author: JUSTICE LaPORTA

text:
    DONALD DeLEONARDIS et at., Plaintiffs-Appellants, v. CHECKER TAXI COMPANY, Defendant-Appellee (Abdul Shaikh et al., Defendants).
    First District (6th Division)
    No. 1—88—2022
    Opinion filed September 15, 1989.
    Rehearing denied October 23, 1989.

      Pitler & Mandell, of Chicago, for appellant Donald DeLeonardis.
    John W. Lally, of Chicago, for appellant S & S Automotive, Inc.
    Jesmer & Harris, of Chicago (Allen L. Wiederer, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiffs S & S Automotive (S & S) and Donald DeLeonardis (De-Leonardis) appeal from the trial court’s order granting summary judgment in favor of defendant Checker Taxi Company (Checker). Plaintiffs argue that the trial court erred in granting summary judgment because Checker’s affidavits in support of the motion did not rebut the presumption that the driver of the taxicab which injured plaintiffs was Checker’s agent. Plaintiffs also argue that a common carrier cannot evade responsibility for damages caused by vehicles bearing its medallion.

For an understanding of the issues here addressed, a brief history of this litigation needs to be discussed. Plaintiffs allege that on March 13, 1985, while DeLeonardis operated a vehicle owned by S & S, he was involved in a collision with a taxicab and, as a result, the S & S vehicle was damaged and DeLeonardis was injured. On June 11, 1985, and October 23, 1985, separate complaints were filed, by DeLeonardis for personal injuries and by S & S for property damage against Abdul Shaikh (Shaikh), alleged to be the driver of the cab, and against Yellow Cab Company (Yellow Cab), the alleged owner of the cab. The separate complaints were consolidated and subsequently amended to add Checker and to allege similar causes of action against Checker while retaining the original causes of action against Shaikh and Yellow Cab. The amended consolidated complaint was in eight counts:

Count I: DeLeonardis v. Shaikh — as operator of cab owned by Yellow Cab.
Count II: DeLeonardis v. Yellow Cab — alleged Shaikh was employed by Yellow Cab and acting within the scope of his employment.
Count III: DeLeonardis v. Shaikh — as operator of cab owned by Checker.
Count IV: DeLeonardis v. Checker — alleged Shaikh was employed by Checker and acting within the scope of his employment.
Count V: S & S individually and f/u/o Aetna Insurance v. Shaikh — as operator of cab owned by Yellow Cab.
Count VI: S & S individually and f/u/o Aetna v. Yellow Cab — alleged Shaikh was employed by Yellow Cab and acting within the scope of his employment.
Count VII: S & S individually and f/u/o Aetna v. Shaikh— as operator of cab owned by Checker.
Count VIII: S & S individually and f/u/o Aetna v. Checker — alleged Shaikh was employed by Checker and acting within the scope of his employment.

On February 18, 1987, with leave of court, and simultaneous with his entry into the case as substitute attorney representing plaintiff, John Lally filed a one-count amended complaint at law on behalf of S & S, f/u/o Aetna, against Shaikh and Checker, which alleged in pertinent part that defendant Shaikh operated a motor vehicle owned by Checker.

Motion for judgment was filed by Checker on February 18, 1987. Checker’s motion was based on trial court findings and judgment in a separate declaratory judgment suit (86 — CH—3144), American Country Insurance Co. v. Donald DeLeonardis, S & S Automotive, et al., in which declaratory judgment was entered against defaulted defendants on December 9, 1986. Checker’s motion argued the judgment in the declaratory judgment suit operated as a collateral estoppel to the complaints in this litigation.

A motion for summary judgment was filed by Yellow Cab on February 26, 1987 (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005; 107 Ill. 2d R. 191), together with the affidavit of Checker Cab’s president, which stated that on March 13, 1986, cab No. 3826 (the cab involved in the accident) was owned by Checker.

On April 7, 1987, the trial court granted summary judgment in favor of Yellow Cab and granted judgment in favor of Checker. No appeal was taken of the summary judgment in favor of Yellow Cab. Yellow Cab is no longer a party to this litigation, and counts I, II, V and VI of the complaint have thereby been resolved.

An appeal was taken by plaintiff of the trial court’s entry of judgment in favor of Checker. In that appeal, the reviewing court reversed and remanded, finding no validity to defendant’s argument of collateral estoppel, and concluded “that Checker has not carried its burden of establishing that the issue of agency and Checker’s liability for its agent’s negligence were in fact actually litigated in the first action. Under the circumstances, plaintiffs are not barred from litigating a claim against Checker under the theory of respondeat superior.” (S & S Automotive v. Checker Taxi Co. (1988), 166 Ill. App. 3d 6, 10, 520 N.E.2d 929, 933.) That court did not address the issue raised by plaintiff that as a matter of law Checker cannot deny the driver was its agent.

Thereafter, on April 6, 1988, Checker again moved for summary judgment and supported its motion with two affidavits: one affidavit by its personnel manager Moberg, which stated that Shaikh was not its employee on the accident date, and one affidavit by its lease manager Bellar, which stated that all Checker cabs operated pursuant to written lease and that Shaikh was not its lessee on the accident date nor for the period immediately preceding and immediately following the accident.

Plaintiffs argued in their response that Checker’s ownership of the cab driven by Shaikh raised a presumption of agency and that as a common carrier Checker was estopped from denying liability for the actions of anyone driving its cab. Plaintiffs submitted no counteraffidavits in opposition to the summary judgment motion.

A general presumption of agency arises between the driver and the owner of a vehicle; to rebut the presumption the owner must show that the driver in fact was not acting in the capacity of owner’s agent at the time of the accident. (Botich v. P. Lorillard Co. (1970), 127 Ill. App. 2d 232, 235, 262 N.E.2d 38, 40.) When evidence is introduced which is contrary to the presumption it ceases to operate. (Botich, 127 Ill. App. 2d at 236, 262 N.E.2d at 40.) An owner is liable for injury caused when his vehicle is driven within the scope of permission. Faltysek v. Kloepfer (1971), 3 Ill. App. 3d 8, 12, 279 N.E.2d 105, 108.

Checker replied that there was no allegation in either pending complaint that Shaikh was its agent and attached a copy of its lease agreement for this period to Dharsi which expressly stated that the lessee would be the sole driver during the lease period.

At the time of the filing of Checker’s motion for summary judgment, two complaints were pending, and insofar as they were directed against Checker, the pertinent allegations are found in counts III, IV, VII and VIII of the eight-count amended complaint filed on February 5, 1986, and in the one-count amended complaint filed on February 18,1987.

The trial judge granted Checker’s second motion for summary judgment and plaintiffs again appeal.

In the appeal pending before us, plaintiffs initially argue that allegations in the complaint that Checker owned the cab driven by Shaikh at the time of the accident trigger a rebuttable presumption that he operated the cab as Checker’s agent. Plaintiffs argue that defendants’ affidavits which assert that Shaikh was not employed by Checker nor was Shaikh its lessee pursuant to written lease at the time of the accident are insufficient to rebut the presumptions of agency. Plaintiffs also argue that as a common carrier Checker cannot deny responsibility for damages caused by vehicles bearing its medallion. Plaintiffs cite the case of American Country Insurance Co. v. Wilcoxon (1987), 159 Ill. App. 3d 884, 513 N.E.2d 45, for the proposition that as a matter of public policy a common carrier must assume financial responsibility for injury caused by its public livery operators and should not be permitted to avoid this responsibility by private agreements with its drivers. See also Faltysek, 3 Ill. App. 3d at 12, 279 N.E.2d at 109.

Defendant initially argues that plaintiffs have not presented a sufficiently complete record to support their claims of error. Although no report of proceedings for the hearing on the motion for summary judgment appears in the record and in its order the trial court did not state its reason for granting the motion, the issues on appeal can be addressed. We find the record on appeal sufficient because the pleadings and affidavits can be examined to determine whether there were any genuine issues of material fact and whether defendant was entitled to judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c); Lytle v. Roto Lincoln Mercury & Subaru, Inc. (1988), 167 Ill. App. 3d 508, 513, 521 N.E.2d 201, 204.

Defendant argues that it is not possible from the record to determine on which of the complaints the trial court was granting summary judgment because an order granting plaintiffs leave to file an amended complaint is missing. This statement is inaccurate. The record discloses the court granted plaintiff leave to amend the complaint on October 31, 1985, January 6, 1986, February 5, 1986, and February 18, 1987, and the amended complaints here considered were filed with appropriate leave of court. On the record before us we can address the issues raised by the plaintiffs.

Defendant next argues that the uncontradicted affidavits filed in support of its summary judgment motions established that at the time of the accident Shaikh was not an employee, agent or lessee of defendant. Plaintiffs filed no counteraffidavits in response to defendant’s motion for summary judgment and its supporting affidavits. In the absence of responsive affidavits by plaintiffs, the representation by defendant that Shaikh was neither an employee nor a lessee of Checker at the time of the accident must be taken as admitted and true for purposes of the motion. (Wooding v. L & J Press Cory. (1981), 99 Ill. App. 3d 382, 385, 425 N.E.2d 1055, 1058; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380-81, 313 N.E.2d 457, 459.) The court, therefore, was required to find that Shaikh was not Checker’s employee nor was he Checker’s lessee at the time of occurrence.

In response to plaintiffs’ argument that the amended complaint raises a genuine issue of material fact that Shaikh as the operator of the cab is presumed to be the agent of Checker, defendant argues that the only theory of respondeat superior pled by plaintiffs (counts IV and VIII) was that of employer-employee and not of principal-agent and that the pleadings do not allege that Shaikh was agent of Checker.

