author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN PEREZ, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 89—1268
    Opinion filed January 21, 1992.

      Michael J. Pelletier and James Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Steven Klaczynski, and William P. Pistorius, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

After a jury trial, defendant John Perez was found guilty of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1) and sentenced to a 25-year term of imprisonment. Defendant contends on appeal that the circuit court erred in denying his motion to suppress statements on the grounds they were the fruit of an illegal arrest and involuntary. Defendant further contends that he was denied a fair trial when the State improperly introduced testimony that a key witness made a prior consistent statement and then argued later in closing that this witness was more credible because he consistently told the same story. We affirm.

Prior to trial, a hearing was held regarding defendant’s motion to suppress statements; the following evidence was produced.

Chicago police detective Robert O’Leary testified that on September 25, 1987, while investigating the homicide of the victim, Gerald Gains, he spoke with Garfield Birmingham. Birmingham told O’Leary that he sold drugs for a living from his apartment at 6241 North Kenmore, apartment No. 214 in Chicago, and that the victim, who had worked for him, was fired for using drugs. Birmingham further stated that he hired defendant and a man named Peter as bodyguards for his drug transactions. Defendant and Peter told Birmingham that they had a 9-millimeter chrome automatic handgun which they would point at customers while hiding during drug transactions. Birmingham gave O’Leary defendant’s address.

Detective Lawrence Thezan testified that he worked the evening shift of September 25, 1987, and that he also spoke with Birmingham. Birmingham told Thezan that defendant was in the building where the victim was shot and that defendant knew about the incident. Birmingham informed Thezan where defendant lived and that a 9-millimeter chrome handgun was in the apartment where they sold drugs. At the time of this conversation, Thezan was aware that the bullet which killed the victim came from a large caliber, semi-automatic pistol. Based on this information, Thezan and his partner, Detective Wojtowicz, went to defendant’s house. The detectives spoke with numerous individuals at the side of the building; a few of these individuals went into the building and retrieved defendant. The detectives identified themselves, told defendant why they were there and asked him if he would go to Area Six headquarters with them. Defendant agreed to go; he was not handcuffed.

At the station, now about 8 or 9 p.m., defendant was taken to an interview room on the second floor. There, the detectives explained to defendant what they knew and asked him if he had any information about the murder. Defendant told the detectives that he was at apartment No. 214 at 6241 North Kenmore with Peter on September 24, 1987. Defendant stated that Peter owned a 9-millimeter hand gun. Around 7 p.m. that evening, a Jamaican man known only as Earl-16 came to the apartment and asked if they had any beer. They did not, so Earl-16 and Peter gave defendant some money to purchase beer. The victim arrived and spoke with Earl-16. Defendant then left to go to the store.

Detective Thezan asked defendant if he knew where they could find Peter and Earl-16. Defendant said he knew that Peter was Jamaican but did not know where he lived or his phone number; if defendant ever needed to meet with Peter, he would see him in Jamaican bars. Defendant stated that he had no information on Earl-16.

After the detectives returned from their unsuccessful attempt to locate Peter and Earl-16, they again talked with defendant, who related that Peter kept the 9-millimeter gun in the toilet tank. Again, after defendant provided them with this information, the detectives left the station and went to the apartment to verify this lead. They were unable to locate the gun at the apartment but did find some papers with the victim’s name on them. During the time the officers were away, defendant remained in the police station.

Detective O’Leary testified that he arrived at work around 8:30 a.m. on September 26 and spoke with the midnight shift. At 9:30 a.m., O’Leary and his partner, Detective Kajari, went and spoke with defendant. Defendant told them that a man named “Cratches” came over to the apartment and asked for a couple of beers. Cratches then told defendant and Peter that Earl-16 had shot someone, perhaps Gaines. Defendant told the detectives that he could point out Earl-16’s apartment. The detectives and defendant then proceeded to where Earl-16 lived. The detectives exited the vehicle to see the apartment manager, who told them that a Jamaican named Herliz Vanzie lived in the building. The detectives went to his apartment but nobody was there. During this time, defendant remained unhandcuffed and alone in the back seat of the squad car.

On the way back to Area Six headquarters, the three stopped and got something to eat. At headquarters, the detectives checked their records on Herliz Vanzie and learned that he had the nickname of Earl. They again left the station and unsuccessfully tried to locate Earl-16. During this time, defendant remained in an interview room.

Detectives Thezan and Wojtowicz continued the investigation when their shift began around 4:30 p.m. on September 26. At this time, defendant was still at the police station, but according to Thezan was not in custody, was free to go at any time and did not ask to leave.

The detectives continued their search for Earl-16 during the night. Later that evening, Earl-16 was located and interviewed in a separate interview room. Thezan explained that defendant did not want to be seen by any individual being brought into the station. Earl-16 told the detectives about his presence in apartment No. 214 and that Cratches was a friend of his. He gave the detectives information as to where Cratches could be located, but the information proved unuseful. Thezan then went and got some hamburgers for defendant. Later that night, Detectives Thezan and Wojtowicz again talked to Birmingham, who came to Area Six. He said that he had been stabbed while looking for Peter. Birmingham was assisting the detectives in their search for Peter.

Detective O’Leary testified that when he started work on September 27 at 8:30 a.m., Cratches (Duane Sammons) was already there. Cratches was interviewed and stated that at Earl-16’s request, he had gone over to apartment No. 214 to get a couple of beers. Defendant and Peter were in the apartment. He got two beers and then returned to the apartment where Earl-16 was located. Following this interview, Detectives O’Leary and Thezan again tried to find Peter but were unsuccessful. Defendant remained in an interview room during this time.

When the detectives returned to the station, defendant told them that they might be able to find the gun under the refrigerator or in a vent on the stove at the apartment. No gun was found. The detectives brought food back for defendant, Earl-16 and Cratches, who were all in separate rooms. O'Leary stated that they did not let Earl-16 and Cratches know defendant was there in an attempt to protect defendant because he was the one that gave the detectives their names and other information regarding their possible involvement in the murder.

After eating, the detectives interviewed Earl-16 and Cratches again. Cratches stated that Earl-16 left Cratches’ girl friend’s apartment and went over to the apartment to get two beers. Cratches next went to the apartment, and defendant opened the door pointing a 9-millimeter chrome handgun at him. Cratches told defendant to put the gun down. Defendant replied, “You guys are always ripping us off.” Cratches responded that he is Jamaican and defendant put the gun down to his side. Cratches denied telling defendant anything about the shooting because he did not learn of it until the next day.

During Earl-16’s interview, Earl-16 said that he went over to apartment No. 214 to get a couple of beers; defendant, Peter and a female were in the apartment. They did not have any beer so he and Peter gave defendant some money. During this time, the victim came over and began arguing with defendant and Peter about some furniture of his that he wanted. Defendant told him that he would have to talk to Birmingham because it was his apartment. Defendant eventually left the apartment followed first by the woman and then a short while later by the victim. A few minutes after the victim had left, defendant came back and went into the kitchen. He then left with his coat over his hand. Earl-16 left and went to Cratches’ girl friend’s apartment and told Cratches to go back and get the beer.

After these interviews, Detectives O’Leary and Thezan discussed discrepancies between the stories given by defendant, Earl-16 and Cratches. They then went back into the interview room with defendant and explained to him that they had been talking to witnesses who had been giving consistent stories which were inconsistent with his story. They told defendant what the discrepancies were and read defendant his rights. Defendant acknowledged that he understood those rights and wished to waive them. It was now 7:30 p.m., about 48 hours after the police first contacted defendant. Defendant then proceeded in the presence of the two detectives to make certain admissions with regard to the murder. After making the oral admission, defendant was placed under arrest and handcuffed for the first time. The detectives contacted Assistant State’s Attorney Judith Mondello of felony review, who came and took a statement from defendant. Defendant, O’Leary and Mondello all signed the bottom of each page of the written statement.

Detectives Thezan and O’Leary testified that no one at anytime threatened, pushed, shoved, struck, kicked, strangled or abused defendant in any way. Defendant was never promised anything in return for his statements, was never refused food, drink or bathroom facilities, was never locked in an interview room and remained free to leave the entire time. According to the detectives, defendant was cooperating with the police. Defendant would give the detectives information which they would attempt to confirm. Both testified that Earl-16 and Cratches were brought to the station based on information defendant provided.

Defendant testified on his own behalf. He stated that he was sitting at home on September 25, 1987, when three police officers arrived without a warrant. The officers grabbed him, patted him down and put him in the back of a police car. The officers drove a short distance, stopped the car, told defendant to get out, handcuffed him, placed him back in the car and drove to the station where he was locked in an interview room. According to defendant, while in the interview room, the officers gave him no food and would not let him use the bathroom. When he asked to use one, he could hear the officers laughing outside the door. Defendant was forced to use a garbage can as a toilet.

