author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. IVAN GLENN WILLIAMS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—89—2605
    Opinion filed July 14, 1992.

      Burch & Delgado, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant, Ivan Glenn Williams, in a jury trial, was found guilty of first-degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9—l(a)(l)) and sentenced to a term of 35 years’ imprisonment.

On appeal, defendant contends that (1) his statements and certain physical evidence should be suppressed as the product of an illegal arrest; (2) that his statements and certain physical evidence should have been suppressed because the statements were not given voluntarily; (3) inadmissible hearsay was admitted at trial, denying him the right to confrontation; (4) a mistrial should have been declared after a State’s witness asked a juror for a date during the trial; and after the jury was advised, outside of defendant’s presence, that the vandalization of cars in the court’s parking lot was not limited to the juror’s car, but included cars of other persons not connected with defendant’s case; and (5) that his conviction should be reduced to second-degree murder because the evidence did not prove him guilty of first-degree murder beyond a reasonable doubt. The decision of the trial court is affirmed because we find that defendant’s arrest was legal and the trial court’s finding that defendant’s statements were voluntary is supported by the facts and circumstances of the case. Further, there is no basis for a mistrial in the record and defendant was proven guilty beyond a reasonable doubt.

On Wednesday, December 9, 1987, at about 2:15 p.m., the body of the deceased was found in her apartment on east 14th Street in Chicago Heights. The deceased had been stabbed twice in the left chest and four times in the upper back. The apartment was in a state of disarray and looked ransacked. The walls were splattered with blood and a video cassette recorder was missing.

Detectives David Wierzbicki and Robert Pinnow of the Chicago Heights police department interviewed family members and friends of the deceased at the police station. Detective Wierzbicki learned from Marilyn Nichols, the deceased’s mother, that at about 12:30 p.m., she had telephoned the deceased, who said that defendant was in the apartment to use the telephone. She told the deceased that defendant had to leave after he made the telephone call.

Defendant initially appeared at the police station on his own volition with friends and relatives of the deceased. He told the police that at about 12:30 p.m. that day he received a ride from Holbart Buckner to Nichols’ apartment. He wanted to see his brother, Roger, who lived at the apartment with Marilyn Nichols. Roger was not there and he asked the deceased to let him use the telephone. He acknowledged that Marilyn Nichols called while he was in the apartment. He stated that the deceased was alive when he left the apartment; also, he said that Buckner, who had waited outside of the apartment, drove him to another location.

Buckner was located by the detectives. Buckner said that at around 12:30 p.m. that day he and James Jett drove defendant to 1416 Green Street. This location is about a block away from Nichols’ apartment. Buckner stated that they waited about 10 to 15 minutes and then left without defendant. The detectives interviewed Jett, who corroborated Buckner’s account.

The detectives went to defendant’s father’s house at about 12:10 a.m. By that time, they knew about an active traffic warrant for defendant’s arrest. The arrest warrant was for driving on a suspended license. Ill. Rev. Stat. 1989, ch. 951/2, par. 6—303.

Defendant was advised that the detectives “needed to speak with him” about the investigation of the Nichols homicide. Defendant went with them to the police station. At the police station, defendant was told that he was under arrest for the traffic violation and investigation of murder.

The following afternoon, defendant was questioned and eventually made three statements.

I

Defendant states that his arrest was illegal and the confessions and the resulting physical evidence must be suppressed. Three reasons are advanced by defendant to sustain his position: (1) the traffic warrant was invalid because it had been recalled; (2) the traffic warrant was used as a pretext to allow the detectives to take him into custody to interrogate defendant about the murder; and (3) there was no probable cause to arrest him.

The State argues that defendant has waived any challenge to the legality of his arrest because he failed to include it in his motions to suppress or in his motion for new trial. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Defendant acknowledges that he failed to raise the illegal arrest claim but requests that we review it under the plain error rule contained in Supreme Court Rule 615(a). (134 Ill. 2d R. 615(a).) In People v. Alexander (1991), 212 Ill. App. 3d 1091, 571 N.E.2d 1075, we observed that even constitutional errors could be waived under Enoch where a post-trial motion fails to preserve the issue “unless the error reasonably could have affected the verdict or if it would have resulted in a failure to afford the defendant due process of law.” (Enoch, 212 Ill. App. 3d at 1102-03.) We said that “limiting our review to issues which could reasonably have affected the verdict still adequately ensures that serious injustices are corrected and that the integrity and reputation of the judicial process is preserved.” Alexander, 212 Ill. App. 3d at 1103; see also People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.

Although we conclude that the claim of an illegal arrest has been waived, we will review it in the interest of judicial economy, as it involves a constitutionally based issue.

(D

Defendant does not argue that the arrest warrant was invalidly issued. He argues that it was recalled as a matter of law. Defendant relies on the following general orders of the circuit court:

“Effective immediately, a moratorium is hereby declared on the service and execution of all warrants covering state, county and municipal ordinance violations punishable by fine only until further order of Court.” May 17, 1984. General Order No. 84—4(M).
“Effective immediately, all warrants covering state, county and municipal ordinance violations punishable by fine only are hereby recalled and quashed.” (June 6, 1984. General Order No. 84— 6(M).)

Neither of the foregoing orders applies to the traffic warrant at issue.

The common law record states that defendant’s traffic warrant was for a violation of section 6—303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 6—303), which punishes driving on a suspended license as a Class A misdemeanor. Under the Unified Code of Corrections, section 5—8—3(a) (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—3(a)), a Class A misdemeanor, is punishable by a determinate prison sentence of less than one year. Therefore, the general orders affecting ordinance violations punishable only by a fine do not apply to defendant’s traffic warrant. Therefore, for purposes of the fourth amendment, we conclude that defendant’s December 10, 1987, arrest for driving on a suspended license was lawful and that the ensuing custody was reasonably related to that arrest.

(2)

Defendant contends that the arrest warrant was merely a pretext to allow the detectives to take him into custody to accomplish their real purpose, which was to interrogate him about the murder. Defendant argues that, therefore, his custody was illegal and his confessions and the resulting physical evidence must be suppressed.

While it is true that a suspect cannot be detained for custodial questioning on less than probable cause (Dunaway v. New York, (1980), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Holveck (1990), 141 Ill. 2d 84, 95, 565 N.E.2d 919), generally, an arrest supported by a duly authorized warrant is a valid arrest (Ill. Rev. Stat. 1989, ch. 38, par. 107—2(a); People v. Spence (1976), 43 Ill. App. 3d 1044, 357 N.E.2d 1245; see also Watson v. United States (1976), 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820). Moreover, it is permissible for police officers to arrest a suspect on a minor offense and conduct questioning on a more serious offense and the arrest will not be deemed pretextual as long as the arrest on the minor offense is valid. (People v. Perry (1990), 204 Ill. App. 3d 782, 562 N.E.2d 618 (arrest for driving without a license, which arose out of stop for failure to display rear registration plate, was not pretext for subsequent search of purse revealing cocaine).) Similarly, in People v. Hattery (1989), 183 Ill. App. 3d 785, 813-19, 539 N.E.2d 368, the court affirmed, as not manifestly erroneous, a trial court’s ruling that an arrest warrant for aggravated battery was not executed as a pretext to allow questioning on an unrelated murder case. The court relied on the rule of objective reasonableness and concluded that, while the police may have been motivated to execute the warrant for reasons unrelated to the murder, the confession to the murder obtained following the arrest under the battery warrant was admissible. Hattery, 183 Ill. App. 3d at 818-19.

