author: JUSTICE BUCKLEY

text:
    WHITE HEN PANTRY, INC., Plaintiff-Appellee, v. RAK WOO CHA et al., Defendants-Appellants (Albert M.R. Corporation et al., Defendants).
    First District (1st Division)
    No. 1—90—0582
    Opinion filed May 20, 1991.

      Terrance J. Coughlin, of Chicago, for appellants.
    McDermott, Will & Emery, of Chicago (Bruce H. Weitzman and Mark J. Buonaiuto, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from actions filed by White Hen Pantry, Inc. (White Hen), Albert M.R. Corporation (Albert Corp.), and Rak Woo Cha and Ja Young Cha (the Chas), seeking declaratory judgment and specific performance under three separate contracts regarding real property owned by Anny M. Roth (Roth). The Chas appeal from the order of the circuit court of Cook County declaring the Chas/Roth contract null and void and granting specific performance of the Albert Corp./White Hen contract and the Albert Corp./Roth option contract. White Hen filed a brief in response to the appeal.

On September 13, 1977, Roth entered into a lease agreement (the lease) with Albert Corp. (Albert Corp./Roth option contract) for a base five-year period expiring October 31, 1982, with an “option to renew” the lease for two five-year periods. Albert Corp. sent timely notice to extend the lease for the two five-year periods. The lease also contained a rider which provided that Albert Corp. had an option to purchase the real estate “at any time during the base period of the lease” for $100,000 and that the option “shall run with the option to renew the lease.” In addition to the option to purchase, the lease further provided that Albert Corp. had a “right of first refusal” during the base term of the lease and during the option to renew periods at a $100,000 purchase price upon Roth’s receipt of a bona fide offer to purchase the realty.

White Hen learned that Albert Corp. had a lease with Roth, which included an option to purchase the property. On March 26, 1986, Albert Corp. entered into a contract with White Hen (Albert Corp./White Hen contract), providing for the sale of the property for a purchase price of $165,000, $100,000 of which was placed into an escrow account with Chicago Title & Trust Company before closing to cover the cost of acquiring the property from Roth. On July 28, 1986, White Hen executed escrow trust instructions to close the sale.

The Chas also became interested in the property, and in March 1986, indicated their desire to purchase the property to Albert Corp. Albert Corp. informed Rak Woo Cha, a licensed real estate broker, of Albert Corp.’s lease with Roth.

In April 1986, the Chas tendered an offer to purchase the property to Roth’s real estate broker. Roth’s broker then told Rak Woo Cha that Albert Corp. had an option to purchase and a right of first refusal with regard to the property.

Upon learning of the Chas’ above pending offer, Albert Corp. responded that it considered its time to exercise its right of first refusal to commence only after an accepted offer. On May 16, 1986, Roth’s attorney sent a copy of Roth’s contract with the Chas (Chas/Roth contract) to Albert Corp., along with a “Notice Pursuant to Right of First Refusal” stating that Roth had received an offer from the Chas to purchase the property and that Roth and the Chas had agreed that Albert Corp. had a 21-day period in which to exercise its right of first refusal.

On June 12, 1986, Albert Corp. sent a letter to Roth’s attorney stating that it intended to exercise its option to purchase the real estate pursuant to the terms of the lease. In early September 1986, Roth’s broker informed the Chas that White Hen was also attempting to purchase the property. On September 25, 1986, Albert Corp.’s attorney sent a letter to the Chas notifying them that Albert Corp. had exercised its option to purchase the property enclosing a copy of its June 12,1986, letter to Roth.

In a letter dated October 3, 1986, Albert Corp. advised Roth’s attorney that it had deposited a $100,000 check in escrow to be applied to the purchase price of the property pursuant to its option to purchase. Albert Corp. further requested that the attorney deposit with the escrowee certain ownership, mortgage, and tax documentation regarding the real estate. In a letter dated December 3, 1986, White Hen requested the return of its $100,000 escrow deposit because the escrow instructions had not been executed, but indicated that the funds would be redeposited once the instructions had been executed.