Defendant testified that on September 26, around 1 p.m., he left the interview room with Detectives Kajari and O’Leary to go looking for an individual he had told them about. Defendant testified he could point out a building where he had seen that individual exit. When they arrived at the building, defendant went inside with the detectives but was not handcuffed. They went in and talked to a lady manager. The three then went upstairs. One detective told the defendant to stand with him by the stairwell out of view of the door while the other detective went to the door and knocked. No one answered.

On the way back to the station, defendant told the detectives he was hungry and so they stopped at a gas station. Defendant testified that he went in alone and bought cigarettes, a Snickers bar and a 7-Up with his own money. Defendant stated, “I didn’t try to run from them and nothing, I try to assist them.” After they left the gas station, they went to another police station where the detectives did some research. Defendant stated: “I try to relax, try to assist them with whatever I could help them.” They left this police station around 3 or 4 p.m. and returned to Area Six headquarters. Defendant testified that he was again placed in a locked interview room. Sometime later that evening a uniformed police officer brought him a Big Mac and a 7-Up. Defendant also stated he ate again early the next morning.

On the morning of the 27th, defendant was transferred to another room where he was handcuffed to the wall. The detective kept telling him they knew he committed the murder. Defendant denied this and alleged that Detective Kajari started beating him. When the assistant State’s Attorney came, O’Leary told her what to write down. She wrote it on a yellow piece of paper. Defendant claimed he never told the assistant State’s Attorney what to write. O’Leary told defendant he had to sign the statement, but he would not. Defendant stated that he never received his Miranda rights. After he refused to sign, the assistant State’s Attorney ran out of the room. A detective then told defendant that if he signed the statement they would let him go. When the assistant State’s Attorney came back in, she also told defendant that he could go home if he signed the statement. Defendant testified that he signed the statement only because he had been beaten and denied food and access to the bathroom during the preceding 48 hours.

During cross-examination, defendant stated that he did not sign the statement. Defendant claimed that the police must have photocopied his signature and tried to “prefabricate” it so it would look like he signed the statement. Defendant later stated that he did sign the bottom of all three pages. Defendant testified that, even though the statement said he was given food, drink, cigarettes and allowed to use the bathroom, this was not true and he only signed it because he was forced.

Defendant testified that in the early morning on September 27, Detective Kajari came in and beat him for approximately 15 to 30 minutes. Kajari then left but came back about 40 minutes later and beat him again for approximately 20 to 30 minutes. Defendant said these beatings occurred throughout the day and up until the assistant State’s Attorney came. Defendant said that during one session he was hit in the left eye.

Defendant said he told the assistant State’s Attorney that he did not commit the murder, but she wrote what Detective O’Leary told her to write. Defendant said that he told the police that he heard Cratches tell Peter that Earl-16 did the shooting. This is why he was helping the police find Earl-16. Defendant said he was at the apartment because Birmingham took him there instead of dropping him off at his sister’s house.

The State called three witnesses in rebuttal. Carlos Martinez, a paramedic for the Cook County Department of Corrections, testified that he conducted the intake procedures for the defendant on September 28, 1987. Martinez took defendant’s medical history and did a visual inspection of defendant from the waist up. Defendant told Martinez that he received a “blunt trauma” on September 26 or 27. Defendant stated that he had no complaints or physical problems and that he was in good health. Defendant never told Martinez that he was beaten by police or that he had any pain in his lower back. Martinez noted that defendant had some swelling on his right eye but did not note any bruises to defendant’s upper torso.

Dr. Aaron Hamb, a physician at Cermak Health Services of the Cook County Department of Corrections, testified that defendant complained of pain to the coccyx (tailbone) area during a March 1988 examination. Defendant related to Hamb that Chicago police officers had pulled a chair out from beneath him and that this incident caused his pain. At the examination, Hamb looked through defendant’s records and found no record of the type of incident defendant claimed. An X ray was taken, and the radiologist reported that defendant’s tailbone had a possible injury.

Assistant State’s Attorney Judith Mondello testified that she worked for felony review on September 27, 1988. On that date, she went to Area Six at 9:45 p.m. and first spoke with Detectives Thezan and O’Leary. Mondello then reviewed all the available police reports and interviewed the witnesses. She then went into the interview room where defendant was sitting. She introduced herself as a lawyer working for the police and then immediately advised defendant of his rights. Defendant indicated that he understood each of those rights and that he was willing to give a statement. Accordingly, Mondello sat with him and drafted one. She denied writing the statement based on what O’Leary told her.

Mondello testified that the statement was taken on a form used by the State’s Attorney’s office. At the top of this form are defendant’s preprinted rights and then a space for the statement. Mondello stated that she did not use a yellow pad to take down defendant’s statement. Mondello stated that defendant read aloud the rights written on the form and then she read his statement to him. Defendant’s signature appears at the top of the handwritten statement, under the preprinted rights section and also at the bottom of each page of the statement. After reading the statement to defendant, she told him that if there was anything he wanted changed he should tell her.

Mondello testified that defendant never indicated that he was beaten or was denied the use of bathroom facilities. She never left the room between the time she took the statement and when defendant signed it. She did not notice any bruises or discoloring of defendant’s face. Defendant told her that he received food while at the station and that he indeed shot the victim. At the close of the evidence, the court denied defendant’s motion.

The trial began on March 14, 1989. Duane Sammons, nicknamed Cratches, testified that on September 24, 1987, cocaine was being sold from apartment No. 214 at 6241 North Kenmore. Sammons stated that the victim had lived in that apartment in the past. He identified defendant and stated that defendant was living there on September 24, 1987. Around 7 p.m. that evening, Sammons was at his girl friend’s house on Kenmore when Earl-16 came over. Earl-16 told Sammons to go down to Birmingham’s apartment to get some beer. When Sammons got to the apartment, defendant answered the door pointing a chrome gun at him. Sammons told defendant to put the gun down and defendant put it to his side. Sammons told defendant that Earl-16 sent him for some beers. Peter, who was also in the apartment, gave Sammons some beers. Defendant was clutching the gun the whole time. Sammons denied ever telling defendant that Earl-16 shot the victim and testified that he did not learn of the shooting until the next day.

Following the testimony of several occurrence witnesses, Mondello read defendant’s statement to the jury. In his statement, defendant said that he was at apartment No. 214 on September 24, 1987, when Earl-16 came over that evening. Defendant agreed to buy beer for him and he accepted money from Earl-16 and Peter. Just before defendant left, the victim arrived at the apartment and followed defendant into the hallway. The victim started to insult defendant. Defendant went back into the apartment and got a gun from Peter. Defendant went into the hallway and pointed the gun at the victim; the victim ran. Defendant chased him into the stairwell and up the stairs. Defendant grabbed the back of the victim’s shirt and he fell. Defendant pointed the gun at his head and shot him once. Defendant took the gun back to the apartment and went to buy beer. Defendant returned with the beer. Earl-16 was gone; Cratches came by later and picked up some beer. Defendant and Peter then went to another apartment in the building where they waited until the police left. Defendant and Peter then went to stay at a friend’s house. Defendant said the victim never had a gun. Defendant also stated he was well treated by the police and was not threatened or made any promises. He stated he was given food, cigarettes and drinks and was allowed to use the bathroom. Mondello testified that defendant was not handcuffed and never complained of any injuries.

Defendant testified at trial that on September 24, 1987, he was on the south side of Chicago. Garfield Birmingham offered him a ride home but took defendant to the north side of Chicago instead. They arrived at apartment No. 214 at around 2 p.m. Defendant sat around the apartment until Birmingham returned. Later that evening, defendant went to the store to purchase beer. When he returned, only Peter was present. Defendant left the apartment around 8 p.m. and went home. Defendant denied shooting anyone.

Defendant also testified about his treatment by the police. While his testimony is similar to his previous testimony, several inconsistencies can be noted. At trial, defendant stated that Thezan told Mondello what to write down but at the hearing he said that O’Leary told her what to write. Second, defendant stated at the hearing he was struck in the right eye while at trial he said he was struck in the left. Third, at trial defendant stated that O’Leary was the one who beat him yet at the hearing stated that it was Kajari who beat him.

In rebuttal, Carlos Martinez and Dr. Aaron Hamb testified as they did before. Officers Kajari, O’Leary and Thezan testified about defendant’s treatment and that there were no garbage cans in the interview room.

