author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HECTOR GARZA, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—3014
    Opinion filed February 21, 1989.
    Rehearing denied April 5, 1989.

      James R. Epstein, of Epstein, Zaideman & Esrig, P.C., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Jeanne A. Morrow, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant appeals his conviction of murder and sentence of 35 years’ imprisonment, raising the following issues: (1) whether he was denied his right to the effective assistance of counsel; (2) whether he was proved guilty beyond a reasonable doubt; (3) whether the trial court allowed inadmissible hearsay testimony into evidence; and (4) whether he was denied a fair trial by the State’s attempt to present evidence of motive and its comment on his failure to call an alibi witness.

Police officer Dubielak, the first witness called by the State at trial, testified that during the early morning hours of April 27, 1986, he received a call regarding a man shot at 2811 North Hamlin in Chicago. When he arrived at that location, he saw a girl immediately outside the door of an automobile cradling in her lap a young man who had been shot. Dubielak attempted to get a description of the offender from the girl, who was hysterical. On cross-examination, he repeated the description of the offender given to him at the scene by the girl: a male approximately 17 or 18 years of age, 5 feet 7 inches, 140 to 150 pounds, blue eyes, dark brown hair and a scar over his left brow, wearing a navy blue hooded sweatshirt, grey baggy pants, and black rocker shoes.

Donna Mikolajewski testified that she and the victim, Kenny Nuckols, had spent the evening together and were sitting in a car at the corner of Diversey and Hamlin at 3:30 a.m. when a man, later identified as defendant, approached them. Defendant said he was from Washtenaw and Glenlake and that he was a member of the Popes street gang. Donna testified that she was looking directly at him during this entire time. He repeatedly asked Nuckols what gang he belonged to, and finally Nuckols told him that he was a member of the Simon City Royals. At that point defendant walked back two or three feet, pulled out a short silver-barreled gun and fired five or six shots, the first of which missed both Donna and Nuckols; but the second one hit Nuckols, who threw himself onto Donna, while shouting to her to get down. After Nuckols was hit two more times, Donna got out of the car and ran as the assailant fired at her. She attempted to get help, but no one responded to her calls. When she heard defendant run down a gangway, she returned to the street, where she found Nuckols. The police took him to a hospital where he was pronounced dead.

That same morning the police took Donna to a station and showed her approximately 20 mug books. She picked out some pictures, but after viewing a lineup did not identify anyone.

On May 4, 1986, at 7 p.m., Donna was once again at the corner of Hamlin and Diversey when two men riding on a motorcycle shot at her. She informed the police that the person who shot at her “was very similar” to the person who killed Nuckols, and she gave the police the same description she later gave at trial in describing Nuckols’ killer. On May 5, 1986, she viewed a lineup but did not see her attacker. On May 7, 1986, Donna viewed photographs and from them tentatively identified defendant as the person who had killed Nuckols and shot at her; but she positively identified him when she saw him in a lineup.

Deputy Medical Examiner Mitra Kalelkar testified that Nuckols’ wounds indicated that he had been shot at close range, and that the trajectory of the wounds was consistent with his having been shot from the left side.

Daniel Noon, a gang crimes specialist with the Chicago police department, testified that during his investigation of the May 4 shooting he spoke with various members of the Gaylord gang, and on May 6, 1986, defendant, a Gaylord, surrendered himself for that incident. He told the police that, after being hit by a bottle thrown by a group of Royals, he lighted some firecrackers from the motorcycle and waved a toy gun to make it appear as if he were shooting.

Defendant testified that he is 5 feet 8 inches and 160 pounds, with dark brown hair, brown eyes and no scars on his face; that on April 26, 1986, he attended a party until approximately 1:30 a.m., when he walked home; that he had forgotten his keys, so he had to knock on his sister’s window to gain entry to the house; that he went directly to his room and to sleep; that he was nowhere near the intersection of Diversey and Hamlin; and that on May 6, 1986, he voluntarily surrendered himself to the police for the motorcycle incident, even though he was not responsible for it, because he had been directed to do so by another gang member.

On cross-examination the State established that gang members do pay back rival gang members for perceived wrongs, that such pay backs can include hurting rival gang members, and that the Royals and the Gaylords are rival gangs. Defendant admitted that he was a member of the Gaylords and that the colors of the clothing he was wearing in court were Gaylord colors.

Out of the hearing of the jury, the defense stated to the trial judge that it wished to call Andrea Zeman but that the State was going to object because, as defense counsel claimed, she would testify that Donna had told her that she and Nuckols were shot from a car as they walked down the street. The State did object, but on the ground that the testimony to be offered was hearsay and that the defense had failed to lay a foundation to bring in the witness. The trial court agreed and the defense then rested.

The State presented Detective Bogucki and Officer Noon as rebuttal witnesses. Noon testified that, after Donna identified defendant in the May 7 lineup, defendant made a statement regarding the murder in which he at no time mentioned that when he arrived home early on April 27 he had to wake his sister in order to get into his home; instead, defendant had simply said that he had walked home from the party, it was late and he had gone to bed.

Detective Bogucki testified that during his investigation of Nuck-ols’ murder he read reports which had previously been prepared by the officers at the scene of the crime and that he had noticed discrepancies in them concerning the description of the assailant. He spoke with Donna and asked her what description she had given, and she replied that she had described a white male, approximately 17, 140 to 150 pounds, dark eyes, long lashes and a medium complexion, wearing a dark hooded sweatshirt with a zipper, grey baggy pants and black rocker-type shoes. When asked about a description of blue eyes and a scar over the eyes, she stated that she had been describing the victim. Bogucki documented this in a supplemental report.

The jury found defendant guilty of murder. Defendant had retained new counsel when he presented his motion for a new trial. At the hearing on this motion, Officer Raymond Schalk testified that after a conversation with Donna on the day of the murder he made notes containing the words “possible scar on arm above a tattoo.” He stated that this was written after Donna told him that defendant had told Nuckols he was a Pope and that he had scars and tattoos to prove it, but that she had not seen them. It was stipulated that if Officer Noon were called to testify, he would state that Donna chose two pictures out of a mug book, one of Sean Ronan and one of Daniel Ul-bert, and said they “looked similar” to Nuckols’ attacker. She later viewed a more recent photo of Ronan and decided that he was not the offender; she then viewed Ulbert in a lineup but did not identify him. Photos of these men were admitted into evidence for purposes of the post-trial motion. The trial court found no reason to set aside the jury's verdict and denied defendant’s motion for a new trial. Defendant now appeals his conviction.

Opinion

Defendant argues that he was denied his right to the effective assistance of counsel at his trial, claiming that his attorney was incompetent in not attempting to have the photographs of Ronan and Ul-bert admitted into evidence at trial; in failing to question Donna about the inconsistent descriptions she gave and in not getting before the jury the fact that she had previously told investigators that the assassin had a scar and tattoo; in failing to get Andrea Zeman’s testimony into evidence; in not calling defendant’s sister to corroborate his alibi defense; and in not calling either Chuck Groves or Tony Mroczka, who would have testified that defendant was not responsible for the motorcycle incident and that he turned himself in only to cover for another gang member. Defendant contends that there was no possible strategic reason not to present such evidence.

The State contends that any discrepancies in Donna’s description of the murderer were cleared up at trial where they were shown to be the result of error when the police were transcribing the description. It claims that defendant has not shown that he was prejudiced by the jury’s not reviewing the photos of Ronan and Ulbert because, contrary to defendant’s argument, the jury may have noticed the similarities rather than the differences in their appearance and that of defendant; accordingly, defendant could only be speculating that he would have benefited from a jury’s viewing of these photos. The State also maintains that trial counsel may have decided it was not in his client’s best interest for Zeman, defendant’s sister, Groves or Mroczka to testify.

The “benchmark” for judging a claim of ineffective assistance of counsel is “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064.)

“[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of [this] particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.” Strickland, 466 U.S. at 696, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

See also United States v. Cronic (1984), 466 U.S. 648, 656, 80 L. Ed. 2d 657, 666, 104 S. Ct. 2039, 2045.

In determining whether a defendant has been denied his right to the effective assistance of counsel, the Court has adopted a “fact-sensitive analysis” which seeks to measure “the quality and impact of counsel’s representation under the circumstances of the individual case.” (2 W. LaFave & J. Israel, Criminal Procedure §11.10, at 28 (Supp. 1988).) Thus, in alleging ineffectiveness, a defendant must prove that “counsel’s representation fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” (Strickland, 466 U.S. at 688, 694, 80 L. Ed. 2d at 693, 698, 104 S. Ct. at 2064, 2068; see also People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) A reasonable probability is “a probability sufficient to undermine confidence in the outcome,” and defendant bears the burden of showing that, absent counsel’s errors, “the factfinder would have had a reasonable doubt respecting guilt.” (Strickland, 466 U.S. at 694, 695, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) in determining whether there has been ineffective assistance, a court must consider “the totality of the [circumstances]” and determine “whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 695, 688, 80 L. Ed. 2d at 698, 694,104 S. Ct. at 2069, 2065.

In adopting a “judgmental approach” (2 W. LaFave & J. Israel, Criminal Procedure §11.7 (1984)), the Court noted:

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' ” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.