Checker’s affidavit and the written lease established that at the time of the occurrence the vehicle was leased to H. Rajab Dharsi. By the express language of the lease Dharsi agreed to be the sole driver of the leased vehicle. On appeal, plaintiffs suggest that Shaikh operated the vehicle with lessee’s permission, thereby acting within Dharsi’s authority as operator of the cab and with owner’s permission under the doctrine of respondeat superior. However, no such allegation is made in either of the pending complaints.

In counts IV and VIII against Checker, plaintiffs alleged that Shaikh was an employee of Checker, but did not allege that the cab was owned by Checker. The affidavit of Checker’s John Morberg specifically states that Shaikh was not Checker’s employee at the time of the occurrence. In counts III and VII against Shaikh, plaintiffs allege the cab driven by Shaikh was owned by Checker. Checker conceded in its affidavit that on the accident date, it owned the cab in question.

The pivotal question, then, is did Shaikh have permission to drive the cab? No such permission is alleged in the complaint. Defendant’s failure to address the question of whether lessee Dharsi had given permission to Shaikh to operate Checker’s cab does not render the affidavits deficient. No response was required to an allegation that was never made.

We next consider plaintiffs’ argument that a common carrier cannot evade responsibility for damages caused by vehicles bearing its medallion. Plaintiffs alleged only the driver’s employment by defendant Checker. The employment allegation Was adequately refuted by Checker’s uncontroverted affidavit. The holding in the Wilcoxon case (Wilcoxon, 159 Ill. App. 3d 884, 513 N.E.2d 45), cited by plaintiffs in support of their argument that Checker cannot deny its responsibility for any driver, was recently affirmed by the Illinois Supreme Court. (American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 537 N.E.2d 296.) There, the supreme court held that an insurer under a surety bond issued to the cab company to protect persons injured through a cab driver’s negligence, as required by the Illinois financial responsibility statute (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 8— 104), was not permitted to exclude from coverage a cab driver who did not enter into a lease with owner cab company and that any person given permission to drive the cab by the first permittee is covered under the policy. (Wilcoxon, 127 Ill. 2d at 239.) Checker argues that the initial permission doctrine does not apply to the record here. Absent from the complaint in any allegation that Dharsi, the first user with owner’s permission, gave permission to Shaikh to operate the vehicle. We find this to be an accurate statement of the allegations of the complaint.

The statute describing the requirements of the bond required under the financial responsibility statute mandates the payment of a judgment against the owner or person driving with the owner’s express or implied consent. (Ill. Rev. Stat. 1987, ch. 951/2, par. 8 — 104.) However, the statute does not establish that as a matter of law an owner is liable for the negligence of a driver who did not have the owner’s permission to operate the cab.

On a motion for summary judgment the court must determine whether the pleadings, exhibits and affidavits on file when considered together show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Lytle, 167 Ill. App. 3d at 513, 521 N.E.2d at 204.) Here, the trial court considered the allegations of the pending complaints, the summary judgment motion and its uncontroverted supporting affidavits and the written lease attached thereto, and concluded from the record that no genuine issue of material fact remained upon which to try the case. We find no error in the entry of summary judgment in favor of defendant by the trial court.

For all of the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

EGAN, P.J., and QUINLAN, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDOLPH WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1—87—1804
    Opinion filed September 18, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Karen A. Popek, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Francis N. Scescke, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial, defendant, Rudolph Williams, was convicted of attempted burglary (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4(a)) of an automobile and sentenced to five years in prison. On appeal, defendant contends that: (1) the State failed to prove him guilty of attempted burglary beyond a reasonable doubt; (2) the trial court erred in refusing to advise him of his right to elect treatment for drug addiction pursuant to section 22 of the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. llU/z, par. 6322); and (3) the maximum sentence of five years’ imprisonment was excessive under the circumstances of the offense. For the following reasons, the judgment of the circuit court is reversed.

The record sets forth the following facts relevant to this appeal. Aco Lazarevski, owner of the subject automobile, testified that on September 12, 1986, approximately 12:40 p.m., he was working at his brother-in-law’s hotdog stand when he heard his car alarm go off. His car was parked on the corner near the stand. Aco immediately looked out the window and saw defendant standing next to his car with his hand on the trunk. Defendant then turned and started to walk away. Recognizing defendant from around the neighborhood, Aco ran up to him and asked him what he had done to the trunk. Defendant claimed he had not done anything.

When Aco tried to open the trunk of his car with his trunk key, he noticed that the emblem which covered the trunk key slot was moved off the slot and the trunk would not open. While Aco was examining his trunk, defendant continued to walk away. Aco then saw a police officer writing tickets nearby, asked him to come over to the car, and told the officer what had happened, pointing to defendant, who was walking away. The officer caught up with defendant, brought him back to the car and asked him what he had done to the car and how he had done it. Defendant said nothing.

According to Aco, defendant promised to give him the money to fix the trunk if Aco agreed not to press charges. Aco agreed and told defendant to get $70. Defendant left, promising to return in one-half hour. However, he never returned. Aco further testified that after defendant and the first police officer left, he spoke with Officer Opyt of the Chicago police department and told him what had happened.

Eight days later, Aco saw defendant walking across the street from the hotdog stand. He ran outside, flagged down a squad car, and had defendant arrested. According to Aco, defendant told him that he had not brought the cash because he had been in the hospital. On cross-examination, Aco stated that he had seen defendant’s hand on the trunk, but had not seen anything in his hand. The State rested its case and defendant’s motion for a directed verdict was denied.

Next, defendant testified on his own behalf that on September 12, 1986, approximately 12:40 p.m., Aco came up to him and asked him if he had gone into his car. Defendant told Aco he had not and started to walk away. Defendant stated that prior to Aco’s questioning, he had been regurgitating a short distance away from Aco’s car and had never even heard a car alarm. Approximately five minutes later, Aco approached defendant again, this time accompanied by a police officer who walked defendant back to Aco’s car. Aco then handed defendant a key and asked him to try to get into his trunk. However, the trunk would not open.

Defendant further stated that Aco promised he would not press charges if defendant gave him $100. Defendant left to get the money, but never returned. On cross-examination, defendant denied ever having touched Aco’s car and claimed that he had never seen anyone else touch it either.

Next, Officer Frank Opyt testified that on September 12, 1986, he investigated the alleged attempted burglary of Aco’s car. In doing so, he first spoke to Aco, who told him that someone had broken into his trunk with a screwdriver. At that time, Aco told Opyt that he knew who the offender was and that the offender had promised to pay for the damages to the car. However, Opyt did not include this financial arrangement in his report.

Following defense counsel’s closing argument, the trial court found defendant guilty of attempted burglary. Approximately two weeks later at the sentencing hearing, the trial court denied defendant’s motion for a new trial. In aggravation, the State argued that defendant has numerous felony and misdemeanor convictions and has demonstrated little potential for rehabilitation. In mitigation, defense counsel stated that defendant had been out of prison since 1981, was currently employed, and lived with his parents. Defense counsel requested probation, noting that the probation department stated in its proposed plan for supervision that if the court sentenced defendant to probation, the department recommended maximum supervision with emphasis on drug rehabilitation. The trial court sentenced defendant to the maximum prison term of five years. Defendant’s timely appeal followed.

Initially, defendant argues that the State failed to prove that he was guilty of attempted burglary beyond a reasonable doubt. The crime of attempt is defined by section 8 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a)) as:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”

Pursuant to section 19 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1(a)):

“A person commits burglary when without authority he knowingly enters or without authority remains within a *** motor vehicle as defined in The Illinois Vehicle Code, *** or any part thereof, with intent to commit therein a felony or theft.”

Therefore, pursuant to the Code, in proving the offense of attempted burglary, the State has the burden of proving that defendant intended to commit the offense of burglary and that he performed an act which constituted a substantial step toward the commission of the burglary. The offense of attempt must frequently be proven by circumstantial evidence, including the words and actions of the accused. This evidence must produce a reasonable and moral certainty that the accused committed the crime. If there is a reasonable explanation for the circumstances which is consistent with innocence and, thus, leaves a serious doubt of the accused’s guilt, then a conviction cannot stand. (People v. Delp (1980), 85 Ill. App. 3d 463, 406 N.E.2d 903.) Although it is not incumbent upon the accused to explain his presence at or near the scene of a crime, if he does offer an explanation, his story must be reasonable or he will be judged by the improbability of the explanation. (People v. Spagnolia (1961), 21 Ill. 2d 455, 173 N.E.2d 431.) Mere presence at a scene is not enough in itself to sustain a conviction. However, if that presence is coupled with defendant’s flight upon being seen by another, these two factors may tend to establish defendant’s guilt. People v. Delp (1980), 85 Ill. App. 3d 463, 406 N.E.2d 903.

In the present case, there are two conflicting stories as to the events that occurred on September 12, 1986. One version is that testified to by Aco and the other is that testified to by defendant. Although it is within the province of the trier of fact to assess the credibility of witnesses and to resolve conflicts in testimony (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), the reviewing court will reverse a conviction where the evidence is confused and conflicting on vital questions of fact (People v. Butler (1963), 28 Ill. 2d 88, 190 N.E.2d 800) and is so unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. People v. Pellegrino (1964), 30 Ill. 2d 331, 196 N.E.2d 670.

In the present case, Aco Lazarevski testified that while working at his brother-in-law’s hotdog stand, he heard his car alarm go off, looked out the window and saw defendant with his hand on the car trunk. When Aco went outside, defendant was walking away. Aco caught up with defendant, asked him what he had done to his ear, and defendant replied “nothing.” Aco then walked back to his car, noticed the key to the trunk would not work and called over a police officer who was writing tickets nearby. The officer allegedly was with Aco and defendant when defendant offered to pay for any damage if Aco would not press charges.

