author: JUSTICE PINCHAM PRESIDING JUSTICE MURRAY and JUSTICE COCCIA,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FEMI OKUNDAYE, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—3415
    Opinion filed September 29, 1989.
    MURRAY, P.J., and COCCIA, J., specially concurring.
    Itandolph N. Stone, Public Defender, of Chicago (Frances Sowa, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Craig J. Jensen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PINCHAM

delivered the opinion of the court:

A jury found defendant, Femi Okundaye, guilty of attempted murder and guilty of possession of controlled substances, heroin and cocaine, with intent to deliver. The trial court sentenced defendant to concurrent eight years’ imprisonment terms. On this appeal the defendant claims for reversal that (1) the trial court erred in instructing the jury that it could find defendant guilty of attempted murder upon a finding that defendant intended to do great bodily harm; (2) the evidence failed to establish his guilt beyond a reasonable doubt of attempted murder; (3) his conviction and sentence for possession of controlled substances with intent to deliver should be reduced to mere possession of controlled substances; and (4)(a) the prosecutor’s opening statement to the jury, (b) the voluminous irrelevant, prejudicial, inadmissible evidence, and (c) the prosecutor’s capacious argument to the jury on the facts and circumstances surrounding the issuance of the search warrant denied the defendant a fair and impartial trial. We reverse and remand for a new trial for the following reasons.

The State’s trial evidence established that Chicago police officer Richard Rowan, the alleged attempted murder victim, and 10 additional Chicago police officers went to 1110 West 50th Street, Chicago, Illinois, to execute a search warrant for narcotic drugs. The officers knocked on the apartment door and announced their office. Officer Rowan testified that he heard a commotion inside the premises which sounded to him like someone running. Rowan smashed into the apartment door with a battering ram and gained entry into the apartment.

Upon entering the apartment, Officer Rowan related that he saw the defendant run up the stairs to the second floor. Officer Rowan stated that he yelled, “police officer,” drew his weapon and ran up the stairs in pursuit of the defendant. Upon arriving at the top of the stairs, Officer Rowan stated that he saw the defendant, at the end of a hallway, cross over from one bedroom into another. Rowan ran down the hallway to the bedroom door that the defendant had entered. The bedroom door was partially open. Rowan related that the defendant was in a crouched stance behind the door with a gun in his hand pointed at Officer Rowan’s head, and that the defendant struck him in his face with the gun. Officer Rowan further stated that he attempted to knock the defendant’s gun away but that defendant continued to point the gun at his head and simultaneously grabbed Officer Rowan’s gun with his left hand. It was at this time, Officer Rowan testified, that he shot the defendant in his abdomen. Officer Rowan testified on cross-examination, however:

“Q. You also had occasion to make a report of this, did you not?
A. Yes.
Q. I ask you to take a look at that. Do you recognize what Defense Exhibit No. 9 for identification is, Officer?
A. Yes, this would be the second page of a case report, on a vice case report.
Q. Who is the author of it?
A. If you mean who typed it, I am not sure, probably Officer Ramirez.
Q. Is the name of Richard Rowan on that report?
A. Yes, it is.
Q. Did you tell Officer Ramirez what was in — what to put in this report?
A. Yes.
Q. Anywhere in this report, officer, is it that you were hit in the face with the defendant’s gun?
A. No.
Q. Is it anywhere in this report, in your report, did you say that the defendant was crouched?
A. No.
Q. Is it anywhere in this report that you state that the defendant grabbed your gun?
A. Not in the narcotics report, no.
Q. Is it in any report that you made did you make mention of the fact on any reports that you made, did you make a report of the fact that the defendant grabbed your gun?
[Assistant State’s Attorney]: Object, Your Honor, to the form of the question.
THE COURT: He can answer the question, did you write any reports wherein you indicated that the defendant had grabbed your gun, is that correct Mr. [defense attorney]?
[Defense Attorney]: Yes, Judge.
A. That is the only report I prepared, all the other reports were prepared by the detectives.
[Defense Attorney]: Q. So, is it true, officer that the answer is no, I did not make a report that contained those answers?
A. I made no other reports, no.”

A brief struggle ensued between Officer Rowan and the defendant until the other officers, who were immediately following behind Officer Rowan by five or six feet, arrived and assisted Rowan in subduing the defendant. Officer Rowan yanked the gun out of the defendant’s hand.

The officers searched and seized from the defendant’s person a plastic bag containing 7.71 grams of heroin and another plastic bag containing .45 grams of cocaine. In the bedroom across the hallway from the bedroom in which Officer Rowan shot the defendant, the officers found an Illinois Bell Telephone bill in the name and address of Femi Okundaye, apartment 11, 1110 West 50th Street, a triple-beam scale used to measure cocaine and heroin, a glass pipe used to smoke cocaine, a hypodermic needle used for the intravenous injection of heroin, and two plastic bags of 49.85 grams and .55 grams of cocaine, respectively.

Officer Michael Duffin examined the gun that Officer Rowan said the defendant pointed at his head. Duffin stated that the cylinder of the gun had three live rounds in three of the five chambers; that the chambers directly in front of and directly to the left of the firing pin were empty and the gun could be fired only by pulling the trigger three times for firing.

Mary Cook, a defense witness, testified that she was in the apartment and that the defendant was in the bathroom on the second floor when the police entered.

The defendant also testified that he was in the second-floor bathroom when the officers entered the apartment and ran up the stairs to him. The defendant related that one of the officers rushed up to him, pointed a gun at his stomach and asked him for the “money and dope.” Defendant asked the officer if he had a search warrant. With his teeth clenched, the officer angrily responded, “This is my search warrant,” referring to the gun the officer had pointed at defendant’s abdomen. The officer shoved the gun into defendant’s abdomen. The officer further pressed his gun against the defendant’s abdomen and it went off. The defendant fell wounded to the floor, and as he was lying there, the officer tried to put a gun in his hand and told him, “If you don’t hold it — do you want to be shot again?” The defendant denied that he ever had a gun in his possession.

On rebuttal, Assistant State’s Attorney Stuart Palmer testified that he questioned defendant at the hospital after the defendant’s surgery there for his gunshot wound, that the defendant initially denied that he owned the gun, but later admitted the gun belonged to him. Palmer admitted that the defendant’s post-surgery statement was never reduced to writing, that he did not tell the defendant that he could end his questioning when he desired and that his interrogation of the defendant terminated when the defendant’s attorney arrived at the hospital.

We initially sua sponte note that count I of the indictment, the purported attempted murder count, alleges in pertinent part, that:

“[0]n or about May 7, 1985, at and "within the County of Cook Femi Okundaye committed the offense of attempt in that he without lawful justification with intent to commit the offense of murder, intentionally and knowingly attempted to kill Richard Rowan by pointing a loaded handgun into his face, in violation of Chapter 38, Section 8 — 4/(38—9—1) of the Illinois Revised Statutes 1983 ***.”

Said chapter 38, section 8 — 4(a), of the Illinois Revised Statutes (1983) alleged in count I to have been violated by the defendant defines “attempt” as follows:

“A person commits an attempt wnen, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4(a).

Count I of the instant indictment failed to allege that the defendant committed “any act which constitutes a substantial step toward the commission of that [attempt murder] offense.” Our research does not reveal a single case of appellate review of a conviction for attempted murder in which the indictment or information failed to allege (1) “that the defendant committed ‘[an] act which constitute^] a substantial step toward the commission of that offense’; and (2) the specific act which constituted the substantial step toward the commission of the attempted murder offense.” Our research reveals that in every case of appellate review of an attempted murder conviction, the indictment or information alleged that the defendant committed an act which constituted a substantial step toward the commission of the attempted murder, and also alleged the specific act committed by the defendant which constituted the substantial step toward the commission of the attempted murder. (People v. Roberts (1978), 56 Ill. App. 3d 667, 372 N.E.2d 143, rev’d on other grounds (1979), 75 Ill. 2d 1, 387 N.E.2d 331; People v. Harris (1978), 72 Ill. 2d 16, 19-20, 377 N.E.2d 28; People v. Muir (1977), 67 Ill. 2d 86, 90, 365 N.E.2d 332; People v. Trinkle (1977), 68 Ill. 2d 198, 199-200, 369 N.E.2d 888; People v. Viser (1975), 62 Ill. 2d 568, 581, 343 N.E.2d 903.) The supreme court in People v. Jones (1979), 81 Ill. 2d 1, 8-9, 405 N.E.2d 343, specifically held:

“The offense of attempted murder requires the mental state of specific intent to commit murder, to kill someone. Section 8— 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4(a)) clearly sets this out: ‘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.’ Knowledge (emphasis in original) that the consequences of an accused’s act many result in death (or grave bodily injury), or intent to do bodily harm, is not enough; specific intent to Mil is required (People v. Trinkle (1977), 68 Ill. 2d 198, 201-04). Both the indictment and the instruction must unambiguously reflect this.” (Emphasis added.)