Following closing arguments, defendant was found guilty of murder and sentenced to 25 years’ imprisonment. Defendant brings this appeal.

Defendant first contends that his admissions to the police should have been suppressed because they were the fruit of an illegal arrest. Defendant asserts that the existence of an arrest is demonstrated by the length of his stay and by the facts that the police placed him in an interrogation room, left him there for long durations, questioned defendant on numerous occasions, and never told him that he was not under arrest or free to leave at any time. Defendant notes that no probable cause existed to support his detention. The State responds that the length of defendant’s stay and the other circumstances to which defendant cites reflect that he was an informant cooperating with the police in a potentially dangerous murder investigation.

When determining whether an arrest has been made, courts focus on the intent of the police officers and the understanding of the individual being questioned at the time he is detained. (People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870; People v. Johnson (1989), 187 Ill. App. 3d 756, 544 N.E.2d 392.) In assessing the officer’s intent, the court will consider whether there was any formal declaration of arrest and whether other routine procedures associated with an arrest were present, such as searching, booking, handcuffing, fingerprinting and photographing. (Johnson, 187 Ill. App. 3d at 769, 544 N.E.2d at 400.) In assessing the understanding of the individual being questioned, the court is not concerned with what the particular individual thought; rather, the court is concerned with whether a reasonable person, innocent of any crime, would have concluded he was not free to leave in similar circumstances. (Johnson, 187 Ill. App. 3d at 769, 544 N.E.2d at 400.) A reviewing court will not overturn a trial court’s denial of a motion to quash arrest unless it is manifestly erroneous. Johnson, 187 Ill. App. 3d at 770, 495 N.E.2d at 400.

In this case, we believe the circuit court’s denial of defendant’s motion to suppress was not manifestly erroneous. Defendant’s entire case rests on his testimony that he was kept against his will. This testimony was contradicted by all the State’s witnesses. More importantly, a review of defendant’s testimony reveals that he was not the most credible witness. During cross-examination, defendant’s testimony became convoluted and conflicting. At the end of cross-examination at the suppression hearing and at trial, no redirect was attempted. Defendant’s lack of credibility must have weighed heavily against him with the judge and jury.

Aside from defendant’s lack of credibility, evidence exists to support the State’s assertion on appeal that the police treated defendant as an informant who was cooperating with the police in a potentially dangerous investigation and who remained at police headquarters for those 48 hours for his protection. The evidence further supports that defendant believed himself to be acting in such a capacity.

Garfield Birmingham, who was cooperating with the police, gave information which led the police to defendant’s residence. There, the officers asked defendant to accompany them to Area Six headquarters. Defendant agreed. During the next 48 hours, the evidence showed that defendant voluntarily assisted the police. He was never handcuffed, searched, booked, or fingerprinted and he never received his Miranda rights prior to interviews or subjected to other procedures indicative of arrest.

Defendant, on numerous occasions, gave police information which they attempted to verify. This information included key investigatory facts such as the location of the murder weapon and the whereabouts of individuals potentially involved. On one occasion, defendant accompanied the officers to the residence of Earl-16. Earl-16 did in fact live in that building but was not home at the time. Defendant’s own testimony reflects that he went upstairs with the two detectives and waited to the side with one of them while the other detective knocked on the door. On the return trip to headquarters, defendant testified he was allowed to purchase food at a gas station outside the presence of the police. Defendant testified at the hearing that he did not run away from the police because he was trying to “assist” them. We find that the above evidence is more reflective of a defendant cooperating with the police than one who is the subject of a murder investigation.

Defendant in his brief puts great emphasis on his 48-hour stay at police headquarters. Defendant cites numerous cases where lengthy stays and continual questioning have been found improper in the absence of probable cause. (See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248; People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103, cert, denied (1982), 459 U.S. 878, 74 L. Ed. 2d 143, 103 S. Ct. 174; People v. Travis (1984), 122 Ill. App. 3d 671, 462 N.E.2d 654; People v. Fitzpatrick (1982), 107 Ill. App. 3d 876, 438 N.E.2d 222; People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046.) These cases are distinguishable; unlike the present case, no testimony existed in those cases to reflect a defendant who was cooperating with the police in an ongoing and dangerous murder investigation.

Based on the evidence presented, the circuit court was entitled to find that over the course of 48 hours defendant provided information to the police which led to the discovery of other individuals. The detectives testified that defendant did not want these other individuals to know of his cooperation. The police, therefore, kept him secluded from these persons while the investigation continued. Only when these individuals gave versions of the night’s events which conflicted with defendant’s did defendant come under police scrutiny as a suspect. Defendant was then read his rights, elected to waive those rights, and thereafter made the confession in question.

For these reasons, we believe it was not manifestly erroneous for the circuit court to hold that defendant was not subjected to an illegal arrest.

Defendant next contends that his statements should have been suppressed on the grounds that they were involuntary. The State responds that the evidence demonstrates that defendant’s statements were voluntary.

The State bears the burden of establishing by a preponderance of the evidence that a confession is voluntary. (People v. Caballero (1983), 102 Ill. 2d 23, 33, 464 N.E.2d 223, 227, cert, denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362; People v. Mackey (1990), 207 Ill. App. 3d 839, 859, 566 N.E.2d 449, 462.) In making this determination, courts utilize the test of whether, considering the totality of the circumstances, the confession is found to have been made freely and voluntarily and without compulsion (Mackey, 207 Ill. App. 3d at 859-60, 566 N.E.2d at 462, citing People v. Prude (1977), 66 Ill. 2d 470, 363 N.E.2d 371, cert. denied (1977), 434 U.S. 930, 54 L. Ed. 2d 291, 98 S. Ct. 418), or whether defendant’s will was overborne at the time he confessed so as not to be the product of rational intellect and free will. (Mackey, 207 Ill. App. 3d at 860, 566 N.E.2d at 462, citing Townsend v. Sain (1963), 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745; People v. O’Leary (1970), 45 Ill. 2d 122, 257 N.E.2d 112.) A reviewing court will not disturb the trial court’s determination in this regard unless it is against the manifest weight of the evidence (Caballero, 102 Ill. 2d at 33, 464 N.E.2d at 227-28; People v. Payton (1984), 122 Ill. App. 3d 1030, 1033, 462 N.E.2d 543, 545), and the court may consider the evidence heard by the trial court at the suppression hearing and at trial when evaluating the voluntariness of the confession. Caballero, 102 Ill. 2d at 35-36, 464 N.E.2d at 229.

In this case, the evidence demonstrates that defendant’s statements were voluntary. At a minimum, under the applicable standard of review, the circuit court’s determination is not against the manifest weight of the evidence.

According to the police, defendant was not given food the night he was brought in because it was already 8 p.m. and defendant made no request for food. The next day, after visiting Earl-16’s residence, defendant testified that, at around noon or 1 p.m., he was allowed to purchase a candy bar and a 7-Up. Later that evening, he was given a Big-Mac and a 7-Up. The next day, September 27, defendant was again given food. Consistent with this evidence is defendant’s own statement, read at trial, that he was provided food.

As for defendant’s allegation of physical abuse and denial of washroom facilities, defendant’s testimony is contradicted by that given by the various police officers, Assistant State’s Attorney Mondello and Carlos Martinez. Defendant’s own statement alleged that he was never beaten and was indeed provided washroom facilities. No evidence exits that defendant was denied the opportunity to sleep. Moreover, the physical injuries to which Carlos Martinez and Dr. Aaron Hamb testified do not necessarily support defendant’s claimed version of his treatment. Martinez specifically asked defendant if he had any physical complaints or problems; defendant responded negatively. Martinez also failed to observe any physical signs of mistreatment which would support defendant’s claim of frequent and harsh beatings.

The question of the voluntariness of defendant’s statements became one of balancing the credibility of the various witnesses. Defendant’s testimony was contradicted by numerous State witnesses and lacked clear, objective support. Moreover, defendant’s credibility was called into issue in light of the numerous inconsistencies between his trial testimony and that given at the hearing. Given this court’s inability to substitute its judgment for that of the circuit court, and the manifest weight of the evidence supporting the court’s finding of voluntariness, we reject defendant’s claim that his admissions were involuntary.

Turning now to defendant’s final contention, defendant claims that he was denied a fair trial when the State argued in closing argument that Duane Sammons, or Cratches, consistently told the same story to the police and, therefore, was a more credible witness.