In our view, these facts are of questionable certainty. First, if the police officer was standing nearby, it seems likely he would have heard the car alarm had it actually gone off and would have seen defendant standing next to the trunk. Yet, there is no indication that the officer saw or heard anything. Second, it is unlikely that defendant would have been trying to pry open the trunk at lunch time on a busy street with a police officer nearby writing tickets. Third, defendant made no attempt to flee when Aco came outside. Defendant claims that he had been standing away from the cars regurgitating, then walked back toward the street. He further claims that he never heard a car alarm. Fourth, although there was allegedly a police officer present, there is no corroborating evidence that defendant promised to pay for any damage to the trunk. Defendant claims Aco asked him for some money and told him to get it, which defendant never did. Finally, when defendant did not return, Aco told his story to another officer. No complaint was filed with either police officer although Aco testified that he had recognized defendant from the neighborhood.

Aco also relies extensively on defendant’s alleged “admission” and his offer to pay for any damages. Although an admission is substantive evidence of a defendant’s guilt (People v. Ellis (1976), 41 Ill. App. 3d 377, 190 N.E.2d 595), the only evidence of an admission by defendant is Aco’s self-serving testimony. Contrary to Aco’s testimony, defendant testified that Aco had asked him for some money; he had not volunteered to pay. Thus, in our view, there is reasonable uncertainty as to whether defendant had ever admitted to trying to get into the trunk.

We find the lack of sufficient circumstantial evidence of defendant’s guilt in the present case to be similar to the situations in People v. Delp (1980), 85 Ill. App. 3d 463, 406 N.E.2d 903, and in People v. Toolate (1976), 45 Ill. App. 3d 567, 359 N.E.2d 1062, in which the courts reversed the respective convictions for attempted burglary. In Delp, at approximately 10 p.m., while on patrol, a police officer saw defendant standing next to an automobile in a parking lot, bent over a car. The officer noticed a shiny object protruding from defendant’s body. Suspicious of what defendant was doing, the officer drove into the parking lot. Defendant crouched down momentarily and then ran into the shadows of a nearby building. The officer directed a spotlight into the area where defendant had run, saw defendant, and ordered him to come out. Defendant told him he had run to the building to relieve himself. The officer searched defendant, but found nothing. He then searched the corner of the building where defendant had been crouched and found a bent auto antenna and a screwdriver. The officer saw scratch marks on the car’s side window and on the molding, and the bent antenna was discovered to be part of one that had been broken off of another car in the parking lot.

At trial, the officer admitted that he had never seen defendant in actual possession of the screwdriver or the antenna. In addition, the owner of the car testified that she had not noticed any damage to her car. The jury entered a verdict of guilty of attempted burglary and possession of burglary tools. On review, the court reversed the trial court’s judgment on the ground that the evidence relied upon by the State was not of such a nature as to produce a reasonable and moral certainty that the defendant had committed the offense charged.

In the present case, no screwdriver was found, there was no testimony of any physical damage to the car such as scratches or punches and defendant had not attempted to flee or to hide. As a result, there is even less evidence to establish defendant’s guilt than there was in Delp.

Similarly, in People v. Toolate (1976), 45 Ill. App. 3d 567, 359 N.E.2d 1062, a police officer spotted defendant walking on the sidewalk in the early morning hours of December 19, 1974. He had shoulder-length dark hair and was wearing a full-length black coat. Defendant did not quicken his pace when the patrol car passed by. The officer then drove into the parking lot adjacent to a sandwich shop and noticed fresh cuts at the lock on the front door of the sandwich shop with fresh wood fibers lying on the ground. He notified the police station, drove back to the intersection from where he had just come, and got out of his car. There were fresh footprints in the snow. The officer followed the footprints to a 1963 Ford parked nearby. When the officer opened the car door, he saw defendant sprawled across the front seat and his coat was lying in the back seat. While backtracking the footprints, another officer found a screwdriver lying in the snow. The officer also found the same fresh footprints on the west and north sides of the sandwich shop. On the east side of the building, the snow had either melted or cleared. The officer then discovered a crowbar lying in the parking lot.

Defendant testified that he had been at his brother’s house, after which he had just driven around. He felt like being alone, so he had been sitting in his car, listening to the radio, for about two hours. He then decided to return to his brother’s house, but the car would not start. As a result, he called his brother to come pick him up and was waiting for him when the police arrived.

Following a bench trial, defendant was convicted of attempted burglary. The reviewing court reversed, stating that the State had merely proved that defendant was in the area, walking near the building. There was no proof that either the screwdriver or the crowbar belonged to defendant or were ever in his possession. There was also no evidence that those items were used to pry the door or when they might have been used. The Toolate court acknowledged that the circumstances might cast suspicion on defendant, but they did not establish defendant’s guilt beyond a reasonable doubt.

Once again, in the present case, we find that there is even less conclusive evidence as to defendant’s guilt than in Toolate. No instrument which could have been used for tampering with the lock was ever found and there was no physical damage to the lock. Accordingly, we conclude that the evidence does not establish defendant’s guilt beyond a reasonable doubt and the trial court’s judgment should be reversed. This decision obviates the need to address the remaining issues.

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

Reversed.

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

      Effective July 1, 1988, the Alcoholism and Substance Abuse Act was repealed and replaced by the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1987, ch. IIIV2 , par. 6351 — 1 et seq.). However, because the effective date of the new act is subsequent to the date of sentencing in the present case, the new act is not applicable to this appeal. People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49.


author: JUSTICE DiVITO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAURICE HUNLEY, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1765
    Opinion filed September 19, 1989.

      Robert D. Nachman and Robert L. Graham, both of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Renee Goldfarb, and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People:
   JUSTICE DiVITO

delivered the opinion of the court:

Defendant Maurice Hunley was convicted by a jury of murder and residential burglary and sentenced to 40 years in the Illinois Department of Corrections. A previous trial ended in a mistrial caused by a hung jury.

On this appeal, defendant maintains that the trial court erred in denying his motion to quash his arrest and suppress evidence based on lack of probable cause; denying his motion to suppress palm print evidence; denying his motion to suppress his statements made to the police; denying his motion for a mistrial based on a burglary of deliberating jurors; limiting his presentation of evidence during cross-examination of an identification witness; limiting his presentation of evidence during his case in chief; allowing the jury to hear evidence of other crimes; and allowing certain remarks by the prosecutor during closing argument. We affirm.

On November 18, 1983, Lisa Tyson was fatally stabbed in her northside apartment in Chicago. Jamie Ardrey, Tyson’s neighbor, testified that at 6:45 p.m. on that date, he heard screams coming from Tyson’s apartment. He ran toward Tyson’s apartment, and the door swung open, revealing a man standing inside holding a bloody kitchen paring knife. The man ran out of the apartment, dropped the knife on the hallway floor, and ran down the stairs. Ardrey entered the apartment and saw that Tyson had been stabbed. He was unable to call the police, because Tyson’s telephone cord had been pulled from the wall. Ardrey telephoned the police from his own apartment and then returned to administer first aid.

Lawrence Van De Carr, driving a van stopped in traffic on Clark Street opposite Tyson’s apartment building, saw a black male, later identified as defendant, run out of the building, jump over some fences and disappear down an alley. Van De Carr followed in his van, saw the man cross Lincoln Avenue at Webster and get into a cab, took the number of the cab, and reported the incident to the police.

The police, responding to a call, investigated. They recovered finger and palm prints from inside Tyson’s apartment and from the inner door which led into the building. The police found no signs of forced entry. A key was required to gain entry into the building through the inner door. Despite an intensive police investigation, Tyson’s murder remained unsolved for more than two years.

On January 6, 1986, defendant was processed on a burglary and unlawful use of weapons charge in connection with a burglary at Abbas Video on the 2300 block of North Clark Street. The arrest report in that case indicates that defendant was walking past Abbas Video when the owner told a Chicago police officer that defendant had recently changed the store’s locks and had commented about the missing property prior to the burglary.

On January 14, 1986, Chicago police detective John Turney, assigned to investigate the burglary of Jane Boynton’s apartment in the building where Lisa Tyson previously resided, noted that the lock to Boynton’s apartment had not been forced open. Turney interviewed Boynton, examined her door, and concluded that there was no other possible means of entry into her apartment. Turney also interviewed Marge Cohen, the owner of the subject building. Cohen told Turney of another burglary in the building in November 1985 with no signs of forced entry and also mentioned the Tyson murder. Turney, aware of defendant’s arrest in the Abbas Video burglary on the same block, mentioned defendant’s name. Cohen told Turney that she knew defendant through his employment at Cook’s Hardware located nearby and told Turney that defendant had done lock work in her building. After reviewing files on the burglaries in that building and files on other burglaries in the area, including the Tyson murder file, Turney and his partner, Detective Edward Louis, decided that defendant was a “good suspect” in the burglaries.

On January 21, 1988, at 11:30 p.m., Turney and Louis and two other police officers arrived at defendant’s apartment in Cabrini Green, without an arrest warrant or a search warrant. According to both Turney and Louis, they knocked on defendant’s door, identified themselves, and were invited inside the apartment by defendant. Turney and Louis told defendant they were there regarding a burglary investigation and asked defendant to accompany them to the police station. Defendant agreed and went into his bedroom to get dressed, accompanied by Turney and Louis, while the two other police officers remained in the living room. The police officers left defendant’s apartment 15 minutes after they had arrived and escorted defendant to the Area 6 detective headquarters in their squad car. Defendant was not handcuffed or restrained in any way during this time.

