author: PRESIDING JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL ZURAWSKI, Defendant-Appellant.
    Second District
    No. 2—90—1106
    Opinion filed September 10, 1992.

      Herbert Abrams, of Law Offices of Abrams & Minkus, of Skokie, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Daniel Zurawski, was convicted by a jury of two counts of possession of a controlled substance with the intent to deliver in violation of sections 401(a)(2) and 401(b)(2) of the Controlled Substances Act (Ill. Rev. Stat. 1987, ch. 56½, pars. 1401(a)(2), (b)(2)). He was sentenced to six years’ imprisonment and fined $6,600 for violation of section 401(a)(2) (the quantity of cocaine being more than 15 grams, a Class X felony), and sentenced to four concurrent years’ imprisonment and fined $900 for violation of section 401(b)(2) (the quantity of cocaine being between 1 and 15 grams, a Class 1 felony). Defendant raises five issues on appeal: (1) whether the trial court erred in denying defendant’s motion to quash the arrest and suppress evidence; (2) whether defendant was proven guilty beyond a reasonable doubt; (3) whether the trial court erred in denying defendant’s motion for a mistrial; (4) whether the trial court erred in denying defendant’s motion for a new trial; and (5) whether defendant was improperly indicted by the Du Page County grand jury. We affirm.

Defendant was arrested on October 21, 1988, while in the garage of Louis Napoleon in Addison, Illinois. According to defendant, he visited Napoleon that evening to pick up his 1981 Cadillac, which had been parked in front of Napoleon’s home while defendant was on vacation. As the result of two undercover cocaine purchases from Napoleon, the Addison police department executed an arrest warrant for Napoleon and a search warrant for Napoleon’s garage at approximately 9 p.m. that evening. The officers found defendant in the garage talking with Napoleon.

Both men were told to lie on the floor and then were handcuffed. Three $100 bills, of which the serial numbers had been previously recorded by the police, were found in defendant’s pants’ pockets. Those three bills were used when a police informant purchased drugs from Napoleon earlier that evening. A search of Napoleon’s garage revealed a secure back room where the police found and seized approximately 80 grams of cocaine, a scale and other drug paraphernalia. Defendant and Napoleon were then arrested, taken to the police station and read Miranda warnings. The police also towed defendant’s car to the police station. After obtaining a search warrant approximately eight hours later, the police searched the car and found three packets of cocaine, weighing approximately 7V2 grams, in the passenger area.

Defendant was charged in count I with violating section 401(b)(2) of the Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2)), based on the cocaine found in his car. Defendant was charged in count II with violating section 401(a)(2) of the Act (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2)), based on the cocaine found in Napoleon’s garage.

Defendant filed a motion to suppress evidence, alleging that the police searched him, and towed and searched his car, without legal cause. After a suppression hearing on March 13, 1989, the trial judge denied defendant’s motion. Defendant’s trial was in January 1990. At one point during the testimony of one of the police officers, defendant moved for a mistrial because the officer testified that defendant had denied the officer permission to search his car. The trial judge denied the motion. The jury found defendant guilty of both counts. In September 1990, the trial judge heard defendant’s motion for a new trial. Defendant alleged newly discovered evidence as a basis for his motion. After a hearing, the trial judge denied the motion and sentenced defendant.

MOTION TO SUPPRESS HEARING

Officer Michael Simo, Lieutenant Michael Kostecki and the police informant testified at the March 13,1989, suppression hearing.

Officer Simo testified that he arranged for the police informant to purchase cocaine from Napoleon on October 20, 1988. The informant purchased a small envelope containing 3V2 grams for $150. He told Simo that Napoleon had a sawed-off shotgun in the locked back room to the garage where he purchased the drugs. He indicated that Napoleon kept the back room locked at all times, even to family members.

The informant also told Simo that he thought he knew who Napoleon’s supplier was. He did not know this individual’s name, but described him as a white male, in his late thirties, with light colored hair, a medium build, 6 feet tall, whose last name is Polish and starts with the letter “Z,” and who is known as Dan, Mr. Z and Danny Z. The informant told Simo that he saw this individual deliver drugs to Napoleon at least six times in the past. He also said that this individual drove a black Eldorado Cadillac, with Illinois license plates that read “M-R-Z-E-E.” Simo had never used this particular informant before. The informant knew of Napoleon’s drug activity because he used to be a “runner” for Napoleon, making drug deliveries, and because he used to buy drugs from Napoleon for personal use.

Officer Simo testified that there had not been an agreement regarding the informant’s participation in this case and that the informant was not paid for his participation. However, a month or two later, the informant’s two-week sentence on a misdemeanor retail theft charge was waived.

Officer Simo arranged for the informant to make a second drug purchase from Napoleon on October 21 at approximately 6 p.m. The informant purchased a small envelope containing a quarter-ounce of cocaine, approximately seven grams, for $400. He used four $100 bills, the serial numbers of which had been recorded. The amount purchased tested positive for cocaine.

Simo then obtained a search warrant for the garage, which he and four other Addison police officers executed at 9 p.m. that evening. They approached the east door to the garage, knocked and loudly announced their presence, to which there was no response. They then checked the door and found that it was locked. Two officers used a battering ram to open the locked door. Defendant and Napoleon were found in the back room of the garage, were instructed to lie down on the floor, remained standing, and were then forced onto the floor and handcuffed. Within the back room, Simo stated that they found two clear plastic bags half full of a white powdery substance, a triple-beam scale and 16 envelopes, similar to the envelopes that the informant had purchased earlier that day and the day before.

Officer Simo stated that Lieutenant Kostecki searched defendant and found three $100 bills in his pants’ pockets, the serial numbers of which matched those of three of the bills that the informant had used earlier that day to buy cocaine from Napoleon. Simo stated that the fourth bill never turned up in the search of the garage. According to Simo, the police did not know who defendant was until about 15 minutes after the search began, at which point they ran a license plate check on a black Eldorado Cadillac parked out front with a license plate that read “MRZEE1.” They learned that a “Dan Zurawski,” defendant, was the owner of the car. Simo testified that the Cadillac was not parked in front of Napoleon’s home on either of the two occasions when the informant had purchased cocaine from Napoleon. Defendant was arrested, taken to the Addison police station, and read the Miranda warning.

Officer Simo testified that defendant’s car was towed to the police station at 9:45 p.m. that evening to secure it until the police obtained a search warrant. Due to the circumstances, Simo suspected that cocaine would be found in the car. After obtaining a search warrant for the car the following day, Simo stated that other officers searched the car and found three packages of cocaine in the passenger area.

The police informant was the next witness. He testified that he met Napoleon in December 1987. The informant purchased cocaine from Napoleon approximately 100 times between January and July 1988, during which time the informant was using cocaine regularly. He stated that he has been arrested for theft twice. For the felony theft, he was sentenced to three years’ probation. For the misdemeanor theft, his two-week jail sentence was waived after the Addison police department relayed his cooperation in this case to the State’s Attorney’s office.

The informant’s testimony regarding the drug purchases from Napoleon on October 20 and 21 matched that of Officer Simo. He stated that he told the police about defendant’s drug transactions with Napoleon, described defendant’s physical description, related his various nicknames, and described defendant’s Eldorado Cadillac and specialized license plate. The informant testified that he saw defendant with Napoleon six times previously, each time at Napoleon’s garage. Each time, defendant would carry a shoe box and accompany Napoleon to the back room of the garage. When the two men exited the back room, the informant would hear Napoleon say “add that to my account.” The informant testified that for one transaction he went to defendant’s condominium in Roselle with Napoleon and saw cocaine packets pass from defendant to Napoleón. He did not actually see the cocaine change hands at any of the other times.

Lieutenant Michael Kostecki testified next. Kostecki stated that upon arrival at Napoleon’s garage at 9 p.m. on October 20, the officers knocked on the door, twice announced their presence, heard no response, after which they forced the door open with a battering ram. Kostecki stated that he searched defendant and found a roll of bills in defendant’s left front pants’ pocket. The roll consisted of five $100 bills, some $20 bills and some smaller bills. Kostecki stated that three of the $100 bills matched the previously recorded serial numbers of the $100 bills used by the informant when he purchased cocaine from Napoleon earlier that evening.

Kostecki testified that while he recalled seeing a black Eldorado Cadillac parked in front of Napoleon’s home prior to executing the garage search warrant, he did not note the car’s license plate. Regarding the sequence of when defendant was searched and when the police learned who he was and how he was connected to the circumstances, Kostecki testified that after he finished searching defendant, Officer Simo informed him that defendant was apparently the “Mr. Z” that the informant had described and that the car in front of Napoleon’s home was the car that the informant had described as being owned by “Mr. Z.”

Kostecki testified that at approximately 4 a.m. on October 22, after the automobile search warrant was obtained, he and Sergeant Gorniak searched defendant’s car. Kostecki stated that Gorniak found drugs on the back of the front seat.