White Hen commenced this lawsuit on March 5, 1987, after Roth refused to convey the property to Albert Corp., seeking specific performance of the Albert Corp./White Hen contract and seeking declaratory relief from any claims by the Chas. In its answer, Albert Corp. admitted the allegations of the complaint and filed a similar cross-claim against Roth regarding the Albert Corp./Roth option contract. Roth was found to be in default after she appeared but failed to file a responsive pleading. After trial was commenced and concluded on November 13, 1989, the circuit court allowed the Chas to file a cross-claim seeking a declaration of their rights under the Chas/Roth contract, as well as specific performance of the Chas/Roth contract.

The circuit court held that Albert Corp.’s June 12, 1986, letter to Roth constituted a valid exercise of Albert Corp.’s option to purchase the property and that the Chas/Roth agreement is of no force and effect because it was subject to the Albert Corp./Roth option contract. The court further held that Albert Corp. is entitled to specific performance of the Albert Corp./Roth option contract and that White Hen is entitled to specific performance of the Albert Corp./White Hen contract.

The Chas appeal the circuit court’s rulings, arguing that (1) Albert Corp. failed to timely assert its right of first refusal and, consequently, they became equitable owners of the property, entitled to notice that Albert Corp. was exercising its option to purchase, (2) Albert Corp. failed to properly exercise its option to purchase the property, (3) the lease rider was vague and unenforceable by specific performance, and (4) White Hen lacked standing to enforce the lease.

Regarding its first basis, Albert Corp. was not required to adhere to the 21-day period upon which Roth and the Chas agreed Albert Corp. must assert its right of first refusal because Albert Corp. was not a party to that agreement. Furthermore, Albert Corp.’s lease with Roth did not contain such a period in which to assert its right. The Chas, therefore, never became equitable owners of the property as they argued they did because Albert Corp.’s right of first refusal never expired and, consequently, the Chas were not entitled to notice of Albert Corp.’s exercise of the option.

Second, the Chas contend that Albert Corp. failed to properly exercise its option to purchase the property. The trial court expressly found that Albert Corp.’s June 12, 1986, letter to Roth’s attorney constituted a proper exercise of the option contract. There is ample evidence in the record and Illinois case law to support this finding. Albert Corp.’s letter to Roth’s attorney stated:

“Pursuant to the terms of the above-mentioned lease please let this serve as notice that the tenant intends to exercise its option to purchase the real estate located at 5723 North Lincoln Avenue, Chicago, Illinois for $100,000.”

In Kadansky v. Fickett (1973), 54 Ill. 2d 14, 15, 294 N.E.2d 262, 263, the court held similar language that the lessees “wish[ed] to exercise their option *** pursuant to the terms of their Option Contract” to be an effective and unconditional exercise of the option. The Illinois Supreme Court further found that a second paragraph in the same letter, which notified the owner’s attorney that the lessee and the owner had generally agreed to a method of payment that varied with that set out in the agreement, did not assert a new demand or condition and did not imply that the lessee’s exercise of the option was conditional upon the seller’s acceptance of new terms of payments. Kadansky, 54 Ill. 2d at 16, 294 N.E.2d at 263.

The court’s initial finding in Kadansky indicates that the June 12, 1986, letter in the case at bar constitutes a valid acceptance of the option provision. Albert Corp.’s letter referred to the terms of the option provision and did not imply that the exercise of the option was in any way conditional. The circuit court, therefore, properly found Albert Corp. timely and properly exercised its option to purchase the property.

Third, the Chas contend that the Albert Corp./Roth option contract is invalid because the terms in the lease option provision relating to the length of the option period are vague and uncertain and unenforceable by an order of specific performance because material terms are missing. The Chas direct us to four paragraphs in the lease, which they maintain are vague and uncertain regarding whether the option period existed only during the base period of the lease or whether it extended during the lease’s renewal periods:

“17A. The Lessors hereby grant Lessees or Lessees’ nominee the option to purchase the real estate described as follows: [legal description] at any time during the base period of the lease for the sum of ONE HUNDRED THOUSAND AND NO/ 100 ($100,000.00) DOLLARS.
17B. Lessors further grant to Lessee the option of extending or renewing the Prime Lease for a term of five (5) years; notice of intent to execute the Option to the Lessors in writing Ninety (90) days prior to the expiration of the base lease, to wit: no later than August 1, 1982, at a monthly rental of SIX HUNDRED FIFTY AND NO/100 ($650.00) DOLLARS per month. The option to purchase the real estate shall for $100,000 run with the option to renew the lease.
17C. Lessee has the right of first refusal to purchase the realty upon the receipt of a Bona Fide offer by the Lessor. The price shall remain at ONE HUNDRED THOUSAND AND NO/ 100 ($100,000.00) DOLLARS irrespective of the amount offered to Lessor, during the term of both options. Right of first refusal shall apply during the term of option periods only. Said right of first to purchase is in addition to lessee option to purchase realty for $100,000.00 during base 5 year term of the lease and during both of the option to renew periods as set out in paragraphs 17B and 17D of their lease.
17D. A further option is granted to the Lessee for an additional five (5) year term provided that the Notice to Exercise said option is communicated to the Lessors no later than August 1, 1987. The option to purchase the real estate for $100,000.00 shall run with the option to renew the lease. The rent for the option period shall be SIX HUNDRED AND FIFTY AND NO/100 ($650.00) per month.”

We agree with the circuit court’s express finding that these paragraphs clearly and unambiguously give Albert Corp. the option to purchase the property beyond the base period of the lease. Under the above provisions, Albert Corp. may exercise his right to extend the five-year base period of the lease for two additional five-year terms by exercising the right during two “option to renew periods,” one running until 90 days prior to the expiration of the base period of the lease and the second running until 90 days prior to the end of the first renewal term. As stated three times in the above paragraphs, during both of these option to renew periods, Albert Corp. may exercise its option to purchase the property.

The Chas further argued that material terms were missing from the Albert Corp./Roth option contract which must be present to grant the remedy of specific performance. Specifically, the Chas assert that the contract contains only the description of the real estate and the purchase price and omits terms regarding the proration of taxes, the payment of closing costs, the submission of documents such as an affidavit of title and title insurance, and specification of the type of deed to be conveyed.

It is axiomatic that a prerequisite to specific performance relief is the existence of a valid, binding, complete and definite contract. (Intini v. Marino (1983), 112 Ill. App. 3d 252, 445 N.E.2d 460.) The law requires a greater degree of specificity regarding the essential terms of a contract when a party seeks specific performance of a contract than for other purposes. (Cinman v. Reliance Federal Savings & Loan Association (1987), 155 Ill. App. 3d 417, 423, 508 N.E.2d 239, 244.) Specific performance is not available where there is not a clear and precise understanding of the terms of the contract. Cinman, 155 Ill. App. 3d at 423-24, 508 N.E.2d at 244.

It is not necessary that the contract indicate whether the property is to be conveyed by a warranty or quitclaim deed or that the contract provide for every collateral matter or future contingency that may arise in the transaction. (Welsh v. Jakstas (1948), 401 Ill. 288, 294-95, 82 N.E.2d 53, 57.) A contract is definite and certain where the option provisions in the lease gave the lessee the right to buy the property at a fixed price within a certain time. (Bonde v. Weber (1955), 6 Ill. 2d 365, 128 N.E.2d 883.) Terms and conditions of sale, including provisions for the apportionment of taxes, for the type of warranty deed, and closing date, are nonessential and can be supplied by implication. (Kane v. McDermott (1989), 191 Ill. App. 3d 212, 547 N.E.2d 708.) The apportionment of taxes can be provided by custom, and it can be implied that a warranty deed was intended, and that the law will imply performance within a reasonable time. Kane, 191 Ill. App. 3d at 218-19, 547 N.E.2d at 712-13.

We find the Albert Corp./Roth option contract is sufficiently definite for specific performance relief. The omission of terms regarding the proration of taxes, specifications as to closing costs and other closing matters, and indications as to the type of deed to be conveyed are nonessential matters which may be implied from the circumstances or from custom.