Defendant’s testimony described the events differently. According to defendant, he opened his front door about one foot after hearing a knock; the police officers then pushed the door open and entered without permission to come in; one of the police officers went into a closet in his son’s room and looked into a wallet; another police officer went into a living room closet; and a third officer went into the kitchen and looked through a drawer. The police officers told him that he had to go to the police station; he was handcuffed in the hallway outside his apartment; and he was escorted by the police officers to the squad car.

Defendant arrived at Area 6 on January 22, 1986, at 12:10 a.m. He was put in an interrogation room and, for the first time, advised of his Miranda rights. According to Turney, defendant indicated that he understood his Miranda rights, did not ask to speak with a lawyer, and agreed to talk to the police officers. Defendant was then questioned about the burglaries in the building where Tyson had lived. He denied any involvement in the burglaries and denied ever having been in that building. Defendant was then questioned about the Tyson murder. He denied any involvement in the murder and, according to defendant, at this point stated that he wished to speak with his lawyer. According to the detectives, defendant did not ask to speak with his lawyer. This initial interrogation lasted approximately 30 to 45 minutes.

At 1 or 1:15 a.m., Turney spoke with Detectives James Gildea and Robert Elmore of Area 6 Violent Crimes. Turney then asked defendant if he “would be willing to be palm printed” and defendant stated that it would be “no problem.” At 1:45 a.m., Turney and Louis escorted defendant to the print facilities in the basement. Defendant’s palm print was taken and, at 2 a.m., defendant was escorted back to the interrogation room. Defendant testified, contrary to this version of the events, that he was beaten by Gildea and “told” by Turney that he was going to be palm printed.

Turney and Louis drove to 11th and State to have defendant’s palm print compared with the palm prints found on the inner vestibule door of Tyson’s apartment building on the night of her murder. Defendant’s palm print matched one of those prints. At 3:30 a.m., Turney and Louis returned to Area 6 with the results. Defendant was not questioned between 2 a.m. and 4 a.m. Defendant testified that he was handcuffed to the retainer ring in the wall of the interrogation room during this time.

At 4 a.m. or 4:30 a.m., Gildea and Elmore entered the intérrogation room, where defendant was advised of his Miranda rights. Defendant said he understood and did not invoke his right to counsel. He was again questioned about the murder. Defendant told the detectives that he remembered reading about the murder, but had no direct knowledge of it. Defendant related that he had worked at Cook’s Hardware for seven years, where he repaired and installed locks. He did not work in the building where Tyson had lived and was never inside that building. When told by Gildea that his palm matched a print found on the inner vestibule door on the night of the murder, defendant claimed that was a mistake because he had never been in the building.

At 5:30 a.m., defendant was brought down to the lockup and processed by Officer James Eiden. Defendant testified that he made two phone calls when he was left alone in the lockup area, one to his wife and one to his mother, asking that they contact his lawyer. However, Officer Eiden testified that defendant, who remained in the. lockup until 8:30 a.m., was asked if he wanted to make a phone call, but made none.

At 8:30 a.m., Gildea and Detective Bernard Richter brought defendant to the interrogation room and handcuffed him to the retainer ring in the wall. According to Richter, defendant initiated a conversation by stating that he “was sorry he stabbed her” and that Tyson “surprised” him when “she walked into the apartment.” Defendant was advised of his Miranda rights, which he said he understood. Gildea, Elmore, and Detective Thomas Johnson then entered the interrogation room, defendant was once again advised of his Miranda rights, and he again stated that he understood his rights.

According to the detectives present in the interrogation room, defendant, who remained handcuffed to the retainer ring, then gave a confession that lasted until 10 or 10:30 a.m. Defendant’s statements were not tape-recorded and there was no court reporter present. Defendant stated that he had a drug habit in November 1983; on November 18, 1983, after he left work at Cook’s Hardware, he noticed that the outer door to the building where Tyson had lived was ajar; it was his intention to commit a burglary inside that building to get money to support his drug habit; he went inside the building and went from door to door listening for signs that people were home; he heard nothing coming from Tyson’s apartment, so he tried the door, found it unlocked, entered the apartment, and started to look around with a flashlight for small items to steal.

Defendant stated further that after a few minutes Tyson came home and asked him who he was; he told her “I’m nobody, I am leaving”; Tyson screamed, ran towards the kitchen and grabbed a paring knife from the counter; he grabbed Tyson and they struggled over the knife; he was cut on the arm, but managed to get the knife away from her and stab her twice in the chest. According to the coroner’s report, Tyson had been stabbed eight times.

Defendant also stated that he ran out of the apartment; confronted a white man outside Tyson’s door; dropped the knife in the hallway; ran down the hallway, down the stairs, and out the front door; and, once outside, hopped a small fence, ran down a gangway, climbed another fence, and ran home to Cabrini Green. Defendant did not tell the detectives that he took a cab and he later denied ever taking a cab. Defendant positively identified photographs of Tyson’s apartment, the building where Tyson had lived, the kitchen paring knife, and the outside area near where Tyson was killed.

Defendant testified that during this interview, which lasted roughly two hours, his coat was tied over his head and he was hit in the stomach and kicked in the ribs. The detectives denied that defendant was ever beaten, threatened, or otherwise physically or psychologically coerced.

At 12:50 p.m., Assistant State’s Attorney Richard Mottweiler arrived at Area 6, spoke with Elmore and Richter, and then talked to defendant in the interrogation room. Mottweiler advised defendant of his Miranda rights, and defendant, not handcuffed at the time, stated he understood and was willing to talk. Defendant told Mottweiler that everything he told the detectives was true. Defendant related that he went to Tyson’s apartment looking for money to support his drug habit; Tyson surprised him when she came home; Tyson went for a knife, which he grabbed from her; he stabbed Tyson and then fled from the apartment; and he confronted a white man in the hallway, dropped the knife, and ran out of the building. Defendant testified that the police threatened to tie his coat over his head and beat him if he did not make these statements to Mottweiler.

According to Mottweiler, defendant said he would give a statement to a court reporter. However, at approximately 1 p.m., defendant’s attorney, Spike Proustos, arrived at Area 6 and was permitted to see defendant. After Proustos informed Mottweiler that defendant would not be giving a statement, Mottweiler went back into the interrogation room and noticed, for the first time, that defendant was bleeding over his left eyebrow. Mottweiler asked defendant why he had started to bleed and defendant stated that he had picked a scab over his eyebrow. Mottweiler then had a photograph of defendant’s face taken by a court reporter.

Later in the evening, after Mottweiler’s interview with defendant, Ardrey identified defendant in a lineup as the man he saw inside Tyson’s apartment, but stated that he was “not 100% sure.” On January 19, 1987, a lineup was conducted for Van De Carr, who identified defendant as the man he saw fleeing from the building where Tyson had lived.

Defendant’s first jury trial ended in a mistrial when the jury divided 7 to 5 in favor of acquittal after two days of sequestered deliberations. At the end of defendant’s second trial, the jury deliberated until 10 p.m. without reaching a verdict. After the foreman informed the court that the jury could not reach a verdict within one hour, the court ordered the jury sequestered in a hotel overnight. During the night, four jurors in two adjacent rooms, including the foreman, were burglarized. Apparently, the burglar entered the rooms with a pass key and stole several small items. The four burglarized jurors were interviewed by the police in the morning, and all 12 jurors spoke among themselves of the burglary. The jury resumed deliberations and reached a verdict of guilty within one hour. Four jurors had changed their votes from “not guilty” to “guilty.” Two of these four, including the foreman, had been victims of the burglary.

The trial court conducted an in camera hearing to determine whether the burglary had affected the jury verdict. Each juror stated individually that the burglary did not affect their verdict, although some jurors expressed “concern” over the incident. The court then denied defendant’s motion for mistrial based on the jury burglary and entered judgment on the verdict. The court denied defendant’s post-trial motions and sentenced defendant to a term of 40 years in the Illinois Department of Corrections.

I

Defendant maintains that he was arrested without probable cause and his palm print, his confession, and the Ardrey and Van De Carr lineup identifications should have been suppressed as the fruit of his illegal arrest. Specifically, defendant maintains that the police in this case had only “mere suspicions,” because they knew only that there had been two burglaries without forced entry in a building where defendant had done lock work. Defendant maintains further that the reason for his arrest was the Tyson murder, not the burglaries, and he was unlawfully detained for the purpose of investigating that crime.

Defendant argues that even if there was probable cause to arrest him, he was arrested in his home without a warrant in violation of Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371. In this regard, defendant asserts that he was arrested by the time he left his apartment because Turney, Louis, and Officer Peter Magnine each testified that defendant was arrested at that time; Turney’s police report indicates that defendant was arrested on January 21, 1986, at 23:55 hours; police conduct at his apartment established that he was not free to leave; exigent circumstances were absent; and he did not consent to the police officers’ entry into his apartment. Citing Chief Justice Clark’s concurring opinion in People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708, defendant maintains that, where a suspect merely opens his door after the police have knocked and identified themselves, a Payton violation nonetheless occurs if the suspect is arrested in his home without a warrant and there are no other indications that the suspect consented to the police entry.

At the suppression hearing prior to defendant’s first trial, defendant argued that he was unlawfully arrested in his home and detained at the police station without probable cause, which required the suppression of his statements to the police, his palm print, and the Ardrey lineup identification. The trial court found that there was probable cause to bring defendant to the police station for questioning and that defendant went with the police officers- voluntarily. We agree.