The trial judge, defendant’s attorney and the State’s attorney then engaged in a spirited discussion over defendant’s motion to suppress. The trial judge signed an order later that day, March 13, 1990, finding probable cause to seize and search defendant’s car. However, the trial judge withheld judgment on whether the police had probable cause to search defendant until the State presented him with supporting case law. Two weeks later, defendant filed a motion to reconsider. Thereafter, the State filed a response to defendant’s motion which contained supporting case law that the trial judge had requested. On May 17, the trial judge heard arguments on defendant’s motion for reconsideration. The trial judge concluded that under all the circumstances the police had probable cause to search defendant since it is reasonable to believe that he was involved in the delivery of cocaine. Even if no probable cause existed at that particular time, the trial judge concluded that the $300, which defendant sought to suppress, would have been inevitably discovered. Before the police would have theoretically released defendant, they would have taken time to finish their search of the garage during which time they would have learned defendant’s identity and searched him. An order dated May 17, 1989, summarized these conclusions by finding “probable cause to arrest defendant and seize [his] vehicle.”

WAS MOTION TO QUASH ARREST AND SUPPRESS EVIDENCE IMPROPERLY DENIED?

At issue is whether the trial court erred by denying defendant’s motion to quash his arrest and suppress evidence. Defendant argues that the trial court erred for four reasons: (1) he was arrested without a warrant and without probable cause; (2) the police had no right to conduct a full search of his person; (3) the police illegally seized and towed defendant’s 1981 Cadillac without first obtaining a warrant; and (4) the police affidavit in support of a request for a warrant to search defendant’s car was fatally flawed because Officer Simo failed to include information concerning the informant’s criminal background and previous drug use.

The State responds that the police had probable cause and the right to make a full search of defendant pursuant to section 108 — 9 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 9). The State argues that the police had the right to seize and tow defendant’s car pursuant to People v. Wetherbe (1984), 122 Ill. App. 3d 654. The State finally contends that any information omitted from the police affidavit is inconsequential because such information would not have destroyed probable cause, citing People v. Strong (1986), 151 Ill. App. 3d 28.

A trial court’s decision on a motion to suppress will not be overturned on review unless that decision is clearly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162; People v. Simmons (1991), 210 Ill. App. 3d 692, 696.) We will initially address defendant’s custodial arrest and subsequent search and then address the seizure and subsequent search of his car.

In People v. Gutierrez (1985), 109 Ill. 2d 59, our supreme court analyzed a similar situation. Following an undercover purchase of cocaine from a woman at a house in Chicago, the police executed a search warrant on the premises later that night. A police officer knocked on the front door, and Frank Gutierrez, defendant in the case, answered the door. Gutierrez appeared nervous and attempted to close the door. The woman who had earlier sold cocaine to the undercover officer was searched. Cocaine was found on her person and she was arrested. A police officer observed that Gutierrez was “agitated and walking about nervously.” (109 Ill. 2d at 61.) The officer noticed bulges in Gutierrez’s pants’ pockets and asked him to empty his pockets. Gutierrez removed two balloons of heroin. (Gutierrez, 109 Ill. 2d at 61.) The supreme court held that such a search was not violative of the fourth amendment, based in part on exigent circumstances:

“[T]here were exigent circumstances which made obtaining another search warrant impracticable. It was late at night. The purpose of the warrant that had been obtained was to uncover controlled substances then on the premises. The warrant was obtained soon after an officer had made the cocaine purchase. Considering all of the circumstances, there was probable cause to believe that the defendant was concealing controlled substances and that search of the defendant should be made in order to preserve evidence. As this court stated in People v. Campbell (1977), 67 Ill. 2d 308, 319, ‘[t]he ultimate test, of course, is the reasonableness of the search which was made, not whether the officers could have secured a warrant.’ The search of the defendant was not unreasonable and unconstitutional.” (Gutierrez, 109 Ill. 2d at 63-64.)

The court also distinguished Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338, by finding that the police had particularized suspicion to search Gutierrez. Gutierrez, 109 Ill. 2d at 64.

We believe that a similar analysis applies to the instant case. There were exigent circumstances that made it impracticable for the Addison police officers to obtain an additional search warrant. The purpose of the original search warrant, obtained hours after the informant’s second controlled purchase, was to uncover cocaine in Napoleon’s garage. Considering all of the circumstances — the informant’s description of the back room to Napoleon’s garage as being the room for drug transactions, and the need to use a battering ram to open the dead-bolted garage door — known to the police at the time, there was probable cause to believe that defendant was involved in a drug transaction with Napoleon. The police had probable cause to believe that defendant was concealing controlled substances and that an immediate search of defendant should be made in order to preserve evidence. Under these circumstances, we conclude that the search of defendant was not unreasonable or unconstitutional.

In the alternative, even if the immediate search of defendant was unreasonable, we agree with the trial court’s reasoning that, at a minimum, the police had a right to detain defendant until the garage search was completed (see Ill. Rev. Stat. 1989, ch. 38, par. 108 — 9) during which time they would have gained the particularized suspicion to search defendant. The marked $100 bills, which defendant sought to have suppressed, would therefore have been inevitably discovered. The “inevitable discovery doctrine” was developed as an exception to the exclusionary rule, which requires the exclusion of illegally obtained evidence at a criminal trial. (People v. Edwards (1991), 144 Ill. 2d 108, 143; People v. Winsett (1991), 222 Ill. App. 3d 58, 69.) Under the doctrine, “evidence obtained in violation of an accused’s constitutional rights and which otherwise would be inadmissible at trial may be admitted if the prosecution is able to show that the evidence ‘would inevitably have been discovered without reference to the police error or misconduct.’ ” (Edwards, 144 Ill. 2d at 142, quoting Nix v. Williams (1984), 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct. 2501, 2511.) Discounting the immediate search of defendant entirely, we conclude that the police would have developed particularized suspicion to search defendant while he was detained. Officer Simo would have discovered how closely defendant matched the informant’s description of Napoleon’s supplier and how closely a black Eldorado Cadillac parked in front of Napoleon’s home matched the informant’s description of the supplier’s car. The police would have at that point had probable cause to search defendant for drugs or other contraband. The three marked $100 bills would therefore have been inevitably discovered.

Turning to the seizure and subsequent search of defendant’s car, the fourth amendment’s prohibition against unreasonable searches and seizures mandates that a warrant be obtained before a car may be searched, unless the search was made with consent, upon probable cause to believe that the vehicle was used in or contains evidence of a crime, as incident to arrest, or after lawful impoundment of the car. People v. Bujdud (1988), 177 Ill. App. 3d 396, 403; People v. Wetherbe (1984), 122 Ill. App. 3d 654, 656.

We believe that based on our conclusion that the police had probable cause to immediately search defendant upon discovering him in the back room of the garage with Napoleon, or that they would have developed probable cause to search defendant while they detained him, the police also had probable cause to believe that defendant’s car contained drugs. Since the informant’s description of Napoleon’s supplier and his car matched that of defendant and his car, it was highly probable that the car contained drugs. We conclude that the police had probable cause to immediately search defendant’s car, even though they actually searched the car eight hours later after towing the car to the police station and securing a search warrant for the car from a judge. Having so concluded, we need not address defendant’s contention that the automobile search warrant was invalid.

DEFENDANT’S TRIAL

Nine witnesses testified at defendant’s three-day trial in January 1990: the police informant, Louis Napoleon, Kathy Napoleon, Officer Simo, Lieutenant Kostecki, Sergeant Gorniak, Nick McNamara (by stipulation), Edward Christophersen and Martin Holtzman.

The informant’s trial testimony paralleled the testimony that he had given at the earlier motion to suppress hearing. He testified that he first approached Officer Simo after work on October 20, 1988, to offer his help investigating Napoleon, who the informant thought was a large cocaine dealer. The informant knew Simo since Simo was the arresting officer when he was arrested for misdemeanor theft.

The informant testified as to the controlled purchases of cocaine from Napoleon, the first on October 20 and the second on October 21. The informant stated that he knew defendant and that defendant owned a black Eldorado Cadillac, but that the car was not parked in front of Napoleon’s home on October 21 when he bought cocaine from Napoleon. The informant admitted that he had sold, purchased, and used cocaine and other drugs in the past, but claimed that he was not now using drugs. The informant testified that he accompanied Napoleon on one trip to defendant’s home on Roselle Road in Schaumburg and witnessed defendant giving cocaine to Napoleon. The informant stated this trip occurred on or around July 8, 1988.

Louis Napoleon testified next. Napoleon stated that he pleaded guilty to possession of a controlled substance with intent to deliver and delivery of a controlled substance. The plea agreement entailed 30 days in jail, 12 months on work release, and a $15,000 fine. Napoleon also agreed to testify truthfully at defendant’s trial.