In our application of the foregoing authorities to the defense’s conduct of the trial of the case at bar we are especially mindful of the standard set forth in Strickland that claims of ineffective assistance of counsel are generally to be resolved on a ease-specific basis, and not by per se rulemaking. The instant case is not one in which the proof of guilt can fairly be said to be overwhelming or even enormous. It is, in fact, one where the evidence was closely balanced, for although the State presented the testimony of the sole eyewitness in an attempt to link defendant with the crime, there were discrepancies in her description of the alleged assassin which cannot be regarded in any way as insignificant. The jury was not told about all of the inconsistencies in her story, and there is a reasonable probability that these omissions influenced the outcome of the proceedings.

Although Detective Bogucki attempted to explain some of the inconsistencies in Donna’s descriptions of the attacker, she was not confronted with her prior descriptions of the offender, particularly that in which she described the assailant as having a scar over one of his eyes as well as a scar and a tattoo on one of her arms. Nor was she interrogated as to whether or not she told Andrea Zeman a version of the incident different from the one she gave the police.

Contrary to the State’s suggestion, trial counsel could not have made a tactical decision not to submit the photographs of Ronan and Ulbert for the jury’s review, because he simply failed to obtain them and in fact never saw them. It was not until the hearing was held on the post-trial motion that defense counsel first obtained the photographs and had them admitted into evidence. Nor do we agree with the State that the defense’s failure to call witnesses to corroborate defendant’s testimony was simply a trial stratagem. We can conceive of no sound tactical reason not to call defendant’s sister, Groves and Mroczka; moreover, the consequence of counsel’s failure to do so was the abandonment of a defense after defendant had pointedly presented it in his testimony. Failure to adequately investigate and develop an available defense has been found to be ineffective assistance (People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973), as has failure to present available witnesses to corroborate a defense (People v. Solomon (1987), 158 Ill. App. 3d 432, 511 N.E.2d 875).

We find it necessary to reiterate that the evidence in this case is very closely balanced, with only one witness identifying defendant as the offender; an identification, as we have already noted, not without its debilities. In its deliberations, the jury necessarily weighed Donna’s credibility as a witness against that of defendant, a determination, we deem it reasonable to conclude, that could have been different had it been given all the relevant information. Although any one error, by itself, may not amount to ineffective assistance of counsel, cumulatively, counsel’s failures render the result of the proceedings “unreliable under the standard enunciated in Strickland.” (Solomon, 158 Ill. App. 3d at 437.) We therefore reverse defendant’s conviction and remand his case for a new trial. In view of our ruling, we need not address defendant’s remaining contentions of error, many of which are cognate to his counsel’s failures during trial.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

EGAN, P.J., and HARTMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL VAZQUEZ, Defendant-Appellant.
    First District (4th Division)
    No. 1—86—2383
    Opinion filed February 23, 1989.

      Marvin Bloom, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., and Kim A. Novi, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Miguel Vazquez, defendant, was charged by information with the unlawful delivery of a controlled substance, in violation of section 401 of the Illinois Controlled Substances Act (111. Rev. Stat. 1983, ch. 56x/2, par. 1401(a)(2)). Defendant was found guilty after a jury trial in the circuit court of Cook County and sentenced to 10 years in the Illinois Department of Corrections. On appeal, defendant raises the following three issues for our review: (1) whether he was proved guilty beyond a reasonable doubt of delivering more than 30 grams of a controlled substance; (2) whether the court properly admitted evidence of a purported earlier unlawful delivery of a controlled substance by him; and (3) whether the opening and closing statements by the prosecution deprived him of a fair trial.

We affirm.

Defendant was convicted of the unlawful delivery of 45.76 grams of cocaine to undercover Detective Patrick Flynn. On July 2, 1985, Detective Flynn purchased cocaine from a party identifying himself as “Mike.” Detective Flynn identified defendant as “Mike.” At trial, Detective Flynn testified that he had purchased cocaine from defendant on a previous occasion.

Flynn testified that on June 12, 1985, he placed a telephone call to a woman named “Norma,” with the intention of purchasing cocaine. He gave Norma his beeper number as a means of contacting him. Approximately one hour later, when Flynn answered his page, he spoke with a man who identified himself as “Mike.” Flynn told Mike that he wanted to buy one or two ounces of cocaine. Mike then arranged to meet Flynn at the gas station located at California and Diversey Avenues in Chicago.

Flynn arrived at the gas station with his partner, undercover Chicago police officer Kathleen Brannigan. A surveillance team consisting of Sergeant Emmett Boyd and Officers Calvin Holiday and Richard Peck were assigned to work with Flynn.

Mike met with Flynn and Brannigan and instructed them to drive to an alley behind 2740 North California Avenue. Flynn met Mike at the alley and was then told to follow him to the basement of 2738 North California. Mike gave Flynn a clear plastic bag containing white powder. Flynn, in exchange, gave Mike $1,700 of previously recorded Chicago police department money. Flynn, Brannigan, and surveillance team member Holiday each identified the defendant as Mike.

The substance was tested by Flynn and found to be cocaine. William Tyrell, a Chicago police department chemist, also tested the substance and identified it as cocaine.

A case report was written by Flynn that described Mike as being approximately 37 years of age, weighing 155 pounds, and having brown eyes, an olive complexion, and facial hair. This description was based on Flynn’s personal observation of Mike during the five-minute - drug transaction. Brannigan and Holiday adopted this description based on their personal observations of Mike.

On July 2, 1985, Flynn and Mike again made contact by telephone. Brannigan was present when the call was made. Flynn spoke to the party who identified himself as Mike. He recognized the voice as being that of the same person with whom he spoke on June 12, 1985.

Flynn testified that, during this conversation, it was agreed that Mike would sell him two ounces of cocaine for $3,600. Flynn was to go to 2738 North California, the same location as the June 12 transaction, and call the same number. Mike would then meet him within minutes. Another surveillance team was organized by Flynn, which consisted of Officers Brannigan, Darcy, Holiday, and Abbott, and Sergeant Boyd.

Flynn testified that he met Mike on the street in the vicinity of 2800 North California. Mike informed Flynn that he could only get IV2 grams of cocaine. Flynn agreed to pay $2,400 for this amount. Mike gave the two bags of cocaine to Flynn at another location, 2738-40 North California. Flynn then informed Mike that he would have to come to his car, located at the restaurant parking lot near the corner of Diversey and California, for payment.

Brannigan and the surveillance team awaited Flynn’s and Mike’s arrival at the parking lot. Prior to the time that Flynn actually turned the money over, the surveillance team approached and placed defendant under arrest for both the July 2 and the June 12 deliveries. After the arrest, Brannigan noticed that Flynn, upon his return to the car, carried two clear plastic bags of what appeared to be cocaine.

Flynn prepared another case report describing defendant as 34 years of age, weighing 170 pounds, and having hazel eyes. An identification card and $10 were recovered from defendant at the time of his arrest.

Flynn field tested the substance in the two bags, using the marquis test, and found the substance to contain cocaine. At trial, Flynn testified that the seal on the bags had not been broken except for analysis by one of the police department’s chemists.

At trial, defendant testified that on July 2 he was working in his garage in the 2700 block of North California. He went for lunch, about six blocks south of his garage. After lunch he walked to the restaurant near the corner of Diversey and California to pick up coffee, which he would take back to the garage. At that point, defendant was stopped by police and asked his name. He told them his name was Miguel Vazquez. After one of the officers said, “You look like the guy,’’ defendant was arrested.

Defendant testified that he had never come in contact with Flynn prior to his arrest. Defendant was later indicted for both the June 12 and the July 2 deliveries. The State elected to try defendant on the July 2 delivery.

At trial, defendant’s motion in limine to strike the evidence of the June 12 delivery was denied. Defendant was found guilty of delivering a controlled substance and sentenced to 10 years in the penitentiary.

A reviewing court should not disturb a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Mills (1968), 40 Ill. 2d 4, 19.) We do not find that the evidence admitted by the trial court rises to the level of such improbability that would warrant a reversal of the trial court.

Defendant first contends that there was insufficient evidence to convict him of delivering a controlled substance. The Controlled Substances Act (111. Rev. Stat. 1983, ch. 5Gxlz, par. 1401(a)(2)) (hereinafter the Act), provides, in pertinent part:

“Except as authorized by this Act, it is unlawful for any person knowingly to *** deliver, or possess with intent to *** deliver, a controlled *** substance. Any person who violates this Section with respect to:
(a) the following controlled *** substances and amounts *** is guilty of a Class X felony.
(2) 30 grams or more of any substance containing cocaine.”

To sustain a conviction, the State must establish beyond a reasonable doubt that defendant knowingly delivered a substance and knowingly represented the substance to be a controlled substance. People v. Zambetta (1985), 132 Ill. App. 3d 740, 749.

Defendant argues that the evidence was insufficient to convict him. Defendant contends that there was no unrefuted evidence presented identifying him as Mike. The variance in the June 12 description of “Mike” given by Flynn, and defendant’s actual physical characteristics, defendant claims, is disparate.