Probable cause determinations after hearings on motions to suppress evidence will not be disturbed on appeal unless they are against the manifest weight of the evidence. (People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360.) Probable cause exists when the totality of facts and circumstances known to the police officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. (Dunaway v. New York (1979), 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833 n.9, 99 S. Ct. 2248, 2254 n.9; People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.) Commonsense considerations apply, and the calculation concerns “[t]he probability of criminal activity, rather than proof beyond a reasonable doubt.” (People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475; People v. Tisler (1984), 103 Ill. 2d 226, 236, 469 N.E.2d 147.) Whether the police officers’ conduct is reasonable must be judged on the basis of their responsibility to prevent crime and apprehend criminals. People v. Holloway (1985), 131 Ill. App. 3d 290, 305, 475 N.E.2d 915.

In this case, after reviewing the files on the burglaries in the building where Tyson had lived, other burglaries in the area, and the Tyson murder, Turney and Louis decided that defendant was a “good suspect” in the burglaries because of his employment at a hardware store on the same block as the burglarized premises; his previous arrest for the burglary of Abbas Video, where he had done lock work and which was also located on the same block; the information provided to Turney that he had also done lock work in the building where Tyson had lived; and the fact that the burglaries in that building, like the burglary of Abbas Video, involved unforced entries.

That this information was sufficient to establish probable cause to arrest defendant on burglary charges is supported by People v. Montgomery (1986), 112 Ill. 2d 517, 494 N.E.2d 475, and People v. Davis (1981), 98 Ill. App. 3d 461, 424 N.E.2d 630. In Montgomery, where the defendant lived on the murder victim’s property and there were no signs of forced entry into the victim’s apartment, the trial court’s probable cause finding was upheld because the defendant “was part of a relatively small class of people who could have had the opportunity to commit the murders, and shortly after the murders defendant’s physical appearance was both highly unusual and consistent with his having committed the crimes.” (People v. Montgomery (1986), 112 Ill. 2d 517, 526, 494 N.E.2d 475.) Similarly, in Davis, the trial court’s probable cause finding was upheld where there were no signs of forced entry into the victim’s room; the defendant had access to the victim’s room through his position as a hotel employee; and the police had determined that the defendant made two room service deliveries to the victim prior to her death.

As in Montgomery and Davis, the police officers in this case knew that defendant belonged to a “relatively small class of people” who could have committed the crime without leaving any signs of forced entry. Although in Montgomery the police knew in addition that the defendant’s appearance was consistent with his having committed the crimes, and in Davis the police knew that the defendant had made room service deliveries to the victim’s room, in this case the police also knew that defendant had been arrested in connection with the Abbas Video burglary on the 2300 block of North Clark. This additional information provided the basis upon which a reasonably prudent person might conclude that defendant committed the burglaries in the building where Tyson had lived.

People v. Ellis (1985), 131 Ill. App. 3d 639, 476 N.E.2d 22, relied on by defendant, does not compel a contrary conclusion. In that case, the appellate court stated that “the unproved accusation that defendant committed a different crime” did not establish probable cause and noted that, although there were no signs of forced entry, other family members had access to the house and the house could also have been entered through an open door or window. In contrast, here the “different crime” was more than a friend’s “unproved accusation.” Turney knew that defendant had been arrested in the Abbas Video burglary; the Abbas Video burglary involved an unforced entry; defendant had access to keys to the store; and a shotgun stolen from the store had been found in defendant’s possession. Unlike Ellis, the police in this case plainly had prior dealings with defendant in connection with a similar crime. (See People v. Goins (1987), 161 Ill. App. 3d 541, 546, 515 N.E.2d 195.) Accordingly, we do not find the trial court’s probable cause finding in this case to be against the manifest weight of the evidence.

We also do not find the trial court’s determination, that defendant accompanied the police voluntarily, to be against the manifest weight of the evidence. The trial court determined that defendant at no time refused to go to the police station. Turney testified at the suppression hearing that he told defendant they were at his apartment regarding a burglary investigation and asked defendant if he would accompany them to the police station. Defendant agreed to go with them to the police station for questioning, was not handcuffed or restrained in any way during this time, and was not advised of his Miranda rights at his apartment or on the way to the police station. Indeed, the only evidence that defendant did not leave voluntarily was his own testimony that he believed he had no choice but to go and his testimony, contrary to the testimony of the police officers, that he was handcuffed in the hallway outside his apartment. However, the trial court did not find defendant’s testimony credible. Based on the testimony of the police officers in this case, we are satisfied that the trial court’s finding is not against the manifest weight of the evidence.

It follows that defendant was not arrested in his apartment and there was no Payton violation in this case. Even if defendant had been arrested in his home, Payton is inapplicable, because the evidence established that defendant consented to the entry by the police officers by opening his door after the officers identified themselves and inviting the officers inside. Chief Justice Clark’s concurring opinion in People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708, relied on by defendant, is inapposite because the police officers in that case did not ask the defendant if they could come in and talk to him and there was no other evidence that the defendant consented to an entry.

II

Defendant maintains next that his palm print was taken involuntarily. Defendant contends that he was coerced into giving his palm print because he was escorted by police officers down to the lockup area to be printed; escorted back to the interrogation room; and then handcuffed to a retainer ring in the wall of the interrogation room. Defendant argues that the police would not have had to escort him through the palm printing process, or handcuff him to the retainer ring, if he had consented to having his palm print taken. Defendant also maintains that his palm print was taken as part of the Tyson murder investigation and that the police did not have probable cause to detain him for the purpose of investigating that crime.

We hold that the trial court’s finding that defendant’s palm print was given voluntarily is not against the manifest weight of the evidence. Initially, we note that escorting a defendant to and from the lockup area for printing is not a coercive police tactic. We note further that Turney testified that he asked defendant if he “would be willing to be palm printed” and that defendant stated it would be “no problem.” Although defendant testified that he was punched in the stomach and told he was going to have his palm print taken, the trial court did not find his testimony credible.

Finally, we reject defendant’s argument that his palm print was illegally obtained because his arrest on burglary charges was pretextual and the police lacked probable cause to detain him for the purpose of investigating the Tyson murder. In People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360, the Illinois Supreme Court held that it was not improper to question the defendant about a murder if there was probable cause to support his arrest on an unrelated charge, and nothing in the record suggests that the arrest was made other than in the ordinary course of an investigation. Because nothing in the record in this case suggests that defendant was detained for questioning on burglary charges as a subterfuge for investigation of the Tyson murder, under Evans the police did not need probable cause to arrest defendant for Tyson’s murder before detaining him for purposes of investigating that crime.

Ill

Defendant contends next that his statements to the police were the product of unlawful coercion because he was physically beaten; repeatedly interrogated; handcuffed periodically and locked behind bars; denied access to food and sleep; denied access to his lawyer; and did not sign a written waiver of his Miranda rights. Defendant contends further that his confession should have been suppressed because his arrest on burglary charges was pretextual and he was unlawfully detained for the purpose of the Tyson murder investigation.

A confession is given voluntarily if, under the totality of circumstances, the statement was made freely and without compulsion or inducement of any sort, and the defendant’s will was not overcome at the time he confessed. (People v. Martin (1984), 102 Ill. 2d 412, 427, 446 N.E.2d 228; People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) Consideration must be given to both the characteristics of the accused and the details of the interrogation. (People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.) A trial court’s finding that a statement was voluntary will not be disturbed on appeal unless it is against the manifest weight of the evidence. People v. Evans (1988), 125 Ill. 2d 50, 76-77, 530 N.E.2d 1360.

In this case, the record reflects that defendant was 23 years old at the time he confessed; had prior experience with the criminal justice system; did not have any mental disabilities; was advised of his Miranda rights on five separate occasions and indicated on each occasion that he understood his rights; and had the opportunity to rest or sleep when he was in the lockup between 5:30 and 8:30 a.m. Furthermore, Assistant State’s Attorney Mottweiler gave highly credible testimony regarding the substance of the confession; defendant’s failure to request an attorney; and the absence of any sign that defendant had been beaten, except for a cut over defendant’s eyebrow which Mottweiler noticed only after defendant met with his own attorney. The police officers also testified that defendant was not physically beaten or psychologically coerced and did not ask for a lawyer. The trial court heard this testimony and found that it was credible. Accordingly, based on our review of the record, we do not find the trial court’s ruling on the voluntariness of defendant’s confession to be against the manifest weight of the evidence.

Finally, as discussed above, because it was not improper for the police to investigate the Tyson murder, we reject defendant’s argument that his confession, like his palm print, was illegally obtained because his arrest on burglary charges was pretextual.

IV

Defendant maintains next that the Ardrey and Van De Carr lineup identifications should have been suppressed as the product of his unlawful detention. Defendant argues that, as in People v. Spicer (1987), 163 Ill. App. 3d 81, 516 N.E.2d 491, the Ardrey lineup conducted the day after his purportedly illegal arrest should have been suppressed as the fruit of the illegality, because there were no intervening circumstances to purge the identification of the primary taint. Defendant argues that the Van De Carr identification should have also been suppressed because he was held in custody on the strength of the illegally obtained palm print, confession, and Ardrey identification.

However, defendant’s reliance on People v. Spicer is misplaced. In that case, the court stated that evidence of a lineup identification on the day following an unlawful arrest must be suppressed as the fruit of the illegality, where there are no intervening circumstances purging the evidence of the primary taint. In this case, by contrast, there was no primary illegality because defendant voluntarily accompanied the police to the station for questioning; the police had probable cause, in any event, to arrest defendant on burglary charges; and defendant was lawfully detained for the purpose of investigating the Tyson murder. Accordingly, there is no merit to defendant’s contention that the Ardrey identification evidence should have been suppressed. Because defendant’s palm print, defendant’s confession, and the Ardrey identification were legally obtained, defendant’s argument with respect to the Van De Carr identification evidence is also without merit.