Napoleon testified that defendant, whom he has known for about 10 years, was his cocaine supplier. Napoleon stated that he had been selling drugs out of the back room of his garage for about one year. He was the only person who had access to the back room. Defendant would sell drugs to Napoleon in that back room. Payment was in cash; however, defendant often left cocaine with Napoleon with full payment expected later.

Napoleon’s testimony concerning the informant’s October 20 and October 21 purchases of cocaine from him paralleled the testimony given by Officer Simo and the informant at the earlier suppression hearing. The informant purchased an eighth of an ounce for $150 on October 20 and a quarter of an ounce for $400 on October 21.

Napoleon then described the circumstances of the evening of October 21. After the informant made his purchase at around 6 p.m., Napoleon went to the store and the bank to prepare for a card game he was hosting at his home later that evening. The trip lasted 30 to 45 minutes. Defendant came over to Napoleon’s house at around 8:15 p.m. or 8:30 p.m. Napoleon stated that prior to this time defendant’s black Eldorado Cadillac was not parked on the street in front of Napoleon’s home. Defendant knocked on the kitchen door and Napoleon let him in. Defendant set his car keys down on the kitchen counter, and they both went to the garage. After they were inside the garage, Napoleon fastened the dead-bolt lock on the door. Defendant then gave Napoleon three ounces of cocaine at an agreed price of $850 an ounce. Napoleon did not pay defendant the entire amount due, instead paying him $500 cash in “large bills, fifties or hundreds.” Napoleon stated that he and defendant were in the back room for 10 to 20 minutes when the police executed the search warrant.

The State introduced various items of drug paraphernalia into evidence during Napoleon’s testimony, including a triple-beam scale, a grinder, a police scanner, a calculator, little brown envelopes, straws, and a notebook in which Napoleon recorded his drug transactions. Napoleon said that entries in the notebook next to the name “[K]” were those of the police informant and that entries next to the name “Dan” were those of defendant. The number “5220” was next to one entry with defendant’s scrawled initials and the date “10/21/88” next to it, which Napoleon indicated meant how much he owed defendant after that evening’s transaction. Above the number “5220” was a scratched out number which read “5720,” which Napoleon explained was the amount he owed defendant before he paid defendant $500 that evening. Napoleon denied owning a .22 caliber rifle.

Napoleon testified that the informant accompanied him to defendant’s condominium in Schaumburg sometime before his trip to Italy in July 1988. Napoleon denied receiving cocaine from defendant on that particular evening.

Officer Simo testified next. His trial testimony paralleled the testimony he had given at the earlier suppression hearing. The informant, whom he had earlier arrested on a misdemeanor theft charge, called Simo on October 20. Simo then arranged for the informant to make two purchases of cocaine from Napoleon, one that evening and the second on the evening of October 21. Simo testified that he “field tested” both purchases and that both tested positive for cocaine. He accompanied the informant both times, concealing himself in the backseat of the informant’s car. Each time, the informant would park the car on the street and then Simo would observe him as he walked to the side entrance of the garage. Simo did not see defendant’s car parked in front of Napoleon’s home on either occasion. After the October 21 purchase, the informant told Simo that he saw three small packets of cocaine in a garbage can near the workbench in the back room of Napoleon’s garage. Simo testified that these three packets were found during the search of the garage in a white K mart plastic bag in the garbage can by the workbench. He also identified the various drug paraphernalia items which were recovered from the back room of Napoleon’s garage. The contents of the two plastic baggies recovered from the back room, a white powdery substance weighing approximately 90 grams, tested positive for cocaine.

Towards the end of Officer Simo’s testimony, the following colloquy occurred:

“Q. [Prosecutor]: When Mr. Abrams asked you some questions about when you asked the defendant for his car keys, did the defendant during that time ever tell you to ask [Napoleon] for the car keys or [if Napoleon] had the car keys?
A. [Officer Simo]: No, he didn’t.
Q. He just said he didn’t know where they were?
A. That’s correct.
Q. Did you ask him anything else about his car after you asked him for his car keys?
A. I asked him for permission to search it.
Q. What happened after that?
A. He said no.
MR. ABRAMS [Defendant’s attorney]: I am going to make an objection and ask for a mistrial at this time.”

The trial judge heard arguments on the motion in chambers. Defense counsel argued that Simo’s last answer, “[h]e said no,” was hearsay, that no hearsay exception applied, and that it was prejudicial because it let the jury think that defendant had something to hide. Defense counsel argued that the only option left for him was to call his client to the stand, which he should not have to do. The trial judge determined that the statement was improperly admitted, even though it was an invited response since defense counsel had earlier questioned Simo on the general area of the car keys. The trial judge also determined that the one statement standing alone was not so prejudicial as to require a mistrial. The judge denied defendant’s motion, returned to the courtroom and instructed the jury to disregard the prosecutor’s last question and Officer Simo’s answer.

During Officer Simo’s testimony, the State introduced a mobile telephone that Simo had taken from defendant’s car on November 1, 1988. The State also introduced Illinois automobile registration slips for 1985, 1986, 1987 and 1989 that Simo recovered from the car and which identify defendant as the owner.

Lieutenant Kostecki testified next. His testimony regarding the execution of the search warrant at Napoleon’s garage on October 21 paralleled his testimony at the earlier suppression hearing. He added that when he searched defendant, he recovered $736.55 in cash. Kostecki testified that three of the five $100 bills that were on defendant had serial numbers matching three of the $100 bills used by the informant to buy cocaine from Napoleon earlier that evening.

Sergeant Thomas Gorniak testified next. He testified as to his role as backup officer for the controlled purchases by the informant from Napoleon, his presence at the time the search warrant on Napoleon’s garage was executed, and his execution of a search warrant on defendant’s car which yielded three envelopes containing cocaine. Gorniak also testified that while defendant’s black Eldorado Cadillac was in front of Napoleon’s home at 9 p.m. on October 21, the time the police executed the garage search warrant, the car was not parked there when the informant purchased drugs from Napoleon earlier that evening.

The State offered stipulated testimony from Nick McNamara, a forensic chemist at the Du Page County crime laboratory, who examined and tested certain exhibits that were recovered from Napoleon’s garage and defendant’s car. McNamara’s stipulation stated that the following items tested positive for cocaine: the substances the informant purchased from Napoleon on October 20 and 21, each weighing about 3x/2 grams; the two plastic baggies found in the cabinet in the back room of Napoleon’s garage, one weighing 55.51 grams and the other weighing 24.98 grams; and the three packets found in defendant’s car, the total weight of the three being 7.51 grams.

Defendant’s case consisted of testimony from Edward' Christophersen and Martin Holtzman. Christophersen, a building contractor, testified that he has known defendant for 8 to 10 years. He stated that on October 19, 1988, he met with defendant at a restaurant-bar near defendant’s father’s hunting camp, which is located in Menominee on the border between Wisconsin and the Upper Peninsula of Michigan. On that date, defendant met with Christophersen because he wanted an estimate from Christophersen to remodel the kitchen and reroof the bar. Christophersen stated that later that evening he met with defendant and defendant’s friend “Marty” at a different bar. Christophersen testified that defendant was not driving a black Eldorado Cadillac at the time.

Martin Holtzman testified that he is an insurance adjuster and that he has known defendant since 1984. Holtzman testified that on Monday, October 17, 1988, he and defendant left together to drive up to Menominee because defendant wanted to look at a restaurant-bar that he was considering for purchase. Holtzman was going to estimate how much insurance defendant would need for the building. They drove in Holtzman’s wife’s car. When Holtzman picked defendant up on Monday, October 17, at defendant’s home, he did not see defendant’s car in the parking lot. Holtzman testified that on Friday, October 21, 1988, the two returned from their trip north. Holtzman deposited defendant at Napoleon’s home in Addison at around 7 p.m. that evening. Holtzman stated that when he dropped defendant off, he noticed that defendant’s car was parked in front of the house immediately next to Napoleon’s. Holtzman testified that one week later, after he learned of the events that transpired that evening, he went to Napoleon’s home and picked up defendant’s keys.

The State presented one rebuttal witness, Kathy Napoleon, who was Louis Napoleon’s wife at time of trial. Kathy testified that she was home on October 21, 1988. She stated that a black Eldorado Cadillac was not parked in front of their home that day. She recalled defendant visiting her husband later that evening. Only after the police arrived and arrested her husband did Kathy observe a black Eldorado Cadillac parked on the street next to the driveway to their home.

WAS DEFENDANT PROVEN GUILTY BEYOND A REASONABLE DOUBT?

Defendant argues that he was not proven guilty of either charge beyond a reasonable doubt because he was not in actual or constructive possession of the cocaine found in the garage or his car, there was “credible evidence” explaining the marked $100 bills found in his pocket, and the State’s two primary witnesses were “wholly impeached.” The State argues that the evidence supports the jury’s verdict.

