendant further testified that during several conversations with McDuff, McDuff requested that defendant introduce him to a “source” in order to obtain cocaine. Defendant initially refused. McDuff repeatedly brought up the subject, and defendant usually responded “I’ll see if I can find somebody.” During one of the conversations, McDuff stated that if defendant really wanted the job he would first have to find a “source.” On March 12, 1987, McDuff called defendant and asked whether defendant had found a source; defendant replied that he had.

Defendant admitted that he in fact met Davis on March 12 and sold him cocaine. Defendant stated that Davis’ testimony at trial was essentially true, except that the reason he exited the trailer on March 12 was to return the excess amount of cocaine to his source. He did this because Davis asked for less cocaine than he expected. He denied accepting any money from that person. Defendant further testified that he received a call from Davis on March 20 to arrange another cocaine transaction but that he never initiated any of the calls except when he returned Davis’ calls. Defendant also admitted selling cocaine to Officer Davis on March 24 and March 27, 1987, but stated that he was merely acting as a “middle man.”

On cross-examination, defendant testified that, when he returned to work after his disability leave, he was earning approximately $25,000 per year and that he was living with his mother. The assistant State’s Attorney impeached defendant by using defendant’s signed affidavit which provided in paragraph 12 that the “affiant was tempted by the possibility of additional income offered by McDuff.” Defense counsel’s objection on the grounds that this was not impeaching was overruled; however, there was no specific objection to the State’s use of the affidavit.

Defendant further testified that in all the cocaine transactions he merely acted as a middle man. He stated, however, that McDuff neither coerced him to sell cocaine nor threatened him. Moreover, defendant never saw or spoke to McDuff after the initial drug transaction with Davis.

Michael Turpeau testified for the defense. He was defendant’s coworker and also knew McDuff through his job. He stated that, during late 1986 and early 1987, McDuff continually pestered him to find someone who would sell him cocaine. Turpeau refused each of McDuff’s requests.

Carl Bodnar testified on behalf of defendant that he and McDuff had stolen cars together and had been arrested on January 9, 1986. Bodnar stated that they both pleaded guilty and that he was sentenced to eight years’ imprisonment while defendant was sentenced to five. Bodnar went to prison but never saw McDuff there. Later, Bodnar telephoned McDuff and learned from him that he had retained a different lawyer and was to be placed on probation instead.

On cross-examination, Bodnar admitted that he had been on probation for a similar offense at the time of his sentencing and that he was charged with 15 counts while McDuff was charged with about five counts. Moreover, Bodnar testified that about 133 individuals were arrested at the time and charged with auto theft, and that only 15 individuals, each of whom was charged with 10 to 15 counts, received prison sentences.

Major Charles Doerr testified for the defense. As an area commander for the State Police, he supervised criminal investigations. He wrote a letter to the Will County State’s Attorney at the request of one of the zone commanders. The letter requested that consideration be given to McDuff in return for his cooperation with the police.

Philip Mock, a Will County assistant State’s Attorney, also testified on defendant’s behalf. Mock prosecuted the case against McDuff; in return for a guilty plea, he agreed to recommend a term of imprisonment no greater than five years. He received the letter from Major Doerr; it was a factor in his recommendation that McDuff receive probation.

After the jury’s verdict of guilty, defendant pleaded guilty to the March 27, 1987, delivery charge. The trial court sentenced defendant to concurrent 8V2 year terms of imprisonment.

I

Defefendant initially contends that the trial court erred in requiring him to submit a signed, sworn affidavit concerning his entrapment defense in support of his motion to obtain information about the police informant. Defendant argues that by requiring him to disclose the details of his entrapment defense prior to trial in order to obtain relevant information essential to his defense, the trial court forced him to incriminate himself. Though the State’s position that this issue was not properly preserved for appeal is correct (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), we will address the issue to determine whether any substantial rights of defendant were violated under the plain error rule. 134 Ill. 2d R. 615.

In a pretrial motion, defendant had requested that any and all papers, documents, and evidence concerning McDuff, the police informant in this case, be tendered to him. Defendant also requested information concerning McDuff s criminal history and information relating to any assistance rendered by McDuff in the investigation of defendant and in other investigations. The trial court denied the request, but granted defendant leave to submit a motion to reconsider its ruling.

At a subsequent hearing, the trial court again denied defendant’s motion for the requested information. In doing so, the court relied upon the holding in People v. Thornton (1984), 125 Ill. App. 3d 316, 465 N.E.2d 1049, where the appellate court held that the pretrial disclosure of an informant was unnecessary because the defendant offered no adequate reason to the trial court for requiring disclosure and because the informant was not involved in the transaction for which the defendant was prosecuted. At bar, the trial court also referred to the holding in People v. Adams (1983), 116 Ill. App. 3d 315, 451 N.E.2d 1351, which upheld the constitutional validity of the affidavit requirement of Cook County Circuit Court Rule 15.1(e) and People v. Raess (1986), 146 Ill. App. 3d 384, 496 N.E.2d 1186, which was an example of a case where an unrebutted affidavit of a defendant claiming an entrapment defense led to a dismissal of charges because of the State’s nondisclosure of discovery information ordered by the trial court.