The Hattery court cited, among other cases, the decision in People v. Anderson (1988), 169 Ill. App. 3d 289, 523 N.E.2d 1034, which involved a warrantless arrest for driving on a suspended license of a person suspected of murder and known to have a prior record for violent crimes. In Anderson the appellate court held that, because the police officers acted with objective reasonableness in validly arresting defendant for driving on a suspended license, the trial court erred in granting his motion to suppress his murder confession obtained during custody on the suspended license arrest. The court stated:

“Having effectuated a valid custodial arrest, there is no question that they had the authority to transport the defendant to the police station and question him about another crime of which he might have knowledge.” Anderson, 169 Ill. App. 3d at 299-300.

Finally, in People v. Fickett (1990), 204 Ill. App. 3d 220, 562 N.E. 2d 238, a claim of a pretextual arrest was rejected where defendant was arrested after admitting to a police officer that he had outstanding warrants in the suburbs. The officer was investigating the disappearance of a female and wished to question Fickett about her. The officer knew Fickett had been seen dancing with her the night before and that they were seen leaving the bar together. Additionally, evidence suggested that they had gone to his apartment. The court observed that,

“[Objectively viewed, the fact that Fickett had outstanding warrants gave the officers the right to arrest him even though they obviously desired to question him regarding the missing girl, Wendy. Having effectuated a valid arrest, there is no question that the police officers had the authority to transport defendant to the police station and question him about another crime of which he might have knowledge.” Fickett, 204 Ill. App. 3d at 226.

Based on the foregoing decisions, if the traffic warrant was valid, then defendant was lawfully seized and held in custody even if the detectives otherwise lacked probable cause to arrest him for murder.

(3)

In this case, we need not address the issue of probable cause because it is clear that the traffic warrant was a valid basis for the arrest of defendant.

II

Defendant next contends that the confessions and certain physical evidence were obtained by the use of physical and mental coercion and without his being advised of Miranda rights. Defendant filed a motion to suppress his statements prior to the trial.

Detective Wierzbicki testified at a suppression hearing that prior to the first interview, defendant was read Miranda warnings (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), from a card that was dated and which defendant signed, waiving his rights. Defendant’s first statement was made at 1:50 p.m. and was exculpatory and tended to implicate Buckner. Next, the officers reinterviewed Buckner and Jett. Defendant was interviewed the second time at about 5 p.m. and was advised that his information regarding Buckner’s involvement had been checked out and was found to be false. Defendant was advised that after talking to Buckner and Jett a second time, the detectives found many discrepancies between his and their stories. Defendant then became very emotional and broke down and said that he could not hold it inside any longer and would tell them the truth. The interview lasted about an hour and a half. Defendant went with the officers to a location and showed them where he had hidden physical evidence from the crime.

Subsequently, between 6:30 and 7 p.m., defendant agreed to make a written statement. In addition to the warnings, defendant wrote his name and address on the form on which the detectives wrote the body of his statement. At the end were several questions which defendant answered in his own writing. One of those questions answered “yes” by defendant was whether the statement was made of defendant’s own free will and not through fear, threats, inducements or promises of reward. Afterward, defendant was asked to sign each of the six pages of the written statement after reading it out loud. Defendant signed each of the six pages.

Defendant’s confession stated that he went to the deceased’s apartment looking for his brother and was allowed to make a telephone call. A struggle started when he teased the deceased and tried to put his arm around her. At that time, she produced a knife. Defendant and the deceased struggled and fell onto the floor. The deceased was stabbed in the chest. Defendant continued to struggle and got the knife away from the deceased. Defendant stabbed the deceased once in the back after pushing her onto the couch. At that point, something kept telling defendant that he would go to jail for the rest of his life, so defendant stabbed the deceased three more times in the back, thinking that she had to die.

Defendant was then photographed, showing his right hand with a knife wound or wounds.

Detective Wierzbicki testified that defendant did not indicate that he did not understand his Miranda rights or that he wanted to talk to a lawyer or that he did not want to talk to the detectives. Wierzbicki denied that threats or force or promises were made to induce defendant to confess; defendant was not told that he could leave the police station if he confessed.

Defendant testified at the suppression hearing and denied that the detective told him of the existence of the traffic warrant for his arrest. He stated that prior to making his oral statement on December 10, Wierzbicki, Pinnow and a third officer had stood over him and screamed at him and threatened to hit him in the mouth. Defendant testified that the third officer “really put on a show,” and that he was very shaken and fearful of being hit and that he cried throughout the statement.

Defendant stated that he did not receive Miranda warnings until after he made the oral confession. Then he executed three Miranda waivers. Defendant denied that he had read the written confession before he signed it. He had assumed that the officers wrote down what he told them.

The trial court found defendant’s statements were voluntary. In addition, the trial court noted that the traffic warrant case was before the court. On the motion of the State, that matter was stayed until the trial date of the case at bar.

During the continued overnight custody, defendant was not questioned, but was left alone. When defendant was interviewed, beginning at 1 p.m. the next afternoon, he was provided Miranda warnings and elected to talk to the detectives. Had defendant exercised his Miranda rights, questioning should have ceased. Defendant was provided Miranda warnings three separate times during the next five- or six-hour period. He waived those rights each time and elected to talk to the police. During almost half of that time, the detectives were questioning other witnesses to check out defendant’s initial statement. The brief extension of defendant’s detention on the traffic warrant, while the officers sought to question him on the murder case, was not unreasonable and, therefore, not a violation of the fourth amendment. See People v. Smith (1990), 203 Ill. App. 3d 545, 561 N.E.2d 252.

In Smith, the appellate court affirmed a conviction for first-degree murder based on defendant’s confession obtained following his arrest on a misdemeanor warrant. The appellate court held that there was no unnecessary delay in presenting defendant to a court on the traffic offense in violation of the speedy arraignment statute. Rather, and noting that the general rule in confession cases is that delay in arraignment is a factor to be considered in the analysis of the issue of voluntariness and is not a rule of per se exclusion, the appellate court held that delay occasioned by the taking of a voluntary statement is reasonable delay under section 109—1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 109—1(a)). “Once a defendant in lawful custody knowingly waives his Miranda rights and indicates a willingness to talk to police,” there is no obligation on the police “to interrupt their interrogation as long as its length is not unreasonable and the suspect’s statements continue to be voluntary.” (Smith, 203 Ill. App. 3d at 563; cf. People v. Quarrels (1980), 88 Ill. App. 3d 340, 410 N.E.2d 497 (Officer learned charge for which defendant arrested was invalid but continued to interrogate defendant on second charge; held: continued detention was illegal and confession to second charge suppressed).) Therefore, defendant’s illegal arrest argument fails to persuade us that his confessions should have been suppressed.

We now turn our attention to the issue of whether defendant’s confessions were the product of a knowing, intelligent and voluntary waiver of his Miranda rights and the parallel rights provided by Illinois statutory law under section 103—2(a) of the Code of Criminal Procedure. Ill. Rev. Stat. 1989, ch. 38, pars. 103—2(a), (b), (c); People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958; see also Ill. Rev. Stat. 1989, ch. 38, par. 114—11.

Generally, the State bears the burden of establishing by a preponderance of the evidence that a confession is voluntary. (People v. Caballero (1983), 102 Ill. 2d 23, 464 N.E.2d 223.) Similarly, the burden of proving that defendant voluntarily, knowingly and intelligently waived his Miranda rights is on the State by a preponderance of the evidence. (People v. Reid (1990), 136 Ill. 2d 27, 51, 554 N.E.2d 174.) Once the State makes a prima facie showing that the confession was voluntary or the waiver of rights was voluntary, knowing and intelligent, the burden of proceeding shifts to defendant to show otherwise. Reid, 136 Ill. 2d at 51.