The instant indictment alleged that the defendant “attempted to kill Richard Rowan by pointing a loaded handgun into his face.” But the indictment does not allege that such act was an act or was the act which constituted a substantial step towards the defendant’s commission of the alleged attempted murder. Nor does the indictment allege, as beforestated, that any act, or what act was committed which constituted a substantial step towards the defendant’s commission of the offense. The mere pointing of a loaded gun into Rowan’s face does not establish per se an intent to kill Rowan, and likewise, the mere pointing of a loaded gun in Rowan’s face does not necessarily per se constitute a substantial step towards the commission of attempted murder, particularly in the total absence of an allegation that such act did so.

Because the validity of count I has not been briefed and argued by the parties before us, and also because we reverse the defendant’s attempted murder and possession of controlled substances with intent to deliver convictions on other grounds, and remand for a new trial, we decline to resolve the question of the validity of count I.

The defendant argues that the trial court erroneously instructed the jury that it could find the defendant guilty of attempted murder even if the jury only found that the defendant only intended to do great bodily harm to Rowan.

The indictment charged the defendant with the offense of attempted murder of Richard Rowan, as previously set forth. “Murder” is defined in section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a)(1), (a)(2)) as follows:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual ***.”

“Attempt” is defined in section 8 — 4 (Ill. Rev. Stat. 1983, ch. 38, par. 8 — 4(a)), as previously set forth.

A defendant’s specific intent to kill is an essential element of the offense of attempted murder, and it must be proven beyond a reasonable doubt. People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.

In the case at bar, the trial court gave the jury three instructions which governed and controlled its deliberations on the attempted murder charge. Even though no act which constituted a substantial step towards the commission of the attempted murder was alleged, the trial court nevertheless instructed the jury on attempt, as follows:

“A person commits the offense of attempt when he, with the intent to commit the offense of murder, does any act which constitutes a substantial step toward the commission of the offense of murder. The offense attempted need not have been committed.” (Emphasis added.)

The trial court instructed the jury on murder, as follows:

“A person commits the. offense of murder when he kills an individual without legal justification if in performing the acts which caused the death he intended to kill or do great bodily harm to that individual.” (Emphasis added.)

The trial court instructed the jury on the attempted murder issues, as follows, although, as stated, no act constituting a substantial step toward the commission of the attempted murder offense was alleged.

“To sustain the charge of attempt the State must prove the following propositions: First, the defendant performed an act which constituted a substantial step toward the commission of the offense of murder, and second, that the defendant did so with the intent to commit the offense of murder.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.)

Thus, the defendant contends, the jury was instructed that it could find the defendant guilty of attempted murder on a finding that the defendant intended to kill Richard Rowan, but that the jury was also additionally, but erroneously, instructed that it could likewise find the defendant guilty of attempted murder on the jury’s alternative finding that the defendant solely intended to do only great bodily harm to Richard Rowan, and even though the jury might also find that the defendant did not intend to kill him.

The evidence was far from overwhelming that the defendant intended to kill Officer Rowan. Indeed, such evidence was quite vulnerable, vincible and assailable, as we later herein more specifically observe. Defendant had an absolute right to have the jury determine by accurate governing instructions whether he acted with or was guilty of the specific intent to kill Officer Rowan.

It has been long and well settled that an instruction to a jury that it may find a defendant guilty of attempted murder upon its finding that the defendant intended to do great bodily harm is erroneous reversible error. People v. Harris (1978), 72 Ill. 2d 16, 24, 26-27, 377 N.E.2d 28; People v. Trinkle (1977), 68 Ill. 2d 198, 201, 204, 369 N.E.2d 888; People v. Gentry (1987), 157 Ill. App. 3d 899, 903-04, 905-06, 510 N.E.2d 963; People v. Cantu (1987), 157 Ill. App. 3d 934, 937-38, 510 N.E.2d 1183; People v. McDaniel (1984), 125 Ill. App. 3d 694, 701, 466 N.E.2d 662.

The State argues that because defendant did not object to the instructions or rely on their invalidity on his motion for a new trial, the defendant waived the issue on appeal. Conversely, the defendant argues that because of the grave error of the erroneous instruction, because the jury was not correctly instructed on this evidentiary factually close case and/or on the defendant’s intent to kill, fundamental fairness required that the jury be properly instructed and that the waiver rule should therefore not apply. Moreover, the defendant urges that inasmuch as the erroneous instruction and the failure to correctly instruct the jury on the fragile evidence of the defendant’s guilt, the error affects the defendant’s substantial rights and should be considered by this court as plain error under Illinois Supreme Court Rule 615(a). We agree. People v. Ogunsola (1981), 87 Ill. 2d 216, 222, 429 N.E.2d 861; People v. Harris (1978), 72 Ill. 2d 16, 28, 377 N.E.2d 28; People v. Gentry (1987), 157 Ill. App. 3d 899, 510 N.E.2d 963; People v. McDaniel (1984), 125 Ill. App. 3d 694, 466 N.E.2d 662.

In People v. Tannenbaum (1980), 82 Ill. 2d 177, 182, 415 N.E.2d 1027, the supreme court held that an exception to the waiver rule is contained in Rule 451(c), which permits the review of substantial defects in instructions if the interests of justice require, to correct grave errors or the case is close factually, and fundamental fairness requires that the jury be properly instructed. We hereafter note that the instant case is close factually, and as the supreme court held in People v. Joyner (1972), 50 Ill. 2d 302, 307, 278 N.E.2d 756:

“[T]he defendants’ failure to tender the appropriate *** instruction was not as important with reference to the fundamental fairness of their trial as the requirement that the jury be fully and properly instructed. The failure to [properly] instruct on this important aspect of the case necessitates a remand for a new trial.”

The State’s reliance on People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, is grossly misplaced. In Roberts, the defendant and his witness both admitted that the witness fired a shot from a powerful, .357 magnum Colt revolver in the door of a passing truck. The shot was fired directly in line with the truck driver’s body, from the rear seat of the automobile driven by the defendant because she was disturbed when the passing truck awakened her from her nap. Roberts did not object to the “great bodily harm” instruction on his trial for attempted murder. Nor did he raise the issue instruction on his motion for a new trial. The supreme court held that the great bodily harm attempted murder instruction “was erroneous *** in that it told the jury that a person may commit the crime of murder when he has not only the intent to kill, but also when he has certain mental states other than an intent to kill,” but that the exception provision of Supreme Court Rule 415(c) was inapplicable because, unlike in the case at bar, “the evidence in this case [Robert’s] is not ‘closely balanced.’ ” 75 Ill. 2d at 14-15.

We conclude that because in the case at bar (1) there were substantial defects in the instructions; (2) the jury was not properly instructed; (3) the jury was instructed that it could find the defendant guilty of attempted murder simply upon a finding that the defendant only intended to inflict great bodily harm and did not intend to kill the alleged victim; (4) the interests of justice and fundamental fairness require; (5) to correct grave errors; (6) the case is factually close; and (7) the jury should have been correctly instructed, the defendant’s conviction and sentence for attempted murder must be reversed and the cause remanded for a new trial.

Defendant next argues that the evidence failed to establish his guilt beyond a reasonable doubt that he attempted to murder Officer Richard Rowan. He adamantly urges that it was he who was shot by Officer Rowan, when, in response to his question to Rowan if he had a search warrant, Rowan angrily responded, “Here’s my search warrant,” pressed his gun in the defendant’s stomach and Rowan’s gun went off. Defendant insists that Officer Rowan and the other officers’ testimonial version of Rowan’s shooting the defendant is a patently obvious concocted and fabricated subterfuge to cover up Rowan’s accidental shooting of him.

Undeniably supportive of these contentions, the defendant demands, is the defendant’s totally uncontradicted testimony that he was shot only once, and not in a vital area, but rather in his lower abdomen. Neither, the defendant insists, would ever have occurred, and indeed are even unimaginable by the most bizarre fantasy, if the shooting had occurred as related by the officers.

