author: PRESIDING JUSTICE INGLIS

text:
    HOPE D. LAUGHLIN, Plaintiff-Appellee, v. CHARLES W. FRANCE, as Ex’r of the Estate of Katherine L. DuPee, Deceased, et al., Defendants-Appellants.
    Second District
    No. 2—92—0753
    Opinion filed January 21,1993.
    Rehearing denied March 3,1993.

      James G. Madden, of Madden & Sisler, of Freeport, for appellants.
    James E. Stevens and Michael J. Chmiel, both of Barrick, Switzer, Long, Balsley & Van Evera, of Rockford, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendants, Arthur Lee Owen, Dianne Lee Cook and Charles W. France, as executor of the estate of Katherine L. DuPee (decedent), appeal after the trial court ordered that decedent’s half of the proceeds from the sale of real estate inherited from her husband, John DuPee, should be transferred to plaintiff, Hope D. Laughlin. On appeal, defendants contend that the testimony of plaintiff’s two witnesses was inadmissible hearsay and that the evidence was insufficient to prove that the decedent orally agreed to execute a will leaving the subject real estate to plaintiff.

Plaintiff is the daughter of John DuPee, who died in November 1981, and the stepdaughter of Katherine DuPee, the decedent. Arthur Lee Owen and Dianne Lee Cook, defendants, are decedent’s children. The property at issue is located at 1402 La Cresta Drive in Freeport, Illinois. On September 2, 1981, DuPee executed a will of which paragraph five is relevant. Paragraph five stated:

“FIFTH: I give to my wife, KATHERINE L. DUPEE, the lifetime use of the real estate commonly known and described as 1402 La Cresta Drive, Freeport, Illinois, and all the income therefrom, and upon her death I devise said real estate to my duaghter [sic], HOPE D. LAUGHLIN. My wife, KATHERINE L. DUPEE, shall be solely responsible for the expenses of maintenance and protection of said real estate and for the payment of taxes thereon during her lifetime.”

A codicil was executed on October 26, 1981, revoking paragraph five of the will. The codicil stated, in pertinent part, that 1402 La Cresta would be devised as follows:

“(a) To my wife, KATHERINE L. DUPEE, One-half;
(b) To my daughter, HOPE D. LAUGHLIN, One-half. It is my Will that my wife shall be permitted to personally reside in said residence as long as she desires, rent free. During the period she personally resides in said residence she shall be solely responsible for paying all of the taxes, insurance, utility bills, and all other expenses required to maintain said residence. When she no longer personally resides in said residence, or no longer wishes to personally reside in said residence, the residence shall be sold and the proceeds of the sale divided equally between my wife and my daughter, HOPE D. LAUGHLIN.”

Presumably, after DuPee died in November 1981, decedent continued to live at 1402 La Cresta pursuant to the provisions of DuPee’s will. On February 9, 1991, decedent died testate, leaving her interest in 1402 La Cresta to her children, Owen and Cook, in equal shares. Plaintiff then brought suit, claiming that decedent and DuPee entered into an oral contract at the time DuPee executed the codicil to his will. In her complaint, plaintiff alleged that decedent agreed to execute a will leaving her interest in 1402 La Cresta to plaintiff if not sold during decedent’s lifetime. In consideration for that promise, Du-Pee executed the codicil leaving a one-half interest in 1402 La Cresta to decedent. Plaintiff and all defendants entered into an agreement on April 16, 1991, to sell 1402 La Cresta. The real estate was sold and one-half of the proceeds, $38,558.86, was placed in an escrow account pending the outcome of plaintiff’s action.

The first witness to testify at trial was Robert Carlile, a certified public accountant who did tax work for the DuPees. Carlile stated that he was the executor of DuPee’s will. Over a hearsay objection, Carlile testified that DuPee told him that, after his death, DuPee intended that decedent was to have the use of 1402 La Cresta as long as she lived and then it was to go to plaintiff. DuPee owned the house before he married decedent.

Carlile further testified that in October 1981 Carlile was asked through DuPee’s attorney, Shirl Laughlin, to meet with DuPee in his hospital room at Freeport Memorial Hospital. Shirl Laughlin is also the husband of plaintiff, Hope Laughlin. Present at the meeting on October 23 were DuPee, Laughlin, Carlile and decedent. Laughlin stated that he thought there was an estate tax problem concerning the disposition of the 1402 La Cresta property in DuPee’s original will. Estate taxes could be saved if the property was distributed differently. Carlile testified that DuPee approved the codicil giving a one-half interest in 1402 La Cresta to decedent because the change would save on estate taxes. However, he still had the desire that the property would go to plaintiff after decedent’s death. Carlile acknowledged that the estate tax problem in the original will pertained to the marital deduction.

Carlile further testified that DuPee recommended to decedent that she change her will. DuPee said that decedent should change her will so the property went to the plaintiff upon decedent’s death. Decedent indicated that she would change her will. Carlile stated that he asked decedent if she understood that she had to change her will, and she replied affirmatively.

Carlile again met with Laughlin, DuPee and decedent at Freeport Memorial on October 26, 1981. DuPee and decedent discussed executing the codicil to DuPee’s will. According to Carlile, DuPee told decedent that it was necessary for decedent to change her will in order to save on estate taxes. Decedent was supposed to change her will and give 1402 La Cresta to plaintiff. Decedent responded affirmatively. Thereafter, the codicil was executed.

Carlile spoke with decedent after DuPee’s death in November 1981 and asked her if she had changed her will yet. Decedent responded that she had an appointment or was in the process of making an appointment to have her will changed. This conversation took place during the time Carlile was preparing the DuPees’ 1981 tax return, which was approximately April 1982.

On cross-examination, Carlile stated that the codicil was written in the same form as was contemplated in the October 23, 1981, meeting. Carlile acknowledged that in his deposition he stated that he was not sure whether decedent was at the meeting on October 26. Carlile stated that Laughlin explained the codicil, and the codicil was passed around for each person to read. Carlile explained that the original will had a life estate in 1402 La Cresta for decedent, which did not meet the requirements for the marital deduction. DuPee and decedent intended that the marital deduction apply to the property, so the codicil was drafted. On October 26, all four people assumed and agreed that the codicil had achieved that purpose.

Carlile also testified that Laughlin indicated during the October 23, 1981, meeting and possibly during the October 26 meeting that putting a clause in the codicil giving plaintiff the property after decedent’s death would have destroyed the marital deduction.

Neva Junior, a friend of decedent, testified that she and decedent had two or three conversations about 1402 La Cresta after DuPee died. Over a hearsay objection, Junior stated that decedent would refer to the property as “Hope’s house.” Junior could not recall in what context decedent made this statement, but recalled that repairs were being made for the sale of the property. Decedent referred to the property as “Hope’s house” in various conversations with Junior. Junior did not hear decedent say that the house was plaintiff’s when decedent died.

After the court denied defendants’ motion for judgment at the close of plaintiff’s case, defendants called Shirl Laughlin, plaintiff’s husband and the attorney who drafted DuPee’s will and codicil. Laughlin testified that he is a sole practitioner who has prepared between a dozen and two dozen Federal estate tax returns. Laughlin recalled preparing DuPee’s will and codicil and stated that he was present when the codicil was signed by DuPee in a hospital room at Freeport Memorial Hospital on October 26, 1981. Present at the execution of the codicil were DuPee, decedent, Carlile and Laughlin.