The trial court’s decision on the issue of voluntariness or the issue of the validity of a Miranda waiver will not be overturned on appeal unless it is against the manifest weight of the evidence. (Caballero, 102 Ill. 2d at 33; Bernasco, 138 Ill. 2d at 368; People v. Galvin (1989), 127 Ill. 2d 153, 535 N.E.2d 837.) Whether a confession is voluntary depends on whether, considering the totality of the circumstances, the confession is found to have been made freely and voluntarily without compulsion, or whether defendant’s will was overborne at the time he confessed so as not to be the product of a rational intellect and free will. (People v. Redd (1990), 135 Ill. 2d 252, 292, 553 N.E.2d 316; People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) In determining whether a defendant voluntarily, knowingly and intelligently waived his Miranda rights, a court must consider the totality of the circumstances, including the characteristics of defendant and the details of the interrogation. (Reid, 136 Ill. 2d at 54-55.) Under Illinois law, intelligent knowledge is one component of overall voluntariness rather than an admissibility criterion separate from voluntariness, as under Miranda waiver law. Bernasco, 138 Ill. 2d at 365.

Defendant was given Miranda warnings three different times and each time he waived his rights to silence and to counsel. The signed warning cards and written statement containing Miranda warnings were introduced into evidence at the suppression hearing. The trial court had ample evidence before it to support the conclusion that defendant voluntarily, knowingly and intelligently signed and waived each warning in accord with the State’s evidence. We cannot substitute our judgment for that of the trial court, which determined that the confession was voluntarily made. See People v. Childers (1981), 94 Ill. App. 3d 104, 111, 418 N.E.2d 939.

Defendant’s claim not to have eaten prior to making his written confession and to having been promised food before making the written confession is not persuasive. The trial testimony indicates that defendant was provided food in the morning of December 10, as a matter of routine jail procedures, and the uncontested evidence at the suppression hearing indicated that defendant never complained about a lack of food. Under these circumstances, we see no reason to disturb the trial court’s ruling.

Finally, as to the delay in presenting defendant with the bail option or bringing him before a court on the traffic arrest warrant, we note that that is but one factor in the overall voluntariness assessment. (Redd, 135 Ill. 2d at 296; Smith, 203 Ill. App. 3d at 564.) As for bail, there is no showing that defendant was unaware of his right to bail by virtue of the requirement that notice thereof be posted at the jail. (Ill. Rev. Stat. 1989, ch. 38, par. 103—7.) As for the failure to take him before a judge, we note only that defendant, who was in custody for about 17 hours before his first confession, freely talked with the detectives after Miranda warnings were given. On this record, the delay in processing him on the traffic warrant was not such as to have coerced his confessions.

We, therefore, conclude that the trial court did not err in denying defendant’s motion to suppress his confessions as an unintelligent waiver of his right to remain silent and to counsel as provided by Miranda or Illinois law.

Ill

Defendant argues that alleged hearsay was improperly admitted at trial through the testimony of Detective Wierzbicki. On direct examination, Detective Wierzbicki was asked to relate the contents of Holbart Buckner’s statement of December 9. Defendant objected on grounds of hearsay. The objection was overruled when the prosecutor stated that the statement was not being offered for the truth of its contents, but rather, to show how the officer conducted his investigation.

Detective Wierzbicki then related Buckner’s statement that he and James Jett had driven defendant to an address on Green Street on December 9, 1987, and had left without him after waiting about 15 minutes. Subsequently, defense counsel objected on the grounds of “hearsay” and “knowledge” when the prosecutor asked Detective Wierzbicki to recount the contents of Jett’s statement of December 9, 1987. The objection was sustained because of a lack of foundation.

A subsequent question brought forth the content of the statement without further objection. Defendant now contends that he was denied a fair trial by the introduction of Jett’s hearsay testimony. It is further claimed that because Jett did not testify at trial, defendant’s right of confrontation was violated.

Recently, our supreme court ruled that the failure to raise a contemporaneous objection to each in a series of statements waives appellate review of the unobjected-to statements, even where prior objections to similar statements were overruled. (People v. Steidl (1991), 142 Ill. 2d 204, 233, 568 N.E.2d 837.) Therefore, we agree with the State’s argument that defendant has waived this issue.

Nevertheless, our review of the merits of this issue reveals that no inadmissible hearsay came before the jury. (People v. Simms (1991), 143 Ill. 2d 154, 173-74, 572 N.E.2d 947.) Hearsay is an out-of-court statement offered at trial to prove the truth of the matter asserted, with the value of the statement resting on the credibility of the person who made the out-of-court statement. (People v. Billingsley (1989), 184 Ill. App. 3d 142, 146, 539 N.E.2d 1302.) Testimony about an out-of-court statement which is used for a purpose other than to prove the truth of the matter asserted in the statement is not hearsay. Simms, 143 Ill. 2d at 173.

In Simms, an officer’s testimony at the first stage of a sentencing hearing that defendant’s brother had said defendant had admitted the homicide to him was held not hearsay and so admissible to explain why the officer continued to question defendant about the victim’s murder after defendant had offered a plausible explanation for a wound on his leg. Similarly, we are able to discern from the record that the purpose of Detective Wierzbicki’s testimony about Jett’s statement was to explain why he sought to reinterview defendant only a few hours after talking with him at the police station and obtaining a plausible assertion of innocence. Therefore, we conclude that the statement was not inadmissible hearsay. See Simms, 143 Ill. 2d at 174; see also People v. McNeal (1987), 160 Ill. App. 3d 796, 801, 513 N.E.2d 897, 901; People v. Palmer (1989), 188 Ill. App. 3d 414, 422, 545 N.E.2d 743, 751.

Where the trial court admits out-of-court statements for the limited purpose of explaining why the police acted as they did in their investigation, the court must specifically instruct the jury that the statement is introduced for a limited purpose and that the jury is not to accept the statement for the truth of its contents. Absent a showing to the contrary, it is presumed that the jury will follow the court’s instruction. (Simms, 143 Ill. 2d at 174.) In the case at bar, defendant’s jury was not told that the evidence was admitted for a limited purpose only and not to accept it for the truth of its contents. However, while James Jett did not testify, Holbart Buckner did. Buckner related essentially the same version of events as appeared in Jett’s statement. Thus, even assuming the jury may have used Jett’s statement for the improper purpose, the prejudicial effect would have been to bolster Buckner’s testimony. Had defendant renewed his hearsay objection, a proper instruction would have been given. (See People v. Foster (1990), 198 Ill. App. 3d 986, 556 N.E.2d 1214; People v. Green (1985), 136 Ill. App. 3d 361, 483 N.E.2d 606.) In the absence of such objection, defendant cannot complain that such an instruction should have been given. We find no error.

IV

Defendant’s claims that the trial court should have granted his motion for mistrial because of an incident reported by a juror and that reversible error occurred when the jury was admonished outside of the presence of defendant and defense counsel to disregard acts of vandalism in the parking lot of the court house.

During the third day of trial, a juror informed the court that one of the State’s witnesses had approached her in the parking lot and asked her for a date. The juror told the witness that his behavior was inappropriate and had no further conversation with him. The court questioned the juror outside the presence of the other jurors. The juror told the court that the incident would have no effect on her and that she had not communicated it to any of the other jurors. A motion for mistrial was denied. The court discharged the juror on defendant’s request. At the same conference, defense counsel asked the court to take action regarding a note from another juror which raised the matter of the juror’s car tire having been punctured. Defense counsel requested that the juror be questioned or informed that other cars in the parking lot had also been vandalized, including those of court employees and others not involved in defendant’s case. The court assured defense counsel that the jury had been so admonished. There is no record of how and when the admonishments to the jury took place.