We dispose of this contention on the grounds of waiver. Defendant neither objected to the State’s comments during closing argument nor specifically mentioned this error in his post-trial motion. The alleged error is, therefore, waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Moreover, the plain error exception does not require this court to consider the issue. The evidence in this case is not closely balanced, and the alleged error is not of such magnitude as to deprive defendant of a fair trial. For these reasons, we deem defendant’s argument waived.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO delivered

license: Public Domain

text:
    STEPHEN A. MYERS, Plaintiff-Appellant, v. HEALTH SPECIALISTS, S.C., Defendant-Appellee.
    First District (2nd Division)
    No. 1 — 91—0272
    Opinion filed January 21, 1992.

      Rooks, Pitts & Poust, of Chicago (Terrence J. Madden, of counsel), for appellant.
    Cotton, Watt, Jones & King, of Chicago (Russell Woody and Wesley Kennedy, of counsel), for appellee.
   JUSTICE DiVITO delivered

the opinion of the court:

In this case we must determine whether the circuit court properly granted summary judgment for defendant, and denied summary judgment for plaintiff, based on its conclusion that a release executed by plaintiff in connection with prior litigation between the parties barred plaintiff’s claim in this litigation. For reasons that follow, we reverse and remand for a determination of plaintiff’s damages.

Plaintiff Stephen A. Myers, an obstetrician/gynecologist, worked for defendant Health Specialists from July 1977 through June 1978 under a written employment agreement. The agreement provided that

“[t]he Employer shall maintain malpractice insurance covering Employee with limits of not less than One Hundred Thousand Dollars ($100,000) per person and Three Hundred Thousand Dollars ($300,000) per incident. In addition, the Employer shall maintain extended coverage liability insurance covering the Employee with a limit of not less than One Million Dollars ($1,000,000).”

Pursuant to this agreement, defendant obtained “claims made” insurance, which provided coverage only for claims that were brought while plaintiff was insured under the policy. When plaintiff left defendant’s employ, his coverage under the “claims made” policy necessarily terminated; neither party obtained “tail” coverage, which would have continued plaintiff’s coverage after his employment ended. Defendant subsequently changed from “claims made” malpractice insurance to “occurrence” coverage for its employees; when defendant coupled this with “prior acts” coverage, employees were insured against any claim filed while the policy was in force, including claims arising from acts occurring prior to the purchase of the “occurrence” policy. Because plaintiff was not listed among the insureds, however, he had no insurance against malpractice claims that might arise from acts he performed during the year of his employment.

In 1979, plaintiff filed suit against defendant (the 1979 litigation), asking for an accounting to enforce the compensation provisions of the employment agreement. That litigation resulted in a settlement agreement, based on a release plaintiff executed on January 2, 1980. The release included the following provision:

“[Plaintiff] *** has remised, released and forever discharged and, by these Presents, does *** remise, release, and forever discharge [defendant] of and from all manner of actions, causes, and causes of actions, suits, debts, sums of money, accounts, *** damages, judgments, executions, claims and demands, whatsoever, in law or in equity, and particularly, without limiting the generality of the foregoing, from all claims which were or might have been asserted in that certain action entitled Stephen A. Myers, v. Health Specialists, S.C., Case No. 79 CH 621, or in any manner arising from or related to the subject matter of such action or, arising from any employment agreement between the [parties], which [plaintiff] now has against [defendant] or ever had, *** by reason of any matter, cause, or thing, whatsoever, on or at any time prior to the date of these Presents.”

Seven years later, plaintiff was named as a defendant in a 1985 medical malpractice action (the Roberts litigation) in connection with a “Good Samaritan” emergency delivery that he performed during the time he was employed by defendant. When plaintiff tendered his defense to defendant’s insurer, he learned to his surprise that the insurer would not defend him because he was not insured by defendant’s policy. Because his own insurance company also refused to pay for his defense, plaintiff was forced to pay his own legal expenses. In that litigation, plaintiff moved for summary judgment based on the Good Samaritan defense. The circuit court granted his motion, and the appellate court affirmed. Roberts v. Myers (1991), 210 Ill. App. 3d 408, 569 N.E.2d 135.

Plaintiff then filed this declaratory judgment action in April 1987. He sought indemnity for any future costs, legal fees, and adverse judgments arising from acts performed during his employment with defendant as well as reimbursement for costs and legal fees incurred by his successful defense in the Roberts litigation. Count I of his first amended complaint was predicated on Illinois corporation and agency law, while count II sought relief based on the employment agreement. Specifically, plaintiff alleged that defendant breached the agreement by refusing to continue to maintain insurance for acts he performed during his employment, in the form of either occurrence insurance or “tail” coverage, and by not providing the one million dollar extended coverage the agreement required. Defendant answered, raising four affirmative defenses: (1) the effect of the release plaintiff signed in the 1979 litigation; (2) failure to state a cause of action; (3) the act at issue was outside the scope of plaintiff’s employment and thus not within defendant’s potential respondeat superior liability; and (4) estoppel, based on plaintiff’s “Good Samaritan” defense in the Roberts litigation.

Plaintiff moved for partial summary judgment on count II, arguing that defendant had breached the employment agreement as a matter of law by not providing insurance to cover his legal expenses for the Roberts litigation. He also moved to strike the first, second, and fourth affirmative defenses. Defendant moved for summary judgment as well, contending that the release barred plaintiff’s suit because this claim arose from the employment agreement, and the release specifically encompassed all claims arising under the agreement.

In granting defendant’s motion for summary judgment, the circuit court held that

“the release is clear, precise and definite constituting an unambiguous document[.] * * *
*** [T]he release in question is not a general release but is instead a special or particular release applying specifically to claims having their origin, stemming from or being the product of the employment agreement or conversely any breach thereof.
The release, just as the contract of employment, is not an ambiguous writing, it is not capable of amplification by parol evidence, but instead expresses the intention of the parties being clearly manifested within the four corners of the document.”

The court further noted that the parties were “educated and sophisticated” people who acted on advice of counsel in 1979, leading it to conclude that they intended “the natural ordinary meaning and intention of the language used,” which in the court’s view was “to terminate any dispute that might exist or be stimulated by their relationship as evidenced by the agreement.” Any other interpretation of the release, the court cautioned, would mean that “the word ‘Release’ can no longer be of significance in the legal lexicon.” It then stated its finding that “the plaintiff, by virtue of the release of January 1980, released any claim he might have had against the defendant as the consequence of the failure to provide occurrence coverage.” The court then granted defendant’s motion and dismissed the entire action with prejudice. It also denied plaintiff’s summary judgment motion and declared that the motion to strike defendant’s other defenses was moot.

In this appeal, plaintiff asks this court to reverse the entry of summary judgment for defendant, to reverse the denial of his motion for partial summary judgment, to enter summary judgment in his favor, and to remand for a determination of damages and consideration of count I. Defendant urges us to affirm, and if we cannot, to remand for consideration of plaintiff’s summary judgment motion and its affirmative defenses.

Summary judgment is “a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt” (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871), and all evidence in the record must be construed “strictly against the movant and liberally in favor of the opponent” (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871; Carona v. Illinois Central Gulf R.R. Co. (1990), 203 Ill. App. 3d 947, 949, 561 N.E.2d 239, 241, appeal denied (1991), 136 Ill. 2d 542). In considering a summary judgment motion, the circuit court’s task is not to try any issue of fact, but rather

“to determine whether any issues of material fact exist. [Citation.] Summary judgment is proper where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” (Winnetka Bank v. Mandas (1990), 202 Ill. App. 3d 373, 386-87, 559 N.E.2d 961, 969, citing Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).)

We review summary judgment orders de novo. (Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083, 1086.) In particular, when considering a circuit court decision in a contract action, “where the evidence consists mainly of documents[,] *** the [appellate] court is not bound by the trial court's finding and may make an independent determination on the facts.” Polo National Bank v. Lester (1989), 183 Ill. App. 3d 411, 414, 539 N.E.2d 783, 785.

I

Plaintiff first contends that the circuit court erred in holding that the release barred his claims, entitling defendant to summary judgment. Characterizing the 1980 release as a “general release,” plaintiff argues that the court’s holding conflicts with three tenets of release law: (1) even if extremely broad, general releases do not bar claims that, like this one, are unknown to the parties at the time of the release; (2) general releases directed to specific, disputed claims do not bar other claims that are undisputed at the time of the release; and (3) a limited release, of claims in existence at the time of the release, does not bar later-arising claims.

Defendant, agreeing that the release is a general one albeit with specific portions, replies that the circuit court correctly held that the release barred plaintiff’s claims because the release unambiguously covers “all claims *** arising from any employment agreement between [the parties here],” and plaintiff’s current claim arises from the insurance provision of the employment agreement. In addition, defendant asserts plaintiff knew or should have known, or could have learned if sufficiently diligent, that his insurance terminated when his employment did. Plaintiff rejoins that, because this is a contract action, his alleged lack of diligence is irrelevant even though, in a tort action, it could be deemed contributory negligence.