Our supreme court discussed the parameters of appellate review of a claim of reasonable doubt in People v. Boclair (1989), 129 Ill. 2d 458:

“It is the jury’s duty to assess the credibility of witnesses and to weigh the evidence in determining a defendant’s guilt or innocence. [Citations.] That determination is entitled to great deference, and when the sufficiency of the evidence is challenged we will not retry the defendant, although it is our duty to set aside a conviction when the evidence raises a reasonable doubt of defendant’s guilt. [Citations.] *** ‘ “[T]he relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” (Emphasis in original.) Boclair, 129 Ill. 2d at 474, quoting People v. Collins (1985), 106 Ill. 2d 237, 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

We first consider the charge based on the cocaine found in defendant’s car. Under section 401(b)(2) of the Controlled Substances Act (Act), the State had to prove that defendant knowingly delivered, or possessed with the intent to deliver, more than 1 gram but less than 15 grams of cocaine. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2).) Possession under the Act may be established by evidence of actual or constructive possession, the latter of which may be proved by showing that defendant controlled the premises where the narcotics were found. People v. Maiden (1991), 210 Ill. App. 3d 390, 397.

Viewing the evidence in a light most favorable to the State, we note that the State presented evidence that defendant owned the black Eldorado Cadillac, that the car was not parked on the street in front of Napoleon’s home when the informant made controlled purchases on October 20 or October 21, that defendant had supplied cocaine to Napoleon in the past, and that three packets of cocaine, weighing 7.51 grams, were found in the car by the police. As defendant points out, there was conflicting evidence as to whether defendant’s car was parked in front of Napoleon’s home for a longer period of time than just the evening of October 21. Defendant’s argument in this regard is that he had parked his Cadillac in front of Napoleon’s home while he was up in northern Wisconsin, had been dropped off at Napoleon’s after the trip by Martin Holtzman on the evening of October 21, and was therefore not in possession of the car at the time of his arrest. This argument was undercut by the testimony from the police officers, Napoleon and the informant that defendant’s car was not parked on the street at the time of the informant’s two controlled purchases. Furthermore, Napoleon testified that defendant drove over to his home on October 21, left his car keys on the kitchen counter, and then sold three ounces of cocaine to him in the back room of the garage. We conclude that any rational trier of fact could have found the essential elements of defendant’s knowing possession, with the intent to deliver, of the three packets of cocaine found in his car beyond a reasonable doubt.

We next consider the charge based on the cocaine found in Napoleon’s garage. Under section 401(a)(2) of the Act, the State had to prove that defendant knowingly delivered, or possessed with the intent to deliver, between 15 and 100 grams of cocaine. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(a)(2).) Viewing the evidence in a light most favorable to the State, we note that the police found two plastic baggies containing 80.49 grams of cocaine, or approximately three ounces, in Napoleon’s garage, that Napoleon gave detailed testimony concerning his purchase of three ounces of cocaine from defendant for $850 an ounce, and that the transaction was corroborated by Napoleon’s notebook ledger and the marked $100 bills found in defendant’s pockets. We also note that the jury heard the following accountability instruction:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.” (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (2d ed. 1981).)

We conclude that any rational trier of fact could have found the essential elements, under an accountability theory, of defendant’s knowing possession with the intent to deliver the three ounces of cocaine found in Napoleon’s garage beyond a reasonable doubt.

Defendant’s arguments as to why he was not proven guilty beyond a reasonable doubt focus on two areas: that he was not in actual possession of any of the cocaine recovered, and that parts of Napoleon’s and the informant’s testimony were contradicted by other testimony, thus impinging upon their credibility.

Defendant misses the mark by arguing that he did not possess the cocaine and that he is not accountable for Napoleon’s actions. We have reviewed the evidence and find that the jury could have found him to be in constructive possession of the cocaine found in his car. As to the cocaine found in Napoleon’s garage, the jury heard evidence that would support defendant’s conviction of possession, with the intent to deliver, of that cocaine under an accountability theory. (See People v. Pryor (1988), 170 Ill. App. 3d 262, 269.) The jury heard testimony that defendant and Napoleon had an ongoing relationship based in illegal drug transactions; that defendant sold three ounces of cocaine to Napoleon minutes before the police executed the search warrant; and that Napoleon was apprehended with three ounces of cocaine in his constructive possession.

Defendant also misses the mark by arguing that the testimony of Napoleon and the informant is not believable. We have carefully reviewed the entire record and conclude that any inconsistencies in their testimony are minor. The jury verdict convicting defendant of the two charges means that the jury believed the State’s witnesses and disbelieved defendant’s two witnesses who testified as to his alleged trip to Menominee. As our supreme court stated in People v. Boclair (129 Ill. 2d at 474), that determination of credibility is within the province of the jury and is entitled to great deference.

WAS MOTION FOR A MISTRIAL IMPROPERLY DENIED?

At issue is whether the trial judge erred by not granting defendant’s motion for a mistrial, which followed Officer Simo’s testimony that defendant would not allow the police to search his car. Defendant argues that the trial judge erred because Simo’s testimony was highly prejudicial, allowing the jury to speculate that defendant had something he did not want the police to find in his car. The State responds that the trial court properly denied defendant’s motion.

We initially note that a trial judge is vested with broad discretion in deciding whether to grant a motion for a mistrial. (Illinois v. Somerville (1973), 410 U.S. 458, 464, 35 L. Ed. 2d 425, 431, 93 S. Ct. 1066, 1070; see People v. Howard (1991), 147 Ill. 2d 103, 145.) “By virtue of his presence in the courtroom, the trial judge, rather than a court of review, is in a superior position to gauge the effect of an in-court occurrence on the jury.” Howard, 147 Ill. 2d at 145.

“The focus of the mistrial motion after a witness has uttered an impropriety is whether the defendant was prejudiced by the remark. If so, what was the degree of prejudice, and can it be cured by special instructions to the jury?” (R. Ruebner, Illinois Criminal Procedure 327 (1987).) The trial judge found the remark to be prejudicial to defendant, but not so highly prejudicial as to require a mistrial. Immediately after denying defendant’s motion for a mistrial in chambers, the judge returned to the courtroom and instructed the jury to disregard both the question and the answer. We believe the trial judge acted properly in this case. While we find that defendant may have been prejudiced by Officer Simo’s answer, any possible prejudice was slight and quickly cured by the prompt limiting instructions from the trial judge.

We decline defendant’s invitation that we analyze his motion for a mistrial under Miranda case law, specifically those cases such as People v. Szabo (1983), 94 Ill. 2d 327, 357-62, and People v. Green (1979), 74 Ill. 2d 444, 449-50, which discuss the treatment at trial of a defendant’s silence either before or after Miranda warnings. We do not believe that issue is before us.

HEARING ON MOTION FOR NEW TRIAL

Six witnesses testified at the hearing on defendant’s motion for a new trial on September 21 and 28, 1990: Kathy Lane (formerly Kathy Napoleon), Joe Hall, Raymond Jacobs, Sam Pedone, Officer Simo and John Werbach. Defendant alleged newly discovered evidence as a basis for the motion, most of which was targeted at impeaching Napoleon’s testimony.

Kathy Lane testified first. She contacted the State’s Attorney’s office shortly after defendant’s trial to try to get in contact with defendant. Mr. Michael Burke, Assistant State’s Attorney, directed her to call defendant’s attorney. Lane testified that prior to defendant’s trial she was instructed by Napoleon, then her husband, or his attorney, “not to say anything[,] Qjjust to keep out of it.” She stated that she was also told about the marital communications privilege. She said that Napoleon threatened that if she volunteered information at defendant’s trial, he would prolong the divorce and custody proceedings they were currently engaged in.

Lane stated that she knew defendant for five years and that she never saw defendant bring drugs to Napoleon. Lane testified that sometime prior to October 21, 1988, Napoleon borrowed $1,100 from defendant. She was unsure whether Napoleon ever paid defendant back. Lane stated that when Napoleon went out for errands on the evening of October 21, 1988, he was gone for an hour and a half. He arrived back at around 7 p.m., grocery bags in hand, and went to the garage. Defendant arrived at about 9 p.m.

Lane stated that she saw Napoleon in possession of defendant’s car sometime before October 21, 1988, but could not specify the date. She added that defendant had previously left his car at Napoleon’s home for extended periods of time. Lane stated that Napoleon often socialized at the Italian Club at Lake Street and Mill in Addison.