Laughlin further testified that discussions about creating a codicil to DuPee’s will began on October 16, 1981, at Freeport Memorial. A second discussion occurred on October 23, 1981. At that meeting, Laughlin was instructed to include in the codicil a clause stating that if 1402 La Cresta was not sold at the time of decedent’s death, the entire property was to go to plaintiff. Laughlin did not put this clause in the codicil he drafted because he thought it would destroy the marital deduction. However, Laughlin testified that the marital deduction was not discussed during the October 23 meeting. It was not until the October 26 meeting when Laughlin presented the codicil to DuPee that the marital deduction was first discussed. Neither DuPee nor decedent objected to the language of the codicil and the use of the marital deduction after Laughlin explained it to them. Then the following colloquy took place:

“Q. [DuPee] accepted your deletion of what you had been instructed to do after your explanation about the marital deduction. Is that correct?'
A. After that and a further explanation.
Q. What was the further explanation?
A. That [decedent] would make a will leaving this half of the house to [plaintiff], and it would not, in my opinion, destroy the marital deduction.
Q. That [decedent] could make a will? Is that what you said?
A. Could, should, however you — .
* * *
Q. First of all, let me go back then. It was explained that she could make a will leaving the half to [plaintiff? Is that correct?
A. I believe you have my notes, and it says should in the notes.
* * *
Q. You never told her that she should make a will, did you?
A. I believe my notes say that I did.”

Laughlin further testified that he did not represent decedent at that time and did not recall suggesting to her that she consult an attorney about what was being proposed. However, Laughlin stated that no one, including himself, told decedent that she was “required” to change her will.

Laughlin stated that he prepared DuPee’s Federal estate tax return. While preparing the return, Laughlin never considered whether there was a binding contract between DuPee and decedent requiring decedent to leave her one-half interest in 1402 La Cresta to plaintiff. If there were a binding agreement, Laughlin said he would have had to research whether DuPee’s estate could take the marital deduction.

Laughlin did not research that issue because he gave no consideration to whether a contract existed. However, Laughlin reiterated that if the codicil contained a clause giving plaintiff the decedent’s one-half interest in 1402 La Cresta upon decedent’s death, that could “very possibly” destroy the marital deduction. Laughlin said he would have to research whether a written contract between DuPee and decedent would have had the same effect.

Laughlin further testified that he had no confidence that decedent was going to change her will. However, Laughlin did suggest to decedent, before the meeting on October 26, 1981, that she should execute a codicil to her will. Laughlin recalled decedent stating in his presence that she was going to make a new will, but she did not say she was changing the will to leave her one-half interest in 1402 La Cresta to plaintiff. However, she made this statement after being told that to obtain the advantages of the marital deduction, and to ultimately give the property to plaintiff, decedent should change her will leaving her one-half interest in the property to plaintiff.

On cross-examination, Laughlin testified that his instructions from DuPee on October 23 were to draft a codicil giving one-half of 1402 La Cresta each to decedent and plaintiff. Further, if the one-half interest belonging to decedent was not sold by her at her death, it was to go to plaintiff. Laughlin left the final clause out of the codicil because it would have destroyed the marital deduction. While explaining this change in the codicil to DuPee and decedent, Laughlin told decedent that the goal of DuPee’s suggested codicil would be achieved if decedent changed her will to leave her one-half interest in 1402 La Cresta to plaintiff. That way, the marital deduction could be taken on DuPee’s tax return, and when decedent died, decedent’s interest in 1402 La Cresta would be taxable to her estate. Decedent agreed to change her will before DuPee signed the codicil.

The trial judge issued two memorandum opinions. The first opinion addressed defense counsel’s hearsay objections during the testimony of Robert Carlile and Neva Junior. The trial judge ruled that both witnesses’ testimony was hearsay, but fell within an exception to the hearsay rule. The testimony related to the states of mind of decedent and DuPee and was admissible to show their intentions as to the eventual disposition of the property.

In the second memorandum opinion, the trial judge found that plaintiff proved by clear and convincing evidence the existence of an oral agreement between decedent and DuPee that decedent make a will leaving her one-half interest in 1402 La Cresta to plaintiff. The trial judge found Robert Carlile’s testimony to be the most significant concerning the exchange of promises between DuPee and decedent. Thus, the court ordered the executor of decedent’s estate to transfer the $38,558.86 from the escrow account, including any accrued interest, to plaintiff. Thereafter, defendants filed a timely appeal.

The first issue we will address is whether the testimony of Robert Carlile was inadmissible hearsay. Neither party disputes the fact that the testimony was hearsay, but there is a dispute whether the testimony fell within an exception to the hearsay rule. Defendants contend that the declarations of decedent testified to by Carlile were not statements of intent admissible under an exception to the hearsay rule because to be admissible, it must be proven that the act intended was actually performed. Further, the trial court admitted Carlile’s testimony as decedent’s state of mind, which defendants claim was erroneous because declarations proving state of mind are not admissible to prove the facts stated.

Plaintiff contends that Carlile’s testimony was admissible and could be used to show DuPee’s and decedent’s intent to enter into an oral agreement. The testimony met the two requirements for its admissibility, namely, that the declarant was unavailable and there was a reasonable probability that the testimony was truthful.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. (People v. Nevitt (1990), 135 Ill. 2d 423, 447.) Generally, hearsay is inadmissible unless it falls within an exception to the rule. (People v. Sanchez (1989), 131 Ill. 2d 417, 423.) Statements which indicate a declarant’s state of mind are admissible as exceptions to the hearsay rule when the declarant is unavailable and it is reasonably probable that the proffered statements are truthful. (People v. Floyd (1984), 103 Ill. 2d 541, 546; contra M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.4, at 633 (5th ed. 1990) (“The disturbing indication that this hearsay exception [state of mind] requires that the declarant be unavailable, [citations], is incorrect, ill-advised and accordingly should not be followed”).) “[H]owever, the declarant’s state of mind must be relevant to a material issue in the case.” Floyd, 103 Ill. 2d at 546.

We agree with plaintiff that Carlile’s testimony was admissible to show DuPee’s and decedent’s intent to enter into an oral agreement, and to prove that the agreement was made. Defendants cite 29 Am. Jur. 2d Evidence §651 (1967) as authority that declarations of intent are inadmissible in the absence of proof of performance of the act to which it relates. However, defendants failed to cite the portion of section 651 that we find applicable:

“[I]n a case where the fact in issue is whether a particular act was performed, a declaration indicating a present intention to do the particular act in the immediate future, made in apparent good faith and not for self-serving purposes, is admissible, not as a part of the res gestae but as relevant to the fact in issue, to prove that the act was in fact performed.” 29 Am. Jur. 2d Evidence §651 (1967).

Here, the fact at issue is whether DuPee and decedent entered into an oral agreement requiring decedent to leave her interest in 1402 La Cresta to plaintiff. Carlile testified about decedent’s and DuPee’s intentions to enter into the agreement in the immediate future, i.e., before DuPee signed the codicil. Thus, Carlile’s testimony is admissible to prove the agreement was made.

A case we found to be analogous to our situation is Lee v. Central National Bank & Trust Co. (1974), 56 Ill. 2d 394. There, our supreme court held that a letter written by the declarant evidencing an oral antenuptial agreement between the declarant and her second husband was admissible to prove the existence of the oral agreement. (Lee, 56 Ill. 2d at 400.) Here, following that rationale, Carlile’s testimony of decedent’s intent to enter into an oral agreement with her husband, DuPee, is also admissible to prove the existence of such an agreement.