Defendant argues that upon the apartment being suddenly and forceably entered by a dozen police officers, for him to flee up a flight of stairs, followed by the officers with their drawn guns, enter a bedroom, take a crouch stance with a gun in his hand and point it at the head of Officer Rowan, who also had his gun drawn, would not only have been completely idiotic, it would also have been even more completely suicidal. The defendant posits that under the circumstances related by the officers, for Officer Rowan not to have riddled the vital organs of the defendant’s body with gunshots demonstrates a truly unbelievable concern, and indeed an uncomprehensible and a totally unrealistic gracious consideration by Officer Rowan for the defendant’s well-being and survival. For Officer Rowan to grab the defendant’s gun, as he testified he did, and not shoot the defendant, as he assuredly would have done, the defendant urges, escalates the officers’ version of Rowan’s shooting of the defendant to a fanciful, ridiculous absurdity. Add to that, the defendant argues, the officers’ compulsorily admitted testimony that the gun that they attributed to the defendant, which gun the defendant denied having had, did not even have a bullet in the chambers either under or next to the firing pin and would have required three pulls of the trigger to fire and that the defendant did not pull or attempt to pull the trigger, or for that matter, there was no evidence that the defendant even had his finger on the trigger, elevates the officers’ version of the shooting to stark nonsense. The defendant insists that such a conclusion is inescapable even in the absence of Officer Rowan’s pertinent testimony that he, significantly, never mentioned in his police report of the shooting that the defendant hit him in his face with the gun, or that the defendant was in a crouched position, or that the defendant grabbed his gun. The defendant finalizes that the officers’ testimonial rendition of the incident is too preposterous to be proof beyond a reasonable doubt and that it should not be judicially condoned as a defense to Officer Rowan’s unwarranted accidental shooting of him.

The defendant additionally argues that even if the officers’ version is fallaciously accepted, their version nevertheless fails to establish beyond a reasonable doubt that the defendant attempted to murder Officer Rowan. He urges that the State’s evidence that he pointed a gun at Officer Rowan’s head, without any evidence that he had his finger on the trigger or that he attempted to pull the trigger or fire the gun and because the State’s evidence established that the defendant could have fired or attempted to fire the gun if he had chosen to do so, and the undisputed State’s evidence that the chambers of the gun were empty under and next to the firing pin and required three pulls of the trigger to fire, not only fail to prove beyond a reasonable doubt the defendant’s intent to attempt to kill Officer Rowan, but more importantly,' the foregoing State’s evidence affirmatively established beyond a reasonable doubt that he did not intend to attempt to kill him. The defendant concludes that the mere pointing of the gun at Officer Rowan’s head under these aforementioned circumstances certainly did not constitute a substantial step toward an attempt to murder the officer.

To sustain a conviction for attempted murder, the evidence must prove beyond a reasonable doubt that the defendant had and acted with the specific intent to kill the victim and that he took a substantial step towards the commission of the attempted murder. (People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) The defendant’s specific intent to kill may be shown by the surrounding circumstances, the character of the assault and the method in which the deadly weapon is used. (People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446.) It is the function of the jury to determine the existence of the defendant’s requisite intent, and that determination is not to be disturbed on review unless a reasonable doubt of the defendant’s guilt clearly appears. Although the defendant’s foregoing arguments and contentions are forceful, they are not sufficiently potent to warrant our disturbing the jury’s guilty finding. Accordingly, we decline to reverse it.

We, likewise, and for the same reason, refuse to disturb the jury’s verdict finding the defendant guilty of possession of controlled substances, cocaine and heroin, with intent to deliver. Although the defendant had no prior criminal record, not even an arrest, and denied that he lived in the premises in which he was arrested and in which the drugs were discovered and seized, and denied possession of the drugs, his possession of the drugs was a question of fact for the jury’s determination. The competent and legally admissible evidence, if believed by the jury beyond a reasonable doubt, was adequate to establish proof of the defendant’s possession of the drugs and to sustain the jury’s guilty finding. We reject the defendant’s contrary argument and contention.

The defendant contends that the jury was precluded from making a proper assessment of whether the legally competent evidence established his guilt beyond a reasonable doubt of possession of the drugs because of the improper influences of the other highly inflammable, prejudicial inadmissible evidence and the prosecutor’s highly improper argument on the jury in its guilt decision-making process. The defendant persuasively argues that he was denied a fair trial by (1) the prosecutor's opening statement on; (2) the voluminous irrelevant, .prejudicial inadmissible evidence of; and (3) the prosecutor’s capacious argument on the facts and circumstances of and surrounding the issuance of the search warrant. This argument is indeed meritorious, for which reason reversal of the defendant’s conviction of possession of the controlled substances and a new trial are required.

The defendant was charged with and was on trial for his alleged March 8, 1983, unlawful possession of the heroin and cocaine discovered on that date in and seized from a second-floor bedroom of a townhouse apartment at 1150 West 50th Street, Chicago, Illinois, in execution of a search warrant. The probable cause in the complaint for the search warrant was for, and the search warrant commanded the search of, “Femi [with his description]” and 1150 West 50th Street, not 1110 West 50th Street, the address of the premises at which the officers executed the search warrant and in which Femi Okundaye, the defendant, was arrested and the drugs were discovered and seized.

Although on October 25, 1985, the defendant’s attorney filed a written motion to quash the search warrant and to suppress the seized drugs as evidence, the motion did not as a ground therefor assert or rely on the warrant’s inaccurate or inadequate description, or failure to particularly describe the premises commanded to be searched. The clerk’s half-sheet or memorandum of orders contains an entry of March 20, 1986, “hrg commenced on motion to quash warrant and suppress evidence motions denied.” Nevertheless, the complete transcript of the entire trial proceedings of the record on appeal before us does not contain any transcript of any testimony of or reflect that any evidentiary hearing was held on the motion to quash the search warrant and suppress the evidence, or that the trial court ever ruled thereon. It appears from the record that the defendant’s attorney did not pursue the motion to quash and suppress after filing it.

For the foregoing reasons, and others, the legality of the search warrant, the search of the premises, the arrest of the defendant and the discovery and seizure of the drugs were not cognizable issues for the jury’s determination. Thus, the highly prejudicial and irrelevant evidence of the facts and circumstances surrounding the acquisition or probable cause and the issuance of the search warrant was clearly inadmissible. Yet, the prosecutor indecorously commenced the trial of the case at bar with the following improper opening statement of irrelevant, prejudicial and inadmissible evidence of the facts and circumstances spanning the issuance of the search warrant:

“Ladies and gentlemen, you will hear the testimony that on May the 7th, 1985, approximately two hours before this incident, approximately 1:15 in the afternoon, police officer Richard Rowan walked right through those courtroom doors, walked right into this courtroom and appeared before the Honorable Roger J. Kiley, Jr., that was the judge who was sitting in this courtroom on May the 7th, 1985.
Officer Rowan presented to Judge Kiley information that he had secured earlier that day, information from a confidential informer the fact that the defendant was serving heroin from his townhouse located at 1110 West 50th Street.
Officer Rowan gave this information to Judge Kiley. Judge Kiley listened and looked at this information. Judge Kiley found that there was probable cause to issue a search warrant. Judge Kiley issued a search warrant to search the defendant Femi Okundaye and his townhouse and Judge Kiley commanded that all heroin and narcotic paraphernalia found either on the defendant or at that townhouse be confiscated.
Ladies and gentlemen, the evidence will show that after police officer Rowan received that search warrant from Judge Kiley he left this courtroom, he left 2650 South California and he went directly to the Organized Crime Division Narcotics Office of the Chicago Police Department located at 22nd and 24th.
Ladies and gentlemen, with this search warrant he went back to his office to organize, attempt to execute that search.” (Emphasis added.)

Although defense counsel did not object to the prosecutor’s opening statement, its prejudicial impact is quite apparent, which the prosecutor aggravated by eliciting the following irrelevant improper testimony from State witness Chicago police officer James Molloy, on the officers’ and the judge’s procedure in obtaining and issuing a search warrant:

“Q. What are the functions of the Organized Crime Division?
A. The Organized Crime Division is broken up in three sections, Intelligence, Vice and Narcotics. The Narcotics Section of which I am part is specialized in narcotics investigations, making control buys, executing search warrants and focusing on dealers and we also do investigation to transcend . district boundaries and assist department district officers when it is needed.
Q. What is a search warrant?
A. A search warrant is a judicial order that allows the person who has applied for the warrant and had it signed to search a person and premise named in the search.
* * *
Q. How are search warrants obtained, sergeant?
A. There are several ways through surveillance, through going in after a controlled purchase is made or by acting on reliable information.
Q. Once information is obtained what would an officer do to obtain a search warrant?
A. To start with an officer would try to verify as much of the information as he could by on-site investigation. After doing so he would sit down at a typewriter and type out a complaint for search warrant and also the search warrant document itself. After the officer types up this complaint he then submits it to his unit watch commander for their approval. Once that is done the complaint and the warrant is taken to the Narcotics Section of the Cook County State’s Attorney’s Office and an assistant state’s attorney will peruse the document, check it for reasonableness. He will then approve it, affix a search warrant number to it.
Q. Once the state’s attorney approves a search warrant where is it taken afterwards?
A. The officer then takes it to a judge. The judge will read the warrant, he will swear the officer, he will ask the officer certain questions about the warrant if he has any. He will then ask the officer if it is in fact a true and accurate description of the things set forth in the warrant.
Usually in the warrant the officer is establishing the fact that there has been a crime committed or has been committed and fruits of the crimes can be found at a place. And then the judge will ask the officer to sign the warrant and then the judge will sign the warrant.” (Emphasis added.)