Flynn, in his initial case report of June 12, described “Mike” as being 37 years old, weighing 155 pounds, and having brown eyes. Defendant is 34 years old, weighs over 170 pounds, and has hazel eyes. These discrepancies, however, are minor and would not destroy the credibility of the identification. Where the evidence is sufficient, a conviction for unlawful delivery of a controlled substance will be sustained despite alleged discrepancies in identification provided by an undercover police officer. People v. Agosto (1979), 70 Ill. App. 3d 851, 854-56.

It is well settled that, where identification of the defendant is at issue, the testimony of one witness is sufficient to convict, even though the testimony is contradicted by the defendant, provided the witness is credible and viewed the defendant under circumstances that would permit a positive identification. People v. Mendoza (1978), 62 Ill. App. 3d 609, 615.

In the instant case, both Flynn and Brannigan viewed the defendant under circumstances that permitted positive identification. Flynn made contact with Mike on two separate occasions. In his June 12 case report, Flynn described Mike based on personal observation.

Although the case report description is slightly inaccurate, Flynn still recognized defendant on July 2 as the same man from whom he had purchased cocaine only 19 days earlier. Officer Holiday, a member of the surveillance team on both June 12 and July 2, and Officer Brannigan also identified defendant as the man with Flynn on June 12. In light of the fact that the discrepancies were minor and that defendant was viewed by credible witnesses under circumstances that permitted a positive identification, we find the evidence sufficient with respect to physical identification of defendant to sustain a conviction.

Defendant further argues that the evidence was insufficient to convict him based on Flynn’s description of the July 2 delivery. Defendant finds incredulous an alleged delivery of $2,400 of cocaine without immediate payment in return.

According to Flynn’s testimony, however, Mike was informed that the money for the cocaine was in Flynn’s car. We do not find it implausible that a party selling drugs would believe that his buyer would not carry such sums of money on his person. Defendant’s argument on this issue is simply not persuasive.

Defendant next contends that he did not receive a fair trial because the trial court improperly admitted evidence as to the June 12 delivery. Defendant was originally charged on two separate counts. The State elected to try defendant on the July 2 delivery.

Defendant argues that the State’s presentation of evidence of the June 12 delivery forced him to have to defend against another crime almost identical to the one on trial. Defendant claims that the State’s offering of the June 12 delivery was designed to show defendant’s propensity to sell drugs.

The general rule is that evidence of other crimes is inadmissible to establish the defendant’s propensity to commit the crime currently at trial. (People v. McKibbins (1983), 96 Ill. 2d 176, 182.) This rule, however, is subject to innumerable exceptions. For example, evidence of other crimes may be introduced if it is relevant to prove modus operandi, intent, identity, motive or absence of mistake. McKibbins, 96 Ill. 2d at 182.

Evidence of other crimes may not be received until it is shown that the crime actually took place and that the defendant committed or participated in its commission. (People v. Scott (1973), 13 Ill. App. 3d 620, 626.) It is not incumbent that the State prove the commission of the other crime beyond a reasonable doubt. (People v. Smith (1972), 3 Ill. App. 3d 958, 961.) The court must, however, balance the probative value of the evidence of other crimes against the prejudicial effect it may have upon the trier of fact. See People v. Baxter (1966), 74 Ill. App. 2d 437.

The State contends that evidence of the June 12 delivery was presented for relevant purposes other than to show defendant’s propensity to commit the crime. Sufficient evidence was presented, the State argues, to prove that on June 12 defendant knowingly delivered a quantity of white substance to Flynn which defendant represented as cocaine in violation of the Act.

The State first presented evidence, offered by Flynn, confirming that the white substance delivered to him on June 12 was cocaine. Flynn conducted a field test on the substance at the police station hours after it was delivered to him which proved that it was cocaine. Defendant disputes the validity of the test by citing to People v. Judkins (1963), 28 Ill. 2d 417, to support his proposition. Judkins, however, is factually distinguishable from the case at bar.

In Judkins, a field test was conducted by a police officer on one of four packets of heroin confiscated from the defendant. The court held that there was insufficient proof that the substance in all four packets was heroin when only one packet was tested. (Judkins, 28 Ill. 2d at 421.) Further, Judkins did not concern the introduction of evidence of prior crimes. The issue in Judkins was whether the State proved beyond a reasonable doubt that the substance in all four packets was heroin based on a test of one packet. Defendant’s reliance on Judkins, therefore, is misplaced.

Defendant’s contention that a field test is insufficient to establish that a substance is a narcotic is simply incorrect. A field test of a substance has been held sufficient to prove that the substance is a narcotic. (People v. Clark (1955), 7 Ill. 2d 163, 171; People v. Gaston (1975), 31 Ill. App. 3d 352, 354.) In light of this determination, defendant’s further contention that the chain of custody was not properly established is immaterial. Gaston, 31 Ill. App. 3d at 354.

The State asserts that evidence of the June 12 delivery was properly admitted as it proved identity, knowledge, absence of entrapment and a more complete picture of the July 2 delivery.

Evidence of other crimes may be admitted where relevant for any other purpose than to show defendant’s propensity to commit the crime. People v. Cole (1963), 29 Ill. 2d 501, 503-05.

In People v. Cole, two Federal narcotics agents testified that one of them had purchased drugs from the defendant on two previous occasions while the other observed. Defendant denied selling narcotics to the agent on the prior occasions. Defendant argued that evidence of these prior transactions should not have been admitted since he was being charged and tried for the sale of narcotics on a different, later date.

The Illinois Supreme Court in Cole held that “[e]vidence of other offenses is admissible, if relevant for any purpose other than to show a mere propensity on the part of the defendant to commit the crime. [Citation.] Thus, we have allowed evidence of narcotics transactions by a defendant other than the one for which he is being tried where such evidence was relevant to prove his identity [citations], his guilty knowledge [citations], or to show his design or system. [Citation.] The Federal courts have used the same test in allowing evidence of other narcotics transactions by defendant.” Cole, 29 Ill. 2d at 503.

In so holding, the court found that evidence of prior transactions strengthened the identification of the defendant as the person with whom the agent had previously dealt; showed the relationship between the defendant and the agent; and explained and lent credence to the otherwise unrealistic ease with which the narcotics were purchased by the agent. Cole, 29 Ill. 2d at 504-05.

Similarly, defendant’s identity is at issue in the case at bar. Although testimony was given by Flynn and Officers Holiday and Brannigan identifying the defendant as Mike, defendant denies that he was the party involved in those drug transactions. Evidence of the June 12 delivery refutes defendant’s claim and lends credibility to the State’s identification of defendant. It also shows how the relationship between the parties was established.

We, therefore, find that evidence of the June 12 delivery was relevant for purposes of identification and giving a more complete picture of the crime charged. See also People v. Borawski (1978), 61 Ill. App. 3d 774, 779.

Evidence of other crimes may be brought in to rebut the defense of entrapment. (People v. Tipton (1980), 78 Ill. 2d 477, 486.) A review of the record reveals that defendant indicated that the defense may be raised. In such an event, introduction of the previous delivery would be relevant.

The propriety of admitting evidence of other crimes turns on whether, in light of the applicable exception, the trial court abused its discretion in allowing such testimony, even though the testimony is found relevant. (People v. Wojtasik (1982), 104 Ill. App. 3d 263, 265.) The probative value of its admission must be balanced against its prejudicial effects. People v. Morgan (1983), 113 Ill. App. 3d 543, 548.

On balance, we find that evidence of the June 12 delivery was properly admitted in view of its valid and limited purposes. The probative value is not outweighed by prejudicial effect. The trial court did not abuse its discretion in allowing evidence of the prior delivery.

Finally, defendant contends that the State’s opening and closing arguments were so highly prejudicial that defendant was denied his due process right to a fair and impartial trial. We disagree.

Defendant first asserts that the prosecutor improperly argued facts not in evidence. In the State’s opening and closing statements made to the jury, the prosecutor referred to the previous delivery made by defendant.

A reviewing court which finds that the challenged evidence was properly admitted will not find reversible error in opening and closing statements that refer to and summarize the admitted evidence. People v. McKibbins (1983), 96 Ill. 2d 176,187.

In the case at bar, we find that reference to the June 12 delivery was properly admitted. Therefore, the State’s reference to this delivery would not constitute reversible error.

Defendant next asserts that the State, during its argument to the jury, improperly appealed to the prejudices and fears of the jury. Specifically, defendant refers to the remarks made by the prosecutor in pointing out the deadly effects of cocaine. The prosecutor brought up the recent deaths of two well-known sports figures who recently died from narcotics abuse.

Defendant contends that use of these recent deaths would inflame the jurors’ emotions and allow them to associate the defendant with those dealers who actually sold drugs to these athletes. The remarks, defendant argues, did nothing toward the clarification of the issues, but, rather, were designed to prejudice defendant.

Even assuming, arguendo, that this did have such an effect upon the jurors, it would not be sufficient to reverse the trial court’s judgment. The error must be a material factor in the defendant’s conviction. People v. Brown (1986), 146 Ill. App. 3d 101,106.

We find that the State’s remarks were not designed to prejudice defendant nor were such remarks a material factor in his conviction. The record does not indicate that the remarks influenced the jury’s verdict. Comments made to the jury concerning the evils of drug abuse and the need to punish drug pushers have been held permissible. (People v. Hunter (1984), 124 Ill. App. 3d 516, 534-35.) Arguments which concern the seriousness of the crime and the benefits of a fearless administration of law are proper. People v. Jackson (1981), 84 Ill. 2d 350, 360.