The Illinois Supreme Court recently reviewed the principles of the law of releases in Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440. In Whitlock, the defendant children wanted to buy a farm, but the plaintiff bank would finance the purchase only if the defendant children’s parents agreed to use their own farm as security for the children’s loan. The parties executed two notes in connection with the financing. Loan No. 1 was secured by the parents’ farm and signed by the children and the parents; it was used primarily for the children’s purchase, but some of the money retired a prior lien on the parents’ farm. Loan No. 2, which covered the balance of the children’s purchase, was secured by the children’s farm and signed only by the children. The children defaulted on loan No. 2, but the bank agreed to accept a deed to their farm instead of instituting foreclosure proceedings. The agreement for deed in lieu of foreclosure contained the following provision:

“[The] Bank *** does hereby remise, release and forever discharge Borrower, *** of and from all manner of actions, causes and causes of action, suits, debts, sums of money, accounts, *** damages, judgments, executions, claims and demands, whatsoever, at law or in equity, and particularly without limiting the generality of the foregoing all claims relating to the mortgage loan transaction aforesaid and the conveyance of title hereunder, which either party *** ever had, now have or may have in the future, for, upon or by reason of any matter, cause or thing, whatsoever.” (Emphasis omitted.) 144 Ill. 2d at 445.

When the bank later filed to foreclose on Loan No. 1, the defendants raised the release as an affirmative defense and moved for summary judgment. The bank argued that the release applied only to loan No. 2; defendants countered that the release extinguished all liability to the Bank. The circuit court granted the defendants’ motion, and the appellate court affirmed (Farm Credit Bank v. Whitlock (1990), 202 Ill. App. 3d 609, 560 N.E.2d 460).

The supreme court reversed, finding that summary judgment was barred because unresolved questions of fact existed as to the parties’ intent concerning the scope of the release, making it ambiguous. The court interpreted the agreement’s “all actions” boilerplate, when combined with the “particularly” language, to mean that “the Bank release[d] the borrowers from all actions and claims, but particularly those relating to Loan No. 2.” (Emphasis in original.) (Whitlock, 144 Ill. 2d at 448.) The court then held that the release was ambiguous on its face as to whether the parties intended to limit the embrace of the release to loan No. 2 or if it also encompassed loan No. 1. This ambiguity made summary judgment improper because it mandated consideration of extrinsic evidence to ascertain the parties’ intent.

In reaching its conclusion, the supreme court reiterated that:

“A release is a contract, and therefore is governed by contract law. [Citation.] The intention of the parties to contract must be determined from the instrument itself, and construction of the instrument where no ambiguity exists is a matter of law. [Citation.] * * *
Where the releasing party was unaware of other claims, Illinois case law has restricted general releases to the specific claims contained in the release agreement. *** *** A general release is inapplicable to an unknown claim. [Citation.]” Whitlock, 144 Ill. 2d at 447-48.

Here, the release’s own terms exclude plaintiff’s claim. The release unequivocally states that it applies only to those claims that plaintiff “now has or ever had [against defendant] on or at any time prior to” January 2, 1980. (Emphasis added.) This language unambiguously conveys to us the parties’ intent that, to fall within the release’s embrace, a claim must have arisen on or before January 2, 1980. Under plaintiff’s breach of contract theory, defendant asserts, plaintiff’s claim arose during his employment, differentiating this from his request for relief, which arose with the Roberts litigation. Defendant’s interpretation, however, ignores the fact that prior to the Roberts litigation, plaintiff had incurred no legal expenses nor had he paid any premium for “tail” coverage. Thus, until 1987, plaintiff suffered no injury from defendant’s alleged breach. Without such injury, or a real threat thereof, no justiciable claim arose from defendant’s nonperformance of the employment agreement. (D. Dobbs, Remedies, §12.2, at 798; §12.1, at 786 (1973).) Therefore, the claim at issue did not arise “prior to” 1980. Accordingly, by a plain reading of its language, the release does not bar the claim before us.

Even if this claim did not fall within the release’s time exemption, we would have to reverse the grant of summary judgment for defendant because the circuit court’s characterization of the release at issue as a “special or particular release” was incorrect. The sweeping language of the release, strikingly similar to that found in the Whitlock release, renders it general. Moreover, the “particularly” provision itself, which at first seems to specify a certain set of claims, instead purports to release defendant from “all claims *** in any manner *** arising from any employment agreement between [the parties], which [plaintiff] now has against [defendant] or ever had, or which his heirs *** hereafter can, shall or may have, *** by reason of any matter, *** whatsoever.” (Emphasis added.) The breadth of this language is sufficient to transform the “particularly” provision itself into a general release. As such, under Whitlock, the release here cannot bar plaintiff’s present claim. Plaintiff stated that he was unaware in 1980 of any potential need to enforce the insurance provision, and defendant presented no specific evidence to contradict him. Although we agree with defendant that final settlement of disputes is desirable, the cases defendant cites for the proposition that unknown but discoverable claims fall within a general release are inapposite because they address releases in the context of Federal securities and anti-trust law. Indeed, as the Seventh Circuit specifically stated in Goodman v. Epstein (7th Cir. 1978), 582 F.2d 388, 403, its decision was predicated on the policy requirements of Federal securities law, not on Illinois law. In this context, Whitlock teaches that a general release does not apply to an unspecified claim if the releasing party is unaware of such claim when executing the release. (Whitlock, 144 Ill. 2d at 448.) Accordingly, plaintiff’s lack of awareness in 1980 of the Roberts litigation also precludes application of the release to the claim before us.

II

Having determined that the circuit court erred in granting defendant’s motion, we now address its necessary result: the circuit court’s denial of plaintiff’s motion for summary judgment on count II. Defendant initially urges us, without citation to authority, to remand this matter to the circuit court because that court did not address the merits of plaintiff’s motion. This argument betrays a misperception of the nature both of the question presented and of our review. As noted above, we consider summary judgment orders de novo; we, like the circuit court, must decide only whether the parties’ pleadings and other submissions present an issue of triable fact and if not, whether plaintiff is entitled to judgment as a matter of law. This is a question of law, not of fact. Thus, remand is not necessary. In addition, defendant asserts that the release presents factual questions, which only the circuit court may address. Defendant, however, is estopped to make this disingenuous argument on appeal in defense against plaintiff’s motion after contending in the circuit court, on its own summary judgment motion, that the release raised no issue of fact. (Demos v. National Bank of Greece (1991), 209 Ill. App. 3d 655, 670, 567 N.E.2d 1083, 1093 (one may not assume a position at trial, succeed, and switch positions on appeal).) We turn to the merits.

Plaintiff argues that, as a matter of law, defendant had a duty to provide him with medical malpractice insurance in accordance with the employment agreement and that it breached its duty, making defendant liable for his costs and legal fees in the Roberts litigation as well as for any future adverse judgments, costs, and fees in connection with any litigation that may be filed against him in the future for acts committed during his tenure with defendant. Defendant replies that it had no duty under the agreement to maintain “occurrence” or “tail” coverage, that “extended coverage liability insurance” did not refer to malpractice insurance, and that its affirmative defenses raise factual issues, precluding summary judgment.

As with the release, because the employment agreement is a contract, we must look first to its language to determine the intent of the parties. The agreement, however, states only that defendant was obliged to “maintain malpractice insurance [and] extended coverage liability insurance covering [plaintiff]” in certain amounts. It neither specifies the type or duration of coverage nor defines the meaning of “extended coverage liability insurance.” Defendant asserts that given the agreement’s lack of specificity, it had discretion to determine which kind of insurance to purchase and how long to provide it. This view has no support in contract law. On the contrary, the general rule is that contracts are construed against the drafter. (Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 493, 505 N.E.2d 314, 319.) Here, the drafter was defendant, so any ambiguity will be construed against it.

In ascertaining the intent of the parties here, furthermore, we must consider not only the agreement itself but also the documents presented by the parties in support of their respective motions for summary judgment. In doing so, we are guided by the principle that even though these submissions must be construed liberally in favor of the opponent, “facts contained in an affidavit in support of a motion for summary judgment which are not contradicted by counteraffidavit are admitted and must be taken as true for purposes of the motion.” Purtill v. Hess (1986), 111 Ill. 2d 229, 241, 489 N.E.2d 867, 871-72.