After State’s witness Molloy testimonially led the jury through the irrelevant, prejudicial process surrounding the issuance of a search warrant, the prosecutor had State’s witness Officer Rowan repeat the process in more minute detail. Rowan’s testimony was as follows:

“Q. Officer, directing your attention to the early morning hours of May 7, 1985, did you have an occasion to have a conversation with someone?
[Defense Attorney]: Object, judge.
THE COURT: Basis?
[Defense Attorney]: The early morning hours of May 7th, judge, is [sic] not relevant. Relevancy.
THE COURT: I will allow it, go ahead.
[Prosecutor]: Thank you, your Honor.
Q. You may answer the question, officer[.]
A. Yes, I did.
Q. And officer were you with your partner at the time you had that conversation?
A. Yes, I was.
Q. And that was Officer Ramirez?
A. Yes, it was.
Q. Officer, who did you have a conversation with?
[Defense Attorney]: Objection, judge.
THE COURT: Counsel, approach the bench.
(Discussion out of the hearing of the jury:)
THE COURT: I thought this was just some quick orientation now you are going into something — .
[Prosecutor]: I am not, I am only asking him based on this conversation with the Cl what did he do pursuant to that conversation.
THE COURT: You are going to the obtaining of the warrant, is that it?
[Prosecutor]: Yes.
THE COURT: So, all you have to say you spoke to someone.
[Prosecutor]: Confidential informant, and pursuant to that conversation what did he do?
THE COURT: I can’t see any problem with that.
[Prosecutor]: I am not going to conversation.
(Back before the jury:)
THE COURT: Continue.
[Prosecutor]: Thank you, your Honor.
Q. Officer, you may answer that question[.]
A. Confidential informant.
Q. Officer, after you had that conversation with the confidential informant did you go someplace?
A. Yes, I did.
Q. Did you go there alone or with somebody?
A. I went there with my partner, Officer Armando Ramirez and the confidential informant.
Q. Where did you go?
A. 1110 West 50th.
Q. What is located at 1110 West 50th?
A. A large complex of town houses all with the same address that are designated by individual letters going from A, B, C and to double A double B double C, through the alphabet.
Q. Officer, did you, your partner and the confidential informant go to a particular townhouse?
[Defense Attorney]: Objection, judge.”

Out of the hearing of the jury, the prosecutor candidly admitted that “the argument going to whether or not they [the police officers] had a legal warrant is inappropriate to the jury. Now, with regard to what led up to the execution of the warrant, it is really not relevant ***. *** [H]is checking it out to get more probable cause is really immaterial in the case.” After making the foregoing legally accurate acknowledgements, the prosecutor nevertheless promptly proceeded to further ignore them by thereafter eliciting in the jury’s presence the following additional irrelevant, prejudicial inadmissible testimony from Officer Rowan of the facts encompassing the issuance of the search warrant, to which the defendant’s objection was overruled:

“Q. Officer, [you] may answer that question[.]
A. Right. If I recall the question, it was who I went to the location with.
Q. Who did you go to the location with?
A. I went with myself, my partner, Officer Ramirez, and the confidential informant.
Q. Did you go to the particular townhouse located at 1110 West 50th Street?
A. We didn’t walk up to the townhouse in question, we drove by it and it was pointed out to me.
Q. Which townhouse was pointed out?
A. I, double I.
Q. Officer, did you then leave that location?
A. Yes.
Q. Officer, after you left that location what is the next thing you did?
A. Earlier or later that morning I went to 2201 West 24th Street, narcotics headquarters and prepared a search warrant for the location in question and the individual described to me by the confidential informant.
Q. Officer, in the search warrant did you include the description of the individual described by the confidential informant?
A. Yes, I did.
Q. Did you also include the address?
A. I included the address of 1150 West 50th Street and a male black known as Femi, approximately 5 foot 11 inches, 155 pounds, dark complexioned.
Q. Officer, you included the address of 1150 West 50th Street. Was that the address you had gone to?
A. Yes, it was the address myself and the informant and my partner and again with my partner again.
Q. Officer, when you typed 1150 West 50th street, was that the correct address?
A. No, it is not.
Q. What was the correct address?
A. 1110 West 50th, apartment — .
Q. Officer, why did you type a 5 instead of a 1?
A. Just a typo on my part, it was an accident.
Q. Does the address of 1150 West 50th Street exist?
A. No, there is no such address at all, it is a complex all with all the common address of 1110 West 50th and broken down by letters.
Q. Officer, are there any other town houses with the letters II?
A. No, that is the only double I townhouse in the complex.
Q. Officer, after you finished typing that search warrant and the complaint for the search warrant what did you do with those two pieces of document?
A. I presented it to my sergeant, Sergeant Malloy [sic].
Q. Did you see him do something with it?
A. He read through it, asked me about the complex and then initialed the documents.
Q. After he did that, officer, what did you do?
A. I came to 26th and California, went up to the narcotics section and presented the complaint for search warrant and the search warrant itself to State’s Attorney Levy in the narcotics section.
Q. Officer, what did you see Assistant State’s Attorney Levy do with the search warrant and the complaint for the search warrant?
A. He read through it, asked me some questions about the location and then he assigned a search warrant control number to it and his signature and the date that he signed it.
Q. Officer, after Assistant State’s Attorney Levy affixed his signature what is the next thing you did with the search warrant and the complaint for search warrant?
A. I presented it to Judge Kiley in this building, in this courtroom, as a matter of fact, and he read through it and he in turn signed it and put the day and date and the time that he signed it.
Q. Before he signed it, did you do something to it?
A. Yes, Judge Kiley swore me in and I signed the search warrant in front of him.
Q. Officer, after Judge Kiley signed that search warrant, had issued that search warrant, what did you do with it?
A. I went back to narcotics headquarters at 2201 West 24th Street, notified the sergeant of the fact that we had secured the search warrant to the premises and the defendant and we proceeded to do a draft of the complex in question and assign responsibilities of the team members.”

The State’s argument before us that the foregoing voluminous, highly prejudicial, irrelevant, inadmissible testimony was designed to establish, over and above Officer Rowan’s testimony, that the 1150 West 50th Street address on the search warrant was a typographical error is ludicrous. First, Officer Rowan testified that the 1150 address was a mistake. Second, the legality of the warrant or its execution was not an issue for the jury’s determination, as the prosecutor had earlier confessed. Third, the address on the warrant was further irrelevant for the reason that the defendant was arrested in the premises, whatever was the address on the warrant or of the apartment, in which the narcotics were seized, and in which the telephone services were billed to the defendant.

In the present case, the prosecutor brought out the prejudicially erroneous testimony of Officers Molloy and Rowan, not only that they had discussed the information about the defendant with the State’s Attorney, but that they additionally obtained his approval and also that of the judge who issued the warrant for the defendant’s arrest. This court recognized that reversible prejudicial error occurs when a prosecutor testifies that after speaking to the police, he recommended that charges be brought against the defendant, and this foregoing complained-of testimony runs directly afoul of our following holding in People v. Turner (1984), 127 Ill. App. 3d 784, 792, 469 N.E.2d 368:

“The fourth issue raised is whether the introduction of the testimony of an assistant State’s Attorney recommending that charges be brought against the defendant was error. The State argues that Michael Ditore’s testimony simply outlined the steps taken leading to the recommendation of charges. We find no merit in this contention. A prosecutor’s testimony that he recommended that charges be placed against a defendant after discussing the facts of the case with the police was held prejudicial error requiring a new trial in People v. Blissit (1973), 12 Ill. App. 3d 551, 299 N.E.2d 562. The prejudicial impact of Di-tore’s testimony is greater in the instant case because he testified not only that he spoke with police prior to recommending charges, but also with several witnesses and the defendant. * * * The prejudicial effect of this testimony requires that the case be remanded for a new trial.”