Defendants argue that Hackett v. Ashley (1979), 71 Ill. App. 3d 179, 187, is authority for the proposition that evidence of state of mind or intent is admissible only for the limited purpose of proving state of mind and not for proving the facts stated. The Hackett court relied on Wilkinson v. Service (1911), 249 Ill. 146, in which our supreme court stated:

“The rule is well established in this State that the declarations of the testator are competent, in a contest involving the validity of his will, to show the state of mind but not to prove the facts stated. *** The truth or falsity of such statements is of no consequence. They are to be used only as showing the condition of his mind.” (Emphasis added.) (Wilkinson, 249 Ill. at 151.)

The Hackett court relied on a hearsay rule used in will contests. Because of the rule’s limited applicability and the other authority we found to be controlling, we choose not to follow Hackett.

Defendants next contend that the testimony of Neva Junior was inadmissible hearsay. Before trial, plaintiff argued, and apparently the trial judge agreed, that Junior’s testimony was admissible as a declaration against interest by decedent. In his memorandum opinion, the trial judge found Junior’s testimony admissible to show decedent’s intentions. Defendants now argue that the testimony did not meet the requirements of the declaration against interest exception because decedent’s statement that 1402 La Cresta was plaintiff’s house was not against her pecuniary interest when the statements were made.

Plaintiff counters that Junior’s testimony was admissible under the state of mind exception to the hearsay rule. Junior’s testimony evidenced decedent’s intention that 1402 La Cresta belong to plaintiff after decedent’s death. Plaintiff also argues that Junior’s testimony was a declaration against interest by decedent.

To be admissible as an exception to the hearsay rule, a declaration against interest must meet four requirements. The declarant (1) must be unavailable at trial, (2) must have possessed knowledge of the facts about the declaration, (3) must have made a statement against his or her pecuniary interest, and (4) must have had no motive to lie. (Seward v. Griffin (1983), 116 Ill. App. 3d 749, 758; Buckley v. Cronkhite (1979), 74 Ill. App. 3d 487, 490.) “A declaration must be against one’s pecuniary interest at the time the statement is made or it fails to qualify as an exception to the hearsay rule.” Buckley, 74 Ill. App. 3d at 492.

We agree with defendants that decedent’s statement to Junior that 1402 La Cresta was “Hope’s house” was not against her pecuniary interest when made. At the time of that statement, DuPee had devised 1402 La Cresta in equal shares to plaintiff and decedent. So when decedent stated that the house was plaintiff’s, she was stating a fact, albeit an unclear one. The house was indeed owned by plaintiff as well as decedent. We do not believe that such a benign statement suggests a declaration against interest.

Plaintiff argues that decedent’s statement was against her present pecuniary interest, citing Gage v. Eddy (1899), 179 Ill. 492. We find the Gage case distinguishable because the statement made by the declarant, that he could not quitclaim his interest in the property because he did not have title to it, was a clear statement against his interest. (Gage, 179 Ill. at 497-98.) Here, decedent’s statement that 1402 La Cresta was “Hope’s house” does not necessarily evidence a relinquishment of her interest in the property.

Further, we also find that Junior’s testimony is not admissible as a statement of decedent’s intent. We have already discussed the law on admissibility of declarations of state of mind and find that Junior’s testimony is not admissible under that hearsay exception. The relevancy of Junior’s testimony is difficult to determine without putting it into context. However, Junior was unable to testify to the circumstances surrounding decedent’s statement. Without an understanding of the circumstances surrounding decedent’s statement that the property was “Hope’s house,” the statement provides no insight into decedent’s intent. Thus, we hold that the trial court erred in admitting the testimony as an exception to the hearsay rule.

Defendants’ final contention is that the evidence presented at trial was insufficient to prove the existence of an oral agreement between DuPee and decedent. Defendants argue that Carlile’s testimony only proves that DuPee executed a codicil to his will to take advantage of the marital deduction. Defendants also claim that Laughlin’s testimony that he did not believe that an oral contract existed is further support that no contract existed.

Plaintiff contends that there was clear and convincing evidence that DuPee executed his codicil in exchange for decedent’s promise to change her will to leave her one-half interest in 1402 La Cresta to plaintiff. Plaintiff argues that the elements needed to create a contract-certainty, mutual assent, and consideration — are all present. Finally, plaintiff claims the testimony of Carlile and Laughlin supported the trial court’s finding.

A contract to make a will is enforceable if supported by valid and adequate consideration. (In re Estate of Spaulding (1989), 187 Ill. App. 3d 1031, 1035.) If the contract was made orally, it must be proven by clear, explicit, and convincing evidence in terms certain and unequivocal. (Greenwood v. Commercial National Bank (1955), 7 Ill. 2d 436, 440; Kahn v. First National Bank (1991), 216 Ill. App. 3d 272, 276.) The burden of proof is on the party attempting to establish the contact. (Greenwood, 7 Ill. 2d at 441.) The existence of an oral contract, its terms, and the intent of the parties are questions of fact determined by the trier of fact, which will not be reversed unless against the manifest weight of the evidence. Howard A. Koop & Associates v. K P K Corp. (1983), 119 Ill. App. 3d 391, 400.

Contracts to dispose of property by will “do not stand on an especially favored footing,” and courts more strictly examine the nature and circumstances of such agreements. (Monninger v. Koob (1950), 405 Ill. 417, 423; 36 Ill. L. & Prac. Wills §6 (1958).) Also, the fact that one of the promisors executes a will disposing of property in contradiction with the oral agreement is a circumstance to consider in deciding whether the oral contract exists. Anson v. Haywood (1947), 397 Ill. 370, 378.

With the above rules in mind, we hold that the trial court’s finding that an oral agreement existed was not against the manifest weight of the evidence. Carlile’s testimony about the discussion between decedent and DuPee is sufficient evidence of a contract to make a will. Carlile testified that on October 23, 1981, Laughlin informed DuPee that he could avoid excessive Federal estate taxes if he made a codicil giving a one-half interest in 1402 La Cresta to his wife, decedent. Because DuPee desired that plaintiff eventually obtain 1402 La Cresta outright, he recommended to decedent that she change her will and devise her one-half fee interest in the property to plaintiff. Decedent agreed.

On October 26, 1982, in DuPee’s hospital room, Laughlin presented the codicil. Before signing the codicil, DuPee told decedent that it was necessary that she change her will to save on estate taxes. When decedent agreed, the codicil was signed.

Carlile’s testimony is clear and convincing evidence that not only was saving on estate taxes a concern, but also that the property ultimately be owned by plaintiff. In fact, Carlile testified that DuPee intended that the property be plaintiff’s. As the trial court stated in its memorandum opinion, Carlile’s testimony showed that DuPee relied on decedent’s promise to change her will before executing the codicil to change the disposition of the premises.

Further, the trial court believed that Laughlin’s testimony essentially corroborated Carlile’s testimony. Laughlin’s testimony focused primarily on the Federal estate tax marital deduction. However, Laughlin did testify that the marital deduction was not discussed during the October 23 meeting, implying that DuPee -wished to change his will not for purposes of saving on Federal estate taxes but because of a desire to change the ultimate disposition of the property. Although Laughlin’s testimony does not corroborate Carlile’s entire version of events, Laughlin recalled decedent stating that she was going to change her will before DuPee executed the codicil.