After again denying defendant’s requests, the court again continued the case, giving defendant still another opportunity to establish that the requested information was relevant to an entrapment defense by citing the procedure followed in Raess.

At the next pretrial hearing, defendant filed his affidavit wherein he admitted engaging in the three deliveries of cocaine, and spelled out his entrapment defense. Based upon this affidavit, the trial court ordered the State to furnish all the requested information, except for information relating to other investigations.

Defendant’s contention, then, that he was required by the trial court to furnish an affidavit is not substantiated by the record. What the record shows is that the trial court properly denied defendant’s initial discovery requests because he provided an insufficient basis for them. It further shows that the trial court allowed defendant opportunities to furnish a sufficient basis, suggesting the affidavit procedure followed in Raess. This procedure did not compel defendant to file an affidavit; defendant’s contention to the contrary lacks merit.

II

Defendant next contends that he did not receive effective assistance of counsel because his attorney failed to object to the State’s use of defendant’s affidavit to impeach his trial testimony.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the United States Supreme Court announced the two-prong test which must be satisfied by a defendant to support a claim of inadequate representation of counsel. Defendant must first show that counsel’s representation fell below an objective standard of reasonableness. Defendant must also show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) The Strickland standard was adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

When a defendant elects to be a witness in his own case, he becomes subject to cross-examination and impeachment just like any other witness. (People v. Clark (1973), 9 Ill. App. 3d 998, 293 N.E.2d 666.) As the United States Supreme Court said:

“Every criminal defendant is privileged to testify in his own defense, or refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” Harris v. State of New York (1971), 401 U.S. 222, 225, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645.

In this case, defendant stated on cross-examination that McDuff “insured” him that he would secure a job for defendant. The State then asked defendant whether he stated in his affidavit that he was “tempted by the possibility of additional income offered by McDuff.” Defendant first replied that he did not read the affidavit carefully before signing it. Later, he stated that everything contained in the affidavit was true. Since defendant made an inconsistent statement, the State had the right to impeach him with the affidavit. Thus, defense counsel’s failure to object to this proper form of impeachment cannot be characterized as ineffective assistance of counsel.

We are satisfied, too, that ineffective assistance of counsel was not established by defense counsel’s tactic in filing the affidavit of defendant. We note that that tactic was successfully utilized by the defendant in People v. Raess and that our supreme court has held that a precondition to raising the entrapment defense is that the defendant must admit that he committed the offense. People v. Gillespie (1990), 136 Ill. 2d 496, 552 N.E.2d 894.

Moreover, the record demonstrates that defense counsel presented a zealous defense at all stages of the proceedings. Counsel filed several pretrial motions and presented case law supporting them, made arguments and objections at trial, presented witnesses on defendant’s behalf, and vigorously cross-examined the State’s witnesses. Defense counsel also participated effectively in post-trial proceedings. It cannot be said that defense counsel’s representation was inadequate.

Ill

Defendant’s final contention is that the State’s closing argument improperly shifted the burden of proof to him. Though the State’s contention that defendant has not properly preserved this issue is correct, we will consider whether plain error occurred.

During his closing argument, defense counsel argued that defendant was induced to deliver cocaine to Davis because defendant was experiencing financial difficulty and McDuff offered to find him a job in return for delivery of controlled substances. In rebuttal, the State argued that defendant delivered controlled substances solely because of his own personal greed and that he was not experiencing any financial difficulty. The prosecutor then questioned why defendant did not produce any disability forms, tax returns, or other evidence of his poor financial situation.

We find the words of the Illinois Supreme Court, in a case where a similar argument of burden-shifting was made, to be apropos here:

“As defendant noted, this court has long held that it is impermissible for the prosecution to attempt to shift the burden of proof to the defense. (People v. Weinstein (1966), 35 Ill. 2d 467, 470.) Indeed, the defense is under no obligation to present any evidence; ‘the prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime.’ (35 Ill. 2d at 470.) This court has never said or implied, however, that once a defendant does present certain evidence it is beyond the reach of appropriate comment by the prosecution. There is a great deal of difference between an allegation by the prosection that defendant did not prove himself innocent and statements questioning the relevance or credibility of a defendant’s case. (See People v. Adams (1985), 109 Ill. 2d 102, 120-21; People, v. Albanese (1984), 104 Ill. 2d 504, 521-22.) Not every prosecutorial statement questioning relevance or credibility rises to an impermissible shifting of the burden.” (People v. Phillips (1989), 127 Ill. 2d 499, 527, 538 N.E.2d 500.)

As in Phillips, we find that the State did not shift the burden of proof to defendant in this case.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO, P.J., and HARTMAN, J., concur.