V

Defendant maintains that the jury burglary created such a probability of prejudice to his case that the verdict reached was inherently lacking in due process and violative of his right to a fair and impartial jury, because the burglary “powerfully reinforced” the theme of the State’s closing argument “that everyone expects to be able to feel safe in their own home.” Defendant relies on a jury expert’s conclusion that the burglary “seriously reduced the probabilities that the jury would render a verdict other than guilty” and argues that the jurors’ own views on whether the burglary influenced their verdict should not be dispositive because jurors rarely admit their own bias. However, we hold that the inquiry conducted by the trial court adequately safeguarded defendant’s rights to a fair trial and an impartial jury.

The decision to grant or deny a motion for a mistrial is within the sound discretion of the trial court and a ruling denying the motion is proper absent a demonstration of prejudice to the defendant. (People v. Staten (1986), 143 Ill. App. 3d 1039, 1056, 493 N.E.2d 1157; People v. Robinson (1979), 68 Ill. App. 3d 747, 386 N.E.2d 559.) Whether a mistrial is appropriate where the question of juror bias or prejudice arises should not be decided solely on the.basis of verbal assurances of the jurors, but such assurances are nevertheless an important consideration. People v. Staten (1986), 143 Ill. App. 3d 1039, 1057, 493 N.E.2d 1157.

In this case, the conclusion that the inquiry conducted by the trial court adequately safeguarded defendant’s rights to a fair trial and an impartial jury is supported by People v. Robinson (1979), 68 Ill. App. 3d 747, 386 N.E.2d 559, and People v. Novak (1981), 94 Ill. App. 3d 1024, 419 N.E.2d 393. In Robinson, the defendants were convicted of murder after one of the jurors had her purse stolen while the jury was sequestered in a motel. The trial court inquired of each juror whether the incident had affected his verdict. Each juror stated that the incident had no effect on his ability to be fair and impartial. The trial court denied the defendants’ motion for a mistrial and the appellate court affirmed, stating that the trial court’s inquiry properly safeguarded the defendants’ rights to a fair trial. Similarly, in Novak, one juror was robbed before deliberations began at the defendant’s murder trial. The trial court asked the jury if the robbery of the juror would affect their ability to be fair and impartial. After receiving no reply, the trial court denied defendant’s motion for a mistrial. The defendant was convicted and his conviction was affirmed by the appellate court.

As in Novák and Robinson, the inquiry conducted by the trial court in this case was sufficient to safeguard defendant’s rights to a fair trial and an impartial jury. Before ruling on defendant’s motion for a mistrial, the trial court questioned the four jurors who were in favor of acquittal before the jury was sequestered. The two who were victims of the burglary at the motel indicated that the incident did not affect their ability to reach a fair and impartial verdict or give defendant a fair trial. The other two jurors indicated that they would have reached the same verdict had the burglary not occurred.

Significantly, in denying defendant’s motion, the trial court did not rely solely on these assurances. Rather, the court noted that the jurors were deliberating in good faith and that the four holdouts, “basically, wanted to be convinced beyond any doubt the fact that [defendant] was guilty of the charge.” The court also noted that the strong evidence of defendant’s guilt at trial decreased the likelihood that the guilty verdict was influenced by the burglary. Finally, the trial court gave consideration to the affidavit of defendant’s jury expert, but did not find it persuasive. Accordingly, based on our review of the record, we find that the trial court’s denial of defendant’s motion for a mistrial was not an abuse of discretion.

VI

Defendant maintains that the trial court erred in precluding him from informing the jury that a January 1986 Chicago Tribune article, that Lawrence Van De Carr might have seen prior to his lineup identification, contained a photograph of defendant. Van De Carr had testified that he read the article in the Tribune about defendant’s arrest, but could not recall whether that article contained a photograph of defendant. Defendant argues that if the jury had been informed that the article contained a photograph of defendant, it might have concluded that Van De Carr’s identification stemmed from his examination of the photograph rather than his observations in November 1983.

Defense counsel should be given wide latitude on cross-examination of identification witnesses. (People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433.) Nevertheless, the scope of cross-examination is a determination which rests largely in the discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal unless there has been an abuse of discretion resulting in manifest prejudice to the accused. People v. Gorney (1985), 107 Ill. 2d 53, 59, 481 N.E.2d 673; People v. Kline (1982), 92 Ill. 2d 490, 504, 442 N.E.2d 154.

In this case, the trial court’s decision to preclude defendant from showing the jury that the Tribune article contained a photograph of defendant was not an abuse of discretion resulting in manifest prejudice to defendant. People v. Lewis (1974), 18 Ill. App. 3d 281, 309 N.E.2d 784, relied on by defendant, is inapposite. In that case, the court reversed the defendant’s conviction because the trial court excluded any questioning regarding photographs of the defendant that the witness might have seen before identifying the defendant. In this case, by contrast, Van De Carr had already testified that he read the article and did not recall whether it contained a photograph of defendant. Because Van De Carr was asked whether he remembered the photograph, the jury could have reasonably concluded that the Tribune article did in fact contain a photograph of defendant. In any event, showing the jury that the article contained a photograph would not have established that Van De Carr either saw the photograph or relied on it in making his lineup identification.

VII

Defendant maintains that the trial court erroneously excluded proffered testimony that he had done lock work in the building where Tyson had lived five or six times per month from September 1983 through January 1984, and had changed Linda Knight’s lock in that building in October 1984. Defendant claims that this evidence was critical to his contention that his palm print was left on the inner vestibule door because he had been working in the building. Defendant also claims that the State took unfair advantage of the trial court’s exclusion of this evidence by stating in its rebuttal closing argument that there was no evidence that defendant did any work in the building or otherwise had access to the building.

We hold that the trial court did not abuse its discretion in excluding the proffered testimony. A trial court may reject proffered testimony on grounds of irrelevancy if it has little probative value due to remoteness, uncertainty, or its possibly unfair prejudicial nature. (People v. Ward (1984), 101 Ill. 2d 443, 455, 463 N.E.2d 696; People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304.) The admission of evidence is within the sound discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent a clear showing of abuse of that discretion. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696.

In this case, the trial court properly limited evidence regarding defendant’s work in the building where Tyson lived to the few months preceding the Tyson murder. Evidence that defendant was in the building after November 18, 1983, plainly had no probative value on the issue of whether defendant left his palm print on the inner vestibule door on the night of November 18, 1983. Accordingly, the proffered testimony that defendant changed the lock in Linda Knight’s apartment in October 1984 was properly excluded. Because Gabriella Peri could not recall a specific date before November 18, 1983, when she saw defendant in the building, her proffered testimony was also properly excluded.

VIII

Defendant contends next that the trial court erred in denying his motion in limine with respect to alleged burglaries in the building where Tyson lived and improperly permitted the State to allude to the police investigation of burglaries which led them to defendant’s apartment and to ask defendant on cross-examination if he knew whether the police had suspected him of burglary.

However, evidence of other crimes is admissible for the purpose of explaining the circumstances or context of a defendant’s arrest. (People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59.) In People v. Goka (1983), 119 Ill. App. 3d 1024, 458 N.E.2d 26, and People v. Young (1983), 118 Ill. App. 3d 803, 455 N.E.2d 845, for example, the courts upheld the trial courts’ rulings permitting limited testimony regarding other crimes that explained the circumstances which led to the defendants’ arrests. In this case, as well, we uphold the trial court’s ruling on defendant’s motion in limine regarding other burglaries, because the court did exclude specific references to evidence of other burglaries and merely allowed a reference to the burglary investigation to clarify the circumstances leading to defendant’s arrest.

IX

Finally, defendant maintains that the State committed reversible error in its rebuttal closing argument by improperly attacking the credibility of defense counsel; misstating the burden of proof by telling the jury that it could acquit defendant only if it found that all the State’s witnesses were lying; giving improper personal views of the evidence regarding whether Tyson kept her door locked; improperly putting the credibility of the State’s Attorney’s office before the jury by arguing that the jury could not acquit defendant without “convicting” the prosecutors of lying; and, finally, mischaracterizing the elements of murder by omitting the element of intent.

Generally, prosecutors are permitted wide latitude in their closing arguments, although their comments must be based on the evidence or on reasonable inferences drawn therefrom. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746; People v. Cunningham (1984), 130 Ill. App. 3d 254, 473 N.E.2d 506.) Improper comments during closing argument do not warrant reversal unless the argument as a whole was so seriously prejudicial that it deprived the defendant of a fair trial. People v. Cunningham, 130 Ill. App. at 266, 473 N.E.2d 506.

In this case, the prosecutor’s attack on defense counsel’s credibility was not sufficiently prejudicial to warrant reversal. Defense counsel cannot invite or provoke a response and then claim that defendant was prejudiced thereby. (People v. Rockman (1986), 144 Ill. App. 3d 801, 813, 494 N.E.2d 688.) In this case, defense counsel argued that Richard Fields, a cab driver who testified at trial, “was a witness” on the night of the murder who “must have seen the offender.” In response to these statements by defense counsel, the prosecutor stated “that is an absolute lie. There is no Richard Fields that saw this murder. Never was.” Although we do not condone the prosecutor’s insinuation that defense counsel was lying, we do not find her invited response sufficiently prejudicial to warrant reversal.

A prosecutor’s comment that in order to acquit the defendant, the jurors would have to believe that every State’s witness was lying, does not automatically warrant reversal. (People v. Alexander (1984), 127 Ill. App. 3d 1007, 470 N.E.2d 1071.) In People v. Smith (1987), 158 Ill. App. 3d 595, 511 N.E.2d 770, the court held that a similar statement by the prosecutor was not reversible error, because it was, in effect, a true statement. In this cáse, the prosecutor’s statement to the jury, that in order to acquit defendant they would have to find that every State’s witness was lying was also not reversible error, because defendant’s testimony did, in fact, directly contradict the testimony of the State’s key witnesses.