Here, the affidavits, of defendant’s president since incorporation, Cornelius Bolton, and of plaintiff, contain no mention of any conversations concerning the insurance provisions of the employment agreement. The record, however, does contain transcripts of two depositions of plaintiff, one conducted in connection with the 1979 litigation and the other for this suit, as well as a transcript of a deposition by Bolton. In plaintiff’s earlier deposition, he stated that prior to the execution of the employment agreement, defendant’s employee, Dr. Burks, reviewed the agreement’s provisions paragraph by paragraph during a two-hour meeting with plaintiff and another employee, Dr. Nelson Stringer. Dr. Burks’ wife also attended the meeting. In the later deposition, plaintiff related what Dr. Burks told him about malpractice insurance: (1) that two types of insurance existed but that one was undesirable because it provided no long-term coverage, and that defendant would provide “really complete” coverage; (2) that plaintiff would have “absolutely no worry about malpractice insurance. [Defendant] will take care of it”; (3) that the $1 million coverage was “further substantiation that [defendant] was going to be entirely responsible for any malpractice liability that may have occurred as a result of [plaintiff’s] employment”; and (4) that Dr. Burks said nothing suggesting that the “extended coverage liability insurance” covered anything other than professional malpractice. Even though three people (Burks, his wife, and Stringer) are in a position to dispute the accuracy of plaintiff’s recollection of Dr. Burks’ assurances, defendant submitted no statement from any of them. Accordingly, plaintiff’s evidence remained uncontradicted, and as such, following Purtill, must be taken as true for the purposes of the motion. Thus, defendant raised no question of triable fact as to the parties’ intent that defendant would provide insurance, even after plaintiff’s employment ended, for at least certain acts he performed during his employment or as to whether “extended coverage liability insurance” applied to malpractice claims. This absence of factual questions alone, however, does not entitle plaintiff to summary judgment, given defendant’s affirmative defenses.

We already have determined, in part I, that the release is no bar to plaintiff’s claims. As for the second defense, failure to state a cause of action, defendant has neglected to brief or argue it, and thus has waived the point. The remaining defenses, estoppel and absence of respondeat superior liability, both depend on a finding that the Roberts delivery was within the scope of plaintiff’s employment with defendant. Because scope of employment is typically a factual question, defendant asserts, we should remand for a factual determination by the circuit court. Remand, however, is unnecessary because we need not decide whether the delivery was within the scope of plaintiff’s employment in order to find the defenses inapplicable. Instead, we return to the employment agreement, which states that “Employer shall maintain malpractice insurance covering Employee,” without mention of limiting the coverage to acts performed within the scope of employment. Again construing the agreement against the drafter, we find that under the plain meaning of this provision defendant agreed to provide plaintiff with malpractice insurance for acts performed during the period of his employment, regardless of whether he was acting outside the scope of his employment at the time he performed such acts. Because delivery occurred while plaintiff was employed by defendant, it falls "within the scope of the coverage.

For the reasons stated above, we reverse the circuit court’s order granting summary judgment for defendant and denying summary judgment for plaintiff, direct the circuit court to enter summary judgment for plaintiff on count II, and remand for a determination of plaintiff’s damages.

Reversed and remanded with directions.

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


author: JUSTICE RIZZI

text:
    J.A. ZITO et al., Plaintiffs-Appellees, v. PATRICIA K. GERKEN et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1 — 90—0637
    Opinion filed January 22, 1992.
    Rehearing denied February 27, 1992.
    Vincent A. Lavieri, of Arlington Heights, for appellants.
    Ellis B. Levin, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs J.A. Zito, Diana Zito, Rose Mary Schuster, George Schuster, Carl G. Lord, Vivian I. Lord, Richard C. Krautsack, Alice C. Krautsack, Frank D. Beucherie, and Santa Ann Beucherie (Homeowners) brought this action seeking declaratory, injunctive and other relief to remove the cloud on title to their real property caused by the 1987 amendment to restrictive covenants adopted by defendant Lake Briarwood Association, Inc. (Association), and defendants Patricia K. Gerken, Joyce Skiple and John Gianopulos, in their capacity as directors of Association. The parties filed cross-motions for summary judgment. The trial court denied Association’s motion for summary judgment, but granted partial summary judgment in favor of Homeowners on count I of the amended complaint. On appeal, Association contends that (1) the trial court erred when it failed to enforce the 1987 amendment to the restrictive covenants; (2) Homeowners have an implied duty to pay their fair share of common area expenses; and (3) Homeowners share an easement for use and enjoyment of common areas of the subdivision and are required to pay for reasonable and necessary repairs and maintenance. We reverse and remand.

Homeowners are owners of single-family homes located in the Lake Briarwood subdivision in Mt. Prospect, Illinois (Lake Briar-wood). Lake Briarwood, which is comprised of over 100 units, was developed in the late 1950’s by E.L. Trendel & Associates, Inc. (Trendel). Association, whose membership is comprised of homeowners of Lake Briarwood, was incorporated by Trendel in 1959 to serve as the regulating and controlling body of the subdivision. Association was empowered to act for the benefit of the homeowners of Lake Briar-wood and to have all such powers necessary to effectuate the desires of its membership in order to make Lake Briarwood a desirable place to live.

In 1960 and again in 1961, Trendel properly recorded two virtually identical restrictive covenants establishing a comprehensive scheme of regulation for Lake Briarwood. Both restrictive covenants contained a provision specifically permitting Trendel to amend the covenants at any time. In 1980, Trendel recorded an amendment transferring the sole and exclusive authority to further amend the covenants to Association.

In December 1987, Association recorded an amendment to the restrictive covenants requiring each homeowner in Lake Briarwood to become a member of Association, authorizing Association to levy annual dues and assessments upon each home in Lake Briarwood to cover the costs of maintenance and repair of the common areas of the subdivision, and granting broad authority to Association to enforce collection of any delinquencies in payment of dues and assessments, including the right to place a lien upon the property of a delinquent homeowner. Thereafter, Association set the annual dues and assessments for each lot within Lake Briarwood at $100.

Homeowners ignored repeated requests by Association to pay their annual dues and assessments. On November 14, 1988, Homeowners filed a complaint in the circuit court seeking a declaratory judgment of the validity of the 1987 amendment, and injunctive and other relief to remove the cloud on title to their homes caused by the 1987 amendment. Both parties filed cross-motions for summary judgment. On February 7, 1990, the trial court entered an order granting partial summary judgment in favor of Homeowners on count I of the amended complaint, ruling that the adoption and recording of the 1987 amendment was an act outside the scope of Association’s authority, and therefore, without force and effect as to Homeowners’ properties.

Association first contends that the trial court erred when it failed to enforce the provisions of the 1987 amendment to the restrictive covenants. We agree.

A restrictive covenant which has been modified, altered or amended will be enforced if it is clear, unambiguous and reasonable. (Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 810, 459 N.E.2d 1164, 1168; Sanni, Inc. v. Fiocchi (1982), 111 Ill. App. 3d 234, 238, 443 N.E.2d 1108, 1112.) The covenants here were created to establish a common and uniform scheme of regulation to ensure the open, unobstructed character and nature of the subdivision and to maintain continued enjoyment of the same. The 1987 amendment does not seek to change the character of Lake Briarwood or to impose unreasonable burdens upon any lot owners within the subdivision. Rather, the amendment merely sets forth a method and plan by which to enable Association to fulfill the original intent and purposes of the covenants.

Moreover, the record demonstrates that the terms and conditions of the 1987 amendment impose a minimal collective burden upon the residents of Lake Briarwood, while at the same time preserving the nature and character of the subdivision. Under the circumstances, the restrictive covenants and the 1987 amendment are clear, unambiguous and reasonable. The trial court, therefore, erred when it failed to enforce the 1987 amendment to the restrictive covenants. (But see Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 459 N.E.2d 1164.) It is therefore unnecessary to address Association’s other contentions.

Homeowners argue that Association lacked the authority to extend the duration of the covenants by negating the automatic 30-year repeal provision of the restrictive covenants. Homeowners, however, have not filed a notice of appeal or cross-appeal, and this issue was not raised in Association’s notice of appeal or in its brief. The issue is therefore waived. 134 Ill. 2d R. 303(a); Iacovelli v. First Security Trust & Savings Bank (1990), 202 Ill. App. 3d 982, 985-86, 560 N.E.2d 904, 906; Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 724, 557 N.E.2d 506, 514.

Accordingly, the judgment of the circuit court is reversed and the case is remanded for the entry of orders and further proceedings consistent with what is stated herein.

Reversed and remanded.