Ivan Joe Hall, from Tennessee, testified next. Hall was twice flown up to Illinois for the case by defendant. Each time, he was given $200 spending money by defendant. Hall’s association with this case apparently centers around Napoleon’s activities the night of October 21, 1988, although Hall could not state with certainty the dates of the activities he described. According to Hall, he and Napoleon met at the Italian Club in Addison on Friday night, October 14, 1988, and Hall played some pool. Hall stated that he was also at the Italian Club the next Friday evening, October 21. Napoleon walked in at around 6 p.m. At some point, he asked Hall to accompany him to the bathroom. Once inside the bathroom, Napoleon allegedly showed Hall a plastic bag of cocaine, laid out a couple of lines of the powder on the counter, and inhaled them through a rolled up dollar bill. Hall declined to use any of the cocaine. Napoleon then allegedly asked Hall to drive “one of his buddyies’ [sic] cars over to his house”: a black Cadillac with a black interior and no car phone. Hall testified that he agreed, followed Napoleon and parked the Cadillac in front of Napoleon’s home. Hall also testified that he spoke with his friend Ray Jacobs at the golf course the next day, at which time he heard from Jacobs that Napoleon had been arrested the night before.

Raymond Jacobs testified next. Jacobs is a friend of defendant and Hall. Hall was living with Jacobs in October 1988. On October 21, 1988, Jacobs dropped Hall off at the Italian Club at around 6 to 7:30 p.m.

Sam Pedone, president of the Italian Club, testified next. Pedone stated that Napoleon used to frequent the club. Pedone testified that the club purchased a used pool table in 1982, licensed it each year it was in the club, and removed it sometime in 1985. That pool table was the only pool table in the club at that time. Pedone stated that there was no pool table in the club in October 1988.

Officer Simo testified next. Simo testified that after a request from the State’s Attorney he interviewed Raymond Jacobs on April 11, 1990, regarding this case. Jacobs told Simo that he saw Hall on October 22, 1988, at a golf outing. Jacobs told Hall that both Napoleon and defendant had been arrested the night before. Simo also stated that when the police towed defendant’s car, he noticed that it was a black car with a light brown interior and a car phone in plain view on the floor.

John Werbach, employed by the Village of Addison, was the last witness. Werbach testified that part of his official duties includes the distribution of licenses for pool tables in Addison businesses. Werbach testified that each license is valid from May 1 through April 30. He testified that he personally searched the records for pool table licenses for the years 1980 to 1990. He stated that the Italian Club had licenses for one pool table in 1983, 1984, 1985 and 1986.

At the close of testimony and argument, the trial judge questioned Kathy Lane’s testimony, stating: “[s]he certainly appeared to me to be leaning over backward in an attempt to help the defendant overturn the conviction.” The judge noted conflicts in the testimony of both Jacobs and Hall and stated that neither was a “clear and convincing” witness. The judge concluded that the testimony failed to overcome the presumption that attaches to a jury’s verdict and that defendant failed to present facts which would likely result in a different verdict. The judge then denied defendant’s motion for a new trial.

WAS MOTION FOR A NEW TRIAL IMPROPERLY DENIED?

At issue is whether the trial court erred by denying defendant’s motion for a new trial. Defendant argues that the testimony of Kathy Lane, Joe Hall and Raymond Jacobs was unknown and unavailable prior to and during the trial and that their testimony at the hearing adequately impeached Napoleon’s testimony such that a new trial is required. The State responds that the trial judge properly denied defendant’s motion in accordance with the standards that this court set forth in People v. DeCesare (1989), 190 Ill. App. 3d 934.

In People v. DeCesare (1989), 190 Ill. App. 3d 934, this court stated:

“A defendant should receive a new trial based upon newly discovered evidence only if the following requisites are met: (1) the evidence must be of such a conclusive character that it will probably change the result upon retrial; (2) the evidence must be material to the issue and not merely cumulative; and (3) the evidence must have been discovered after the trial and not have been discoverable before trial through the exercise of due diligence. [Citation.] Such motions are not favored and will be subjected to the closest scrutiny.” (DeCesare, 190 Ill. App. 3d at 943.)

(See People v. Molstad (1984), 101 Ill. 2d 128, 134.) The DeCesare test is very similar to the test articulated in Jarrett v. United States (7th Cir. 1987), 822 F.2d 1438, to which defendant refers.

We have carefully reviewed the testimony from the hearing on defendant’s motion for a new trial. We agree with the trial court’s determination that the testimony presented was unlikely to result in a different verdict upon retrial, which is the first element of the DeCesare test. Kathy Lane’s testimony appears to this court to be largely the result of leading questions from defendant’s attorney, which diminishes its credibility. The trial judge noted his skepticism of her testimony. Hall’s credibility was greatly impaired by Sam Pedone’s and John Werbach’s testimony that there was no pool table at the Italian Club, where Hall allegedly played pool and saw Napoleon on October 21, 1988, in October 1988. We conclude that the trial court did not abuse its discretion in denying defendant’s motion for a new trial. See People v. Carlson (1992), 224 Ill. App. 3d 1034,1042.

WAS DEFENDANT IMPROPERLY INDICTED?

The last issue raised by defendant is whether he was improperly indicted by the grand jury. Defendant argues that the second indictment, for the Class X felony charge based on the three ounces of cocaine found in Napoleon’s garage, was improper because no new evidence was presented to the grand jury and because no record of the grand jury proceedings was provided to the court or defendant. Defendant characterizes the second indictment as “prosecutorial abuse.” The State responds that defendant was properly indicted for the Class X charge.

While defendant argues that this issue alone is reversible error, he failed to bring it to the attention of the trial court. In People v. Herrett (1990), 137 Ill. 2d 195, our supreme court stated:

“[A] defendant must make a timely objection at trial and must renew the ground for objection in a written post-trial motion to preserve an error for review. [Citation.] The failure . to make a timely objection at trial and to renew it in a post-trial motion operates as a waiver of the right to raise the issue as a ground for reversal on review.” (Herrett, 137 Ill. 2d at 209.)

Defendant has not referred this court to an oral or written request that he made at trial for the transcripts from the May 26, 1989, grand jury proceeding. Furthermore, defendant failed to secure a ruling from the trial court on his amended motion to quash and dismiss the May 26 indictment. We note that within defendant’s amended motion to quash he makes mention of the grand jury transcripts in paragraphs three and four as a basis for his claim that no new evidence was presented to the grand jury on May 26. Our reading of defendant’s amended motion leads this court to conclude that he did indeed have access to a copy of the transcript, even though it is not now a part of the record on appeal. We conclude that by not bringing this alleged problem to the attention of the trial court, where an immediate solution may have been had, defendant has waived our consideration of the issue.

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

Affirmed.

DUNN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CONNELL GRAY, Defendant-Appellant.
    Fourth District
    No. 4—92—0183
    Opinion filed September 17, 1992.

      Gregory L. Barnes, of Gregory L. Barnes, Ltd., of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

presented the opinion of the court:

Defendant Connell Gray appeals an order of the circuit court of Macon County forfeiting the balance of his bail bond to the Illinois Department of Public Aid (IDPA). Defendant pleaded guilty to the charge of aggravated battery with a firearm under section 12 — 4.2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 12— 4.2(a)). A $3,500 bail bond had been posted and, at the sentencing hearing, it was ordered that the clerk’s fees and costs be subtracted, along with $416.03 restitution to the mother of the victim for out-of-pocket expenses.

Trial testimony indicated that hospital bills totaled roughly $50,000, plus an additional $10,000 bill from two surgeons who performed a total of three surgeries on the victim. The State argued that the remainder of the bail bond should be paid to the IDPA to reimburse that agency for payment of a portion of these medical bills. Hearing on this issue was continued to a later date.

On February 5, 1992, the court heard arguments regarding disposition of the bail bond. Over defendant’s objection, a letter from IDPA was offered into evidence, stating that it had paid $15,989.16 toward the victim’s medical expenses. The court ordered the balance of the $3,500 bail bond paid to IDPA.

Defendant claims that forfeiture of the bail bond to IDPA was an abuse of the trial court’s discretion. Specifically, defendant argues three errors under section 5 — 5—6(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005—5—6(b)): (1) the court failed to fix the amount of restitution; (2) the IDPA is not an intended beneficiary under the statute; and (3) the court failed to determine if he had the ability to pay restitution. The statute states, in relevant part:

“In fixing the amount of restitution *** the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and any other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim *** for the out-of-pocket expenses ***.” III. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(b).

Defendant first argues that the court failed to fix restitution as required by the Code, claiming that any amount owed to IDPA was purely speculative. The victim suffered massive injuries to his legs as a result of a shotgun blast. Three surgical operations were performed, at a cost of over $10,000. The victim’s mother testified that the hospital bill alone was $52,000. The victim had a medical card from IDPA, and a letter was introduced into evidence from that agency stating that out-of-pocket expenses incurred by IDPA as of the hearing date totaled $15,989.16. We find the trial court adequately fixed restitution in full compliance with the statute.