We also do not find any prejudicial error in the prosecutor’s remark that she was “sure Lisa Tyson kept her door locked.” Although it is generally improper for prosecutors to state their opinions during closing argument, there is an exception for comments based on the evidence. (People v. Johnson (1986), 114 Ill. 2d 170, 198, 499 N.E.2d 1355.) In this case, the prosecutor’s comment was a reasonable inference drawn from the evidence adduced at trial and, accordingly, not an improper expression of personal opinion.

Nor are we persuaded by defendant’s contention that the prosecutor improperly put her own integrity and the integrity of the State’s Attorney’s Office before the jury. Reversible error has been found in cases where prosecutors have commented on their own belief in the credibility of witnesses, or on their belief that charges would not have been brought against the defendant unless the prosecutors believed the defendant was guilty. (See People v. Turner (1984), 127 Ill. App. 3d 784, 469 N.E.2d 368; People v. Valdery (1978), 65 Ill. App. 3d 375, 381 N.E.2d 1217.) No such comments were made in this case. Rather, the prosecutor remarked only that the assistant State’s Attorneys would not “get a raise” or “become partners in a big law firm” if they won the case and would not be a “part of a conspiracy” over “some murder case” that was “like lots of other[s].” While we do not condone such remarks, we do not find that they resulted in sufficient prejudice in this case to have denied defendant a fair trial.

Finally, we do not find reversible error in the prosecutor’s omission of the element of intent in her characterization of the crime of murder. The prosecutor stated: “[W]e have to prove the person committed the act which caused the victim’s death, and we have to prove who did it.” The prosecutor then stated: “You’re not going to get one single instruction from Judge Bailey — [,]” at which point defense counsel objected and the court stated that it would instruct the jury. The jury was, indeed, given an instruction on the elements of murder which included the element of intent. Accordingly, based on our review of the record, we conclude that the prosecutor’s characterization of the crime of murder did not result in substantial prejudice to defendant.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


text:
    FLASHNER MEDICAL PARTNERSHIP et al., Plaintiffs-Appellants, v. MARKETING MANAGEMENT, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—87—3209
    Opinion filed September 19, 1989.

      Cheryl Weissman, of Chicago, for appellants.
    William S. Wigoda, of Horvath & Wigoda, of Chicago, for appellees Marketing Management, Inc., and Ronald Upton.
    Dion J. Sartorio and Mitchell A. Orpett, both of Tribler & Marwedel, P.C., of Chicago, for appellees Butler & Messier, Inc., and Roger L. Messier.
    Barbara A. McDonald, Don W. Fowler, and Hugh C. Griffin, all of Lord, Bissell & Brook, of Chicago, for appellees William F. Buelle and Roger Reardon.
    Lisa Marco Kouba, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellee Chicago Insurance Company.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiffs Flashner Medical Partnership, the individual partners of Flashner Medical Partnership, and the Flashner Medical Corporation brought a declaratory judgment action against Chicago Insurance Company (CIC) and several insurance program developers and brokers, seeking a declaration that CIC is obligated to defend and indemnify against underlying medical malpractice actions and that CIC and the other defendants are liable for all costs incurred as a result of non-coverage for a specified period. Plaintiffs now appeal from an order of the circuit court granting each defendant’s motion to dismiss, raising as issues whether their declaratory judgment action was improperly dismissed as premature; whether the underlying tort claimants are necessary parties to this action; and whether the allegations of breach of contract, fraud, negligence, and violation of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 733—4) are sufficient to withstand a motion to dismiss. We reverse the judgment of the circuit court and remand for further proceedings not inconsistent with this opinion.

In 1982, plaintiffs purchased a one-year medical malpractice “occurrence based” insurance policy from Ambassador Insurance Company (Ambassador), a Vermont insurance company, effective December 31, 1982. That policy was procured by defendants Marketing Management, Inc. (MMI), and Butler & Messier (B & M), developers of insurance programs; defendant William Buelle, Inc. (Buelle), insurance brokers; and the respective agents of MMI, B & M, and Buelle. In mid 1983, Ambassador was placed on a “watch list” by the Vermont Insurance Commissioner, a fact allegedly known to defendants but not communicated to plaintiffs. In November 1983, Ambassador was placed into receivership and MMI, B & M, and Buelle informed plaintiffs that they had procured replacement insurance coverage with CIC. Plaintiffs maintain that defendants advised them that the CIC policy was retroactive to the effective date of the Ambassador policy and provided the same coverage as that policy.

On December 12, 1983, a telex was transmitted by Ronald Upton of MMI to Buelle, confirming coverage under the CIC policy. The telex stated:

“PER YOUR REQUEST THIS CONFIRMS RETRO COVERAGE FOR DR. BRUCE FLASHNER MEDICAL OFFICE CENTERS IS IN FORCE WITH THE CHICAGO INSURANCE CO. EFE 11-11-83. RETRO COV. GOES BACK TO THE INCEPTION DATE OF AMBASSADOR INS. CO. POLICY 12-31-82. RETRO COVERAGE PROVIDE ON BASIS THAT IF AMBASSADOR CANNOT PERFORM, CHICAGO INS. CO. WILL.”

The telex was relayed to plaintiffs, who maintain that, relying on the representations made in the telex, they made no attempts to secure alternative retroactive coverage.

On December 15, 1983, plaintiffs cancelled the CIC policy and procured prospective coverage with another company. At that time, plaintiffs had not received a copy of the CIC policy and were allegedly unaware that cancellation of the CIC policy would affect retroactive coverage under that policy.

In April or May of 1984, a medical malpractice action was brought against plaintiffs based on events which occurred during the period covered by the Ambassador policy. Plaintiffs notified Buelle and were advised to forward the court papers to MMI. Either MMI or CIC then retained an attorney to defend plaintiffs in that suit.

In November 1984, plaintiffs were contacted by an attorney retained by Ambassador to represent them in a prior pending medical malpractice action. That attorney was concerned about Ambassador’s ability to pay for the defense of the claim while in receivership. Roger L. Messier of B & M assured plaintiffs that insurance under the CIC policy was available for coverage and defense of claims. Messier stated further that B & M and MMI “would guarantee continued defense of the claims.” On February 6, 1985, plaintiffs were assured again by MMI’s counsel that they were covered by the CIC policy on an occurrence basis and on the same terms as provided under the Ambassador policy.

On September 3, 1985, plaintiffs were advised by letter that the CIC policy covered claims based on occurrences between December 31, 1982, and November 11, 1983, only if such claims were made between November 11, 1983, the effective date of the CIC policy, and December 15, 1983, the date plaintiffs cancelled the CIC policy. Plaintiffs were informed that certain malpractice claims, although based on events that occurred between December 31, 1982, and November 11, 1983, were not covered by the CIC policy because the claims were not made between November 11,1983, and December 15,1983.

On March 10, 1987, a liquidation order was issued by a Vermont court terminating all attempts to rehabilitate Ambassador. The order provided for the discontinuance of the defense of claims and suits in which Ambassador’s insureds were parties, including claims made and suits brought prior to the date of the order. The order provided further that expenses incurred between November 10, 1983, and the date of the order could be reimbursed through Ambassador’s liquidation fund, but contained no similar provision for expenses incurred after the date of the order. After issuance of the order, attorneys in seven malpractice suits demanded direct payment from plaintiffs for litigation costs. Since that time, plaintiffs have paid all necessary defense costs in those malpractice suits.

On March 23, 1987, plaintiffs filed their second amended complaint in this action. Plaintiffs charged CIC with fraud and negligent misrepresentation and alleged that CIC has either waived its policy defenses or is estopped to deny coverage. Plaintiffs charged MMI, B & M, Buelle, and their respective agents with fraud, negligence, negligent misrepresentation, breach of contract to procure insurance, and violation of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 733 — 4). All defendants moved to dismiss. CIC, B & M, and Roger L. Messier asserted as grounds for dismissal plaintiffs’ failure to join the underlying tort claimants as necessary parties. The other defendants, along with B & M and Messier, asserted that the action was premature. The trial court granted each defendant’s motion, agreeing that the action was premature because it had not been ascertained whether Ambassador would reimburse plaintiffs for costs incurred in defending against the malpractice claims. However, the trial court rejected the contention that the action should be dismissed for failure to join necessary parties.

I

Plaintiffs maintain that their claims against CIC are ripe for adjudication because Ambassador is insolvent and under court order not to provide a defense in the underlying tort actions, and there is an actual controversy as to whether CIC itself has a duty to provide a defense in those actions. We agree.

Under the Illinois declaratory judgment act (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 701), where an “actual controversy” exists, the court may make a binding declaration of the rights of interested parties. In insurance coverage declaratory actions, an “actual controversy” exists where “all determinative facts giving rise to the potential policy coverage dispute have occurred prior to the initial demand upon the insurance company” and the insurer “is called upon to either pay or defend a claim on behalf of its insured under the terms of the policy in question.” (Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill. 2d 481, 485, 263 N.E.2d 481.) The existence of an alternative remedy does not preclude the bringing of a declaratory judgment action. Blaw-Knox Co. v. Eichleay Corp. (1968), 100 Ill. App. 2d 141, 241 N.E.2d 614; LaSalle Casualty Co. v. Lobono (1968), 93 Ill. App. 2d 114, 236 N.E.2d 405.