Under Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), defendant has waived these issues by failing to provide supporting authority in his brief. People v. Dinger (1990), 136 Ill. 2d 248, 254, 554 N.E.2d 1376.

Independent of any waiver, there was no abuse of discretion by the trial court in excusing the juror who reported being asked for a date by a witness for the State. A trial court may discharge a juror in the exercise of sound discretion, where there is no cause for declaring a mistrial and where defendant is not prejudiced. (People v. Rohwedder (1968), 106 Ill. App. 2d 1, 5-6, 245 N.E.2d 282.) Here, the defendant was not prejudiced because the juror never discussed the incident with the other jurors. The juror was excused at the request of defendant.

Regarding the claim, raised for the first time on appeal, that the jury had been improperly advised outside of defendant’s presence, we note that the general rule is that a jury verdict will not be set aside because of a communication with a juror by court personnel or other third persons outside the presence of the accused where it is apparent that no prejudice resulted from the exchange. (People v. Cart (1981), 102 Ill. App. 3d 173, 187, 429 N.E.2d 553.) Defendant has made no prejudice showing from the exchange in this case.

V

Finally, defendant contends that the evidence was insufficient to convict him of first-degree murder. He asks that this court reduce his conviction to second-degree murder. The question presented is whether the evidence, viewed in a light most favorable to the prosecution, permits any rational trier of fact to find beyond a reasonable doubt the essential elements of the offense for which defendant was convicted. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

Defendant testified at trial that he had stabbed the deceased in self-defense. Defendant testified that he had gone to Nichols’ apartment in search of his brother and that the deceased let him in to use the telephone. After making several telephone calls and watching television, he teased the deceased about her weight and tried to kiss her on the jaw. The deceased threatened to kill him and attacked him with a knife. Defendant tried to defend himself and take the knife away from the deceased. They struggled and fell onto the floor with defendant falling on top of the deceased. He observed that she did not move any more. Defendant was cut in the hand and had blood all over him. Defendant went outside and returned, crying, and decided to make it look like someone had broken into the apartment. After doing that, defendant then left, hid a video cassette recorder taken from the apartment and changed his clothes.

At the close of evidence, the jury was instructed on first- and second-degree murder. The jury subsequently returned a verdict of guilty of first-degree murder.

Every reasonable hypothesis of innocence need not be excluded to sustain a conviction. It is the function of the trier of fact to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in the testimony and a reviewing court will not retry defendant. (People v. Foster (1990), 199 Ill. App. 3d 372, 387, 556 N.E.2d 1289.) Thus, a reviewing court will not substitute its judgment as to the weight of the evidence and will reverse a criminal conviction only where the evidence is so unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Young, 128 Ill. 2d at 51.

The elements of first-degree murder are provided in section 9—1(a) of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)). Relevant to the instant case are the first two of three subsections of the statute:

“(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to the individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another.” (Ill. Rev. Stat. 1987, ch. 38, pars. 9—l(a)(l), (a)(2).)

In the case at bar, defendant raised a self-defense claim. Where a defendant asserts the affirmative defense of self-defense and introduces some evidence tending to prove he acted in self-defense, the State must then prove beyond a reasonable doubt that the use of deadly force was not justified. (People v. Berry (1988), 175 Ill. App. 3d 420, 529 N.E.2d 1001; People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303.) The trier of fact must determine whether defendant’s belief that the situation required deadly force was a reasonable belief under the circumstances. As to that finding, this court will not reverse the trier of fact unless the evidence is so improbable or unsatisfactory that it raises a reasonable doubt as to defendant’s guilt.

The jury rejected the self-defense claim. While defendant testified that the deceased had been the aggressor, the jury was not required to accept his testimony. Moreover, from the number and severity of the wounds, the jury could have decided that defendant had formed the intent to kill her. In addition, defendant’s confession contained the statement that he had formed the intent to kill the deceased after some initial injuries had occurred, which was consistent with the testimony of the pathologist that there were two chest wounds and four back wounds. Although defendant denied that he had made any statement to the officers reflecting an intent to kill, the determination of that factual issue must be left to the jury. Finally, defendant’s efforts to depict a homicide/burglary and his changing of his clothes and attempts to mislead the police by making false statements were sufficient to permit the jury to reject the self-defense claim.

Defendant’s reliance on People v. Brown (1974), 19 Ill. App. 3d 757, 312 N.E.2d 789, is misplaced. That case involved a defendant who shot two persons and then shot a third as she suddenly stepped out of a bedroom. While Brown’s self-defense claim was rejected, on appeal this court reduced his conviction from murder to voluntary manslaughter because his belief in the imminence of life-threatening danger was established, but deemed unreasonable. The case at bar is hardly analogous. Therefore, on the record before this court, the evidence supporting defendant’s conviction for first-degree murder is deemed sufficient.

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

Affirmed.

SCARIANO and DiVITO, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    INSURANCE COMPANY OF ILLINOIS, Plaintiff-Appellee, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—3148
    Opinion filed August 11, 1992.
    Parrillo, Weiss & O’Halloran, of Chicago (Keely Truax, of counsel), for appellant.
    James M. Dupree, of Chicago, for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Insurance Company of Illinois (ICI) sued Safeway Insurance Company (Safeway) for contribution to an arbitrator’s award against ICI on a claim filed by a person allegedly insured by both ICI and Safeway. The trial court granted summary judgment in favor of ICI and Safeway appeals.

On August 3, 1987, a car driven by an uninsured motorist struck and injured Thomas Vaughn, a minor, while he was riding his bicycle. Thomas is the son of Linford and Lucille Vaughn, who were living separately at the time of the accident. ICI provided uninsured motorist coverage to Linford at that time, and Safeway provided uninsured motorist coverage to Lucille. Thomas, through his attorney, demanded arbitration of his claims against ICI and Safeway, but he subsequently withdrew his demand for arbitration against Safeway. The arbitrator awarded Thomas Vaughn $6,400 from ICI.

ICI then brought this suit against Safeway for half of the award and half of the attorney fees ICI expended in the arbitration. In its complaint, ICI alleged that Safeway insured Thomas under the policy issued to Lucille, just as ICI insured him under Linford’s policy. Safeway neither admitted nor denied coverage for Thomas.

Both Safeway and ICI moved for summary judgment, and each supported its motion with a copy of its policy. Safeway’s policy covered Lucille and any family members residing in her household for injuries caused by uninsured motorists. ICI’s policy provided similar coverage for Linford and family members residing in his household. Both policies provided that if the insured had other uninsured motorist coverage applicable to an accident, the insurer’s liability would be limited to the proportionate share which its policy limits bear to the sum of the applicable policy limits. ICI’s policy had a limit of $25,000 coverage for injury to one person, while Safeway’s policy limit was $15,000.

The trial court granted ICI’s motion for summary judgment, finding that ICI’s right to contribution arose when Thomas withdrew his demand for arbitration of his claim against Safeway. The court ordered Safeway to pay a prorated share of the arbitrator’s award, but it denied ICI’s request for fees.

Safeway contends that ICI has no right to enforce Safeway’s insurance contract with Lucille. ICI answers that it is not seeking to enforce the contract; rather, it seeks contribution from Safeway. Contribution is an equitable doctrine which is not based on an agreement of the parties or subrogation. (Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 403 N.E.2d 680.) “[T]he right [to contribution] arises when one insurer pays money for the benefit of another insurer.” Royal Globe Insurance Co., 82 Ill. App. 3d at 1006, 403 N.E.2d at 683.