People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659, relied on and cited in the specially concurring opinion, is not authority for the admission in the case at bar of the foregoing voluminous, highly prejudicial, and inflammatory “testimony of police officers concerning their [prearrest] investigatory techniques” as stated in the specially concurring opinion. (189 Ill. App. 3d at 624.) First, the defendant’s trial on the issue of his guilt or innocence of the offenses of unlawful possession of narcotic drugs and attempted murder (or for any other offense for that matter) did not authorize the prosecutor’s presentation of the totally irrelevant and immaterial, but highly incriminating and prejudicial, evidence of the police officers’ investigatory tactics and conduct. Educating the jurors on police investigatory techniques was not a legitimate function or an issue in the defendant’s criminal trial, however thrilling and enchanting such techniques may be to them. At trial, the defendant was required to defend against only what he did, as alleged in the charges against him. He was not required to simultaneously defend against what the police did in their investigation.

Second, in the instant case, the defendant was arrested pursuant to and in execution of a search warrant which commanded the search of “Femi [with his description]” and 1150 West 50th Street, the premises in which the drugs were seized and the defendant was arrested. In Hunter, however, the officers arrested the defendant without a warrant. A month after a conversation with an informant regarding the defendant and his car, the arresting officers in Hunter began a surveillance of the defendant and his car and observed an individual approach the car and exchange something with the defendant. The officers followed the defendant to another location where the officers observed three to five people, known to the officers to be illicit drug users and addicts, approach the defendant’s parked car and exchange something with him. Suddenly, one of the addicts recognized the surveilling police officers and the group around the defendant’s car scattered and ran. The defendant attempted to pull away but obeyed the officers’ signal for him to stop. When the defendant opened the car door, the officers observed 10 to 14 pills, which were an illicit drug, scattered on the front seat and floor of defendant’s car.

Even if there existed some justifiable basis for explaining to the jury the officers’ prearrest conduct and warrantless arrest of the defendant in Hunter, no such justification remotely existed for explaining the officers’ presearch and arrest conduct in the execution of a search warrant and the arrest of the defendant in the instant case.

Second, there was no pretrial motion to suppress the narcotics, nor was there an in limine motion to exclude the officers’ prearrest conduct in the instant case. In Hunter, defendant made both these motions. At a pretrial hearing in Hunter regarding probable cause to arrest defendant and search his car, one of the surveilling-arresting officers testified that approximately one month before the defendant’s arrest, an informant told him that the defendant, whom the informant identified as “Speedy,” was selling drugs in the area, having taken over the usual route of a deceased member of the El Rukin gang. The informant also provided the officers a description of the defendant’s car, including the license plate number. The trial court ruled that the substance of this conversation could not be revealed at trial, but that the officers could testify that a conversation between the informant and the officers took place. Pursuant to this in limine ruling, the surveilling-arresting officers testified, over the defendant’s objection, that they placed the defendant under surveillance based on a conversation with an informant concerning the defendant and his car, which the defendant assigned as error on the appeal of his conviction for the unlawful possession of the drug pills found in his car.

The Hunter court aptly pointed out that “[t]he trial court took care to avoid undue prejudice to defendant by assuring that the damaging substance of the conversation [between the officers and the informant] would not be heard by the jury,” and that the officers’ testimony that they merely had a conversation with an informant was not inadmissible hearsay. 124 Ill. App. 3d at 529.

In Hunter, as in the case at bar, the prosecutor in closing argument to the jury improperly treated the officers’ testimony of their prearrest investigative procedures as evidence of the defendant’s guilt of the commission of the offense for which the defendant was on trial.

The Hunter court noted that in arguing to the jury the evidence from which the jury could infer the defendant’s intent to deliver the drugs, one factor mentioned by the prosecutor was “the prior conversation of the officer with the informant.” The Hunter court concluded, “We agree that this was improper use of the evidence,” and cautioned:

“With regard to the impropriety of the prosecutor’s argument concerning that testimony, it should be noted that prosecutors have recently begun to take improper advantage of the admissibility of such evidence by ostensibly offering it for the limited purpose [of explaining the officer’s investigatory procedure], and once it is admitted, making impermissible use thereof in closing argument [citation], and we would warn that this conduct is improper and, in flagrant cases, may lead to reversal [citation]. If the State indeed intends to use it for the limited purpose permitted, the prosecutor should confine his arguments to that purpose, and any improper use should not be tolerated.” (Emphasis added.) 124 Ill. App. 3d at 530-31.

The foregoing Hunter warnings and admonitions were flagrantly unheeded and violated by the prosecutor in the case at bar. In opening and closing argument to the jury, the prosecutor relied on the officers’ foregoing improper and prejudicial testimony of the circumstances of the issuance of the search warrant in urging the jury to convict the defendant on the totally improper and irrelevant grounds that the officers not only confirmed defendant’s pretrial guilt to their satisfaction but also to the satisfaction of the assistant State’s Attorney who supervised and approved, and Judge Kiley, who ordered the issuance of, the warrant to search the defendant and the premises. The prosecutor in his closing argument improperly stated in effect not once, but at least 10 times, that the assistant State’s Attorney and Judge Kiley clearly believed that the officers had adequate evidence of the defendant’s guilt. The prosecutor unfittingly argued:

“You heard the testimony of Sergeant Molloy of the Organized Crime Division, who explained to you what a search warrant is and he described to you a little bit about what the Organized Crime Division, Narcotics Unit of the Chicago Police Department is.
* * *
He [the defendant] wants you to believe that there is a conspiracy, that the Chicago Police Department is out to get him. They’re out to frame him. He wants you to believe, too, that that conspiracy includes the state’s attorney’s office, and the judicial system, Judge Kiley.
[Defense Attorney]: Objection, judge.
THE COURT: Objection sustained.
[Prosecutor]: He wants you to believe that we’re all involved in the conspiracy.
* * *
You’ve heard how methodical the process is. You’ve heard all the procedures that have to be followed. When a police officer secures information from a confidential informant he must verify it.
Officer Rowan and Officer Ramirez went directly to Town House II with the confidential information located at 1110 West 50th Street, pointed out exactly where the defendant lived, found out the defendant’s name, Femi, found out that the defendant was five feet eleven, found out that he was a male black, that he weighed 155 pounds.
Officer Rowan then took that information, went back to his office and typed up a complaint for a search warrant and a search warrant. He then took that information and brought it here to 26th and California. He went up to the Narcotics Unit of the state’s attorney’s office. He gave that information to Assistant State’s Attorney Levy.
Mr. Levy looked at that information. After looking at the information Officer Rowan then took that same information right here to this very courtroom. Judge Kiley was sitting on that bench.
Officer Rowan gave Judge Kiley that search warrant and that copy of search warrant. Inside, that complaint for search warrant contained all the information that Officer Rowan had gotten from the confidential informant.
Judge Kiley looked at that information. He read that information. He thought about that information. He ruled on that information, and he issued a search warrant.
[Defense Attorney]: Objection.
THE COURT: Objection sustained. Counsel, please argue material matters as they relate to this case.
[Prosecutor]: Judge Kiley issued that search warrant. Officer Rowan left this courtroom with the search warrant Judge Kiley had just issued and went back to the Narcotics Unit of the Chicago Police Department. There he gave that information to Sergeant Molloy. There began the Organization of the team who was going to execute that search warrant.
* * *
We have a Chicago police officer who is a Chicago police officer. He’s not a typist. He went to 1110 West 50th Street, Town House II with that informant. He checked it out. He secured all the necessary information. He went to his office. He typed up that search-warrant and complaint for search warrant, including all that information. He brought it here. Judge Kiley issued the search warrant. He brought it back to his office. The team went out, went directly back to Townhouse II, 1110 West 50th Street. Ladies and gentlemen, typos happen. It doesn’t affect the validity of the search warrant.
* * *
Ladies and gentlemen, you heard Police Officer Rowan testify. His testimony was clear, consistent and credible. He is to be believed by each and every one of you. He told you what happened on May 7, 1985. He told you how he met with that confidential informant, the necessary steps he took, how he went to 1110 West 50th Street, Townhouse II, with that confidential informant, how he took that information he received from that confidential informant, including a physical description of the defendant, placed it all into a search warrant, and here at 26th and California talked with the assistant state’s attorney, showed him the information, came into this courtroom, showed the same information to Judge Kiley and Judge Kiley issued the search warrant." (Emphasis added.)

This foregoing argument flagrantly violates our following holding in People v. Turner (1984), 127 Ill. App. 3d 784, 792-93, 469 N.E.2d 368:

“Defendant’s fifth and last contention is that statements made by the prosecutor during closing argument were prejudicially improper. *** During closing argument, the prosecutor stated, ‘The fact Mr. Ditore told you that Malcolm Turner was [not] charged with the murder or anything until April 18th I think has significance. *** I think it showed we don’t just charge people lightly with crimes. We have to get in the case of a homicide a cause of death from the medical examiner’s office. And we are not going to charge people with crimes, like the crime of murder, until we have that evidence. ***’
A prosecutor’s statements implying that charges would not have been placed against the defendant unless the prosecutor thought he was guilty are improper and prejudicial error. (People v. Fuerback (1966), 66 Ill. App. 2d 452, 456, 214 N.E.2d 330.) In light of the fact that it was highly prejudicial for Di-tore to testify regarding the placing of charges against the defendant after discussing the case with police, witnesses, the defendant, and the medical examiner, the prejudice to the defendant was further compounded by the prosecutor’s reference to this testimony in closing argument. We are of the opinion that the outcome may have been otherwise had the State omitted these remarks and their inclusion constituted reversible error.”