In this case, there is no dispute that a contract for insurance coverage exists between plaintiffs and CIC; that underlying malpractice suits against plaintiffs have given rise to a policy coverage dispute; and that plaintiffs have called upon CIC to provide a defense against those claims. The only question we need address is whether the present declaratory judgment action is premature because of the possibility that plaintiffs might be indemnified for the costs of defending the underlying suits through Ambassador’s liquidation fund.

The question of the effect of a primary insurer’s insolvency on an insured’s declaratory judgment action against a replacement insurance carrier appears to be one of first impression in Illinois. However, in Werner Industries, Inc. v. First State Insurance Co. (1987), 217 N.J. Super, 436, 526 A.2d 236, rev’d on other grounds (1988), 112 N.J. 30, 548 A.2d 188, a case involving the same insolvent primary insurer as in this case, the court held that a declaratory judgment action against an excess insurance carrier is not premature because of the primary insurer’s insolvency and the possibility of reimbursement through an insolvency fund, where an underlying tort claim seeks damages in excess of the claimant’s policy limits. In that case, the plaintiff brought a declaratory judgment action against an excess insurance carrier, claiming that the excess insurance carrier was obligated under the terms of the insurance policy to provide coverage in place of the insolvent primary insurer. The court recognized “that all present and future claims against plaintiff may ultimately be paid by [an insolvency] fund.” (Werner Industries, Inc. v. First State Insurance Co., 217 N.J. Super, at 441-42, 526 A.2d at 239.) Still, the court rejected the defendant’s claim that the action was premature, noting that at least one tort action was pending against the plaintiff in which damages were sought in excess of the limits on the primary insurance policy and that “the strong possibility of future litigation plainly demonstrate^] that a concrete, contested issue [was] present[].” Werner Industries, Inc. v. First State Insurance Co., 217 N.J. Super, at 441-42, 526 A.2d at 239.

We find Werner persuasive and note further that, for purposes of deciding whether an “actual controversy” exists, there is no meaningful distinction between the excess insurance coverage disputed in Werner and the replacement insurance coverage in the case sub judice. First, the possibility of indemnification through an insolvency fund is no less remote here than in Werner, because both cases concern the effect of the insolvency of the same primary insurer under court order not to defend or indemnify against further claims. Second, just as a replacement insurer’s liability is contingent on the primary insurer’s failure to perform, an excess insurer’s liability is contingent on a claim exceeding the limits of the primary insurance policy. In any event, plaintiffs allege that Ambassador has already failed to perform by not undertaking to defend against the malpractice claims. It would be contrary to the general rule that indemnification does not relieve an insurer of its duty to defend (see Maneikis v. St. Paul Insurance Co. (7th Cir. 1981), 655 F.2d 818, 822-23), if the possibility of indemnification by Ambassador for defense costs were to render this action premature.

II

Plaintiffs also maintain that their claims against MMI, B & M, Buelle, and their respective agents are properly brought under the Illinois declaratory judgment act (Ill. Rev. Stat. 1985, ch. 110, par. 2— 701), either because they seek a determination of the construction of a “procurement contract” or because their claims fall under the catch-all provision for “other cases of actual controversy.” Plaintiffs assert that an “actual controversy” exists with respect to these defendants, although damages would be available only if both CIC and Ambassador fail to compensate plaintiffs for their losses, because damages generally are not a prerequisite to ripeness in a declaratory judgment action and the potential recovery from an insolvent primary insurer does not bar a declaratory judgment action seeking recovery from other sources. We agree.

First, we believe plaintiffs have alleged sufficient facts showing the existence of a contract to bring their claims within the enumerated controversies in the Illinois declaratory judgment act. There is ample support in the record for plaintiffs’ contention that they negotiated for the procurement of malpractice insurance coverage and, upon learning of Ambassador’s insolvency, relied to their detriment on assurances that replacement coverage had been obtained. We believe that the terms and conditions of such a contract to procure insurance are proper subjects of a declaratory judgment action.

Second, we believe that an “actual controversy” exists between plaintiffs and the insurance program developers, brokers, and agents, even though these defendants would be liable only in the event that no recovery is had from either CIC or Ambassador. An “actual controversy” is not one where a wrong has been committed and injury inflicted. Rather, “it requires a showing that the underlying facts and issues of the case are not moot or premature, so as to require the court to pass judgment on mere abstract propositions of law, render advisory opinion, or give legal advice as to future events.” (Underground Contractors Association v. Chicago (1977), 66 Ill. 2d 371, 375, 362 N.E.2d 298.) The case need only “present a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” (Underground Contractors Association v. Chicago (1977), 66 Ill. 2d 371, 375, 362 N.E.2d 298.) For example, a declaratory judgment action brought by an insured against either a primary or an excess insurance carrier is not premature merely because liability is contingent upon the tort claimant’s success in the underlying suit. See Blaw-Knox Co. v. Eichleay Corp. (1968), 100 Ill. App. 2d 141, 241 N.E.2d 614; Werner Industries, Inc. v. First State Insurance Co. (1987), 217 N.J. Super. 436, 526 A.2d 236.

In this case, the terms and conditions of an alleged contract to procure insurance are disputed. An “actual controversy” exists because the contingent nature of plaintiffs’ recovery, like the contingent nature of an insured’s recovery in an action against its insurer, does not bar a declaration of the rights and obligations of the parties to the contract. In any event, plaintiffs have arguably been damaged already by CIC’s alleged breach of its duty to defend. Moreover, plaintiffs are presently litigating the coverage question, and a determination of the rights and obligations of the parties to the procurement contract in the same action will certainly aid in the resolution of the entire controversy and avoid future litigation.

Ill

Plaintiffs maintain that the tort claimants in the underlying suits are not necessary parties to this action. Plaintiffs assert that the interests of the tort claimants in this litigation are “de minimus” because they have “a reasonable expectation of non-coverage by CIC” and, in any event, the interests of the tort plaintiffs are adequately represented by the parties before the court. We disagree and hold that the tort claimants are necessary parties who must be named in the suit.

A necessary party is one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence; (2) to reach a decision which will protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy. Consolidated Cable Utilities, Inc. v. City of Aurora (1982), 108 Ill. App. 3d 1035, 1039, 439 N.E.2d 1272; Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946, 949.

Where questions of liability insurance coverage are litigated, claimants against the insured are ordinarily necessary parties to the action. (Williams v. Madison County Mutual Automobile Insurance Co. (1968), 40 Ill. 2d 404, 407, 240 N.E.2d 602; American Home Assurance v. Northwest Industries, Inc. (1977), 50 Ill. App. 3d 807, 812, 365 N.E.2d 956.) However, the interest of the claimant “must be a present substantial interest as distinguished from a mere expectancy or future contingent interest.” (Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 422, 52 N.E.2d 1000; American Home Assurance v. Northwest Industries, Inc. (1977), 50 Ill. App. 3d 807, 812, 365 N.E.2d 956.) For example, it has been held that where a claimant has entered into a settlement agreement with the insured, its interest is no longer substantial and it is not a necessary party to a declaratory judgment action brought by the insurer to determine coverage. See American Home Assurance v. Northwest Industries, Inc. (1977), 50 Ill. App. 3d 807, 812, 365 N.E.2d 956.

The tort claimants in this case plainly have interests in the outcome of the litigation because a declaration of noncoverage would eliminate a source of funds. Nothing in the record, such as settlement agreements between plaintiffs and the tort claimants, suggests that these interests are less than substantial. Plaintiffs’ contention, that the tort claimants’ interests are “de minimus” because they have “a reasonable expectation of non-coverage,” is misguided and seemingly contrary to plaintiffs’ own position in this litigation.

We also reject plaintiffs’ contention that the tort claimants are not necessary parties because their interests are adequately represented in this action. Generally, the “doctrine of representation” applies where parties before the court have the same interests and would be equally certain to bring them forward and protect them as the interests of the party not before the court. (Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.) Plaintiffs cite no Illinois cases, nor have we found any, applying this doctrine to tort claimants in a declaratory judgment action to determine liability insurance coverage. In any event, we do not believe the doctrine provides an exception in this case to the “absolute and inflexible” requirement of joinder of necessary parties. (See Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 270, 398 N.E.2d 284.) Although the tort claimants and plaintiffs have similar interest in a determination of coverage under the GIG policy, the success of plaintiffs’ claims against the other defendants might depend upon a determination of noncoverage. Plaintiffs, therefore, might choose to pursue a litigation strategy that could adversely affect the absent tort claimants.

IV

Finally, plaintiffs maintain that their complaint states causes of action against certain defendants for breach of contract, fraud, negligence, and violation of the Illinois Insurance Code properly brought as separate counts in this declaratory judgment action. Those defendants contend that the allegations do not sufficiently allege damages to state causes of action and are nevertheless actions at law not properly before the court in a declaratory judgment action.

We agree that the subject claims are actions at law and not proper subjects for a declaratory judgment. We note, however, that under the Illinois declaratory judgment act (Ill. Rev. Stat. 1987, ch. 110, par. 2—701), “further relief” as is necessary or proper, including a judgment for money damages, is available to plaintiffs upon petition to the trial court after a declaration of the rights and obligations of the parties has been made. (See Midway Tobacco Co. v. Mahin (1976), 42 Ill. App. 3d 797, 356 N.E.2d 909.) Accordingly, we do not decide whether the subject allegations would be sufficient to withstand a motion to dismiss in an action at law. Instead, we direct the circuit court on remand to strike counts III through VI of plaintiffs’ complaint, but allow plaintiffs to petition for such further relief as becomes necessary or proper after the rights and obligations of the parties have been determined. We further direct the circuit court to allow plaintiffs to join all necessary parties in this declaratory judgment action.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

BILANDIC, P.J., and HARTMAN, J., concur.