Additionally, we find Laughlin’s testimony curious for two reasons. First, Laughlin is married to plaintiff, yet his testimony generally supported the theory that no oral contract existed, a position in direct conflict with his wife’s interests. Second, Laughlin’s testimony concerning the effects of the marital deduction in this situation was vague and somewhat evasive. Essentially, Laughlin testified that Du-Pee’s estate could take a marital deduction if DuPee devised one-half of 1402 La Cresta to decedent and decedent changed her will to devise that interest to plaintiff upon decedent’s death. Laughlin further testified that he told decedent she “should” change her will, but that she was not “required” to do so. Finally, Laughlin testified that he did not research whether the marital deduction could be taken if the surviving spouse was obligated to leave the property to a third person.

We discuss Laughlin’s testimony not to determine its weight and believability, which is a task solely within the province of the fact finder (see Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 643-44), but to decide whether the oral agreement is enforceable. Courts will not enforce a contract that is contrary to public policy. (O’Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 341.) In deciding whether an agreement violates public policy, courts must determine whether the contract “is so capable of producing harm that its enforcement would be contrary to the public interest.” (In re Estate of Braun (1991), 222 Ill. App. 3d 178, 182.) The public policy of this State is found in its constitution, its statutes and its judicial decisions. (O’Hara, 127 Ill. 2d at 341.) Whether a contract is contrary to public policy depends on the particular facts and circumstances of each case. In re Estate of Braun, 222 Ill. App. 3d at 182.

We believe that enforcing the oral agreement made between Du-Pee and decedent would violate public policy. A binding agreement entered into by the surviving spouse as beneficial owner to dispose of a property interest obtained from the decedent prevents taking the marital deduction. (26 C.F.R. §20.2056(e) — 2(a)(5) (1992).) Implicit throughout the testimony in this case is the fact that DuPee’s estate took a marital deduction for the 1402 La Cresta property. If we enforce the contract which required decedent to change her will to devise her interest in the property to plaintiff, DuPee’s estate would have received the benefit of the marital deduction when, pursuant to Internal Revenue Service regulations, it should not have done so.

The public policy in this State is that the laws of the United States are binding on and should be followed by the citizens of Illinois. (See People ex rel. Woll v. Graber (1946), 394 Ill. 362, 369-70.) As such, we reverse the judgment of the trial court and award the proceeds in escrow from the sale of 1402 La Cresta, the sum being $38,558.86, to defendants.

For the foregoing reasons, the judgment of the circuit court of Stephenson County is reversed, and the defendants are awarded the proceeds in escrow, $38,558.86, from the sale of 1402 La Cresta.

Reversed.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WOODWARD

license: Public Domain

text:
    LEO KONTOS, Plaintiff-Appellant, v. GEORGE BOUDROS, Defendant-Appellee.
    Second District
    No. 2—92—0101
    Opinion filed February 1,1993.
    David Drenk and Christopher J. Stoll, both of Leoris & Cohen, P.C., of Highland Park, for appellant.
    William E. Hoverson, Jr., of Modesto, Reynolds & McDermott, of Chicago, and James P. Hynes, of Modesto, Reynolds & McDermott, of Wheaton, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Leo Kontos, appeals the order of the circuit court dismissing his complaint against defendant, George Boudros. Plaintiff filed a two-count complaint charging defendant with a violation of the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par. 60 et seq.) and with negligence. Plaintiff alleged that defendant sent him to the roof of his building with a ladder to change light bulbs and that plaintiff fell and suffered injury. However, plaintiff recovered an award against Tareydale Restaurant, Inc. (Tareydale), under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.), and the trial court ruled that plaintiff’s action was barred since the Workers’ Compensation Act provided the exclusive remedy. The issues on appeal are whether defendant was a third party liable for the injuries and whether defendant’s status as a co-employee of Tareydale’s barred plaintiff’s recovery.

In count I of his complaint, plaintiff alleged that he had been an employee of Tareydale. Defendant was the owner of the property on which Tareydale operated the restaurant. Plaintiff alleged that at the insistence, direction and supervision of defendant, plaintiff climbed to the roof on a ladder supplied by defendant. Plaintiff fell and suffered injury. Plaintiff alleged defendant breached his duty to provide a safe ladder. In count II, plaintiff alleged various negligent acts of defendant in supplying the ladder or supervising the actions. Plaintiff alleged defendant breached a duty to supervise properly the use of the ladder.

Defendant answered plaintiff’s interrogatories and admitted that defendant owned the real estate as a beneficiary of a land trust upon which the restaurant operated. He also owned the ladder. Defendant was the president and secretary of Tareydale. In terms of employment, defendant answered he was the owner-manager. Tareydale paid defendant $5,000 rent for use of the building.

After the accident, plaintiff sought recovery from Tareydale under the Workers’ Compensation Act. At the hearing on his claim, plaintiff testified, via a Greek translator:

“Q. Mr. Kontos, I call your attention to the date of March 26, 1987. On that date you were employed at the Tareydale Restaurant; is that correct?
A. Yes.
* * *
A. I was inside and the boss told [me] to go out, clean some lamps, light bulbs.
Q. Who is the boss?
A. George Boudros.
* * *
Q. [Tareydale counsel]. Mr. Kontos, you indicated that your boss told you to go up on the roof to change the light bulbs?
A. Yes.
* * *
Q. And Mr. Boudros is your boss?
A. Yes.
Q. And he has asked you to do these things before?
A. Yes.
* * *
Q. You indicated you used a ladder; where did you get the ladder?
A. It was in the restaurant.
Q. In the restaurant, does the ladder belong to the restaurant?
A. Yes.”

The issue disputed at the hearing involved the length of plaintiff’s disability. Tareydale did not dispute the employee-employer relationship.

Based on the above evidence, the trial court ruled that the Workers’ Compensation Act provided plaintiff’s exclusive remedy. Moreover, because plaintiff testified that he was acting in his course of duties for Tareydale, he could not claim he was working for defendant. The court granted defendant’s motion to dismiss the complaint under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-619).

The purpose of section 2 — 619 is to provide a means to dispose of issues of law or easily proved facts to support an affirmative bar to a plaintiff’s recovery. (Bloomingdale State Bank v. Woodland Sales Co. (1989), 186 Ill. App. 3d 227, 232-33.) A trial court should not grant the section 2 — 619 motion to dismiss if material facts are controverted or if the court must weigh the evidence. In assessing a section 2 — 619 motion to dismiss, the trial court must accept all properly pleaded facts as true. Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 764.

Plaintiff contends that the Workers’ Compensation Act does not preclude an action against a third party, and he cites section 5 of the Act:

“(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act.” (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(b).)

Section 5(b) further states the employer is granted the right of reimbursement against the third party in the event of such liability, thus avoiding an employee’s double recovery. The purpose of allowing third-party suits is to make the ultimate wrongdoer pay for the loss. (2A A. Larson, Workmen’s Compensation §71.10 (1991).) Blame and liability are shifted to the party ultimately causing injury. Plaintiff notes that Tareydale was his employer and that defendant was a third party.

Defendant contends, however, that plaintiff’s action is barred because defendant also happened to be a co-employee of Tareydale. Section 5 of the Act provides:

“(a) No common law or statutory right to recover damages from the employer *** agents or employees *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a).)

Defendant maintains that his status as manager of the restaurant made him Tareydale’s co-employee and that section 5(a) operates to preclude a suit against defendant since plaintiff already recovered from their common employer, Tareydale.

Plaintiff argues the record is insufficient to support a claim that defendant was operating as the restaurant manager instead of the building manager when he ordered plaintiff to the roof and, alternatively, that there is a material issue of fact precluding the finding. Plaintiff also argues that under the dual persona doctrine defendant acted in two capacities, one as restaurant manager and the other as owner/lessor of the premises, and thus the co-employee preclusion does not apply.