Next, defendant argues that under the statutory scheme of section 5 — 5—6 of the Code, IDPA is not an intended beneficiary of restitution in this case. We disagree. The letter from IDPA is sufficient proof that the agency had paid out significant funds toward the victim’s medical bills. The fact that IDPA is not named specifically as a victim in the charge against defendant is of no significance. In 1983, the legislature amended section 5 — 5—6(b) (Pub. Act 83 — 1061, §1 (1983 Ill. Laws 7226, 7227 (eff. July 1, 1984))) to reflect a clear legislative intent to expand the coverage of the restitution statute to include unnamed victims and insurers. In re V.L.F. (1988), 174 Ill. App. 3d 930, 529 N.E.2d 312; see also People v. Duff (1987), 152 Ill. App. 3d 896, 505 N.E.2d 36.

Consistent with this interpretation, we have held that the term “victim” includes not only a victim’s family that has suffered out-of-pocket losses, but also any agency providing, without cost, services to an indigent victim for injuries related to defendant’s criminal behavior. (People v. Strebin (1991), 209 Ill. App. 3d 1078, 1085, 568 N.E.2d 420, 424-25.) As stated in Strebin:

“To hold otherwise would render the victim’s indigence a fortuitous occurrence for the defendant, freeing him of a financial obligation that he should rightly bear.” Strebin, 209 Ill. App. 3d at 1086, 568 N.E.2d at 425.

Finally, defendant argues that the trial court failed to determine he had the ability to pay restitution as required by section 5— 5 — 6(f) of the Code, which states that the court is to take “into consideration the ability of the defendant to pay” before determining “whether restitution shall be paid in a single payment or in installments.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f).) This section has no bearing on the question of whether restitution shall be ordered. Rather, it applies only to the time frame and method of payment through which restitution shall be made after restitution has been ordered.

Our court has recognized the intent of the restitution statute to achieve two goals in every criminal case where possible: (1) to make victims whole for any injury received at the hands of the criminal to be sentenced; and (2) to make criminals pay all costs that arise as a result of injuries the victims suffered. (Strebin, 209 Ill. App. 3d at 1084, 568 N.E.2d at 424.) The introductory paragraph to section 5— 5 — 6 of the Code only requires that the trial court determine whether restitution is appropriate. If it does, then under section 5 — 5—6(e) of the Code, “[t]he court may require the defendant to apply the balance of the cash bond *** to the payment of restitution.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(e).) The statute does not require any preliminary determination of defendant’s financial capacity before ordering defendant to pay restitution. This requirement was eliminated by statutory amendment in 1983. Pub. Act 83 — 1061, eff. July 1, 1984 (amending Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6(a)).

Affirmed.

McCULLOUGH and COOK, JJ., concur.


author: PRESIDING JUSTICE GREEN JUSTICE LUND,

text:
    VULCAN MATERIALS COMPANY, Plaintiff-Appellant, v. NORMAN HOLZHAUER et al., Defendants-Appellees.
    Fourth District
    No. 4—92—0018
    Opinion filed August 13, 1992.
    Rehearing denied October 6, 1992.

      LUND, J., dissenting.
    Fellheimer, Travers & Engelman, Ltd., of Pontiac (Robert M. Travers and David J. Babb, Jr., of counsel), for appellant.
    Strong, Blakeman & Schrock, Ltd., of Pontiac (Kenneth L. Strong, of counsel), for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On May 8, 1985, plaintiff Vulcan Materials Company (Vulcan) filed suit in the circuit court of Livingston County against defendants Norman and Janice Holzhauer seeking a declaratory judgment that a lease of realty for a quarrying operation was still in force. Defendants are the lessors and plaintiff is the assignee of the lessee, Pontiac Stone Company (Pontiac). The pleadings indicated defendants had notified plaintiff that the lease was terminated because of plaintiff’s breach by failure to work the premises when doing so would have been economically feasible thus constituting an abandonment of the premises within the meaning of the lease. Plaintiff contended that it had not committed such an abandonment and even if it had, defendants had waived any abandonment by accepting royalty payments.

Both sides moved for summary judgment, contending the matters furnished in support of their motions showed they were entitled to judgment as a matter of law. On February 6, 1987, the circuit court entered a summary judgment in favor of plaintiff, deciding the lease was in full force and effect and denying defendants’ requested relief. Defendants appealed to this court. We held that questions of fact existed and reversed and remanded for further proceedings. Vulcan Ma terials Co. v. Holzhauer (1987), 161 Ill. App. 3d 1164 (unpublished order under Supreme Court Rule 23).

On December 15, 1988, after remand, defendants filed a counter-complaint in forcible entry and detainer (Ill. Rev. Stat. 1987, ch. 110, par. 9 — 101 et seq.), accompanied by a request that both the declaratory judgment proceedings and the countercomplaint be tried before a jury. Plaintiff objected to having either action submitted to a jury. The circuit court ruled that the entire proceedings would be presented to a jury but that the jury’s verdict in the declaratory judgment action would be merely advisory. The case was tried in this way. On September 23, 1991, the circuit court entered judgment in favor of defendants (1) accepting an advisory verdict for defendants in the declaratory judgment action, and (2) on the verdict for defendants on the countercomplaint in forcible entry and detainer.

Plaintiff has appealed requesting a new trial and contending (1) the use of an advisory jury as to the declaratory judgment claim was improper; (2) the court erred in ruling on instructions; (3) the judgments entered were contrary to the manifest weight of the evidence; and (4) arguments and conduct of defense counsel required the circuit court to grant a mistrial. Plaintiff merely requests a new trial and does not contend that judgment should be entered in its favor. The issues concerning the use of a jury and the instruction of the jury are closely related. However, we hold that the court did not err in the use of the jury but did commit error requiring reversal in ruling on instructions and requests for interrogatories. We consider other issues raised only to the extent that they concern matters which may occur again on retrial. We reverse and remand for a new trial.

Most of the underlying facts are undisputed. On June 4, 1969, defendants and Pontiac entered into a lease agreement authorizing Pontiac to quarry limestone, sand, gravel, and crushed rock from defendants’ premises in Livingston County paying 12 cents per ton or 8% of the selling price, whichever was greater, for the quarried substance removed. The agreement also provided for quarterly minimum royalties to be paid regardless of the amount of substance removed. During the years in question here, which were all after the lease had been assigned to plaintiff, these minimum royalties were $5,000 per quarter payable on the first days of April, July, October, and December. In addition, the lessee agreed to pay rental of $200 per acre for certain land occupied by a processing plant and $200 per acre for land not excavated but staked out for planned excavation and thus unavailable for farming.

The terms of the lease provided it extended until December 31, 2005, but would terminate earlier if all the various listed substances had been completely removed. If such substance remained on December 31, 2005, the lessees were granted an option to extend the lease for an additional 10-year period. Pontiac actively mined the northeast comer of the property until 1974, but no mining had taken place thereafter. Vulcan had not mined the property, although it did mine adjacent property which it owned. Nevertheless, from 1974 until March 21, 1985, defendants received a total of $188,000 in advance royalties.

Each section of the lease was given a separate number except that sections 3, 3(a.), 3(b.), 3(c.), and 3(d.) were set forth as separate sections. As far as this litigation is concerned, sections 3 and 3(d.) are the most significant portions of the lease. Section 3 states:

“Lessee shall enter upon said premises and proceed to mine and quarry the sand, gravel and/or limestone therein contained in a good and economical manner so as to take out the greatest amount of sand, gravel or limestone for agricultural purposes or for road purposes with due regard to the development and preservation of the same as a workable quarry. Lessee shall work and mine said premises as aforesaid as steadily and continuously as the market for sand, gravel, crushed rock and/or limestone, and the weather, will permit.”

Section 3(d.) provides:

“If, after the actual commencement of quarrying operations on the property, Lessee shall abandon said premises for one year, all rights which Lessee has acquired under this agreement shall, at the option of Owner [defendants], cease. However, the obligation of royalty payments and of required minimum annual and acreage payments and rentals and restoration of ground, etc., herein provided shall still be borne by Lessee to and including the final date of declared abandonment.”

Defendants maintained at trial and now maintain on appeal that conditions in recent years have been such that excavating sand, gravel, rock, and limestone was economically feasible and that the failure of plaintiff to do so constituted a violation of paragraph 3 of the lease and an abandonment of the premises within the meaning of paragraph 3(d.) of the lease. Defendants assert they effectively terminated the lease on March 20, 1985, by sending plaintiff a letter declaring the lease had been abandoned for more than one year by the failure of plaintiff to quarry the minerals described in the lease. Plaintiff maintains (1) its failure to excavate did not amount to an abandonment of the premises because it had continued to drain the premises and taken other steps in furtherance of subsequent mining of the sand, gravel, rock, and limestone; and (2) any abandonment by plaintiff was waived by defendants in various ways including acceptance of royalties by defendants after giving notice of termination.