According to ICI’s complaint, that is exactly what happened here. ICI claims that Safeway provided uninsured motorist coverage for the injuries Thomas suffered, and the arbitrator’s award against ICI fully compensates Thomas for those injuries. The money ICI paid which Thomas could equally have sought from Safeway constitutes money paid for Safeway’s benefit.

For an insurer to recover contribution from another insurer, “it must prove all facts necessary to the claimant’s recovery against the insured.” (Royal Globe Insurance Co., 82 Ill. App. 3d at 1005, 403 N.E.2d at 682.) Without such proof, the insurer has failed to show that its payment benefited the other insurer.

Safeway argues that the record does not establish all facts necessary to Thomas’ recovery against Safeway. Safeway’s policy provided coverage for Thomas only if he was a resident of Lucille’s household. ICI presented no affidavits or other evidence purporting to show that Thomas resided with Lucille. Although Thomas is Lucille’s son, Linford and Lucille resided in separate households, and the arbitrator found that ICI owed Thomas $6,400 under a policy which provided coverage for him only if he resided with Linford. ICI asserts in its brief that Thomas spent his time equally with both of his parents, but there is no evidence in the record to support this assertion. Thus, ICI has not presented evidence to prove that Thomas was covered by Safeway’s policy, or that Safeway owed any payment to Thomas. To use the terms of ICI’s other insurance clause, ICI has not shown that Safeway’s policy is applicable to this accident.

Also, Safeway’s policy requires written proof, under oath, in support of any claim under the uninsured motorist provision of the insurance contract. Unless Thomas or Lucille provided such a statement, Safeway had no obligation to pay or even to arbitrate their claim. (See Emcasco Insurance Co. v. Alvarez (1969), 110 Ill. App. 2d 307, 249 N.E.2d 190.) ICI presented no evidence that Lucille or Thomas fulfilled this policy condition. Without evidence that the Vaughns fulfilled the conditions entitling them to recovery against Safeway, the trial court could not find that ICI met its burden of proving, as a plaintiff moving for summary judgment, that its right to recovery was clear and free from doubt. Ravin v. A.H. Robins Co. (1989), 182 Ill. App. 3d 46, 538 N.E.2d 164.

Safeway also claimed, as an affirmative defense, that Lucille, Lin-ford and Thomas Vaughn were necessary parties to this action.

“A necessary party is one whose presence is required: (1) to protect an interest in the subject matter of the controversy which would be materially affected by a judgment entered in his or her absence; (2) to reach a decision which will protect the interests of those before the court; or, (3) to enable the court to make a complete determination of the controversy.” Elliott v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 462 N.E.2d 640, 644.

Here, the trial court ordered Safeway to pay ICI a share of the arbitrator’s award based on the uninsured motorist coverage provided in the policy Safeway issued to Lucille. Lucille and Thomas are not parties to this action, so ICI’s recovery from Safeway should not bar them from bringing another claim against Safeway based on the same incident. To protect Safeway’s interests, it appears that Lucille and Thomas should be made parties to this lawsuit. If ICI’s recovery from Safeway could bar Lucille and Thomas from making a claim against Safeway, this case materially affects their interests. In either case they are necessary parties.

Finally, Safeway asks this court to enter judgment in its favor, arguing that ICI cannot recover contribution in this action because the two policies do not cover the same parties and insurable interests. (See Royal Globe Insurance Co., 82 Ill. App. 3d at 1005, 403 N.E.2d at 682.) ICI alleged in its complaint that Thomas was covered under both Safeway’s policy and ICI’s policy and that both policies provided uninsured motorist coverage. The fact that Safeway’s policy also covers Lucille, while ICI’s policy covers Linford, does not vitiate the identity of parties necessary for contribution if Thomas is, in fact, covered by both policies. (See Royal Globe Insurance Co., 82 Ill. App. 3d 1003, 403 N.E.2d 680 (in which one insurer provided coverage for a party not covered by the other insurer, but since the claim was not made on behalf of that party, the parties were considered identical for purposes of insurer’s contribution claim).) Because both policies provided primary uninsured motorist coverage, they cover the same pertinent insurable interests and risks.

Therefore, ICI could recover contribution from Safeway if it joined Lucille and Thomas as parties and proved the facts necessary for Thomas to recover from Safeway. The summary judgment for ICI is reversed and the cause is remanded for further proceedings in accord with this opinion.

Reversed and remanded.

HARTMAN, P.J., and DiVITO, J, concur.


text:
    LYNN FALETI et al., Plaintiffs-Appellants, v. DANIEL TRACY, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—0390
    Opinion filed August 11, 1992.
    Law Office of Zaborsky & Aleksy, of Chicago (Richard E. Aleksy and Bruce M. Wamboldt, of counsel), for appellants.

      Orner & Wasserman, of Chicago (Norton Wasserman and Mary A. Mazurk, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiffs sued to recover damages for injuries they sustained in an automobile accident. The court entered a directed verdict against defendant on the issue of liability. The jury rendered a damage award to each plaintiff in an amount less than their special damages. Plaintiffs filed a motion for a new trial on the issue of damages. The trial court denied the motion. This appeal followed. Plaintiffs represent that the jury’s verdicts of less than the proven special damages should result in a new trial. We find that the trial court improperly denied plaintiffs’ motion for a new trial in that the jury’s verdicts were less than the proven and undisputed damages of plaintiffs.

On December 15, 1984, plaintiffs Cheryl Thomas and Evelyn Jones were passengers in an automobile driven by plaintiff Lynn Faleti. The automobile was struck by a truck operated by defendant Daniel Tracy.

Dr. Haresh Muni testified that he treated all of the plaintiffs after the accident. He did not treat them prior to the accident and had not treated them since they were released from the hospital. Dr. Muni also testified to the nature and extent of Faleti’s and Thomas’ injuries. He stated that plaintiffs’ tests and physical therapy could have been performed on an outpatient basis.

Dr. Jarosian Slusarenko, a chiropractor, testified that he treated all three plaintiffs and that he had not seen them since 1985.

Dr. David Wiechers testified as a medical expert for defendant. He stated that the hospitalization of plaintiffs was unnecessary because the treatment they received in the hospital could have been provided on an outpatient basis.

At trial, Faleti testified that she was treated in the emergency room at Resurrection Hospital and followed up with a visit to Dr. Slusarenko. He referred her to Dr. Muni, who admitted her to Thorek Hospital on December 18, 1984. Faleti testified that she was given various tests and therapy and that she was also treated by Dr. Jagan Mohan. Dr. Muni discharged Faleti on December 22, 1984, and advised her to continue therapy. Faleti also testified that she worked for the United States Postal Service. She missed two weeks of work due to her injuries and lost $1,200 in wages.

Faleti presented evidence supporting the following costs at trial:

(1) Emergency room — Resurrection Hospital $ 57.00
(2) Inpatient — Thorek Hospital $2,842.22
(3) Dr. Muni — Treatment $ 250.00
(4) Dr. Mohan — Neurologist $ 75.00
(5) Neurological testing $ 405.00
(6) Dr. Slusarenko — Chiropractor $ 775.00
Total Medical Damages $4,404.22
(7) Lost Wages $1,242.00

The jury returned a verdict in favor of Lynn Faleti as follows:

(1) Pain and suffering: $ 300.00
(2) Medical: $1,032.75
(3) Lost wages: $ 900.00
Total: $2,232.75

Evelyn Jones testified that she was taken to Resurrection Hospital for emergency treatment. Dr. Slusarenko provided follow-up care. Jones was admitted into Thorek Hospital and given tests. Dr. Slusarenko continued to treat Jones after her discharge.