The third-party liability doctrine allows an employee to collect full tort damages against the ultimate wrongdoer. The Workers’ Compensation Act has a different policy of establishing a new system of liability without fault, designed to distribute the cost of industrial injuries without regard to the common-law doctrines of negligence, contributory negligence, assumption of risk and the like. (Sharp v. Gallagher (1983), 95 Ill. 2d 322, 326.) The Act balances the imposition of no-fault liability upon the employer against the statutory limitations upon the amount of the employee’s recovery and the preclusion of other theories of recovery. (95 Ill. 2d at 326.) Thus, injuries caused by employers or co-employees which arise in the course of the employment are barred by section 5(a) of the Act. (Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 765.) It is problematic when the third-party tort-feasor happens to be the employer, as, for example, when the employer also is liable under products liability, the Structural Work Act, or negligence. In such cases the claim is barred under the exclusivity provision of section 5(a). The dual persona doctrine is based on the idea that it would be contrary to the beneficent purposes of compensation law to deprive a claimant of the rights to sue a third party, the ultimate wrongdoer, in tort merely because the third party and the employer have merged into a single entity. See Robinson v. K F C National Management Co. (1988), 171 Ill. App. 3d 867, 872, citing 2A A. Larson, Workmen’s Compensation §72.83, at 14 — 236 (1988).

To invoke the dual persona doctrine, a plaintiff must show more than a separate theory of liability. (Smith v. Metropolitan Sanitary District of Greater Chicago (1979), 77 Ill. 2d 313, 319.) The cause of an industrial accident is almost always tied to another legal theory of liability such as negligence. To recover on an otherwise barred theory, the plaintiff must show the defendant acted in two separate capacities and that the plaintiff was injured by the defendant while the defendant was acting in his second, nonemployer capacity; in other words, the employer was also a third party and was acting as a third party. (Oakes v. Gaines (1982), 107 Ill. App. 3d 212, 216.) While Romo v. Allin Express Service, Inc. (1982), 106 Ill. App. 3d 363, 364, posited in dicta that the dual persona doctrine did not apply to co-employees, Oakes (107 Ill. App. 3d at 216) held that the bar would not always apply. We agree with Oakes, because the third-party liability would be clear, for example, if Tareydale catered a party at defendant’s home, at which defective premises caused plaintiff’s injury. Defendant’s duty to provide safe premises for invitees would be different from and unrelated to Tareydale’s duties to its employees.

The dual persona doctrine is best explained through examples. (Robinson, 171 Ill. App. 3d at 871, quoting 2A A. Larson, Workmen’s Compensation §72.81(a), at 14 — 231 (1988).) In one case where the dual persona doctrine applied, a corporation manufactured a defective product which caused injury to the employee of a separate corporation which merged into the first corporation; the fortuity that the two corporations merged should not have barred the employee’s right to sue the ultimate third-party tort-feasor. Robinson, 171 Ill. App. 3d at 874.

We do not need to address the dual persona doctrine unless the defendant’s identity has merged into that of an employer or employee. Plaintiff’s cause of action is the statutory right to sue third-party tort-feasors for injuries. The dual persona doctrine in certain circumstances merely remedies the bar to recovery which arises when the third party is also an employee or employer. Here, Tareydale is the employer, and defendant is a separate legal entity. Defendant cannot pierce his own corporate veil, at least not on the facts before the court. He cannot choose when to disregard his corporate form or business at his own convenience. The dual persona doctrine does not need to be applied when the corporate employer is a separate entity from the owners of the corporation who also own the land upon which the injury occurred. (2A A. Larson, Workmen’s Compensation §72.81(b) (1991), citing Mastey v. Mancusi (1983), 122 Misc. 2d 119, _, 469 N.Y.S.2d 890, 892.) However, unlike the shareholders of Mastey, defendant states that he was also an employee of the corporate employer; thus, defendant has raised the issue of whether he was immune under the co-employee doctrine.

We believe that the trial court properly decided that defendant was immune as an employee or agent of Tareydale. He was not merely the president and shareholder but also the manager of a restaurant. By requesting worker’s compensation from Tareydale, plaintiff admitted that he was acting within the scope of his duties to Tareydale. The injury arose out of his employment. (Brady v. Louis Ruffolo & Sons Construction Co. (1991), 143 Ill. 2d 542, 548; Miller v. Reynolds (1990), 200 Ill. App. 3d 166, 171.) Plaintiff testified that he climbed to the roof at defendant’s orders. We believe that the evidence and the reasonable inferences drawn from the record reveal that defendant was an agent of Tareydale.

Plaintiff cites Boatman v. Jordan (1968), 102 Ill. App. 2d 55, to state that, as a matter of law, defendant, the president of the corporation, could not be an employee for the purposes of the Act. In Boatman, the court stated that “without some showing of an actual employment the president of a one-man or principally-owned corporation cannot be considered its employee merely because of that fact.” (102 Ill. App. 2d at 64.) In Boatman, this ruling allowed the plaintiff, an injured worker of the small corporation, to sue the president, who also owned the defective premises, on a theory of premises liability. In Boatman, the defendant was also directing the workers in the business. Boatman ruled that as an executive the defendant could not be the plaintiff’s co-employee. However, under a dual capacity doctrine, one who is the sole shareholder and president of a corporation, the employer, may still be considered an employee if at the time of the injury he is performing the work of an ordinary employee as distinguished from the work discharging his executive responsibilities. (Bolnick v. Industrial Comm’n (1980), 81 Ill. 2d 22, 26; see Master Leakfinding Co. v. Industrial Comm’n (1977), 67 Ill. 2d 517, 526.) Defendant alleges that he was the manager and more than a mere stockholder, but this allegation supports a conclusion that he was an executive.

Defendant notes that since the time of Boatman the legislature amended the Act to expand coverage. The Act now allows a partner or a sole proprietor to be considered an employee to recover worker’s compensation against himself as an employer. (See Ill. Rev. Stat. 1991, ch. 48, par. 138.1(b)(3).) However, defendant fails to demonstrate that the scope of coverage was expanded to include nominal corporate officers or directors. (See Romondo v. Industrial Comm’n (1988), 171 Ill. App. 3d 838, 843.) Nevertheless, we do not believe that the Boatman case is dispositive. Boatman construed the dual-capacity cases which analyzed who was an employee for purposes of determining who was eligible to receive payments under the Act. The issue in those cases was whether an owner of a company was also an employee and thus eligible to receive payments. However, the purpose of analyzing who is an employee to determine eligibility for benefits differs from the purpose of analyzing who is an employee to determine immunity. Section 5(a) immunizes both employees and agents of the employer. Executive officers, who may not qualify as employees of the corporation, are nonetheless its agents. A corporation speaks through its agents. As agents, the officers are immune from civil suit for actions arising out of employment. (Mier v. Staley (1975), 28 Ill. App. 3d 373, 378-79.) This interpretation of the Act is consistent with the purpose of the Act which provides employees with a sure remedy and immunizes corporate policy decisions executed by its officers. (See Mier, 28 Ill. App. 3d at 379.) Executives do not become jointly liable for the corporate decisions they implement. Thus, defendant is immune from suit in his persona of plaintiff’s “boss.”