TULLY and CERDA, JJ., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLERY E. CASEY, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 90—0877
    Opinion filed January 23, 1992.

      Thomas Anthony Durkin and Janis D. Roberts, both of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Brigid Kenney, and Donald T. Lyman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Defendant, Ellery Casey, was convicted of theft and unlawful use of a computer for his participation in a scheme to use stolen authorization codes to place long distance telephone calls on the International Telephone and Telegraph network (ITT). Several of the exhibits used by the State at trial were challenged on foundational and hearsay grounds during a defense pretrial motion. The court denied the motion and later admitted People’s exhibit 39 into evidence. The court convicted Casey of theft (Ill. Rev. Stat. 1987, ch. 38, pars. 16—1(a), 16—1(b)) and unlawful use of a computer (Ill. Rev. Stat. 1985, ch. 38, pars. 16—9(b)(3), 16—9(b)(4)). Casey was sentenced to 30 months of probation.

On appeal, Casey argues that People’s exhibit 39 was erroneously admitted into evidence because it was produced in anticipation of litigation and not in the ordinary course of business. He also asserts that a proper foundation for exhibit 39 was not provided when the source material for what was in effect a selective summary of data was lost or destroyed and the defense was denied an opportunity to evaluate or test it. Casey further contends that the evidence was insufficient to sustain his convictions beyond a reasonable doubt.

We agree that exhibit 39 was improperly admitted, but we believe that the remaining evidence is sufficient to sustain Casey’s conviction.

Background

ITT provides long distance telephone service to enrolled customers, who are given a seven-digit access code. This code puts the caller in contact with the ITT switch computer in Miami, Florida. Next, the caller must dial the desired long distance number, after which he or she dials a personal, seven-digit ITT authorization code which allows the switch computer to route the call and identify the calling party for billing. If an unauthorized person obtains and uses a customer’s ITT authorization code, the customer receives the bill.

In late 1985, ITT had reason to believe that some person or persons were hacking into its telecommunications computer system in Miami, Florida, to discover both the ITT access code and one or more individual authorization codes. Hacking refers to a process by which someone keeps calling into a switch site in an effort to obtain authorization codes, using sequential dialing of numbers. The switch computer in Miami makes a contemporaneous record of all calls and attempts routed through it. This information is then transmitted to ITT’s mainframe computer in New York, the day after it is recorded, for bill processing. The mainframe computer is a giant IBM computer.

Approximately once a month, the information from the switch computer is transmitted from the mainframe disc memory to a magnetic tape which also runs on the mainframe computer. The magnetic tape is thus used for storage and the information on it can be retrieved at any time.

In 1985, Martin Locker, manager of “Telefraud” for ITT, began an investigation into an alleged hacking operation which was believed to have originated in Florida. A person named Ira Stem was implicated. During the investigation, Locker searched ITT records and discerned a pattern of unauthorized calls being made from Chicago. Locker directed his employees to start tracking calls originating from Chicago that used ITT authorization codes. Eventually the investigation focused on an address on South Archer Avenue, the location of Lock Technology.

ITT enlisted Illinois Bell Telephone Company to help track the suspected problem by putting “DNRs,” or dialed number recorders, on the telephone numbers and lines coming from the Archer Avenue address. A DNR is a telephone monitoring device which prints a compíete record on paper of what is dialed on a particular line on any particular call. The printout shows the date of the call, except for the year, and the time, the numbers dialed, and the date and time when the call is terminated.

DNRs were placed on telephone lines of Lock Technology in April 1986. Based on the results of the ITT investigation, the State’s Attorney’s office obtained and executed a search warrant. Ellery Casey and 10 employees of Lock Technology were arrested and items were seized from the company.

Martin Locker testified at trial that when he began the ITT investigation he received a “log reader report” of switch activity that was identified as People’s exhibit 38. The report was referred to as the “hacking report,” which recorded all calls attempted to be placed through the ITT switches in Florida, including the date and disposition of the call, its duration, the called number, the ITT serial and ID numbers generated to the call, the incoming and outgoing trunk group, and the lead line. The report did not include the telephone number of the caller or identify him or her in any way. Locker testified that the information on the exhibit is kept in the ordinary course of business.

To track some of these calls using authorization codes that he believed had been compromised, Locker had employees call the distant-end receivers of these calls. He then wrote a report and instructed Richard Steinel in Chicago to open an internal ITT investigation.

Steinel contacted the Illinois Bell Telephone Corporation and arranged for the placement of the DNRs on the telephone lines at the Archer Avenue address. He had learned that Lock Technology had a multiple-telephone system at that location.

The State called as a witness the Bell Telephone employee who had placed the DNRs and retained possession of the tapes generated in 1986. The Bell employee testified that he turned the tapes over to the State’s Attorney and police on the day the search warrant was executed.

James Mack, a Chicago police officer with the financial investigative unit, testified that Steinel contacted him in May 1986 and provided documentation from ITT and Illinois Bell that included what authorization or customer codes were being used, how long they had been used, and where they were being used.

Steinel accompanied the police during the raid. Inside the Archer Avenue address the police found 10 calling booths with an employee at each and one additional phone at the defendant’s desk. Officers secured and inventoried each booth by number and took the phones and documents from the premises. Also confiscated was a notebook belonging to defendant Casey that Detective Mack perceived to be telephone numbers and access or authorization codes.

Locker testified that he was able to identify over 400 ITT customer codes as a result of the information obtained in the police search. The telephones confiscated dining the search were hooked up to a DNR that printed out the information programmed into each telephone’s memory. These tapes are the derivation of People’s exhibit 33.

Locker testified that he reviewed the information from Bell and the police department and from that and other information made a file of telephone numbers. Using the file of numbers and directing a computer programmer to create a program to retrieve information from other computer records, Locker produced what became People’s exhibit 39, the chief evidence under challenge in the pending appeal. Locker testified that the documents he reviewed had “various bits of information, including telephone numbers.” From these he “extracted” telephone numbers to create his list and computer file, neither of which was provided to the defense or existed at the time of trial. Locker explained that he created a computer program to perform what he called a “retrieval” function, based on information from his list. The computer program was not available at trial and the programmer did not testify.

According to the State, People’s exhibit 39 contains information from records kept by ITT in the ordinary course of business. When a call is made in the ITT network, a contemporaneous record is made of the call, indicating originating city, trunk group, date, time, duration, access code, and authorization number. The information is maintained on the computer for customer billing purposes and is placed on a magnetic tape in New York at month’s end. It does not, however, include the originating telephone number. Locker conceded that exhibit 39 was produced during and as part of the ITT investigation and in anticipation of litigation.

The trial court denied a motion in limine to bar exhibit 39 and ultimately ruled that, while the foundation for the exhibit could have been better, the information in the exhibit had been adequately accounted for and therefore the exhibit would be admitted. The court did bar People's exhibit 40, a summary of losses Locker had prepared for litigation using invoices from another exhibit. The court also excluded People’s exhibit 38, the “hacking report,” even though it purported to be a computer printout generated in the ordinary course of business at the Fort Lauderdale switching office of ITT. Locker had testified that to his knowledge, such records were kept in the ordinary course of business, but the trial court ultimately found that he lacked sufficient personal knowledge of those records.

Introduced into evidence by stipulation were written documents with information concerning five ITT customer accounts. The stipulations specified the authorization code number personal to each customer and the amount credited to each for unauthorized calls made on the customer’s number. Also admitted were eight stipulations from employees of Lock Technology. The affidavits identified Casey as the employees’ supervisor and stated that the employees would contact potential business customers by using a list of telephone numbers supplied by Casey. The affidavits also indicated that if the automatic dialing system was not functioning properly, the employees would notify Casey, who “would do something to [their] phone[s] so that [they] would work again.”

Opinion

I

Casey contends that exhibit 39 was erroneously admitted into evidence against him because it does not satisfy the requirements of a record kept in the ordinary course of business and in fact was prepared in anticipation of litigation. Section 115—5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115—5(a)) provides for the introduction into evidence of records “made in regular course of any business *** if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.” Other circumstances surrounding the making of the record go to its weight, but not admissibility. In contrast, “[n]o writing or record made in the regular course of any business shall become admissible as evidence *** if [s]uch writing or record has been made by anyone during an investigation of an alleged offense or during any investigation relating to pending or anticipated litigation of any kind.” Ill. Rev. Stat. 1985, ch. 38, par. 115-5(c).