In the foregoing prosecutor’s closing argument to the jury in the case at bar, far worse than the prosecutor’s improper argument in Turner, the prosecutor repeatedly improperly and emphatically inferred that the police officers, the assistant State’s Attorney and Judge Kiley prejudged the defendant’s guilt of the possession of drugs by the issuance of the search warrant, and that the defendant was therefore guilty of the possession of drugs as charged. The defendant’s conviction of the possession of the drugs must therefore be reversed and the cause remanded for a new trial free of such egregious errors.

Reversed and remanded for a new trial.

PRESIDING JUSTICE MURRAY and JUSTICE COCCIA,

specially concurring:

We agree with the majority that this cause must be reversed and remanded, but we would limit the reason to the improper use in closing argument of otherwise admissible evidence. The testimony of police officers concerning their investigatory techniques is properly admitted into evidence despite its hearsay nature and despite the fact that a jury may gather an erroneous inference from such evidence. (People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.) This court has recently noted that prosecutors have begun to take advantage of the admissibility of such evidence by ostensibly offering it for its limited purpose and, once admitted, making an impermissible use of it in closing argument. (People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659.) As the majority opinion aptly points out, in this case the evidence was used not for its legitimate purpose of showing investigative technique, but to infer guilt. We are of the opinion that this is the type of flagrant use of such evidence which this court warned could lead to reversal in People v. Hunter (1984), 124 Ill. App. 3d 516, 464 N.E.2d 659, and other cases. The war on drugs may not be successful by following the Marquis of Queensberry Rules. Yet individual cases may be reversed and remanded for the failure to follow well-established rules of evidence.

      The record before us reflects that an evidentiary hearing was held on August 14 and September 9, 1986, on the defendant’s written motion to suppress his statements on Miranda grounds, the original of which was filed on September 13, 1985, and an amendment thereto was filed on March 19, 1986. The trial court overruled the motion on September 9, 1986, at the conclusion of the evidentiary hearing thereon.


source: Caselaw Access Project

author: JUSTICE COCCIA

license: Public Domain

text:
      In re ESTATE OF SUZANNE JACOBS, Deceased (Robert Phillips, Adm’r of the Estate of Suzanne Jacobs, Deceased, Petitioner-Appellee, v. Vance Shaf et al., Respondents-Appellants).
    First District (5th Division)
    No. 1—87—0408
    Opinion filed September 29, 1989.

      Brian M. Collins, of Magee, Collins & Lodge, of Chicago, for appellant.
    Walter P. Dahl and Lawrence S. Gosewisch, both of Dahl & Moirano, of Chicago, for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Respondent Vance Shaf appeals from an order entered by the circuit court in this citation proceeding. The circuit court directed Shaf to turn $10,000 over to Robert Phillips, independent administrator of Suzanne Jacob’s estate and her first husband. Shaf and Steven Jacobs, Suzanne’s second husband, had developed certain property conveyed to them by her, which was subsequently sold. The $10,000 awarded by the circuit court represented Suzanne’s share of the profit from that sale. For the following reasons, we affirm.

The record in this case reveals the following salient facts. Suzanne died on October 4, 1983. On October 28, 1983, Phillips’ counsel wrote Shaf. Counsel informed Shaf that Phillips — father of Suzanne’s daughter, Lisa Anne Phillips, a minor — was seeking appointment as representative of Suzanne’s estate. Counsel gave Shaf notice that Phillips would claim an interest, on behalf of Suzanne’s estate and Lisa Anne, in any profit realized from the sale of the property conveyed by Suzanne, which Shaf and Steven were developing.

On October 31, 1983, Phillips was appointed administrator to collect, and the circuit court entered an order declaring Steven and Lisa Anne to be Suzanne’s sole heirs. Steven filed a cross-petition for letters of administration on December 1, 1983, thereby vying with Phillips on the question of who would represent Suzanne’s estate. The property that Suzanne conveyed, and that Shaf and Steven had developed, was sold in January of 1984. On January 28, 1984, Shaf paid Steven $10,000 of the $60,000 profit realized on the sale of the conveyed property, which had been named “Suzanne Acres.”

An agreed order was entered on February 14, 1984. It was written in longhand and provided in part:

“It is further agreed that the parties will not sell, transfer or dispose of any estate assets; and, Stephen [sic] Jacobs agrees to not sell the property commonly known as 1441 Hawthorne Lane Glenview, Ill. [the marital residence] until March 14, 1984; and, to hold the proceeds of 1448 Canterbury Lane, Glenview [the developed property] until March 14, 1984 except for the $10,000.00 previously paid to Stephen [sic] Jacobs.”

This order was signed by Steven’s counsel. As the other signatures on the order are unintelligible, we are unable to determine which parties agreed to it, with the exception of Steven’s attorney. The order of February 14, 1984, was continued in full force and effect by an order entered on March 22, 1984, but the March order includes no reference to the $10,000 mentioned in the February order.

Steven died on April 5, 1984. Phillips was appointed administrator of Suzanne’s estate on May 1, 1984; on April 1, 1985, he was named independent administrator.

Phillips filed a petition for recovery citation on January 1, 1986. He alleged that in 1983 Shaf, Steven, and Suzanne entered into a joint venture for the development of the property located at 1448 Canterbury Lane. Suzanne had acquired that property under a divorce decree from her prior marriage. Suzanne conveyed this vacant property as her contribution to the joint venture. Shaf’s corporation — Eldorado Towers by Shaf, Inc. — was to construct a residence on the conveyed property, while training Steven in the business of real estate development. Shaf was to receive 50% of the profit, Steven 25%, and Suzanne 25%. A residence was constructed, which was sold for a price of $226,686.47 in January of 1984. Phillips also averred in his petition that Shaf refused to deliver Suzanne’s share of the profit, contrary to the agreement’s terms. Based on these allegations, Phillips requested that the circuit court direct Shaf to turn over Suzanne’s portion of the profit to her estate.

A hearing on the citation petition was held on October 17 and October 20, 1986. Shaf was the only witness. Following his testimony, as well as counsel’s arguments, the circuit court ordered Shaf to turn over $10,000 to Phillips. Shaf moved to reconsider, arguing that the estate was barred by the doctrine of estoppel from recovering $10,000, given the agreed order of February 14, 1984. That is, according to Shaf, the agreed order settled the rights to the $10,000. On January 7, 1987, the circuit court denied Shaf’s motion to reconsider, and this appeal followed.

In his initial brief, Shaf argues three points. First, he contends that there was no evidentiary basis for the circuit court’s finding that a partnership existed between himself, Steven, and Suzanne. Second, he urges that the estate is barred by the doctrine of estoppel from making any claim to the $10,000 the circuit court awarded, in light of the agreed order of February 14, 1984. Third, and finally, he asserts that the estate waived any right to the $10,000, given the agreed order.

Shaf’s first argument — that no partnership existed between himself, Steven, and Suzanne — must be rejected because it is based upon a false premise. Simply stated, Phillips did not seek recovery under a partnership theory, and the circuit court never indicated that the existence of a partnership was at issue. As mentioned above, Phillips’ petition for recovery citation alleged the existence of a joint venture between Shaf, Steven, and Suzanne; it did not allege the existence of a partnership. Indeed, while the elements of a joint venture are similar to those of a partnership, there are important differences. At the hearing on Phillips’ petition, Judge Siracusa stated that the principal question concerned who participated in the joint venture: Shaf, Steven, and Suzanne, or merely Shaf and Steven. In his motion to reconsider Judge Siracusa’s ruling, however, Shaf argued the partnership issue, contending that a partnership did not exist between himself, Steven, and Suzanne, but rather between himself and Steven only. Phillips, in response to Shaf’s motion, asserted that Suzanne was a member of a joint venture, along with Shaf and Steven. Shaf continued to argue the partnership issue in his initial brief in this court, but he failed to argue the joint venture issue until his reply brief.

Illinois Supreme Court Rule 341(e)(7) forbids an appellant, such as Shaf, from arguing a point for the first time in his reply brief:

“Points not argued are waived and shall not be raised in the reply brief***.” (113 Ill. 2d R. 341(e)(7).)