Jones moved into evidence the following medical bills:

(1) Emergency room — Resurrection Hospital $ 171.75
(2) Inpatient — Thorek Hospital $4,171.22
(3) Dr. Mohan $ 447.56
(4) Dr. Slusarenko $1,090.00
Total Medical Damages $5,880.53
The jury returned a verdict in favor of Evelyn Jones as follows:
(1) Pain and suffering: $ 550.00
(2) Medical: $1,415.00
Total: $1,965.00

Cheryl Thomas testified that she was taken to Resurrection Hospital for emergency treatment. A couple of days later, she consulted with Dr. Slusarenko, who advised her to go to the hospital for medical treatment. Thomas also testified that she was admitted into Forkosh Hospital, where X rays were taken. She was provided therapy and given medicine for pain. She remained in the hospital for four days. After Thomas’ discharge, Dr. Slusarenko treated her for three weeks. Thomas testified that she worked at the Bedford Park Post Office. She missed three weeks of work and lost wages totaling $1,436.10. Dr. Slusarenko released Thomas to return to work on January 7, 1985. Her doctor advised her to take a couple of days off work in March.

Thomas moved into evidence the following medical bills:

(1) Emergency — Resurrection Hospital $ 158.00
(2) Diagnostic Radiology
(3) Dr. Muni
(4) Dr. Slusarenko
(5) Forkosh Hospital
(6) Lakeview Radiology Total Medical Damages
$ 23.00
$ 310.00
$ 975.00
$1,483.20
$ 67.50
$3,016.70

The jury returned a verdict lows: in favor of Cheryl Thomas as fol-

(1) Pain and suffering:
(2) Medical:
(3) Lost wages:
Total:
$ 300.00
$1,116.00
$ 609.00
$2,125.00

On appeal, plaintiffs contend that the trial court erred in denying their motion for a new trial on the issue of damages. Plaintiffs claim that a new trial should have been granted, arguing that the award was inadequate because it was less than the amount proved by uncontradicted testimony, citing to Blevins v. Inland Steel Co. (1989), 180 Ill. App. 3d 286, 535 N.E.2d 992, and Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168. In Giardino, plaintiff offered undisputed evidence of her medical expenses, but the jury returned an award for an amount less than the amount proven. The court held that the jury award was manifestly inadequate and ignored proven elements of damages. (Giardino, 160 Ill. App. 3d at 652.) In Blevins, plaintiff’s medical expenses were not disputed, but the jury awarded him less than the amount he claimed as lost wages. The court granted him a new trial because the award of damages did not comport with the largely uncontroverted evidence.

Faleti presented evidence that her medical expenses, apart from inpatient hospitalization, were $1,562 and her lost wages were $1,242. The jury awarded her $1,032.75 for medical costs and $900 for lost wages. Jones presented evidence that her medical costs, apart from hospitalization, were $1,709.31, and she was awarded $1,415. Thomas presented evidence that her medical costs were $1,433.50 and her lost wages were $1,436.10. The jury awarded her $1,116 for medical costs and $609 for lost wages.

The trial court erred in denying plaintiffs’ motion because “in *** cases where the damages awarded are less than the undisputed out-of-pocket expenses *** a new trial should be granted.” Williams v. McCallister (1978), 60 Ill. App. 3d 635, 638, 376 N.E.2d 1092.

“ ‘A new trial on the question of damages only is appropriately granted “where (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.” ’ ” Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 408, 484 N.E.2d 1073, quoting Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391.

Defendant argues that there is no basis for overturning the jury’s verdicts because there was some conflict as to the legitimacy of medical expenses and because the jury considered each element needed to prove damages. Defendant cites to Haleem v. Onate (1966), 71 Ill. App. 2d 457, 219 N.E.2d 94, where the court stated:

“[T]he amount of damages awarded by the jury will not be disturbed unless it is palpably inadequate or unless it is clear that the jury disregarded a proven element of damages. ***
To determine whether an award is grossly unfair or the result of a clear oversight by the jury requires a review of all of the testimony surrounding the claimed items of damage. ***
*** [I]f there appears to be evidence suggesting a genuine conflict as to the legitimacy of the expenses incurred, then the verdict of the jury should not be disturbed on review.” Haleem, 71 Ill. App. 2d at 460-61.

The instant case is distinguishable from Haleem. In Haleem plaintiffs’ testimony was contradicted by medical records, their doctor’s testimony and other evidence. One plaintiff claimed that he remained bedridden three days after his discharge from the hospital, but his medical records showed that he had worked the three days after his release. That same plaintiff claimed that he was not able to work overtime for a year after his accident because of his injuries, but there was evidence that he worked overtime during the two weeks right after his accident. The record contradicted his lost earnings claim. Another plaintiff testified that he remained in the hospital for one week, but his doctor testified that plaintiff left on the fourth day after the accident.

In the instant case, defendant argues that his medical expert’s testimony puts into controversy the treatment plaintiffs received from Dr. Muni while they were hospitalized. However, defendant’s expert did not state that plaintiffs did not need the treatment they received in the hospital. Instead, defendant’s expert testified that plaintiffs did not need to be hospitalized because the treatment they received could have been provided on an outpatient basis. If the jury accepted this testimony, the burden would be on plaintiffs to prove and separate those necessary medical expenses incurred in the hospital. If plaintiffs failed to make this distinction, the jury could ignore the total inpatient hospital charges. Notwithstanding this latitude, the jury’s verdicts cannot be reconciled with the evidence. The awards are less than uncontradicted medical expenses apart from hospitalization expenses that plaintiffs incurred. Furthermore, defendant presented no evidence to dispute plaintiffs’ lost wages and no evidence to suggest that plaintiffs could have returned to work prior to the time that their doctor released them to do so.

Defendant also relies on Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267, in support of his position. In Nicholl, the court reversed the trial court’s order which granted plaintiff a new trial on the issue of damages. In contrast to the instant case, there was substantial evidence indicating that the medical treatment plaintiff received in Nicholl was unwarranted or prolonged. The plaintiff’s testimony regarding the number of treatments she had received was contradicted by her doctor, and her claim of lost wages after the accident was not supported by her tax returns.

In the case at bar, plaintiffs presented uncontradicted evidence concerning some of their damages. The jury disregarded those proven elements when they awarded plaintiffs less than the undisputed damages.

For the foregoing reasons, the judgment of the circuit court is reversed and remanded for a new trial on the issue of damages.

Reversed and remanded with directions.

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


text:
    THE CITY OF CHICAGO, Plaintiff, v. AMERICAN NATIONAL BANK AND TRUST COMPANY, as Trustee, Defendant-Appellee (Mitchell Edelson, Jr., et al., Defendants-Appellants).
    First District (2nd Division)
    No. 1—90—0602
    Opinion filed August 11, 1992.

      Mitchell Edelson & Associates, of Chicago (Mitchell Edelson, Jr., of counsel), for appellants.
    Burke & Ryan, of Chicago (William E. Ryan and Arthur N. Christie, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Tenants of a landmark building taken by condemnation petitioned for apportionment of the condemnation award. Their leases all contained clauses providing that they would have no right to share in any condemnation award. In their complaints, the tenants alleged that the landowner induced them to sign the leases with fraudulent representations that the building, as a landmark, could not be condemned. The trial court dismissed the complaint, finding that the landowner could not know of the possibility of condemnation prior to the formal commencement of condemnation proceedings and that the landowner had no duty to inform prospective tenants of condemnation proceedings in progress because those proceedings were a matter of public record. We reverse.