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

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


text:
    ELEANOR YOUNG, Plaintiff-Appellee, v. CHICAGO FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellant.
    First District (4th Division)
    No. 1—87—3301
    Opinion filed February 23, 1989.

      Liebling & Hauselman, of Chicago (Martin F. Hauselman and Todd D. Feldman, of counsel), for appellant.
    Warren Lupel and Charles P. Fox, both of Lupel & Bunn, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Chicago Federal Savings and Loan Association (hereinafter Chicago Federal), appeals from the order of the circuit court of Cook County that denied its motion for summary judgment and granted the summary judgment motion of plaintiff, Eleanor Young, and entered judgment in her favor for $14,362.86, plus costs. The sole issue for review is whether the trial court erred in granting plaintiff’s motion for summary judgment and denying defendant the same.

We affirm.

On or about October 26, 1971, defendant received a mortgage from nonparty Connie Foster to secure a note for $21,500. The mortgage referred to property located at 10635 South La Salle Street, in Chicago. On or about November 26, 1971, Chicago Title Insurance Company (hereinafter Chicago Title) issued its loan policy insuring the mortgage.

During the term of the policy, the real estate taxes on the mortgaged property became delinquent. The taxes were paid by a third party who eventually acquired a tax deed for the property, which extinguished defendant’s mortgage interest. On April 14, 1980, defendant was informed that the Atlantic Municipal Corporation had been granted a tax deed for the subject property. By letter, dated April 24, 1980, defendant informed Chicago Title, its insurer, of the existence of the tax deed and inquired into what action it intended to take. Chicago Title declined coverage, stating that its policy does not insure against liens attaching after the date of the policy.

On September 4, 1980, by an assignment of mortgage, defendant assigned to plaintiff, as nominee for nonparty Stanford D. Marks, the mortgage “together with all of assignor’s right, title and interest in and to (a) the note, notes, accrued interest and other obligations secured thereby and payable in accordance therewith, and (b) the real estate assigned therein.” In consideration for the assignment, plaintiff paid the sum of $5,000. On September 4, 1980, Howard F. Lass, vice-president of Chicago Federal, mailed to plaintiff several documents, including a copy of the title policy.

On August 11, 1981, Chicago Title informed defendant that it would reimburse it for its loss in the sum of $14,362.86 in order to maintain a sound business relationship. Despite plaintiff’s repeated demands to receive these proceeds, defendant denied her entitlement to such proceeds. Therefore, on November 3, 1982, plaintiff filed a complaint at law in the circuit court of Cook County. On January 12, 1983, the complaint was stricken on defendant’s motion to dismiss or strike. Plaintiff filed an amended complaint on January 24, 1983. Defendant’s motion to dismiss or strike the amended complaint was denied on May 25,1983. Thereafter defendant filed its answer.

On December 22, 1983, both parties were granted leave to file cross-motions for summary judgment. Plaintiff filed her motion for summary judgment without supporting affidavits. Defendant provided the affidavits of Lass and Lawrence Sulzbacher to support its motion for summary judgment. On June 19, 1987, the trial court denied defendant’s motion for summary judgment and granted plaintiff’s motion for summary judgment and entered judgment in favor of plaintiff for $14,362.86, plus costs. Defendant’s motion for reconsideration of the final order and judgment was denied on September 29, 1987. This appeal followed.

Defendant contends that the trial court erred in granting plaintiff’s summary judgment motion and advances several arguments to support its contention. Defendant first argues that plaintiff failed to establish an assignment of the policy; therefore, she was not entitled to summary judgment.

“[Sjummary judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” (Murphy v. Urso (1981), 88 Ill. 2d 444, 464.) The sole function of this court in reviewing an entry of summary judgment “is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether judgment was correctly entered as a matter of law.” People ex rel. First National Bank v. City of North Chicago (1987), 158 Ill. App. 3d 85, 104.

“An assignment *** is the transfer of some identifiable property, claim or right from the assignor to the assignee. The parties must intend to effectuate an assignment at the time of the transfer although no particular language or procedure is necessary.” (Buck v. Illinois National Bank & Trust Co. (1967), 79 Ill. App. 2d 101, 106.) “The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties, but also from the surrounding circumstances.” Klehm v. Grecian Chalet, Ltd. (1987), 164 Ill. App. 3d 610, 617.

The intent of plaintiff and defendant, the parties to the assignment, appears clear from the instrument as well as from surrounding circumstances. The instrument specifically stated that defendant, the assignor, was assigning all of its “right, title and interest in and to (a) the note, notes, accrued interest and other obligations secured thereby and payable in accordance therewith, and (b) the real estate described therein.” This statement evidences an intent to transfer the policy. Furthermore, defendant sent correspondence to Marks which included a copy of the title policy. Defendant’s claim that the policy was sent for informational purposes only is not supported by the record. It is a logical inference that the policy was included because it was a part of the mortgage assignment. Hence, an examination of the document and letters evidences an intent to assign the policy.

Defendant next argues that it was entitled to summary judgment because its motion for summary judgment was supported by the affidavit of Lass and plaintiff failed to file a counteraffidavit. Defendant cites Wooding v. L. & J. Press Corp. (1981), 99 Ill. App. 3d 382, for the proposition that when the opposing party fails to file a counteraffidavit, the material facts outlined in the movant’s affidavit stand as admitted.

We acknowledge the ruling in Wooding; nevertheless, Supreme Court Rule 191(a) states that “[ajffidavits in support of and in opposition to a motion for summary judgment under section 2 — 1005 of the Code of Civil Procedure *** shall set forth with particularity the facts upon which the claim *** or defense is based; *** [and] shall not consist of conclusions but of facts admissible in evidence.” 107 111. 2d R. 191(a).

Lass, in his affidavit, stated that “he sent the Title Policy in question, dated November 26, 1971, to Stanford D. Marks for informational purposes only.” However, Lass’ affidavit fails to set forth the facts surrounding the assignment transaction. He merely states that the policy was sent for informational purposes, which is a self-serving conclusion. We find that the Wooding case does not apply to the case at bar since Lass’ affidavit does not contain well-pleaded facts, but contains conclusions in contravention of Supreme Court Rule 191(a).

Defendant’s third argument is that plaintiff does not have standing to bring this suit. It argues that plaintiff was a nominee of Marks; therefore, Marks is the real party in interest and not plaintiff.

Defendant’s argument ignores the well-settled principles of assignments and their legal ramifications. “An assignment *** is the transfer of some identifiable property, claim or right from the assignor to the assignee. *** If a valid assignment is effected, the assignee acquires all of the interest of the assignor in the property that is transferred. The assignee, it has been often said, is placed ‘in the shoes’ of the assignor.” Buck v. Illinois National Bank & Trust Co. (1967), 79 Ill. App. 2d 101, 106.

There is no dispute as to the validity of the assignment. The assignment on its face recites that plaintiff is the assignee and has paid consideration for the assignment. Her status as nominee does not affect the fact that she is the assignee. Once defendant, as assignor, assigned the policy to plaintiff, she “stepped into its shoes” and became entitled to the proceeds from the policy.

Defendant further argues that section 2(b) of the policy precludes an assignment. Section 2(b) states that the “policy shall not continue in force in favor of any purchaser from such insured.” Defendant has misread and/or misinterpreted this section. Section 2(b) refers to continuing coverage after the title is transferred. Contrary to defendant’s belief, plaintiff is not seeking continuing coverage; rather, she is pursuing defendant’s claim which arose prior to the assignment. Hence, section 2(b) is irrelevant to the instant case.

It is further argued by defendant that the assignment is invalid because Chicago Title did not consent to the assignment.

An insurance policy that is assigned after a claim arises is an assignment of the policy proceeds; such a transaction results in an assignment of a chose in action which does not require the insurer’s consent. (Ginsburg v. Bull Dog Auto Fire Insurance Association (1928), 328 Ill. 571, 574; 16 G. Couch, Insurance §63:1, at 734 (2d rev. ed. 1983).) As stated in Couch on Insurance:

“[T]he great weight of authority supports the rule that general stipulations in policies prohibiting assignments thereof except with the consent of the insurer apply to assignments before loss only, and do not prevent an assignment after loss, for the obvious reason that the clause by its own terms ordinarily prohibits merely the assignment of the policy, as distinguished from a claim arising thereunder, and the assignment before loss involves a transfer of a contractual relationship while the assignment after loss is the transfer of a right to a money claim.” 16 G. Couch, Insurance §63:40, at 763-65 (2d rev. ed. 1983).

When defendant assigned its policy to plaintiff while its claim was still pending before Chicago Title, it assigned its right to the policy proceeds, a chose in action. Therefore, the trial court correctly denied defendant’s motion for summary judgment on this basis.

Furthermore, defendant claims that the $5,000 it received from plaintiff, pursuant to the assignment, was consideration for the assignment of the mortgage, not the title policy. This attempt by defendant to segregate the assignment of the mortgage from the policy is without merit. As we discussed above, the policy was included in the assignment. Thus, the assignment was supported by sufficient consideration.