This rule has been enforced by the reviewing courts of our State. (See, e.g., Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 6, 454 N.E.2d 706, 709; In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1092, 412 N.E.2d 1336, 1347.) Since Shaf did not raise the joint venture argument until his reply brief, we conclude that he has waived it. It has been abundantly clear from the time Phillips filed his petition that the decisive issue in this case would be whether Suzanne was a member of a joint venture, so Shaf shall not be heard to claim surprise at our conclusion.

Shaf’s second and third points — based upon the doctrines of estoppel and waiver, respectively — suffer from a common infirmity. Both points are grounded on the agreed order, quoted above. Yet Phillips’ counsel has denied agreeing to that order. Furthermore, Judge Siracusa, who not only approved the agreed order but also awarded the $10,000 to Phillips, stated at the hearing that he was unable to determine which parties signed the order, because the signatures were illegible, apart from that of Steven’s attorney.

The burden is on the appellant to submit a record that fully and fairly presents all matters necessary and material for a decision on the questions he raises. (LaPlaca v. Gilbert & Wolf, Inc. (1976), 37 Ill. App. 3d 259, 260-61, 345 N.E.2d 774, 775.) This court has previously stated that it will not reverse upon the basis of speculation and conjecture, and that any doubt arising from an incomplete record shall be resolved against the appellant. (Baldridge v. Department of Registration & Education (1977), 52 Ill. App. 3d 568, 575, 367 N.E.2d 95, 101 (supplemental opinion on denial of rehearing).) Phrased another way, when a party seeks to have a judgment reviewed, it is incumbent upon him to present a record of proceedings and judgments sufficient to show the errors of which he complains. (Neylon v. Illinois Racing Board (1978), 66 Ill. App. 3d 621, 623, 384 N.E.2d 433, 435.) Affirmance is dictated when crucial facts are omitted in the record. See Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042, 389 N.E.2d 182, 186.

Like Judge Siracusa, we are unable to determine which parties agreed to the order of February 14, 1984, with the exception of Steven’s counsel. Shaf knew in the circuit court that Phillips’ counsel denied agreeing to the order and that Judge Siracusa found it illegible. It was therefore incumbent upon Shaf to clarify the order, if he wished to rely on it to argue the issues of estoppel and waiver in this court. As he has not satisfied that burden, we decline to address the merits of the estoppel and waiver questions, in view of the aforementioned authorities.

We note in passing that Shaf’s initial brief did not comply with Supreme Court Rule 342(a). (107 Ill. 2d R. 342(a).) The appendix included only a copy of the agreed order. It failed to include a copy of the judgment appealed from, the notice of appeal, or a table of contents for the record, contrary to Rule 342(a)’s requirements. While we deem dismissal too harsh a sanction for failure to comply with Rule 342(a), in this case, Shaf’s brief did not assist us in our resolution of the appeal.

Notwithstanding the foregoing, Shaf’s estoppel argument fails regardless of the agreed order’s clarity. A key element of the equitable estoppel doctrine is not present here. Without enumerating all elements of the doctrine, it is settled that in order to invoke equitable estoppel, the conduct of the party against whom the estoppel is asserted — in our case Phillips — must have been relied upon by the party claiming the benefit of the estoppel — here Shaf. (See National Tea Co. v. 4600 Club, Inc. (1976), 33 Ill. App. 3d 1000, 1003, 339 N.E.2d 515, 518.) Assuming for argument’s sake that Phillips agreed to the order of February 14, 1984, Shaf admitted that he paid the $10,000 to Steven on January 28, 1984, before the agreed order was entered and approved. Shaf thus could not have relied upon Phillips’ alleged conduct in agreeing to the order when he paid Steven, since that conduct occurred after the payment. Consequently, the doctrine of equitable estoppel is inapplicable.

Similarly, even if Shaf’s waiver argument was supported by the agreed order, it would not provide a basis for reversing the circuit court. His waiver argument was not raised in that court. Accordingly, it is not properly before us. See Cockerill v. Wilson (1972), 51 Ill. 2d 179, 183, 281 N.E.2d 648, 650 (supreme court refuses to address contention that defendant-appellant raised before it, but neglected to raise below, because such conduct deprived the plaintiff-appellee of the opportunity to refute the contention).

For the reasons stated, the circuit court’s judgment in Phillips’ favor is affirmed.

Affirmed.

MURRAY, P.J., and LORENZ, J., concur.

      This case was assigned to Justice Coccia on April 1, 1989.


author: JUSTICE LORENZ

text:
    JAMES EIPERT et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 1—87—3701
    Opinion filed September 29, 1989.

      Ambrose & Cushing, P.C., of Chicago (F. John Cushing III, of counsel), for appellants.
    James J. Hoffnagle, of Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs appeal from the dismissal of their amended class action complaint for failure to state a cause of action under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615). Plaintiffs raise two issues: (1) whether defendant was required to provide underinsured motorist coverage in an insurance policy when uninsured motorist coverage was purchased in the minimum statutory amount; and (2) whether underinsured motorist coverage was implied by law in a policy if defendant failed to offer the insured an opportunity to purchase such coverage prior to July 1, 1983. For the following reasons, we affirm.

The amended two-count complaint alleged the following facts. Plaintiff Charles Eipert had an automobile insurance policy with defendant, State Farm Mutual Automobile Insurance Company, since prior to July 1, 1983, which was renewed every six months. The policy had coverage limits of $100,000 per person and $300,000 per occurrence for liability, and although plaintiffs do not specifically allege this, it can be inferred from the complaint that the policy had limits of $15,000/$30,000 for uninsured motorist coverage. The policy never contained underinsured motorist coverage.

On August 19, 1984, Eipert’s son, James, was a passenger on a motorcycle that was involved in an accident. The driver of the motorcycle was at fault, and his insurance policy limits were $15,000/ $30,000. James’ medical bills were more than $20,000, which exceeded the at-fault driver’s policy limits. Eipert’s policy did not cover James’ medical bills because it did not include a provision for underinsured motorist coverage.

In count I of the amended complaint, plaintiffs alleged that section 143a — 2(5) of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(5) (repealed by Pub. Acts 81 — 999, §4.4, 83 — 230, §4, eff. Dec. 31, 1989)) required underinsured motorist coverage on all policies issued or renewed after July 1, 1983. Plaintiffs alleged that defendant did not comply with the Code because underinsured motorist coverage was not included in their policies.

In count II, plaintiffs alleged that section 143a — 2(3) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3) (repealed by Pub. Acts 81 — 999, §4.4, 83 — 230, §4, eff. Dec. 31, 1989)) required defendant to offer underinsured motorist coverage between March 1, 1980, and July 1, 1983. The complaint alleged that during the time period, defendant did not offer Eipert underinsured motorist coverage and he did not reject such coverage. Plaintiffs alleged that as a result, underinsured motorist coverage was implied by law in his policy until July 1, 1983. Plaintiffs further alleged that after July 1, 1983, defendant changed the underinsured motorist coverage implied by law in the policy without advising Eipert that the coverage was no longer included in the policy. This change was effected without complying with the terms of the policy relevant to changes in policy provisions.

Defendant moved to dismiss plaintiffs’ amended complaint for failure to state a cause of action. The trial court granted the motion, finding that: (1) section 143a — 2(5) did not require defendant to provide underinsured motorist coverage when the uninsured motorist coverage was purchased at the statutory minimum level of $15,000/ 30,000; and (2) the underinsured motorist coverage was not implied by law in the policy because the loss did not occur prior to July 1, 1983. Plaintiffs now appeal.

Opinion

In reviewing the dismissal of an action under section 2 — 615, the court must accept all well-pled facts and reasonable inferences from plaintiff’s complaint as true. (Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 493 N.E.2d 748.) The complaint must be liberally construed and the dismissal should not be affirmed if it indicates “a possibility of recovery.” Glazewski v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 401, 407, 466 N.E.2d 1151, 1155, aff’d in part and rev’d in part sub nom. Glazewski v. Coronet Insurance Co. (1985), 108 Ill. 2d 243, 483 N.E.2d 1263.

Concerning the dismissal of count I, the issue involved is whether under section 143a — 2(5) an insurance company must provide underinsured motorist coverage when uninsured motorist coverage is purchased at the statutory minimum level of $15,000/$30,000. Section 143a — 2(5) provides:

“(5) On or after July 1, 1983, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless underinsured motorist coverage is included in such policy in an amount at least equal to the total amount of uninsured motorist coverage provided in that policy where such uninsured motorist coverage exceeds the limits set forth in Section 7 — 203 of the Illinois Vehicle Code.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(5).)

At the time in question, section 7 — 203 of the Illinois Vehicle Code provided that every automobile insurance policy had bodily injury coverage of at least $15,000/$30,000. Ill. Rev. Stat. 1985, ch. 951/2, par. 7-203.