Evidence indicated that in March 1984, plaintiff notified defendants it intended to mine the leased property that year, and a meeting took place on April 11, 1984, at which a mining plan was discussed. At that meeting, Norman Holzhauer stated “I don’t care if you [plaintiff ever quarry the property.” He contended he meant that if plaintiff did not want to quarry, others would. Plaintiff’s agents who were present testified they understood the statement to mean that defendants did not care if the property was quarried as long as the minimum royalties were paid. Plaintiff relies upon this statement as evidence of waiver by defendants of any requirement that plaintiff work the property to keep the lease alive. Evidence was also presented of other activities of plaintiff in 1983 and 1984 which gave some indication of preparation to quarry.

Originally, plaintiff contended that the submission of the forcible entry and detainer claim to the jury was error. In its reply brief, plaintiff now concedes that under the decision in Twin-City Inn, Inc. v. Hahne Enterprises, Inc. (1967), 37 Ill. 2d 133, 225 N.E.2d 630, submission of that portion of the case to the jury was proper. There, an action was brought by a lessor against a lessee seeking possession of realty and unpaid rent. The lessee and its surety were denied a trial by jury, and the court found for the plaintiff. On appeal, the supreme court set aside the judgment and remanded for a new trial.

At the time of Twin-City Inn, Inc., section 11a of the Forcible Entry and Detainer Act (Act) stated that “[i]n any case relating to premises used for residence purposes, either party may demand trial by jury, notwithstanding any waiver of jury trial contained in any lease or contract.” (See Ill. Rev. Stat. 1965, ch. 57, par. 11a.) The defendants in that case contended this language indicated that no right of trial by jury existed in forcible entry and detainer actions unless residential property was involved. The supreme court disagreed, holding the language of section 11a of the Act merely negated jury waivers in cases where residential property was involved. The court further held that the history of forcible entry and detainer actions indicated that all parties had a statutory right to trial by jury in such a case and, at least when claims for rent are involved, the right to trial by jury is constitutional. Language similar to that of former section 11a of the Act now appears in section 9 — 108 of the Act (see Ill. Rev. Stat. 1987, ch. 110, par. 9 — 108), which currently provides for suits in forcible entry and detainer.

Thus, plaintiff’s complaint concerning the use of a jury is limited to the use of an advisory jury on the claim for the issuance of a declaratory judgment. Section 2 — 1111 of the Code of Civil Procedure (Code) states:

“Juries in cases seeking equitable relief. The court may in its discretion direct an issue or issues to be tried by a jury, whenever it is judged necessary in any action seeking equitable relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1111.)

Plaintiff cites no case which holds that error resulted from use of an advisory jury. Rather it contends that an appropriate procedure would be for such a jury to answer special interrogatories involving factual issues. In support of this proposition, plaintiff refers to Ross v. Bernhard (1970), 396 U.S. 531, 538, 24 L. Ed. 2d 729, 736, 90 S. Ct. 733, 738, where the United States Supreme Court indicated that the complexity of issues involved and whether legal or factual issues predominate bear upon whether a constitutional right to trial by jury exists in a given case.

We find no precedent indicating the use of an advisory jury here was error, and we find the court committed no error in doing so. We do note, however, that the submission of the forcible entry and detainer action to a jury while, at the same time, the declaratory judgment action was decided by the court, albeit with an advisory jury, did create a problem of possible inconsistency in decision. (See Power Electric Contractors, Inc. v. Maywood-Proviso State Bank (1978), 60 Ill. App. 3d 685, 691, 377 N.E.2d 142, 146 (equity court’s imposition and foreclosure of mechanic’s lien res judicata, and barred jury trial on counterclaim for damages).) Both claims were based upon the question of whether plaintiff’s lease had been terminated. (Cf. Aetna Screw Products Co. v. Borg (1983), 116 Ill. App. 3d 206, 214, 451 N.E.2d 1260, 1266 (legal and equitable issues not identical).) Inconsistency was avoided when the court finding adopting the advisory verdict was consistent with the jury verdict in the forcible entry and detainer action. Nevertheless, the complexity of the situation involved bears upon the effect which we give to errors in instructing the jury.

One claim of error in regard to ruling on instructions arises from the giving, over plaintiff’s objection, of an instruction tendered by defendants, which stated:

“You are instructed as a matter of law that acceptance by Holzhauers of the advanced royalties made by Vulcan and its predecessor did not waive the right of Holzhauers to exercise their option to terminate the agreement in March, 1985.”

Evidence was presented at trial that on November 27, 1984, defendants had sent notice to plaintiff that the lease was terminated because of abandonment of the lease by plaintiff for a period of at least one year, all as provided by section 3(d) of the lease. The evidence also showed that, thereafter, on December 26, 1984, defendants had accepted a $5,000 quarterly minimum royalty advancement. The foregoing instruction which was given prohibited the jury from considering defendants’ acceptance of the $5,000 advancement in regard to plaintiff’s assertion that defendants waived any abandonment of the lease by plaintiff which occurred prior to acceptance of the money.

Acceptance of rent by a landlord after knowledge of the existence of a breach of the lease by a tenant has been held to constitute a waiver of a right to forfeit a lease (Steven W. Barrick & Associates v. Witz (1986), 147 Ill. App. 3d 615, 498 N.E.2d 738), or, at least, competent evidence of waiver (Glad-Nan Corp. v. Henry’s Drive-In, Inc. (1961), 29 Ill. App. 2d 363, 367, 173 N.E.2d 521, 523). Accordingly, as plaintiff had pleaded waiver by defendants of any right to forfeiture for abandonment, the jury should not have been prevented from considering the $5,000 payment.

Defendants point out that in our order deciding the prior appeal, we stated:

“We hold that the acceptance of the advance royalty by defendants in December 1984 did not waive the right to exercise their option to terminate in March of 1985.” (Vulcan Materials Co., 161 Ill. App. 3d 1164 (slip op. at 5) (unpublished order under Supreme Court Rule 23).)

Defendants maintain that under the doctrine of “the law of the case,” that language became binding on the circuit court after remand, and that doctrine required the giving of the instruction. Under the “law of the case” rule, determinations of law made by the appellate court are binding on remand to the circuit court and on a subsequent appeal to the appellate court unless a decision of a higher court changes the law (Relph v. Board of Education of DePue Unit School District No. 103 (1981), 84 Ill. 2d 436, 443-44, 420 N.E.2d 147, 150), but determinations concerning issues of fact are not (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667, 405 N.E.2d 1220, 1226). Thus, the question of whether the language in our prior opinion could have properly guided the jury on remand depends partly upon whether the evidence involved was the same after remandment.

The evidence after remandment was not the same as that presented for rulings upon the motions for summary judgments. Previously, no evidence was presented concerning any notice of termination given by defendants to plaintiff on November 27, 1984, nor was there any evidence of any notice of termination served on plaintiff prior to defendants’ December 29, 1984, acceptance of the $5,000 advance by cashing the check. At the time of the summary judgment proceedings, the only notice of termination shown in the evidence was a notice given by defendants to plaintiff in March 1985. As we pointed out in our Rule 23 order deciding the prior appeal, by the provisions of paragraph 16 of the lease, the advance royalties were stated to be held in trust by defendants to recover royalties that might become due. Receipt by defendants of advance royalties at a time when no termination had been declared was entirely consistent with subsequent termination by defendants, because upon subsequent termination, they would be entitled to some of the royalty advanced and would hold the balance of the advancement to be returned to the plaintiff.

The circuit court erred in giving the instruction prohibiting consideration of defendants’ receipt of advance royalties in December 1984.

Plaintiff’s assertion that the circuit court erred in refusing to submit to the jury certain interrogatories concerns its tendered interrogatories Nos. 2 and 3. No. 2 asks “[d]id Holzhauers waive their right to declare their property abandoned by Vulcan?” and No. 3 asks “[a]re Holzhauers estopped from declaring an abandonment of their property by Vulcan?” Section 2—1108 of the Code states: “[t]he jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1108). The phrase a “material question or questions of fact” has been interpreted to mean an ultimate fact or facts upon which the rights of the parties depend. (Packard v. Kennedy (1955), 4 Ill. App. 2d 177, 186, 124 N.E.2d 55, 60.) Refusal to submit a proper interrogatory is usually reversible error. Moyers v. Chicago & Eastern Illinois R.R. Co. (1963), 43 Ill. App. 2d 316, 317-18, 193 N.E.2d 604, 606.

Proper interrogatories which require an answer to ultimate facts which, if answered in a certain way, would decide the case include those concerning (1) whether a party at the time of an occurrence was a guest or a passenger (Leonard v. Stone (1942), 381 Ill. 343, 45 N.E.2d 620); (2) whether a party acted with wilful or wanton misconduct (Jones v. Phillips (1953), 349 Ill. App. 393, 110 N.E.2d 758 (abstract of opinion)); (3) agency or scope of employment (Black v. Peoria Marine Construction Co. (1987), 160 Ill. App. 3d 357, 513 N.E.2d 622); or (4) whether a defendant’s car struck the plaintiff (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146).