Defendant further asks this court to accept the proposition that Chicago Title never paid monies to it pursuant to the policy. Defendant insists that Chicago Title reimburse it “because Chicago Title felt it a sound business decision to do so,” as was stated in the letter to defendant from Chicago Title.

Chicago Title paid defendant $14,326.68. Based on the record, this is the exact amount of the loss suffered by defendant less $5,000 plaintiff paid to it for the assignment. Defendant has not produced any evidence that would persuade us that the monies were paid for any other “sound business reasons” other than payment of monies due under the policy. It is clear that Chicago Title did not arrive at the above figure at random, but decided to pay defendant regardless of the validity of its claim against Chicago Title, in order to maintain a good business relationship. Thus, we find that the trial court correctly ruled that no genuine issue of material fact had been raised and that plaintiff was entitled to judgment in her favor as a matter of law.

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

Affirmed.

McMORROW and LINN, JJ., concur.


author: JUSTICE LINN

text:
    JAMES BLEVINS, Plaintiff-Appellant and Cross-Appellee, v. INLAND STEEL COMPANY, Defendant-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 1—88—0175
    Opinion filed February 23, 1989.
    Rehearing denied April 11, 1989.

      Leonard M. Ring & Associates, P.C., of Chicago (Leonard M. Ring and William J. Jovan, of counsel), for appellant.
    David C. Burtker, of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, James Blevins, brought an action for damages against Inland Steel Company for injuries he sustained on Inland Steel’s property when he stepped into a large pothole. After trial, the jury returned a verdict in his favor for $15,555, specifically finding that Blevins was not negligent with respect to his injury. He appeals on the ground that the jury’s verdict was manifestly inadequate in that it was for a lesser sum than that established by his medical expenses and lost wages. Inland Steel cross-appeals, arguing that its motion for directed verdict should have been granted because Blevins failed to present a prima facie case of liability.

We reverse in part and remand for a new trial on damages.

Background

On November 15, 1980, Blevins was working the 4 p.m. to midnight shift at the Harbor Works Plant in East Chicago, Indiana. The plant is owned, operated, and maintained by Inland Steel. Blevins was an ironworker employed by Furnco Construction Company, which was hired as an independent contractor to perform repairs at the plant. Inland Steel had designated a parking lot to be used by the Furnco employees, and it was in this designated lot that Blevins was injured. Blevins knew that the parking lot contained many potholes because he had navigated them during the several days that he had been working on the job.

A company bus transported the employees from the parking lot to the jobsite and returned them to the lot after their shifts. On the night of November 15, 1980, Blevins boarded the bus at the jobsite, at approximately midnight, and was returned to the parking lot. When the bus stopped, Blevins went down the steps and stepped off the bus into a hole that was at least three feet wide and six inches deep. It was wider than the bus door.

When he stepped into the hole with his left foot, he twisted his knee and heard something pop. He felt pain but went home. His knee swelled during the night, and he went to an emergency room, where he was X-rayed and given a brace to wear. The following morning he attempted to work but could not. He consulted an orthopedic surgeon, who aspirated the knee and drew out bloody fluid, which indicated that something in the knee was torn.

On November 19, 1980, Blevins underwent surgery. The knee joint was opened up and repairs were made to his ruptured anterior cruciate ligament and the medial collateral ligament. For seven weeks thereafter Blevins wore a long leg cast, which was then converted to a knee-hinge cast. After 9 or 10 weeks with the hinged cast, Blevins received a knee brace with a hinge to replace the cast.

Approximately two months after his injury, Blevins could not straighten or bend his knee. He took 36 physical therapy treatments over a 21/2-month period, after which he continued therapy at home for a year and one half.

According to the surgeon’s trial testimony, Blevins sustained permanent damage, a residual instability and traumatic degenerative joint disease. Blevins was taking pain medication and continued to wear a brace for one year after the occurrence. He also experienced swelling of his knee, which resulted in a second aspiration.

For a six-to-eight-month convalescent period, Blevins was unable to work, run, jump, or climb a ladder. On July 1, 1981, he returned to light duty work. Blevins testified at trial that his knee was numb and that he was unable to engage in the same activities with his children as he had before his injury.

On the issue of damages, Blevins produced evidence of medical expenses totalling $4,886.50. He was a 35-year-old man who had been an ironworker for 15 years. Because of the injury, Blevins was unable to work for eight months. The hourly rate for an ironworker was $16.67 per hour. The calculation of damages for the 32 weeks, at 40 hours per week, was $21,337. Blevins testified that he had had jobs in which he worked 12 hours a day, 7 days per week, including holidays. Overtime would be charged at time-and-a-half on Saturdays, and double time on Sundays and holidays. However, Fumco’s job at the Inland Steel plant was completed the day after Blevins’ injury.

Defendant presented one witness, an electrical maintenance foreman for Inland Steel. He testified as to the number of lights in the parking lot, six light poles with two sodium vapor lights each. He had no personal knowledge, however, as to how much light was available on the night in question.

The jurors deliberated for several hours before returning a verdict in favor of Blevins in the amount of $15,550. In response to a special interrogatory, they found that Blevins did not negligently contribute to his injuries.

Opinion

Blevins contends that the jury’s award was palpably inadequate because it bears no reasonable relationship to the proofs. His major elements of damage were medical expenses ($4,886.50), lost wages ($21,337.00), and pain and suffering, including the permanent effects of the injury. The medical expenses and lost wages alone total $26,223.50.

In support of his position, Blevins cites numerous authorities which reversed jury’s awards as inadequate. E.g., Hollis v. R. Lato- ria Construction, Inc. (1985), 108 Ill. 2d 401, 485 N.E.2d 4 ($30,000 inadequate where lost wages totalled $24,000 and remaining $6,000 was insufficient to compensate for permanent disability, pain and suffering, and loss of future wages); Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168 ($4,200 award inadequate where uncontroverted medical expenses totalled $4,308.17 and court found that jury could not have considered all elements of damage); Gall v. Metropolitan Sanitary District (1982), 109 Ill. App. 3d 502, 440 N.E.2d 973 ($25,000 award inadequate where uncontested medical expenses were $11,577 and lost wages were $8,602, because this left only $5,000 for pain and suffering and permanent disability); see also First National Bank v. Szwankowski (1969), 109 Ill. App. 2d 268, 275-76, 248 N.E.2d 517, 521 (“We are unable to imagine the misadventure the issue of damages suffered during the deliberations of the jury. The verdict does not even satisfy the uncontradicted elements of damages relating to medical expenses and lost wages”).

Inland Steel does not directly challenge these cases, but instead views the verdict as reflecting a compromise on the issue of liability and damages. A compromise verdict would preclude a retrial limited to the issue of damages. (Kelty v. Wiseman Construction Co. (1976), 38 Ill. App. 3d 808, 813, 349 N.E.2d 108, Ill.) Inland Steel suggests that if the jurors were not truly convinced that Blevins was free of contributory negligence, or if they believed that he had not proved his damages adequately, they may have awarded him a lesser amount because of their doubts.

To bolster its position, Inland Steel argues that Blevins knew of the condition of the parking lot and that there was evidence that the lot was lit well enough so that he could have seen the pothole before stepping off the bus. Blevins’ possible contributory negligence was therefore in issue. Regarding damages, Inland Steel claims that on cross-examination it established that ironworking was seasonable and irregular. Accordingly, Inland Steel concludes that the jury compromised its verdict.

We disagree. The jury answered “no” to the special interrogatory regarding Blevins’ contributory negligence. Whatever questions it had during deliberations regarding the effect of such a finding, we are bound by its final determination as manifested in its answer to the interrogatory. We cannot presume it was the result of a compromise decision. Accordingly, the jury resolved the liability issue against Inland Steel, the party responsible for the maintenance and operation of the parking lot. We do not find the verdict to be against the manifest weight of the evidence, nor do we find sufficient indicia of a compromise on the liability issue.

The sufficiency of Blevins’ evidence of damages is a matter separate from liability. The medical expenses do not appear to be contested, nor were they challenged at trial. Likewise, Inland Steel does not argue that Blevins did not sustain pain and suffering or permanent impairment of his knee joint. Instead, Inland Steel focuses on the lost wages element, arguing that Blevins failed to sustain his burden on this element and that the jury might have compromised because of the speculative nature of the evidence.

Again, we disagree with Inland Steel. Blevins did offer a reasonable basis for calculating his lost wages, using a 40-hour work week and excluding any overtime. While Inland Steel suggests that Blevins’ work was seasonal and sporadic, it offered no evidence that Blevins could not have found steady work during the months of his convalescence. In fact, Blevins testified that he was able to get work from sources other than the union hall and that the economy of northwest Indiana during the time in question was “very good,” a factor favoring the availability of ironworking jobs. Moreover, he had been an ironworker for 15 years and had resumed working after his convalescence. Inland Steel offered the jury no competent evidence to rebut Blevins’ calculation; hence, the jury was not free to disregard their instruction to consider all elements of damages. We find that the award of damages does not comport with the largely uncontradicted evidence. We further find that the verdict of liability is supported by the evidence and that the issue of damages is separable and distinct for liability. Accordingly, we hold that Blevins is entitled to a new trial limited to damages.