Because defendant was an agent of Tareydale, the Act bars a suit against him unless the dual persona doctrine applies. Plaintiff argues that persona arises from his ownership of the building. In other words, plaintiff must show that had Tareydale leased the premises from a third-party landlord who directed plaintiff to go to the roof, he could sue that third party. Plaintiff had to show that defendant acted in two capacities and that plaintiff was injured as a result of the activities performed by the defendant while engaging in the second capacity. (Oakes, 107 Ill App. 3d at 216.) The test is whether the employer’s conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the individual’s first role as the agent of the employer. (McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 357.) We note that in his complaint, while plaintiff does call defendant the owner of the property on which the restaurant operated, plaintiff does not assign any breach of the landowner’s duty; he does not allege the premises were unsafe. Rather, plaintiff alleges only the breach of a duty to provide an adequate and safe ladder and to supervise properly the use of said ladder. This duty is not different from Tareydale’s duty to provide a safe workplace for the employees or defendant’s duty to implement Tareydale’s obligation. The duties are intertwined. Thus, plaintiff has failed to show that defendant was acting in a dual capacity when the injury occurred. While defendant may have had a conflict of interest in directing corporate employees to maintain his personal estate, there is no evidence that the corporation would not have maintained the premises under its lease or sought to improve the appearance of its business.

“ ‘An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to a shambles.’ ” (Sharp v. Gallagher (1983), 95 Ill. 2d 322, 328, quoting 2A A. Larson, Workmen’s Compensation §72.82 (1982).)

There is no question that plaintiff considered himself to be engaged in the restaurant business because he filed a claim against Tareydale. Thus, his argument under the dual persona doctrine must fail.

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

Affirmed.

McLaren and BOWMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE KNOX, Defendant-Appellant.
    Second District
    No. 2—91—0697
    Opinion filed February 10,1993.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan, and Jose J. Behar and Robert G. Tucker, both of Chapman & Cutler, of Chicago (William L. Browers and John X. Breslin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

A jury convicted defendant, Theodore Knox, of two counts of first-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1) and two counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2). The armed violence counts were vacated, and defendant was sentenced to natural-life imprisonment without parole for the first-degree murder convictions. On appeal, defendant contends that (1) evidence of his gang affiliation was irrelevant and prejudicial, resulting in an unfair trial; (2) the trial judge violated his right to counsel when advising defendant that he could not discuss his testimony with defense counsel during an overnight recess; and (3) the evidence to support his conviction was insufficient because it consisted primarily of testimony from jailhouse informants and a codefendant.

The charges stemmed from the February 17, 1988, shootings of Santos Escobedo and Domingo Garcia, Jr. (the victims). Defendant, Daniel Blalock, Sr., Daniel Blalock, Jr., Ronald Walker, and Oscar Parham called themselves the “Royal Family” (the family) and dealt drugs in Zion, Illinois. Defendant was a “soldier” in the gang and took orders from Blalock, Sr., and Parham.

Among the State’s key witnesses was Walker, who testified in exchange for a plea of guilty to armed robbery with a 20-year sentence. He testified that defendant and he were soldiers in the family, which made money from drug sales. Blalock, Sr., authorized all actions by the family members. Walker identified the symbols “L.L.L.,” meaning “love, loyalty and life,” and a six-pointed star, both of which were family-related symbols.

On the morning of February 17, 1988, Walker had a court date in Waukegan, which he attended along with Blalock, Sr., Parham, and defendant. After that, the group went to Parham’s girlfriend’s apartment, where they met up with Blalock, Jr. Defendant later told Blalock, Sr., that some guys outside wanted to sell them marijuana. Defendant sampled the marijuana. After the family decided to buy the marijuana, Walker retrieved a digital scale for Blalock, Sr. Then, defendant, Blalock, Jr., Parham and Blalock, Sr., went into an adjoining utility room to consummate the deal.

Walker testified that he remained in the apartment while the others went into the utility room. A few minutes later, Walker heard gunshots. Walker thought nothing of it because he frequently heard gunshots in that apartment building. Walker then heard defendant call his name in a panicky voice. Walker went inside the utility room and saw defendant struggling with a young Hispanic man. An older Hispanic man was lying on the floor with a hole in his head. Walker pulled the young Hispanic man off of defendant, and defendant shot the man in the back of the head. Defendant then shot each of the two men again in the head. Walker testified that no other family members were in the room and there were no drugs or marijuana in the room.

Walker further testified that before leaving the utility room he picked up the scale and a .22-caliber revolver. Defendant had a .38-caliber handgun. Defendant had been injured in the shooting and Walker helped dress the wound. The two men went back to the apartment and eventually fled to Chicago.

James Wellman, a man connected with the family, testified that he knew the family and admitted to being involved with them. Wellman explained the family hierarchy and the meaning of “L.L.L.” He stated that he agreed to testify in exchange for intensive probation and alcohol treatment, instead of a prison term, on the petition to revoke his probation.

Wellman testified that in June or July 1988 he spoke with defendant in the Lake County jail. Defendant warned Wellman not to testify or he would end up dead. When Wellman assured defendant he would not testify, defendant told Wellman that the victims came to the apartment on the day in question to sell two pounds of marijuana. Defendant stated that the family was planning to steal it but not hurt anyone. Defendant claimed that he, Blalock, Sr., Parham, Walker, and Parham’s girlfriend all had guns. Blalock, Sr., brought the men in and made the deal. After the family exchanged their money for the marijuana, they pulled out their guns and demanded the money be returned. When one of the victims pulled out a gun, the family members shot both victims and left.

David Capíes, another man who hung around the family, testified after being promised that his robbery and aggravated battery charges would be dropped. He was to return to the Department of Corrections on a parole violation. The prosecution was going to send a letter on his behalf to the prisoner review board, which was to preside over Capíes’ parole hearing later that month.

Capíes testified that he occasionally sold drugs for the family and that the family was associated with the Black Gangster Disciples street gang. The six-pointed star was symbolic of a larger gang network.

Capíes further testified that he spoke with defendant at the Joliet Correctional Center in July 1989. Defendant told Capíes that the victims were not nares, but were “just dumb Mexicans.” Walker was supposed to be a lookout while the rest of the family took the drugs from the victims.

The key witness for the defense was the defendant. He testified that he, Blalock, Sr., Walker and Blalock, Jr., went to court on the morning of February 17, 1988. Eventually they ended up at Parham’s girlfriend’s apartment. As defendant and Walker were walking to the alley, a car drove up next to them. One of the victims got out of the car and asked to see Blalock, Sr., to sell him some marijuana. Defendant denied that there was a set plan to buy marijuana from the victims. When the victim displayed the marijuana, Gary Hayes, who was hanging out in the alley, snatched the bag containing marijuana out of the victim’s hands.

While Hayes and the victim argued over the marijuana, Blalock, Sr., came by, took the marijuana, and told the victim to “get the f— out of here.” The victim then drove away.

Later that day, defendant was in the utility room of the apartment building. The two victims came in and asked for the marijuana back. When defendant told them Blalock, Sr., was not there and “to get the f— out of there,” one of the victims pulled out a gun. Defendant then pulled out his gun, and one of the victims shot first. Defendant shot back, hitting one of the victims. After an exchange of gunfire, defendant yelled for Walker. Defendant claimed that Walker came in, picked up the gun one of the victims had dropped, and shot until no bullets remained in the gun, hitting the other victim.

Defendant and Walker went into Parham’s girlfriend’s apartment to run some water on defendant’s hand, which had been injured in the gun battle. Before they left the building, Walker went back into the utility room alone to get defendant’s ring and hat. Defendant testified that he heard more shots from inside the utility room. Walker returned with a chrome gun in his hand, and the two men eventually fled to Chicago.