The cases cited to us by the Chas, Cinman (155 Ill. App. 3d 417, 508 N.E.2d 239) and Pesovic v. Pesovic (1973), 10 Ill. App. 3d 708, 295 N.E.2d 261, do not dictate a different result. The court in Cinman found a letter did not give rise to an enforceable contract primarily because it concluded that other correspondence established the letter constituted mere negotiations between the parties. In its further finding that the letter was not clear and definite as to material terms to warrant specific performance, the court indicated not only that the letter made no reference to responsibilities regarding existing tenancies or utilities, taxes or insurance, but that the letter did not make provisions for the details of a lease and mortgage even though the primary reason for the sale of the building was for the seller to raise capital by converting the building to cash and then leasing the building from the purchaser. In Pesovic, the writings found to be too uncertain and indefinite to establish a specifically enforceable contract to convey land did not identify the real estate to be conveyed, and the owner’s written statements were found by the court to do nothing more than express his heartfelt desires.

In any event, the Chas lack standing to object to the Albert Corp./Roth contract. In order to have standing to sue, a plaintiff must allege a direct injury to his rights and not merely that he will suffer in some indefinite way. (Chicago Park District v. City of Chicago (1984), 127 Ill. App. 3d 215, 218, 468 N.E.2d 1261, 1263; Dolnick v. Redmond (1972), 4 Ill. App. 3d 1037, 1039, 283 N.E.2d 113, 115.) Further, only a party to the contract or those in privity with a party may sue on the contract (Dale v. Groebe & Co. (1981), 103 Ill. App. 3d 649, 653, 431 N.E.2d 1107, 1111), except that a third-party beneficiary may sue on a contract made for his benefit. (Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1016, 377 N.E.2d 161, 168; Carson Pirie Scott & Co. v. Parrett (1931), 346 Ill. 252, 257, 178 N.E.2d 498, 501.) The Chas were not a party to the Albert Corp./Roth contract. The mere relationship that the Chas had with Roth does not confer privity of contract on the Chas as a stranger to the Albert Corp./Roth contract where the contract was obviously not made for their benefit. (See Iser Electric Co. v. Ingran Construction Co. (1977), 48 Ill. App. 3d 110, 113, 362 N.E.2d 771, 774.) A party claiming to be a third-party beneficiary to the contract must clearly show that such benefit was not purely incidental but that the contract was made for his direct benefit. (Sabath, 60 Ill. App. 3d at 1016, 377 N.E.2d at 169; Carson Pirie Scott, 346 Ill. at 257, 178 N.E. at 501.) The Chas never showed that the Albert Corp./Roth contract was made for their benefit nor did they ever claim to be third-party beneficiaries to the contract; thus, the Chas lack standing to object to the Albert Corp./Roth contract.

Additionally, the Chas further argue that specific performance should not have been granted because no evidence was introduced at trial to show White Hen remained in a performing condition under the Albert Corp ./White Hen contract or that Albert Corp. remained in a performing condition to complete the purchase under the Albert Corp./Roth option contract. The Chas assert that no evidence exists of the satisfaction of contractual conditions to the Albert Corp./White Hen contract, including a soil test, borings, a survey conforming to a sketch, satisfactory utilities, appropriate zoning, and the absence of building restrictions. They further point to evidence that White Hen had demanded four months prior to this litigation the return of the $100,000 escrow funds which were to be used as purchase money under both contracts.

Contrary to the Chas’ assertions, White Hen’s Midwest regional real estate manager testified at trial that these conditions were complied with and that White Hen was ready to proceed with the closing until it was informed of the other contractual claim against the property. Furthermore, there is no indication in the record that either Albert Corp. or White Hen was not willing to perform or could not perform the conditions of their respective contracts. In fact, the December 3, 1986, letter from White Hen demanding the return of the escrow funds states that White Hen would redeposit the funds once the escrow instructions had been executed. It has been held that where a purchaser in a real estate sales contract has made every effort to carry out the. terms of the contract and has sought to perform the contractual terms but has failed through the fault of the seller, specific performance of the contract will be granted. Kovacs v. Krol (1944), 385 Ill. 593, 597-99, 53 N.E.2d 456, 458.