A second issue Inland Steel raises concerns Blevins’ alleged reversible error in suggesting to the jury that if the jury answered the interrogatory in the affirmative, “Mr. Blevins will lose this case of the — .” Inland Steel promptly objected. According to Inland Steel, Blevins’ attorney by this statement improperly suggested to the jury that they must harmonize their answer to the special interrogatory with their general verdict. Any resulting reduction in the amount awarded, therefore, would be attributable to the jury’s decision that Blevins was really partly to blame, but if they so found, he would be unable to recover any amount.

It is true that the jury submitted questions to the court during deliberations asking whether they would be required to return a verdict for defendant if they found that plaintiff contributed to his injury to any degree. The court responded by telling them to follow their instructions. We do not agree, however, that the remark of Blevins’ at-tomey tainted the jurors’ deliberations or that they otherwise might have found for Inland Steel. The real question is whether the attorney’s remark amounted to telling the jury to conform their answer to the special interrogatory with the general verdict. If so, the purpose of the special interrogatory would be defeated. Telling the jury to conform their answer to their verdict and revealing that the defendant submitted the special interrogatory has been held to be reversible error because it allows the jury to protect their verdict without regard to the evidence. Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, 222 N.E.2d468.

In contrast to the comments in Sommese, the remark in issue is similar to those that have been held not to constitute reversible error. In Burns v. Howell Tractor & Equipment Co. (1977), 45 Ill. App. 3d 838, 848, 360 N.E.2d 377, 385, the court held that counsel stopped short of impermissible argument by refraining from telling the jury the legal significance of conforming their answer to their verdict. The plaintiff’s counsel in that case told the jury, “[Y]ou have to answer that Interrogatory ‘No’ ***. It is very, very important that you [do so]. *** But if you answer that Interrogatory any way than ‘No,’ then you are saying, ‘It is his fault and he can’t recover.’ ”

In Moore v. Checker Taxi Co. (1971), 133 Ill. App. 2d 588, 592, 273 N.E.2d 514, 517, the plaintiff’s attorney argued to the jury, “If you believe he was not guilty of negligence that caused this accident, you should answer ‘No’ to that inquiry, because if Allen Moore was guilty of negligence, then he can’t recover and they are right.” The court held that this was not error because the attorney refrained from telling the jury to harmonize their answer with the general verdict. The court noted that attorneys have the right to argue the evidence and to tell the jury how the interrogatory should be answered.

In the pending case, plaintiff’s attorney’s comment, like those in Burns and Moore, suggested to the jury that the plaintiff would not recover if they answered the interrogatory in the affirmative. While the distinction may seem slight, the cases do hold that such comment is not error, whereas if the attorney takes the next step and instructs them to harmonize the interrogatory answer with the general verdict, reversible error may result. In any event, the jury necessarily considers the effect of the plaintiff’s conduct in reaching their verdict. Here, they were not told to harmonize their special finding and general verdict. Therefore, we follow Burns and Moore in holding that Blevins’ attorney’s remark did not constitute reversible error.

Cross-appeal

Inland Steel cross-appeals on the liability issue, contending that the trial court should have granted its motion for directed verdict at the close of Blevins’ case. This argument is premised on Inland Steel’s belief that it had no duty or breached no duty to provide adequate lighting at night in the parking lot because Blevins was an invitee who knew of the condition of the parking lot and the inadequacy of the lighting. Apparently, Inland Steel views the conditions as open and obvious, such that Blevins cannot recover, particularly because he failed to prove that Inland Steel had notice of the conditions of its lot.

We do not believe that Inland Steel’s duty was limited to providing light. As the jury was instructed without objection, Inland Steel had the duty to use ordinary care to maintain its property in a reasonably safe condition for the use of invitees. The sufficiency of the lighting was in dispute. However, it is undisputed that Inland Steel owned the lot and was responsible to maintain it. Blevins had no control over the conditions; he simply worked as an employee of an independent contractor. Inland Steel designated the parking lot for his use. The record also reveals that Inland Steel maintained a security force that could have reported any problems with the lots.

Certainly, as landowner and operator of the lot, Inland Steel was charged with notice of long-term or recurring conditions of the lot that it directed business invitees to use. Large numbers of potholes generally do not spring up overnight. Inland Steel did nothing to rebut the inference that it knew, actually or constructively, of the poor conditions in the parking lot. To hold that Blevins had a duty to report the conditions of the lot is to circumvent the responsible party’s duty to make routine repairs and adhere to ordinary care in allowing people to use the lot.

Inland Steel did not deny the existence of the numerous potholes. Moreover, it did not seriously contradict Blevins’ evidence of the lighting conditions, since the one witness who testified had no personal knowledge of whether or not the lights were operable on the night of the incident. Blevins and another witness testified that the lot was dark. There was no lighting on the steps of the bus, which parked right by a large pothole.

We conclude that Inland Steel’s motion for directed verdict was properly denied. Its case in chief added no new evidence, except for the verification that the parking lot did have lighting fixtures.

For the foregoing reasons, we affirm the judgment on the jury’s verdict on the liability issue and the denial of the motion for directed verdict. We reverse the award of damages as not conforming to the evidence and being palpably inadequate. Accordingly, this cause is remanded to the trial court for a new trial on the issues related to damages only.

Affirmed in part; reversed in part and remanded.

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


author: JUSTICE QUINLAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—3017
    Opinion filed February 27, 1989.

      Randolph Stone, Public Defender, of Chicago (Janet Stewart, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Jerry D. Bischoff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE QUINLAN

delivered the opinion of the court:

On March 23, 1984, the defendant, Eric Williams, was charged with robbery, home invasion, aggravated battery, and unlawful restraint. Prior to trial, the charge of unlawful restraint was entered as nolle prosequi. The defendant was tried before a jury in the circuit court of Cook County, and on June 11, 1986, the jury found him guilty of the charges of robbery, home invasion, and aggravated battery. Judgment was entered on the jury verdict, and the aggravated battery and robbery convictions were merged into the home invasion conviction. The trial judge then sentenced the defendant to 11 years’ incarceration for home invasion. The defendant appeals his convictions and his sentence.

The facts of the case, presented at trial, are as follows. On the evening of February 21, 1984, the victim, James Smith, a retiree who was approximately 70 years old, testified that he went to a tavern, had a shot and a beer, socialized with some other retirees, and then returned home to his apartment at 4659 South Drexel in Chicago, Illinois. When he arrived at his apartment, he unlocked the gates in front of his door and closed the gates, but apparently forgot to relock the gates. At approximately 10 p.m., Smith was watching television in the living room of his apartment, when the front door to his apartment was kicked open. Smith testified that two men burst into his apartment and that he recognized the two men as men who had recently moved into his apartment building. He stated that he had seen both men every day for approximately two months prior to that date. In court, he identified one of the men as the defendant, Eric Williams, and explained that the defendant lived in an apartment on his floor with a woman, Beatrice Topps. He said that the other man, later identified as Selby, also lived in his building, but on a different floor.

Smith testified that after the two men broke in, he reached for a knife on his table, but the defendant kicked it away. At that point, the defendant and Selby threw him to the floor and attempted to cover his face. The two then stripped Smith and tied him up with a telephone cord. The defendant was, he stated, physically more aggressive towards him than Selby. Smith said that the defendant then went through his pockets, took his wallet, $90 in cash, and his credit cards. Both men, he stated, had guns which they held to his head, and the defendant told Smith that he would blow his head off if he screamed. Both men searched the apartment for about 15 minutes, and then left, while Smith remained tied up on the floor.

Approximately 15 minutes after the defendant and Selby left Smith’s apartment, they returned. Upon their return, they carried Smith to his bedroom, tied him to his bed, and gagged him. Again they threatened to blow his head off if he made any commotion. They searched the apartment a second time for about 15 minutes and then left the apartment, leaving Smith tied to the bed and gagged. Sometime later, Smith stated, they returned a third time and, at that time, he believed they stole his television. The men again left, and Smith remained tied to the bed and gagged. Smith was subsequently discovered at approximately 11 a.m. the next day when a neighbor heard Smith, who had, by this time, gotten the gag out of his mouth, yelling for help. The police were called and Smith was released.

While the police were preparing to take Smith to the hospital, Smith received a phone call from an employee of a Carson Pirie Scott store who asked Smith if he had given anyone authority to use his credit cards. Smith told the caller that the cards were stolen and told the police who had called. The police then took Smith to the hospital.

In addition to Smith’s testimony, the State also presented the testimony of a Carson Pirie Scott employee, Ms. Gwendolyn Tiller, who worked in the store’s Evergreen Park location. Ms. Tiller stated that on February 22, 1984, she was notified that the defendant was trying to use a stolen Visa credit card in the name of James Smith. She said that when she questioned the defendant, he told her that he was James Smith and that he lived at 4851 South Champlain. The man also agreed to accompany her to the store office. She then confiscated Smith’s Visa card, and although the man had said he would go with her to the office, he gave his keys to the woman who was with him and ran out of the store. Tiller and another security guard chased after him as he ran out of the store and down the street. An Evergreen Park police officer, John Eisenbis, who was on the street, saw the chase and ultimately apprehended the defendant. After Officer Eisenbis took the defendant into custody, Tiller returned to the store and found the woman, Beatrice Topps, who had been with the defendant.