Plaintiffs argue that section 143a — 2(5) requires every policy issued, delivered, or renewed after July 1, 1983, to include underinsured motorist coverage in an amount greater than the uninsured motorist coverage when the uninsured motorist coverage is at the statutory minimum of $15,000/$30,000.

Plaintiffs rely on the appellate court opinion in Glazewski (126 Ill. App. 3d 401, 466 N.E.2d 1151), where plaintiffs filed a class action against certain insurance companies on behalf of all persons who purchased underinsured motorist coverage in the statutory minimum amounts of $15,000/$30,000. Plaintiffs alleged that the insurance companies knew but did not disclose that underinsured motorist coverage in the minimum amounts would not provide additional coverage for accidents occurring in Illinois with another Illinois motorist. Plaintiffs further alleged that the insurance companies’ representations and omissions created the impression that such coverage had value. The trial court dismissed the complaint for failure to state a cause of action.

The appellate court reversed, noting that underinsured motorist coverage purchased in the minimum amount was “illusory.” (Glazewski, 126 Ill. App. 3d at 408, 466 N.E.2d at 1156.) The court explained that insurance companies can limit an insured’s recovery to the difference between the amount recoverable under the at-fault driver’s policy and the maximum limit of the insured’s underinsured motorist coverage. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(3).) Therefore, if the at-fault driver was insured, he would have liability coverage in at least the statutory minimum amount of $15,000/ $30,000, and if the insured had underinsured motorist coverage in the minimum amount of $15,000/$30,000, the insured could not recover under his underinsured motorist coverage. If the at-fault driver was not insured, the insured would recover under his uninsured motorist coverage rather than his underinsured motorist coverage. The result, the court concluded, was that “underinsured coverage in the minimum limits of 15/30 is indeed illusory because it would never be payable when recovery is sought from another Illinois motorist.” Glazewski, 126 Ill. App. 3d at 407-08, 466 N.E.2d at 1156.

In the present case, plaintiffs rely on the analysis in Glazewski and assert that to avoid illusory coverage, section 143a — 2(5) must necessarily require underinsured motorist coverage in an amount greater than $15,000/$30,000 when uninsured motorist coverage is purchased in the statutory minimum amount of $15,000/$30,000.

Defendant contends that under the section, underinsured motorist coverage is not required when uninsured motorist coverage is purchased at the statutory minimum amount of $15,000/$30,000.

The resolution of the issue is dependent on statutory construction. The cardinal rule in statutory interpretation is to ascertain and give effect to the legislature’s intent. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 504 N.E.2d 84.) The language of the statute is the primary source for ascertaining legislative intent. Board of Trustees v. Taylor (1983), 114 Ill. App. 3d 318, 448 N.E.2d 1171.

The language of the statute clearly states that when an insured purchases uninsured motorist coverage over the statutory minimum amount, the insurance company must provide underinsured motorist coverage in at least the same amount. There is no language in the statute to indicate that when uninsured motorist coverage is purchased at the statutory minimum amount, underinsured motorist coverage must be provided. Further, there is certainly no language in the statute to indicate that underinsured motorist coverage must be provided in an amount greater than uninsured motorist coverage when uninsured motorist coverage is purchased in the statutory minimum amount. The language of the statute indicates the legislature intended that an insurance company is only required to provide underinsured motorist coverage when uninsured motorist coverage is purchased above the statutory minimum amount. Accordingly, the trial court properly dismissed count I of plaintiffs’ complaint.

Next, plaintiffs argue that count II of their complaint was also improperly dismissed. In count II, plaintiffs alleged that defendant did not offer Eipert underinsured motorist coverage between March 1, 1980, and July 1, 1983, as required under section 143a — 2(3). Plaintiffs alleged that as a result, underinsured motorist coverage was implied by law in Eipert’s policy. Further, they alleged that after July 1, 1983, defendant changed the policy by eliminating the previously implied-bylaw underinsured motorist coverage without complying with the terms of the policy to effect that change.

Section 143a — 2(3) provides that until July 1, 1983, insurance companies were required to offer underinsured motorist coverage in every policy “renewed or delivered or issued for delivery.” (Ill. Rev. Stat. 1985, ch. 73, pars. 755a — 2(1), (3).) After July 1, 1983, such coverage is mandatory in all policies where uninsured motorist coverage is purchased above the statutory minimum limits. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(5).) In the present case, Eipert purchased uninsured motorist coverage in the statutory minimum amount of $15,000/ $30,000.

An offer of underinsured motorist coverage under section 143a— 2(3) required that the insurance company “provide the insured with enough information regarding underinsured-motorist coverage to allow the insured to make an intelligent decision of whether such coverage should be elected or rejected.” (Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425, 488 N.E.2d 548, 550.) When an insurance company has failed to make a proper offer of underinsured motorist coverage, some courts have found that the coverage was implied by law into the policy. Logsdon v. Shelter Mutual Insurance Co. (1986), 143 Ill. App. 3d 957, 493 N.E.2d 748; Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 465 N.E.2d 956.

Defendant argues the trial court was correct when it decided that underinsured motorist coverage could not be implied by law in Eipert’s policy because the accident occurred after July 1, 1983, which was the date insurance companies were no longer required to make an offer of underinsured motorist coverage under section 143a— 2(3). Defendant relies on Logsdon and Tucker, where underinsured motorist coverage was implied by law in insurance policies for accidents that occurred prior to July 1, 1983.

After briefs were filed in this case, Petersen v. Allstate Insurance Co. (1988), 171 Ill. App. 3d 909, 525 N.E.2d 1094, was decided, which contradicts defendant’s argument. In Petersen, plaintiffs were insured with defendant since May of 1976 and the policy was renewed every six months. The policy had uninsured motorist coverage in the amount of $15,000/$30,000 but did not include underinsured motorist coverage. One of the plaintiffs was involved in an accident on November 6, 1984, with an underinsured motorist. Plaintiffs sought to reform their policy to include underinsured motorist coverage based on defendant’s failure to make a proper offer of underinsured motorist coverage under section 143a — 2(3). Defendant moved for summary judgment, and the trial court examined an offer made on September 30, 1983, concerning the renewal of plaintiffs’ policy on November 1, 1983. The court found that the offer complied with section 143a — 2(3) and that defendant’s failure to make a previous offer, presumably one before July 1, 1983, was not relevant. Defendant’s motion for summary judgment was granted. The appellate court, however, reversed and found that the offer was not proper.

The facts in Petersen are very similar to the case presented. In both cases, the plaintiffs’ insurance policies had uninsured motorist coverage in the amount of $15,000/$30,000 but did not include under-insured motorist coverage. Also, the policies in question were renewed after July 1, 1983, and the accidents occurred after that date. The issue we must consider, which was not addressed in Petersen, is whether an insurance company’s failure to make a proper offer under section 143a — 2(3) can affect policies issued or renewed after July 1, 1983.

When an insurance policy is issued or renewed, applicable statute provisions in effect at the time are treated as part of the policy. (Boyd v. Madison Mutual Insurance Co. (1986), 146 Ill. App. 3d 420, 496 N.E.2d 555, affd (1987), 116 Ill. 2d 305, 507 N.E.2d 855.) Each time a policy is renewed it results in a new contract for purposes of incorporating statutory provisions into the policy. Thieme v. Union Labor Life Insurance Co. (1956), 12 Ill. App. 2d 110, 138 N.E.2d 857.

In this case, Eipert’s policy was renewed every six months since prior to July 1, 1983. Because the accident occurred on August 19, 1984, the earliest date his policy could have been renewed prior to the accident was February 19, 1984.

At the time Eipert’s policy was renewed, insurance companies were required to offer uninsured motorist coverage in an amount up to the insured’s bodily injury liability limits. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(1).) The insured was entitled to elect or reject the additional offer of uninsured motorist coverage. (Ill. Rev. Stat. 1985, ch. 73, par. 755a — 2(2).) Lastly, all policies were required to include under-insured motorist coverage only when uninsured motorist coverage was purchased in an amount above the statutory minimum level of $15,000/$30,000. (Ill. Rev. Stat. 1985, ch. 73, par. 755a-2(5).) Plaintiffs, in count II of their complaint, did not allege a violation of any of these statutory sections. Rather, plaintiffs relied on section 143a— 2(3), which was in effect on the renewal date; however, by its own terms it no longer required insurance companies to offer underinsured motorist coverage. The section imposed that requirement on policies issued, renewed or delivered until July 1, 1983. Accordingly, section 143a — 2(3) was not applicable to Eipert’s policy and the trial court properly dismissed count II of plaintiffs’ complaint for failure to state a cause of action.

Affirmed.

MURRAY, P.J., and COCCIA, J., concur.