Defendants maintain the interrogatories were properly denied because (1) insufficient evidence of waiver or estoppel was presented; (2) the interrogatories were vague and indefinite; (3) answers to the interrogatories in the negative would not control the general verdict; (4) the interrogatories assume the existence of an abandonment; (5) the time frame during which an estoppel could occur was not defined; and (6) a finding of waiver or estoppel would be against the manifest weight of the evidence.

We conclude that the interrogatories should have been given. They were not vague. We have already indicated that the evidence was sufficient to raise an issue as to waiver. Much the same evidence supports the theory of estoppel. Any assumption in the interrogatories that the property had, in fact, been abandoned by plaintiff was not prejudicial to defendants. The fact that an answer can be given to an interrogatory which is not determinative as to the case does not make the interrogatory bad when, as here, an answer can be given which is dispositive of the case. Such was the situation in all cases we have cited to explain the issue upon which interrogatories should be submitted. Here, an answer finding defendants had waived their right to terminate the lease or were estopped from terminating the lease would have been determinative of the case. The circuit court committed error in denying the submission of the two interrogatories.

Citing the decision of this court in Carroll v. Hurst (1982), 103 Ill. App. 3d 984, 431 N.E.2d 1344, defendants contend that error in instructing the jury is insignificant because the verdict of the jury was only advisory in the declaratory judgment action, and the court’s order in that action should control. There, this court affirmed a circuit court order dismissing for want of equity a complaint for an injunction against the operation of a junk and salvage yard. The court had submitted the issue to an advisory jury. Apparently, the losing party asserted that error had occurred in the failure of the court to instruct the jury, but this court concluded that contention was not significant because the court would not have been bound by the jury’s determination. That case did not involve the situation here where two actions were tried together, both having the same central issue, with one action submitted fully to a jury and the jury serving only in an advisory capacity in the other action.

The situation here differs from that in Carroll. Plaintiff filed an action for a declaratory judgment. That action would determine whether the lease had been terminated. Defendants responded with a cross-complaint in forcible entry and detainer. The question of whether the lease was terminated was also at the heart of that action but, in addition, a writ of possession could be ordered if defendants recovered on that claim. Defendants demanded and received a jury trial on that claim. We have determined that the jury was improperly instructed. Under these circumstances, we cannot fairly hold that error was harmless, because, in the combined action, the court was not required to follow the verdict of the improperly instructed advisory jury in one of the two actions. Defendants now deem insignificant the action in forcible entry and detainer and the jury verdict thereon which they requested. Moreover, the refusal to give proper interrogatories caused a prejudice to plaintiff greater than an improper instruction to an advisory jury, because it deprived plaintiff of an important check upon the accuracy of the verdict. We hold that the error in granting the instruction in question and denying the interrogatories was not harmless and constituted reversible error.

Several instructions given concern the interpretation of the lease. We are reluctant to pass upon the propriety of these instructions because the law in this State is uncertain on the subject. Illinois pattern jury instructions for civil cases have never covered this subject. A noted authority describes the determination of the extent to which a jury is involved in the interpretation of a contract in these words:

“Whether we describe this matter as a question of fact or a question of law, it is necessary to find some test for determining whether it is for the judge to determine rather than for the jury. As in the case of all other matters of fact, we can here lay down the rule that if the evidence is so clear that no reasonable man would determine the issue before the court in any way but one, the court will itself determine the issue, either by directing the verdict or by dispensing with any verdict whatever. By this statement, however, we do not say that if no reasonable man would have used the words with any but one meaning, that meaning will be adopted by the court without aid from the jury. The person whose meaning is in issue may have been a very unreasonable man; such men make contracts. The court must indeed state the issue; it must determine the person or persons whose meaning shall be held to prevail. What that meaning was, though a question of fact, may be made so clear by the evidence that a jury’s verdict to the contrary would be set aside.” (3 A. Corbin, Contracts §554, at 222-23 (I960).)

The parties here seem to agree that interpretation of the word “abandon” in the lease was an issue for the jury.

In Houck v. Martin (1980), 82 Ill. App. 3d 205, 213, 402 N.E.2d 421, 428, this court held that words with ordinary meanings need not be defined but, under the circumstances, reversible error did not result from an instruction defining the word “loan.” Here, no instruction was necessary, under the evidence, to define the word “abandon.” We caution, however, that the ruling might be different if evidence is introduced as to a technical meaning applied to leases of real estate for excavating purposes. The court here gave an instruction concerning the rules to use in construing contract language. In drafting such an instruction, great care must be taken to limit the construction which the jury is to make to that portion of the contract which is to be construed. See Schneider v. Neubert (1923), 308 Ill. 40, 139 N.E. 84; Vulcan Corp. v. Cobden Machine Works (1949), 336 Ill. App. 394, 400, 84 N.E.2d 173, 176.

As the plaintiff requests only a new trial, and that has been granted, we need not discuss its claim as to the sufficiency of the proof, which may well be different on retrial. To the extent, if any, that substance exists as to plaintiff’s contentions of defendants’ counsel’s improper actions, we are confident the problem will not arise on retrial.

We deem it appropriate to mention that because this complicated case has been before us twice and many uncertainties exist as to the legal principles involved, a strong attempt to reach compromise before retrial appears to be very much in the best interests of all involved.

As we have indicated, we reverse the judgment entered and remand for a new trial.

Reversed and remanded.

COOK, J., concurs.

JUSTICE LUND,

dissenting:

After vacillating over construction of the lease, I have come to the conclusion that we are mistaken in determining that “abandonment” was a question of fact. The lease charged the lessee with removing and selling “the greatest amount of sand, gravel or limestone.” The property was to be worked “as steadily and continuously as the market *** will permit.” The lease was executed on June 4, 1969, and the working and mining then commenced, but stopped in 1974. In March 1984, there was notice of intention to mine in that year, but no mining occurred.

Section 3(d.) of the lease gave only the owners the option of declaring abandonment, after there had been abandonment for one year. On November 27, 1984, the owners notified lessees of termination of the lease, and abandonment was listed as the reason for termination.

By considering the lease as a whole, it is apparent that while quarterly “advances” were made, the anticipated income was to be on a royalty basis. The greater the production, the higher the income to the owners. While a minimum was provided on a quarterly basis, the owners were not required to indefinitely accept the minimum payment and could, if there was abandonment, at their option, terminate the lease.

What is abandonment under a lease of this type? I suggest it is directly connected with the work process which provides the maximum potential income, i.e., the royalty income. If there is no attempt to remove sand, gravel, and limestone for a period over one year then, absent a lack of a market, abandonment should occur.

Was there an absence of a market? This operation was shut down, except for maintenance and draining, for 11 years, during which time lessees were mining an adjoining acreage. A market must have existed to justify the mining on this adjoining acreage.

The abandonment occurred, in my opinion, as a matter of law because the quarry was not worked. It was not then worked for “the greatest amount of sand, gravel or limestone.” To suggest that pumping water and other maintenance defeats a finding of abandonment, in light of the said express purpose of the lease, is, in my opinion, unreasonable.

The only issue, in my view, is whether the acceptance of the December 29, 1984, $5,000 “advance” was a waiver of the abandonment. Did this waive over 10 years of mining inactivity?

Consider the defense of acquiescence or estoppel. The very terms of the lease (a long-term lease) provide the owners an option to terminate because of abandonment. This right is unlimited as to time, and the lease quarterly “advances” shall be borne by the lessee to and including the final date of declared abandonment. Because the $5,000 payments are due to the date of the declaration of abandonment, no right to defeat the termination by estoppel should exist. Because of provisions in the lease giving the owners the option of terminating the lease at any time there is abandonment, even though it may have occurred and continued from years before, this case is different than Steven W. Barrick & Associates (147 Ill. App. 3d at 620, 498 N.E.2d at 742), where the court stated:

“What the lessor may not do, however, is consistently accept rent from a problem tenant without objection, warning, or comment, and then attempt to forfeit the lease based on his prior behavior.”

“The acceptance of rent, even after a notice to quit has been given, is not itself a waiver, but merely evidence to be considered in connection with all the circumstances.” 24 Ill. L. & Prac. Landlord and Tenant §241 (1980), citing Glad-Nan Corp., 29 Ill. App. 2d 363, 173 N.E.2d 521.

If remanded, the only issue on retrial would be, in my opinion, whether the acceptance of the December 1984 payment was a waiver of the termination. In light of the owner’s continued insistence on termination after the December 1984 payment, I would determine, in this case, that no waiver took place.