On cross-examination, defendant said Blalock, Sr., was like a father to him. The group called themselves the family because they were all like brothers, but defendant claimed he was unfamiliar with the family hierarchy. He admitted that he and Walker sold drugs. Defendant carried a .22 caliber with him because he “was young.” Defendant denied that the family was affiliated with the Black Gangster Disciples street gang, but acknowledged that a six-pointed star, a symbol of that gang, was displayed in the window of Parham’s girlfriend’s apartment. Defendant further acknowledged that “L.L.L.” meant life, love and loyalty.

Following cross-examination of defendant, the court recessed for the evening. The trial judge informed defendant not to discuss his testimony with anyone during the recess, including his attorneys. No objection was made and, the following day, defendant completed brief redirect and re-cross-examination.

The jury found defendant guilty of first-degree murder in the course of committing or attempting to commit robbery and guilty of armed violence. Defendant was sentenced to natural-life imprisonment without parole after his motion for judgment notwithstanding the verdict or, alternatively, for a new trial was denied. Defendant then filed a timely appeal.

EVIDENCE OF GANG MEMBERSHIP

At issue is whether the evidence of defendant’s gang membership was so prejudicial that its admission denied defendant a fair trial. Defendant contends that evidence about the family and the Black Gangster Disciples was not admissible to show the purpose or motive for the crime. He claims that the prejudicial effect of this evidence outweighed its probative value. Defendant also argues that the prosecutor acknowledged that the shootings were not the result of a dispute between rival gangs. Additionally, defendant argues that this issue has not been waived and asks this court not to follow its recent decision in People v. Pantoja (1992), 231 Ill. App. 3d 351.

The State contends that Pantoja is applicable here and that this issue has been waived because defendant failed to object to the admission of gang-related evidence at trial, after defendant’s motion in limine had been denied. Alternatively, the State argues that evidence of gang membership was relevant and admissible because it was related to the crime at issue.

We first address the issue of waiver. In Pantoja, we held that a movant whose motion in limine has been denied should object when that evidence is presented at trial so as to preserve the issue for appellate review. (231 Ill. App. 3d at 354.) Defendant claims that Pantoja should not apply because this court failed to cite People v. Smith (1990), 141 Ill. 2d 40. However, Smith does not discuss the applicability of the waiver rule after a motion in limine has been granted or denied. A motion in limine to exclude gang-related evidence was not made by the defendant in Smith. Thus, we question its applicability to the waiver discussion in Pantoja.

We continue to follow the waiver rule in Pantoja, but find it should not be followed here. When the prosecution attempted to admit photographs of defendant and others flashing gang signs and of a birthday cake displaying gang symbols, defense counsel objected. This objection to gang-related evidence is the type of objection contemplated in Pantoja. We find that this objection preserved the issue for review.

Evidence relating to the defendant’s gang membership or gang-related activities is admissible to show common purpose or design, or to provide a motive for an otherwise inexplicable act. (Smith, 141 Ill. 2d at 58.) The evidence is only admissible where there is sufficient proof that gang membership or activity is related to the crime charged. (Smith, 141 Ill. 2d at 58.) Relevant evidence of gang membership is not inadmissible simply because prejudice attaches to that information. (People v. Gonzalez (1991), 142 Ill. 2d 481, 489.) Absent an abuse of discretion, a reviewing court will not reverse the trial court’s ruling denying defendant’s motion in limine to exclude such evidence. Pantoja, 231 Ill. App. 3d at 353.

Before trial, the trial judge denied defendant’s motion in limine, stating:

“As to the motion which applies to the gangs, I will deny the motion. Certainly, there is accountability that is perhaps a portion of this case.”

The prosecutor had argued that gang affiliation was relevant because the five codefendants were acting in concert and the accountability theory could apply. Also, the prosecution argued that the gang relationship among the parties was relevant to show the motive for the drug deal and the armed robbery, which resulted in the victims’ murders.

Although motive is not an essential element of the crime of murder, evidence which tends to show that the accused had a motive to kill the victim is relevant because it renders it more probable that the accused killed the victim. (Smith, 141 Ill. 2d at 56.) Here, the State was attempting to prove that defendant’s motive for the murders was to advance the gang-related goals of dealing drugs and robbing other drug dealers. Such a motive rendered it more probable that defendant committed the murders. The murders were inexplicable absent evidence about the family and its drug network. Thus, we hold that the trial judge did not abuse his discretion in allowing evidence of gang affiliation.

In his brief, defendant primarily relies on Smith (141 Ill. 2d 40). There, our supreme court held that the admission of gang membership was improper because there was little evidence to support the motive theory that the killings were gang related. (141 Ill. 2d at 58-59.) The court stated that “it is not enough that the State merely produce evidence of motive in the abstract ***. The motive must be attributable to the defendant on trial at the time the crime was committed.” 141 Ill. 2d at 57.

In the case at bar, there was sufficient evidence to tie defendant in with the family at the time the crime was committed. A member of the family and others familiar with the family testified about defendant’s role with the gang. There was also testimony that the family had decided to rob the victims during the drug deal. This evidence provides a sufficient basis for the State’s motive theory and makes Smith distinguishable on its facts.

RIGHT TO COUNSEL DURING OVERNIGHT RECESS

Defendant’s second contention is that the trial judge violated defendant’s right to counsel when informing defendant that he could not talk with his attorney about his testimony during the overnight recess. The trial judge gave this instruction after defendant had completed direct examination and cross-examination. Defendant claims that this prevented him from consulting with his attorney about anything over the evening recess.

The State contends that defendant has waived this issue by failing to object either at trial or in his post-trial motion. Alternatively, the State claims that defendant’s right to counsel was not infringed upon because defendant did not show that he sought to exercise the right during the overnight recess. Further, the trial judge only ordered that defendant refrain from discussing his testimony; it was not a blanket order that prevented all consultation between defendant and his attorney.

While it is generally true that defendant must object at trial and include the objection in a post-trial motion to preserve an issue for review (People v. Burrows (1992), 148 Ill. 2d 196, 229), a reviewing court may consider an unobjected-to error under the plain error rule. (134 Ill. 2d R. 615(a).) We will ignore the waiver rule here because the alleged infringement on the right to counsel is so fundamental that the defendant may have been denied a fair trial. See People v. Herrett (1990), 137 Ill. 2d 195, 209-10.

We begin our discussion with Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, the case principally relied upon by defendant. In Geders, the defendant had finished direct examination when the trial judge called for an overnight recess. When the trial judge informed the defendant not to speak with his attorney during the recess, defense counsel objected. (Geders, 425 U.S. at 81-82, 47 L. Ed. 2d at 595, 96 S. Ct. at 1332.) Even though defense counsel assured the court that defendant’s testimony would not be discussed during the recess, the trial judge said he thought “it [was] better that he not talk to you about anything.” (Emphasis omitted.) Geders, 425 U.S. at 83 n.l, 47 L. Ed. 2d at 596 n.l, 96 S. Ct. at 1333 n.l.

The Supreme Court recognized that an overnight recess is often times a period of “intensive work, with tactical decisions to be made and strategies to be reviewed. *** At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.” (Geders, 425 U.S. at 88, 47 L. Ed. 2d at 599, 96 S. Ct. at 1335.) The Court suggested that the possibility of “coaching” could be avoided if the trial judge arranged “the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption.” (425 U.S. at 89-90, 47 L. Ed. 2d at 600, 96 S. Ct. at 1336.) Thus, the Supreme Court held that the trial judge’s order impinged upon the defendant’s sixth amendment right to the assistance of counsel. 425 U.S. at 91, 47 L. Ed. 2d at 601, 96 S. Ct. at 1337.