On January 30, 1989, the City of Chicago (the City) filed a complaint for condemnation of the McCarthy Building, located at 30-32 West Washington Street, naming as defendants the building’s owner, appellee American National Bank & Trust Company, and its tenants, including appellants Mitchell Edelson, Jr., The Law Offices of Mitchell Edelson, Jr., My Husband’s Cookies and Grandma Gebhard’s Cookies. On the City’s motion for vesting of title, the trial court made a preliminary finding that just compensation for taking the building was $1,250,000, and the court ordered the City to deposit that amount with the county treasurer.

On November 27, 1989, appellants filed petitions for apportionment of the award. The trial court granted appellee’s motion to strike the petitions and appellants moved for reconsideration. The court denied the motion in an order accompanied by a memorandum of decision which clarified that the court dismissed the petition without leave to amend because the facts stated in the petition were contrary to facts of which the court took judicial notice. This appeal involves only the adequacy of the allegations of the petitions in light of facts judicially noticed.

According to the petitions and the attached exhibits, which constitute part of the pleadings (First National Bank v. Minke (1981), 99 Ill. App. 3d 10, 13, 425 N.E.2d 11, 14), Edelson executed a seven-year lease for the fifth floor of the McCarthy Building on May 15, 1986, when the building was an official Chicago landmark. Through its agent, George Landfield, appellee “knowingly and unlawfully misle[d], deceived], and misinform[ed] Edelson as to the imminent sale, condemnation, [or] taking by eminent domain *** [oQ the building,” by giving Edelson “assurances that the building could not be condemned or demolished because of its (landmark) status” when appellee “knew, or should have known, [of] the imminent public announcement of the loss of ‘landmark’ status and of the sale [or] taking by eminent domain.” Relying on appellee’s representations, Edelson signed the lease and made improvements on the premises. The improvements have a reasonable value of $37,000.

Grandma Gebhard’s Cookies alleged in its petition that it executed a lease for space in the McCarthy Building for a term of five years, beginning on May 1, 1985. The lease was “procured by [appellee’s] fraudulent representations that the premises would not, and could not, be condemned.” Grandma Gebhard’s Cookies made improvements and added fixtures reasonably valued at $110,000 in remodeling the premises for its use.

My Husband’s Cookies alleged that it leased a portion of the McCarthy Building for a term of six years beginning June 1, 1988. The lease was “procured by [appellee’s] fraudulent misrepresentation that the premises could not be condemned during the lease term,” which appellee made when it “was aware *** that the building would be condemned within a short period of time.” My Husband’s Cookies spent $26,000 remodeling the premises.

All three petitions include allegations that appellee

“knew but refused to reveal the fact that the building was to be condemned. Instead [appellee] offered evidence the property would last regardless of historic landmark status, the tenants entered leases thinking leasehold improvements made by the tenants could be amortized over their term of the leases and they would receive a reasonable return on their investment.”

In considering appellee’s motion to strike the petitions, the trial court took judicial notice of litigation concerning the McCarthy Building’s landmark status and the statement of facts contained in our supreme court’s decision finally determining that litigation, Landmarks Preservation Council v. City of Chicago (1988), 125 Ill. 2d 164, 531 N.E.2d 9. A report prepared for the Commercial District Development Commission (the Development Commission), made available to the public on August 18, 1987, emphasized the importance of developing the block which included the McCarthy Building, and it “set forth serious design constraints that *** would not permit the development to go forward without encroaching upon the site occupied by the McCarthy Building.” (Landmarks Preservation Council, 125 Ill. 2d at 171-72, 531 N.E.2d at 12.) Therefore, the report recommended condemnation of the building.

In accord with the Development Commission’s recommendation, the City rescinded the McCarthy Building’s landmark status by ordinance passed on September 23, 1987, eight months before My Husband’s Cookies’ lease date. (Landmarks Preservation Council, 125 Ill. 2d at 167, 531 N.E.2d at 10.) Landmarks Preservation Council then sued the City and the building’s owner, appellee herein, alleging that the city council had not followed legally necessary procedures for rescinding landmark status. Landmarks Preservation Council appealed the dismissal of its complaint to our supreme court, which filed its decision affirming the trial court on September 22, 1988, and denied the petition for rehearing on December 5, 1988.

In granting appellee’s motion to dismiss the petitions for apportionment, the trial court stated that, based on the facts in Landmarks Preservation Council, it found:

“[I]n 1985 and ’86 it was not possible for the landlord to have any inkling that there was going to be a change in the landmark status of the McCarthy building. As a matter of fact, *** this issue was not resolved until December 5th of ’88 by the Supreme Court.
Hence, those leases executed in 1985 and ’86 cannot be challenged on the allegation that the landlord knew of a change in the status of the McCarthy building and hid same from the tenants.
In 1988 any lease executed therein the representations must be viewed in view of all the facts of which the tenant had actual knowledge and also such as he might have had had he availed himself in the exercise of ordinary prudence. A person in possession of his mental faculties is not justified in relying upon representations before he acts.”

Appellants filed a combined motion for reconsideration, and in the motion they added the allegation that:

“City representatives, commercial developers and property owners conducted non-public discussions, meetings and proceedings regarding the future status of the McCarthy Building and [appellee’s agents] were notified of and/or attended said discussions *** and, thus, knew (or should have known) that the City was likely to divest the McCarthy Building of its protected ‘Landmark’ designation, and take possession of the Building, prior to the termination of Tenants’ lease terms.”

The trial court denied the motion to reconsider, restating its holding that the facts alleged in the petitions were inconsistent with the facts of which it took judicial notice.

Appellants contend that their petitions adequately state grounds for apportionment of the condemnation award. Section 7—106 of the Illinois Code of Civil Procedure provides that, in eminent domain proceedings:

“[a]t any time after the plaintiff has taken possession of the property ***, any party interested in the property may apply to the court for authority to withdraw for his or her own use his or her share (or any part thereof) of the amount preliminarily found by the court to be just compensation *** as such share shall have been determined by the court.” (Ill. Rev. Stat. 1989, ch. 110, par. 7—106.)

Thus, a party seeking apportionment of a condemnation award must allege an interest in the property which is the subject of the condemnation proceedings. Tenants holding under valid leases have an interest in property sufficient to entitle them to compensation in eminent domain proceedings. (Department of Public Works & Buildings v. Metropolitan Life Insurance Co. (1963), 42 Ill. App. 2d 378, 384, 192 N.E.2d 607, 610.) Therefore, each petition was facially sufficient in that each contained allegations that the appellants leased space in the building subject to condemnation.

However, each petition also included the lease provision which excluded the appellants from sharing in any condemnation award. In order to avoid this provision, each petition contained allegations that the lease was procured by fraud. Although the petitions do not include the request explicitly, the parties and the trial court treated the petitions as requests for equitable reformation of the leases to exclude the clause which precluded sharing of the condemnation award. With that reformation the leases would entitle appellants to compensation. The trial court had power to grant the reformation sought if appellants proved that appellee acted fraudulently. (Biren v. Kluver (1976), 35 Ill. App. 3d 692, 696, 342 N.E.2d 325, 328; see also Rouse Wood stock, Inc. v. Surety Federal Savings & Loan Association (N.D. Ill. 1986), 630 F. Supp. 1004.) Thus, the petitions are sufficient if they set forth the ultimate facts necessary to establish the fraud which would entitle appellants to reformation of their leases. See People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009.

The elements of a cause of action for fraud are:

“a false statement of material fact was intentionally made, *** the party to whom the statement was made had a right to rely on it and did so, *** the statement was made for the purpose of inducing the other party to act, and *** reliance by the person to whom the statement was made led to his injury. [Citation.] Intentional concealment of a material fact is the equivalent of a false statement of material fact. [Citation.] Where a person has a duty to speak, his failure to disclose material information constitutes fraudulent concealment.” Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 161, 510 N.E.2d 409, 413.