Locker admitted that he produced exhibit 39 for the purpose of the fraud investigation and to pursue civil litigation and criminal prosecution. The primary source data came from a list that Locker prepared using, among other things, People’s exhibit 36, documents seized by the Chicago police during the search of the Archer Avenue address. Locker also testified he had used numbers from telephonic and letter communication with Illinois Bell, some “memo cards” and “other assorted copies of documents.” He did not identify specific numbers extracted from specific documents but said “some” of the numbers came from one place and some from another. The list or data he used included “a few other numbers that *** did not specifically come off [exhibit 36]” but which came “from invoices or what [he termed] commonly called numbers that [he] looked at that were being used in conjunction with the investigation.”

After preparing his list from this data, Locker had an ITT computer programmer use this input to design a computer program for the purpose of retrieving selective ITT billing information maintained on magnetic computer tapes at ITT’s offices in New York. Locker failed to preserve his list, however, and testified that it no longer existed. The computer programmer did not testify. Locker also admitted that exhibit 39 does not show where a call was placed, or the ITT authorization code, and in fact by looking at the document there was nothing to link the information thereon to the Archer Avenue address.

In admitting exhibit 39, the trial court determined that Locker had adequately explained how he had created the exhibit. The court acknowledged that a better foundation could have been laid, but ruled that the computer-generated records of telephone calls going through the switching computer were admissible as business records. In so doing, the court found that they were not created in anticipation of litigation.

In support of the court’s ruling, the State asserts that exhibit 39 was properly admitted as a business record because the switch computer in Miami automatically creates a record of information regarding the calls as they come in. Therefore, the resulting computer record is trustworthy. Since the ITT computer’s accuracy and reliability are not challenged with respect to its generation of the data, the State asserts that it met the foundational requirements necessary for the admission of exhibit 39.

The cases make a distinction between “computer-generated” and “computer-stored” data. In People v. Holowko (1985), 109 Ill. 2d 187, 486 N.E.2d 877, the court explained that computer-generated data, such as that recorded spontaneously to track incoming telephone calls, are generally admissible as representing the tangible result of the computer’s internal operations. In the same way, we believe, the ITT computer’s contemporaneous recording of incoming data through a program designed to track billing information is a normal business use of the computer. Absent some infirmity in the underlying source material or the way in which the program is set up, the spontaneously created data is reliable enough to satisfy the foundational requirement of a business record. A computer printout of such data would not be barred on foundational or hearsay grounds. Holowko, 109 Ill. 2d 187, 486 N.E.2d 877.

In contrast to computer-generated records, the Holowko court found that “¡printouts of the computer-stored data constitute statements placed into the computer by out-of-court declarants and cannot be tested by cross-examination.” (Emphasis added.) (109 Ill. 2d at 191, 486 N.E.2d at 878-79.) Such data therefore should not be admitted into evidence.

In Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 202, 367 N.E.2d 1238, the court held that computer records are admissible if the equipment itself is shown to be standard, the entries were made in the regular course of business at or near the time of the transaction, and the source of information and method and time of the preparation show the records to be trustworthy. In the pending case, there is no question raised as to the manner in which the mainframe and switch computers of ITT spontaneously record information that is used to prepare the billings. Casey is not challenging the methodology by which those computer records are created or stored. Rather, he asserts that exhibit 39 is itself nothing more than a summary of data that Locker assembled and selected in anticipation of litigation. Locker compiled a list of information, no longer in existence, and used it in conjunction with a special computer program that was designed to retrieve certain business records from the ITT computers. Casey contends that the main foundational flaw in exhibit 39 stems from the human selection process used by Locker and the manual input of numbers into a computer program that was unavailable for cross-examination. The defense’s attempt to verify or expose any errors in the exhibit was thus defeated.

We agree with Casey Because exhibit 39 was prepared as an aid to the investigation and litigation and was the product of Locker’s selection process, we find that exhibit 39 cannot properly be viewed as a record prepared in the ordinary course of business. The fact that some of the data incorporated into the exhibit were retrieved records that were themselves made in the regular course of business does not salvage it because exhibit 39 appears to be something more than just a summary of the retrieved records. Since the exhibit was a compilation of information from various sources, some of which were not verifiable by the defense, we believe it falls outside the definition of a computer-generated business record kept in the ordinary course of business.

We do not mean to suggest that the act of merely retrieving previously generated business records from a computer is improper or that summaries of such records cannot ever be admitted into evidence. (See People v. Rivera (1989), 182 Ill. App. 3d 33, 537 N.E.2d 924.) But if the retrieval process is designed from a litigant’s various sources of information and purposeful selection that cannot be independently reviewed by the defense, the challenge is well taken.

Our examination of the record reveals that the trial court held several thorough hearings on motions directed toward the admissibility of various exhibits. The court’s rulings on numerous evidentiary matters were impressively well thought out. Our holding as to the inadmissibility of exhibit 39 stems from our belief that the indicia of reliability accorded to computer-generated records cannot be automatically extended to the special computer “retrieval” program in this case, based as it was on the manual transmission of selected information by a litigant in anticipation of trial.

That is not to say that Locker intentionally or even inadvertently skewed information or created a false picture to incriminate Casey. The central problem with exhibit 39, in our opinion, is that its trustworthiness as a business record was not established by the State; the defense was put in the position of taking Locker’s word for what the exhibit represented. No witness for the State asserted that ITT keeps documents similar to exhibit 39 in the ordinary course of business. In the pending case, the information necessary to test the validity of Locker’s list and retrieval program was in the control of ITT, not defendant. We conclude that exhibit 39 lacks sufficient indicia of reliability to be admitted into evidence as a business record and should have been excluded.

II

Although we have found error in the admission of the exhibit, we do not agree with Casey that the remaining evidence is insufficient to prove him guilty of the offenses beyond a reasonable doubt. Nor do we believe that the outcome of the trial would have been different if the court had excluded this exhibit from consideration. After carefully reviewing the record, we hold that the other evidence, construed in the light most favorable to the State (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), amply supports the trial court’s conclusion that Casey used unauthorized ITT codes from the Archer Avenue address.

The trial judge, in his ruling, stated that “it is clear from the evidence that there was in fact the unauthorized use of certain access codes out of this business which has come to be known as Lock Technology. There is no question in my mind about that.” The court went on to note that “[t]he question that the court must decide *** is whether there has been sufficient connection between Mr. Ellery Casey and the actions that took place through the phones to prove him guilty beyond a reasonable doubt.”

The court found that although the ownership of Lock Technology had not been proven, there was sufficient evidence to show that Mr. Casey was in charge of the operations, as shown by “his actions and his control of the people who actually made certain telephone calls.”

We agree that the evidence, even without exhibit 39, shows that unauthorized customer codes were being used in the telephone calls made from the Archer Avenue address. The DNRs and other materials from the investigation and the items recovered by police in executing the search warrant trace the unlawful numbers back to the business. Exhibit 33 indicated that the numbers programmed into the telephones included unauthorized codes. Substantial oral testimony was offered to explain the basis for ITT’s investigation into the fraud and the basis for concluding that unauthorized codes were being programmed into the telephones used in the business located at the Archer Avenue address. The employees who sat in booths making calls for the business gave stipulated testimony that Casey was their supervisor. He was the one who, if the automatic dialing system did not function properly, did “something” to their phones, which at least indicates a technical familiarity with the phone system and, by reasonable inference, an ability to program numbers into the telephones. It is true that no one testified that he or she had actual knowledge that Casey was using unauthorized codes. However, police recovered suspicious sequences of numbers from his desk and an address book containing the number and address of Ira Stern, the Florida resident implicated in the computer hacking scheme. At least six authorization codes found on the DNR tapes were found in Casey’s possession. Finally, there is no evidence that a person or persons other than Casey programmed the telephones.

Certain defense exhibits in the record reveal that other corporate entities and individuals may have been affiliated with Casey, but nothing suggests that he was only a low-level employee of the business. In fact, in a copy of what appears to be a Dun & Bradstreet report on Lock Technology, at 3004 South Archer Avenue, an entry lists Casey as “principal” and notes Casey’s “verbal acknowledgement” of ownership. Although the purpose for which the defense exhibits were tendered relates to a pretrial motion to suppress, and thus the relevance of such information for trial purposes is lacking, the fact remains that with the State’s showing that Casey was in charge of the operations, and in the absence of any testimony or evidence to the contrary, a finder of fact could well infer that Casey was the one responsible for the illegal use of ITT’s customer authorization codes. His knowing use of the codes with intent to deceive ITT was established.

For the reasons set forth, we hold that the admission of People’s exhibit 39 was error, but that under the particular facts of this case the error was harmless. The outcome of the trial would not likely have differed had the exhibit been excluded, and the remaining evidence was sufficient to sustain the convictions.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.