We believe the Geders case is factually distinguishable for two reasons. First, the trial judge’s order in Geders prohibited any discussion between the defendant and his attorney. Second, the defendant in Geders had not been cross-examined before the overnight recess, which would allow for greater “coaching” of the witness-defendant. In fact, the Court in Geders suggested that courts could avoid the “coaching” problem by recessing after cross-examination, the exact situation that occurred here. We find Geders to be limited to its particular facts.

In Perry v. Leeke (1989), 488 U.S. 272, 102 L. Ed. 2d 624, 109 S. Ct. 594, the trial judge declared a 15-minute recess after the defendant completed direct examination. The judge also ordered that the petitioner “not be allowed to talk to anyone, including his lawyer, during the break.” (Leeke, 488 U.S. at 274, 102 L. Ed. 2d at 629, 109 S. Ct. at 596.) Leeke moved for a mistrial when the trial resumed, which was denied. (Leeke, 488 U.S. at 274, 102 L. Ed. 2d at 629, 109 S. Ct. at 596.) The Supreme Court held that a trial judge may prevent a party from consulting with his or her lawyer while the party’s testimony is in process if a brief recess is needed. (Leeke, 488 U.S. at 284-85, 102 L. Ed. 2d at 636, 109 S. Ct. at 602.) The Court noted that Geders was a different situation because attorney and client normally confer during an overnight recess, and stated:

“It is the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess.” Leeke, 488 U.S. at 284-85, 102 L. Ed. 2d at 636, 109 S. Ct. at 602.

The Illinois courts have also addressed this issue in a few cases. In People v. Stewart (1987), 161 Ill. App. 3d 99, the defendant was placed in an isolation cell during the overnight recess because of fears he would harm himself. This court held that the defendant’s sixth amendment right to counsel was not violated by this action because there was no evidence that the defendant attempted to contact or was prevented from contacting his lawyer while in the cell. Stewart, 161 Ill. App. 3d at 103.

In People v. Brooks (1987), 115 Ill. 2d 510, a lunch recess was called at the conclusion of defendant’s direct examination. The trial court sequestered the defendant during the break. (115 Ill. 2d at 518-19.) Our supreme court held that the defendant was not deprived of the assistance of counsel because no objection was made and neither defendant nor her counsel referred to the order after the break. There was no evidence that the defendant wished to communicate with her attorneys during that period. Brooks, 115 Ill. 2d at 520-21.

Finally, in People v. Noble (1969), 42 Ill. 2d 425, the case most similar factually to the one at bar, the trial court adjourned at 5 p.m., during defendant’s cross-examination. The trial judge warned the defendant not “to discuss his testimony with anyone including his attorney.” (Noble, 42 Ill. 2d at 429.) Defense counsel protested and his motion for mistrial was denied. The supreme court held that this action constituted a denial of the assistance of counsel guaranteed by the sixth amendment. It was apparent to the court "from the colloquy between the court and counsel that any discussion between counsel and defendant must wait until *** the completion of defendant’s testimony.” Noble, 42 Ill. 2d at 429.

The obvious distinction between these cases is situations where the recess was overnight versus situations where the recess was shorter. However, the difference between these cases that we find most significant is situations where defense counsel objected to the court’s sequestration order versus situations where no objection was made. (See People v. Moore (1984), 128 Ill. App. 3d 505, 516; People v. Seider (1981), 98 Ill. App. 3d 175, 189.) The key question in deciding whether a defendant was deprived of counsel is whether the defendant was prevented from consulting with his or her lawyer. (See Brooks, 115 Ill. 2d at 520-21.) Here, defendant, through his attorney, did not object when the trial judge admonished him not to discuss his testimony with anyone, including his attorney. The following day, defense counsel did not mention the order or move for a mistrial. Defense counsel’s actions do not suggest that defendant and his attorney believed they were unable to consult about strategic matters during the overnight recess.

Although no objection was made after the trial judge’s admonition, defendant wishes us to assume that he was deprived of his right to counsel. We will make no such assumption. The trial judge’s admonition was brief and limited to defendant’s testimony, which could not be significantly altered after direct examination and cross-examination were completed. Thus, we hold that defendant was not deprived of his sixth amendment right to the assistance of counsel.

SUFFICIENCY OF THE EVIDENCE

The final issue to address is whether the testimony of jailhouse informants and a codefendant was sufficient to prove defendant guilty of first-degree murder. Defendant contends that the “only” support for the convictions of first-degree murder in the course of an attempt to commit robbery was testimony from witnesses whose credibility was suspect. All three witnesses bargained with the State in exchange for their testimony. Defendant argues that their testimony should not be accepted unless it carries with it the absolute conviction of truth.

A criminal conviction will not be set aside on review unless the evidence was so unsatisfactory as to create a reasonable doubt of the defendant’s guilt. (People v. Burrows, 148 Ill. 2d at 224.) The key question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Frieberg (1992), 147 Ill. 2d 326, 360.) It is the jury’s function to weigh the credibility of the witnesses and resolve the inconsistencies in the testimony. Frieberg, 147 Ill. 2d at 360.

The uncorroborated testimony of an accomplice can be sufficient evidence on which the fact finder may base a conviction. (People v. Holmes (1990), 141 Ill. 2d 204, 242.) However, this testimony should be “cautiously scrutinized on appeal.” (Holmes, 141 Ill. 2d at 242.) Similarly, when a witness has hopes of being rewarded for his or her testimony, the testimony should not be accepted unless it has the absolute conviction of truth. People v. Williams (1976), 65 Ill. 2d 258, 267.

We have reviewed the record and find no reason to reverse defendant’s conviction. Walker, the codefendant, and James Wellman, a jailhouse informer, placed defendant at the crime scene, although their versions of the shooting were different. Both Wellman and David Capíes, the other jailhouse informant, testified that defendant acknowledged that there was a plan to rob the victims. Although each witness received consideration for testifying in this case, we do not doubt that each witness’ testimony carried “the absolute conviction of truth.”

Moreover, we find the cases relied upon by defendant to be distinguishable. In Williams, a convicted codefendant testified in exchange for his immediate release from prison, where he had served only two years of a 15- to 30-year prison sentence for the same crime for which the defendant was on trial. (Williams, 65 Ill. 2d at 264-65.) The convicted codefendant also admitted to lying at his own trial and had admitted to making several material statements under oath that were patently inconsistent. (Williams, 65 Ill. 2d at 267.) Here, the deals the codefendant and the jailhouse informers made with the State do not inherently affect the credibility of their testimony.

In People v. Ash (1984), 102 Ill. 2d 485, an accomplice testified against the defendant after pleading guilty to armed robbery and after the State agreed to dismiss the remaining charges against him. (Ash, 102 Ill. 2d at 488.) The accomplice also wanted to avoid being sent to the same prison as his codefendants because they had a contract out on his life. He acknowledged that he would lie to save his life. (Ash, 102 Ill. 2d at 491, 493.) The witnesses here did not display an overt fear of the defendant such that their credibility should be scrutinized on review. The jury was aware of the deals struck by the witnesses, and it was within the province of the jury to decide who was to be believed.

Finally, we note that defendant believed that, based on the jury’s notes to the trial judge during deliberations, the jury “felt constrained” to return verdicts of guilty as to first-degree murder. There is no support for this hypothesis, and we will not entertain such speculation. We hold that there was sufficient evidence to convict defendant of first-degree murder.

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

Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.