Each of appellants’ petitions includes allegations that appellee’s agent represented to each appellant that the building could not be condemned because of its landmark status, when appellee knew that the premises could be condemned shortly. Each petition includes allegations that appellants relied upon the representations when they entered into their leases. The facts alleged in the petitions sufficiently support an inference that appellee represented that the building could not be condemned for the purpose of inducing appellants to sign the leases. Each petition contains further allegations that reliance on the representations led appellants to sign the leases and expend substantial sums improving the property, to their injury.

The three petitions also include allegations that appellee “knew but refused to reveal the fact that the building was to be condemned.” The intentional concealment of such a material fact would constitute fraud if appellee had, under the circumstances of this case, a duty to speak. In Forest Preserve District v. Christopher (1943), 321 Ill. App. 91, 52 N.E.2d 313, a landowner rented his property to a tenant who sought, with the landowner’s encouragement, to erect a tavern on the land. Four months after the tenant signed the lease, and shortly after the tavern was substantially completed, the Forest Preserve District (the District) commenced condemnation proceedings against the landlord. The tenant claimed part of the condemnation award for the fair cash value of the improvements, although they were affixed to the land and, therefore, sole property of the owner. (Christopher, 321 Ill. App. at 97-98, 52 N.E.2d at 315-16.) Following trial, the court granted the tenants the relief requested, based upon evidence that the owner knew that the District contemplated condemnation proceedings due to his contacts with the District, which began almost a year before the execution of the lease, and the owner failed to inform the tenant of the possible condemnation proceedings before he signed the lease and built the tavern. (Christopher, 321 Ill. App. at 93, 99-100, 52 N.E.2d at 314, 316-17.) The appellate court affirmed the award, holding:

“ ‘[I]f the owner stands by and permits another to expend money in improving his land[,] *** upon receiving compensation [for the land] he may be compelled to pay for the improvements. In such cases there is always some ingredient which would make it a fraud in the owner to insist upon his legal rights. Such an ingredient may consist in the owner encouraging the stranger to proceed with the improvement, or where one party acts ignorantly and without the means of better information and the other remains silent when it is in his power to prevent the expenditure of the money under a delusion. It has been held in such cases that to permit one to take advantage of the mistake of another would be revolting to every sentiment of justice.’ [Olin v. Reinecke (1929), 336 Ill. 530, 534, 168 N.E. 676, 678.]
* * *
<*** with intent to deceive, either party to a contract of sale conceals or suppresses a material fact, which he is in good faith bound to disclose, that is *** equivalent to a false representation, because the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff.’ [Stewart v. Wyoming Cattle Ranche Co. (1888), 128 U.S. 383, 388, 32 L. Ed. 439, 9 S. Ct. 101, 103.]” Christopher, 321 Ill. App. at 104-06, 52 N.E.2d at 319.

Under Christopher, the failure to reveal to a prospective tenant impending condemnation proceedings can constitute fraud, and therefore, the allegations of all three petitions of the ultimate facts that appellee knew, but failed to reveal that the building was to be condemned, together with appellants’ reliance and damages, are sufficient allegations of fraud. (See Carriage Way West, Inc., 88 Ill. 2d at 309-10, 430 N.E.2d at 1009-10.) The petitions did not need to include more specific allegations of when and how appellee came to know that the building was to be condemned, as these would be evidentiary facts which need not be set forth in the pleadings. (Carriage Way West, Inc., 88 Ill. 2d 300, 430 N.E.2d 1005.) Hence, the allegations of the petitions are sufficiently specific to state a claim for apportionment of condemnation proceeds, and the dismissal of the petitions was improper unless the facts stated in the petitions contradict facts of which the trial court properly took judicial notice.

The trial court properly took notice of the facts stated in a published opinion of our supreme court. (In re O’Malley (1949), 404 Ill. 257, 258, 88 N.E.2d 881, 882.) The Landmarks Preservation Council decision states that the Development Commission’s report, which found that the continued presence of the McCarthy Building would severely inhibit development of the North Loop, was not made available to the general public until August 18, 1987. There is no indication in the opinion of when the Development Commission or its planning department first contacted appellee, the owner of the McCarthy Building, or of the extent to which the owner was involved in the investigation and discussions which led to the public report. There is no indication of when the owners, who cannot be considered merely members of the general public, could have been aware of a substantial possibility that the building would lose its landmark status and be taken by condemnation.

In the relatively simple condemnation proceeding involved in Christopher, the owner of the condemned land knew that the District was considering condemnation of his land more than a year before the District formally instituted condemnation proceedings, when the general public and the tenant were first informed that the land might be taken. The condemning authority would very likely have had contacts with the landowners involved in the North Loop redevelopment project more constantly, and for a longer period of time before public announcement, than would the District in Christopher. Nothing in Landmarks Preservation Council is inconsistent with appellants’ claim that appellee knew the building could be condemned, despite its landmark status, as early as 1985 or 1986, when Grandma Gebhard’s Cookies and Edelson signed their leases. There is also no inconsistency between the facts stated in Landmarks Preservation Council and the allegation that appellee failed to inform appellants of material information regarding the possibility of condemnation, when appel-lee’s access to such information was far superior to appellants’ access.

The facts judicially noticed establish that appellee knew of the already existing condemnation proceedings when it allegedly told My Husband’s Cookies that the property could not be condemned due to its landmark status. The trial court found the allegations of the petition insufficient because the Development Commission had published its report on the building, the city council had passed an ordinance rescinding landmark status, and litigation concerning the landmark status was underway, all before My Husband’s Cookies signed its lease. The trial court found that appellant would have discovered these facts before it signed the lease if it had exercised ordinary prudence.

The trial court did not explain, and the record does not show, how My Husband’s Cookies would have found this information. There is, for example, no fact judicially noticed showing that stories concerning the landmark status of the McCarthy Building were prominently featured in newspapers or television reports. On the record before the trial court, it must have imposed upon all tenants a duty to search for published Development Commission reports, city council proceedings, and lawsuits concerning their buildings, or forfeit the right to claim misrepresentations of matters which could have been discovered in such a search.

The trial court relied upon the principle that “[a] person in possession of his mental faculties is not justified in relying upon representations before he acts.” This, which is a restatement of the principle of caveat emptor, is not the law in Illinois. In this State, a person charging another with fraud must show that his reliance upon the fraudulent representations was reasonable under the circumstances. Chicago Title & Trust Co. v. First Arlington National Bank (1983), 118 Ill. App. 3d 401, 409, 454 N.E.2d 723, 729.

“ ‘It is only where, under the circumstances, the facts should be apparent to one of [plaintiff’s] knowledge and intelligence from a cursory glance, or he has discovered something which should serve as a warning that he is being deceived, that he is required to make an investigation of his own.’ ” (First Arlington National Bank, 118 Ill. App. 3d at 409-10, 454 N.E.2d at 729, quoting W. Prosser, Torts §108, at 718 (4th ed. 1971).)

There is nothing in the record to indicate how My Husband’s Cookies could have known, from a cursory glance, that it should disbelieve ap-pellee.

The three petitions do not clearly and cogently set forth their essential allegations; the allegations specifically relating to Grandma Gebhard’s Cookies are particularly ill-framed. All three petitions contain matters which are irrelevant to the apportionment proceedings.

For purposes of this motion, the court must ignore the extraneous material. (In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 334, 326 N.E.2d 464, 467.) All three petitions contain sufficient factual allegations of fraud to establish an issue of fact that will determine whether each appellant has a right to equitable reformation of its lease. Therefore, we reverse the trial court’s decision to dismiss the petition and remand for further proceedings.

Reversed and remanded.

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