Officer Eisenbis testified that, following the arrest of the defendant, he took the defendant to the Evergreen Park police station. He stated that when he arrested the defendant, he found Smith’s health insurance card and Smith’s calling card in defendant’s possession.

Thereafter, Officer Rubin Garza of the Chicago police department, who had been at the Smith robbery scene, arrived at the Evergreen Park station and transported the defendant to a Chicago police station for processing. A Chicago police department detective, John Garrity, testified that the defendant told him that he, along with Glen Selby and Selby’s girlfriend, had broken into Smith’s apartment, tied Smith up, searched Smith’s apartment for money, and taken Smith’s credit cards.

After the presentation of this evidence, the defendant took the stand and testified that he lived with Beatrice Topps and their two children on the same floor as Smith in the apartment building at 4659 South Drexel in Chicago. He also testified that he saw Smith on February 21, 1984, sometime before noon, but that he never went into Smith’s apartment. He testified further that between the hours of 7 p.m. and 11 p.m. on that same day, February 21, 1984, he was inside his apartment at 4659 South Drexel. He said that he had Smith’s credit cards when he was arrested because he had bought the credit cards from Selby, an acquaintance, in exchange for $10 and Selby’s agreement to forgive a $45 debt which the defendant owed Selby. The defendant admitted that he knew the cards were stolen, but he denied any involvement in the Smith robbery. He further denied that he told Detective Garrity or an assistant State’s Attorney, Gloria Coco, that he had participated in the offense. Finally, he claimed that he had not given an incorrect address to either Ms. Tiller or Officer Garza.

The State presented the rebuttal testimony of Officer Garza and Ms. Tiller, both of whom stated that the defendant had given them the incorrect address of 4851 South Champlain. The State also called Assistant State’s Attorney Gloria Coco in rebuttal, and she testified that when she spoke to the defendant on February 22, 1984, he told her that he had gone into Smith’s apartment because the door was left open, but asserted that he had done no harm inside. Finally, the State called Detective Carl Silvestrini of the Chicago police department in rebuttal. Detective Silvestrini stated that he and Detective Garrity talked to the defendant in the Chicago police station on the evening of February 22, 1984, and that the defendant had told him that he and certain other people had gone into Smith’s apartment while Smith was asleep, that Smith woke up, and that they tied him up and took his credit cards.

Defense counsel sought to have the defendant testify in surrebut-tal, but the court refused to allow his testimony. At the close of all the evidence, the jury, as stated above, found the defendant guilty of robbery, home invasion, and aggravated battery, and the court then entered judgment on the verdict. The defendant’s counsel, thereafter, orally moved for a new trial, claiming that the evidence concerning the identification of the defendant was insufficient. The State objected to the motion and the oral presentation. The trial court denied the oral motion and asked counsel to file a written motion. However, defense counsel never filed a written motion for a new trial, despite the trial court’s request. Following a sentencing hearing, the trial judge, as stated earlier, imposed a sentence of 11 years’ imprisonment.

Defendant raises six issues on appeal: (1) whether the defendant received ineffective assistance of counsel because of defense counsel’s improper actions; (2) whether the trial court erred when it allowed the State’s jury instruction that referred to the defendant’s involvement in the separate offense concerning the use of Smith’s stolen credit cards; (3) whether the trial court denied the defendant the right to present a defense when it limited his cross-examination and refused to allow the defendant to present surrebuttal testimony; (4) whether the defendant’s 11-year sentence was excessive under the circumstances here; (5) whether the defendant’s 11-year sentence was grossly disparate in comparison to Selby’s six-year sentence; and (6) whether the trial court erred in ordering the defendant to pay restitution without first determining his ability to pay.

The first argument of the defendant on appeal is that he received ineffective assistance of counsel. The defendant contends that he received ineffective assistance when his counsel failed to file a written motion for a new trial and when his counsel implied, in closing argument, that defendant was a “no good fellow” because he had bought stolen credit cards and attempted to use them. The State, on the other hand, contends that the defendant received effective assistance of counsel because the failure to file the written post-trial motion was not prejudicial to the defendant and the decision by defense counsel to admit to defendant’s purchase and use of the stolen cards was a matter of trial strategy, and, as such, cannot form the basis for a claim of ineffective assistance of counsel.

The United States Supreme court established a two-prong analysis for determining whether a defendant received ineffective assistance of counsel in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and Illinois specifically adopted that analysis in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. Under the two-prong test, a finding that a defendant received ineffective assistance of counsel is warranted only if the defendant can show: (1) that representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the alleged deficiency prejudiced the defense in the sense that there exists a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 698, 104 S. Ct. at 2064; People v. Ashford (1988), 121 Ill. 2d 55, 73-74, 520 N.E.2d 332, 339.) Underlying this two-prong analysis is the strong presumption that the attorney’s performance normally falls within the wide range of reasonable professional assistance. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065; Albanese, 104 Ill. 2d at 526, 473 N.E.2d at 1255.) Accordingly then, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Ashford, 121 Ill. 2d at 74, 520 N.E.2d at 339, quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065; see also People v. Shum (1988), 117 Ill. 2d 317, 370, 512 N.E.2d 1183, 1205; People v. Moore (1984), 178 Ill. App. 3d 531, 538-39.

This specific issue of whether defense counsel’s failure to file a written motion for a new trial, in light of the requirement that issues be preserved for review by a trial objection and a specific objection in a written post-trial motion, constituted ineffective assistance of counsel was addressed in the case of People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124. The court in Enoch found that in such circumstances, courts must first determine if a showing of actual prejudice to the defendant has been made, i.e., whether the second prong of the Strickland test has been met. (Enoch, 122 Ill. 2d at 201-02, 522 N.E.2d at 1137.) The Enoch court found that where the defendant could not show that but for the failure to file the motion, he would not have been convicted, the claim of ineffective assistance of counsel for failure to file a written post-trial motion must fail. In Enoch, the court, in its analysis of prejudice to the defendant, noted that there the evidence of the defendant’s guilt was overwhelming. Enoch, 122 Ill. 2d at 202, 522 N.E.2d at 1137.

Here, too, the defendant cannot show actual prejudice by defense counsel’s failure to file a written motion for a new trial, and, accordingly, he cannot meet the second prong of the Strickland test. The defendant has not shown, and, indeed, has not even made any argument, that if a written post-trial motion had been filed, he would not have been convicted. In this case, as in Enoch, there was also overwhelming evidence of the defendant’s guilt, including a positive identification of the defendant by the victim, Smith. Thus, the defendant was not prejudiced by his counsel’s failure to file a written post-trial motion.

The defendant’s second basis for his claim of ineffective assistance of counsel is based on his counsel’s statements made in closing argument. The defendant, however, has failed to overcome the strong presumption that these alleged errors might have been considered sound trial strategy. The statements made by defense counsel in closing argument were clearly based on the defense strategy. The portrayal of the defendant in closing argument as one who had committed another, less serious offense, i.e., the purchase and use of the stolen credit cards, was the foundation of the defense theory that the defendant did not take part in Smith’s robbery. Accordingly, then, the defendant’s ineffectiveness claim must fail since such a claim cannot be based upon alleged errors in trial strategy. Moreover, even if defense counsel’s actions were not found to be a matter of trial strategy, the defendant, nevertheless, has not met his burden under either prong of the Strickland test. The defendant does not even make an argument concerning how counsel’s actions fell below an objective standard of reasonableness. As noted above, the defendant also cannot demonstrate that the outcome of the trial would have been different had counsel not acted as he did. Therefore, defendant’s ineffectiveness claim must fail under both prongs of the test.

The next issue defendant raises for review is whether the trial court erred when it allowed the State’s jury instruction that referred to the defendant’s involvement in the separate offense of allegedly buying and using stolen credit cards. The instruction at issue read as follows:

“Evidence has been received that the defendant has been involved in an offense other than the charge in this indictment. This evidence has been received solely on the issue of the defendant’s identification. This evidence may be considered by you only for the limited purpose for which it was received.”

Defense counsel argues on appeal that this instruction was prejudicial to the defendant’s case, because the defendant was not charged or convicted in connection with the other offense and the instruction itself was misleading and confusing to the jury. On the contrary, the State argues first that the defendant waived this issue by failing to specify it in a written motion for a new trial. Second, the State contends, even if this issue was not waived, the instruction was proper because the evidence of the other offense could properly be considered by the jury for the limited purpose of identification and for explanation of the circumstances of defendant’s arrest. Finally, the State argues, even if we were to find that the instruction was improper, any resulting error was, nevertheless, harmless.

Initially, we note that our supreme court’s recent decision in Enoch has held that, in order to preserve an issue for review, a party must raise the objection at trial and also specify the objection in a written post-trial motion. (Enoch, 122 Ill. 2d at 187-88, 552 N.E.2d at 1129-30.) Clearly there was a failure to comply with our supreme court’s mandate in Enoch when defense counsel here failed to file a written post-trial motion preserving his specific objections. Defense counsel’s generalized oral motion for a new trial did not obviate the requirement of a written post-trial motion alleging specific errors. Here, the State expressly responded to the oral motion of defense counsel, arguing that, first, the oral motion was not based upon specific errors at trial; second, the State was not prepared to argue the merits of the motion since there was no prior notice that the defense was going to bring the motion; and third, the State in fact stated, at that time, that it was not waiving the requirement of a written motion. The trial court specifically told defense counsel to file a written motion within a few days because it found the defendant’s oral motion to be both improper and vague. Although defense counsel promised the trial court that he would supplement his oral request in writing, no such written motion was ever filed. Accordingly, defense counsel has waived any objections it may have had to this instruction. See Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.

Even if we were to find that this issue was not waived by the defense, the trial court, nonetheless, properly allowed the instruction on other crimes because the instruction stated that the evidence of another offense was only to be considered for the limited purpose of identification. In Illinois, while collateral evidence of other crimes is generally inadmissible, it may be admissible to show modus operandi, knowledge, design, intent, motive, plan, absence of malice or identification. (People v. Adams (1985), 109 Ill. 2d 102, 485 N.E.2d 339.) The evidence here of the other offense, which was admitted by the defendant without objection, was properly admitted at trial for the limited purpose of identification, and the instruction appropriately and clearly limited the jury’s consideration of that evidence.

The defendant, moreover, has not shown how he was prejudiced by the giving of this instruction. The entire theory of the defense at trial was based upon the defendant’s admitted involvement in the other offense. The defendant admitted he had purchased and used the stolen credit cards, but asserted that he had not participated in the Smith robbery. Thus, even if the defendant had not waived any objection to the giving of this instruction, it was, in any event, entirely proper under the circumstances.

The third contention of the defendant is that he was denied the opportunity to present a defense when the trial court limited defense counsel’s cross-examination and refused to allow defendant’s surre-buttal testimony. The defendant argues that the trial court erred first when it prohibited defense counsel from questioning Detective Gar-rity on Selby’s height. He claims that this evidence was necessary and relevant to the defendant’s case because it tended to establish an alleged flaw in Smith’s testimony. Smith had testified that Selby was 5 feet 6 inches to 5 feet 8 inches tall, but the defendant testified that Selby was 6 feet 1 inch to 6 feet 2 inches tall. Apparently the defendant argues that this alleged flaw discredited Smith’s identification of the defendant since Smith did not correctly state Selby’s height, and, hence, Smith actually misidentified both of the men. The defendant also contends that the trial court improperly refused to allow him to testify in surrebuttal to the State’s rebuttal testimony where he could have denied the State’s testimony presented in rebuttal. The State, on the other hand, asserts that both of these issues were waived and, if not waived, the State then argues, alternatively, that the evidence sought to be presented was either irrelevant or already admitted into evidence.

Here again, the defendant failed to raise this claim in a written post-trial motion, as required in Enoch. (Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.) But, even if we were to conclude that the defendant had not waived these errors, a review of the trial court’s rulings concerning the limitation of defendant’s cross-examination and surrebuttal evidence shows that these rulings were proper. A trial court’s rulings on limiting cross-examination and rebuttal testimony will only be overturned if the trial court abused its discretion and that abuse resulted in manifest prejudice to the defendant. (People v. Brisbon (1985), 106 Ill. 2d 342, 362, 478 N.E.2d 402, 411; People v. Williams (1985), 131 Ill. App. 3d 597, 475 N.E.2d 1082.) In this case, we find that the trial court did not abuse its discretion.

First, it is unclear how the height of Selby is relevant to Smith’s alleged misidentification of the defendant. Smith identified the defendant in court, and Smith referred to Selby as the shorter of the two men, which defendant’s own testimony established was correct (defendant testified that he was 6 feet 6 inches tall and that Selby was 6 feet 1 inch to 6 feet 2 inches tall). Additionally, the defendant fails to note that Officer Garza also testified that Selby was 5 feet 8 inches tall, and, hence, made the same error as Smith. Second, although defendant contends that he was not permitted to properly cross-examine Detective Garrity, the record shows that he had a sufficient opportunity to cross-examine Detective Garrity. Detective Gar-rity in fact stated that Selby was 6 feet tall. Consequently, all of the evidence which defendant contends was needed to support his theory of misidentification based on Selby’s height was before the jury.

It was also within the court’s discretion to refuse to allow surrebuttal testimony, if no new matters were raised in rebuttal. (See People v. Sanders (1986), 143 Ill. App. 3d 402, 493 N.E.2d 1; People v. Geitz (1985), 138 Ill. App. 3d 670, 485 N.E.2d 1349.) Here, the defendant testified on direct examination that he lived at 4659 South Drexel, and on cross-examination, testified that he never told Ms. Tiller or Officer Garza that he lived at 4851 South Champlain. Defendant also denied telling Assistant State's Attorney Gloria Coco and Detective Garrity that he had participated in the robbery. The State then called Ms. Tiller and Officer Garza in rebuttal, and they both testified that the defendant told them that he lived at 4851 South Champlain. The State also called Detective Silvestrini, who had interviewed the defendant with Detective Garrity, and Ms. Coco, the assistant State’s Attorney, and they both testified on rebuttal that the defendant had admitted some level of participation in the crime.

After all of this rebuttal testimony, defense counsel asked the court to allow the defendant to testify in surrebuttal, apparently in order to deny what the rebuttal witnesses had said. In these circumstances, we find that the trial court properly refused to allow the surrebuttal testimony. Rebuttal evidence limited to contradicting the defendant’s prior testimony does not raise new matters. The defendant, therefore, could not have testified as to any new matters, and, thus, surrebuttal was not warranted, and the trial court, accordingly, did not abuse its discretion by denying surrebuttal testimony.

The fourth issue argued by the defendant is that his 11-year sentence was excessive. He contends that the sentence was excessive because he had no prior convictions and he was only 24 years old. The State, however, again argues that the defendant waived his right to contest the sentence by his counsel’s failure to object during the sentencing hearing or in a post-trial motion. Alternatively, the State submits that the sentence was proper, well within the statutory range, and that the facts of the case here supported it.

A trial judge is accorded wide discretion in sentencing. (People v. LaPointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344, 348-49; People v. Burke (1987), 164 Ill. App. 3d 889, 900-01, 518 N.E.2d 372, 379-80.) In this case, the defendant was sentenced for the crime of home invasion, a Class X felony, which carries a statutory term of not less than six and not more than 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(3).) We agree with the State’s contention, and find that any objections to the sentence were waived. Defense counsel did not object to the sentence at the time of the sentencing hearing, nor did he file a subsequent motion contesting the sentence. But, even assuming that there was no waiver, our determination would be the same, since the defendant has not shown how the trial judge abused his discretion. The trial judge here properly considered all factors in aggravation and mitigation, and the sentence imposed was within the statutory range and well under the maximum. Consequently, we cannot say that the sentence imposed was improper.

The defendant next asserts that his sentence was grossly disparate to that of the codefendant, Selby, who pleaded guilty and received a six-year sentence. He argues that he improperly received a greater sentence because he requested a jury trial. The State again argues that the defendant waived this issue and, even if he had not, an 11-year sentence was entirely proper.

Our supreme court in People v. Ashford said: “ ‘The Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.’ ” (Ashford, 121 Ill. 2d at 88, 520 N.E.2d at 346, quoting Williams v. Illinois (1970), 399 U.S. 235, 243, 26 L. Ed. 2d 586, 594, 90 S. Ct. 2018, 2023.) Disparity between the sentences of equally culpable defendants is entirely proper where it is warranted by differences in the nature and extent of each defendant’s participation in the crime. See Ashford, 121 Ill. 2d at 88, 520 N.E.2d at 346; People v. Godinez (1982), 91 Ill. 2d 47, 55, 434 N.E.2d 1121, 1126.

Here, the disparity between the sentences of the defendant and Selby was only five years, and that disparity can clearly be attributed to the defendant’s more extensive participation in the crime. Smith testified that the defendant was the one who was more aggressive in the robbery, that the defendant was the one who went through Smith’s pockets and his wallet, and that the defendant was the first to threaten to blow Smith’s head off. Finally, the evidence established that it was the defendant who had the stolen credit cards in his possession and tried to use them. Thus, the disparity between Selby’s and the defendant’s sentences was supported by the evidence and we, therefore, find that no abuse of discretion occurred here.

The final issue raised for our review is whether the trial court erred when it ordered the defendant to pay $90 restitution without first inquiring as to whether he was financially able to pay. The defendant argues that the court should have made a determination as to whether he was able to pay before it ordered him to make restitution of $90. The State claims that the defendant waived this issue. This court has recently interpreted section 5 — 9—1 of the Unified Code of Corrections, which governs impositions of fines, and held that before imposition of such a fine, the trial court must hold a hearing and make a determination that the defendant is financially able to pay. (See 111. Rev. Stat. 1987, ch. 38, par. 1005 — 9—1(d); People v. Carrasquilla (1988), 167 Ill. App. 3d 1069, 1075, 522 N.E.2d 139, 142.) Since there was no hearing or determination below, we find that the case must be remanded for a hearing and subsequent determination of the defendant’s ability to pay restitution. If the court, after the hearing, determines that the defendant is able to pay the $90, the court may then properly order the defendant to pay restitution in that amount.

Judgment affirmed in part; reversed in part and remanded with directions.

BUCKLEY and O’CONNOR, JJ., concur.