It is within the circuit court’s discretion to determine whether specific performance of a contract will be granted (Kane, 191 Ill. App. 3d at 217, 547 N.E.2d at 711). On appeal, the circuit court’s decision will not be disturbed unless it is found to be contrary to the manifest weight of the evidence and an abuse of discretion. (Lannon v. Lamps (1980), 80 Ill. App. 3d 318, 324, 399 N.E.2d 712, 715.) We hold that the circuit court did not abuse its discretion and that its finding was not contrary to the manifest weight of the evidence.

Fourth, the Chas contend that White Hen lacks standing to bring an action to enforce the contracts. The Chas argued that the Albert Corp./White Hen contract violated a lease provision prohibiting assignment of the leasehold. This argument mistakenly assumes that White Hen must rely on an assignment of Albert Corp.’s interest in the option contract for its standing. (See Espadron v. Davis (1944), 385 Ill. 304, 52 N.E.2d 716 (an assignee of a contract to purchase realty may enforce specific performance).) As a party to the Albert Corp./White Hen contract, White Hen clearly had standing to bring suit to enforce the Albert Corp./White Hen contract. Albert Corp., in turn, clearly had standing as a party to the Albert Corp./Roth option contract to bring an action to enforce that contract. Also, Albert Corp. admitted the allegations of White Hen’s complaint and filed a similar cross-claim against Roth. Moreover, the nonassignability clause to which the Chas refer does not prohibit the lessee from transferring the property after the lessee acquires the property through the exercise of the option. Rather, the clause prohibits the assignment of the lessee’s leasehold interest in the property.

Accordingly, because the Chas have not raised any meritorious contentions which would require reversal of the circuit court’s decision to grant specific performance, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DOTSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1038
    Opinion filed May 21, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Douglas Uhlinger and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb and Paul Gliatta, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

A jury found defendant Robert Dotson guilty of murder and unlawful use of weapons. He was sentenced on the murder count to 40 years in the penitentiary. He appeals, asserting that reversal is necessary because (1) he was not proven guilty of murder and unlawful use of weapons beyond a reasonable doubt; (2) an incriminating statement was obtained from him in violation of his sixth amendment right to counsel; (3) he was deprived of a fair trial by the State’s improper final argument; and (4) the trial court abused its discretion in sentencing him to 40 years’ imprisonment.

At trial, the following evidence was presented. At approximately 1:50 a.m. on March 14, 1985, Chicago police officer John Kinnavy responded to a call directing him to the scene of a shooting at 140 North Wood in the Henry Horner housing projects. Upon arrival, he found the body of Fred Poe lying on the floor in the lobby area, across from the mailboxes. Kinnavy found no guns, shells, or other evidence in the area, nor could he locate any witnesses. It was stipulated that the medical examiner would testify that Poe had sustained two through-and-through gunshot wounds which entered his body from the back. The bullet which caused his death had perforated his lung.

Jeffrey Johnson testified that he and Terry Latham were with Poe when Poe was shot. They had entered the hallway of the building by the front entrance to drink beer and smoke marijuana. Johnson heard a back door open and took cover. He saw a head peek out from the back door. When Latham told the person to come out and identify himself, there was no response. Poe said “Big Five” and the person responded “Fuck Big Five” and began shooting. As the shooter and a second man emerged, Latham ran out another door, and Poe ran in the same direction. Johnson ran out the front door and went home. When he learned what had happened to Poe, he went to the hospital and spoke with police.

Johnson explained that “Big Five” referred to the Vice Lords or the Stones street gang. Poe was a member of the Stones at the time of the shooting; Johnson was a member of the Vice Lords. Though he initially testified that he was not a member at the time of the shooting, he later asserted that he left the gang because he had been shot at and his “partner” Poe had been killed in this incident. The Vice Lords and Stones controlled or dominated the building in which Poe was shot.

Johnson could not see the faces of the two men who emerged from behind the door during the shooting. He did see that the shooter wore a baseball cap and was 5 feet 8 inches or 5 feet 9 inches tall. He did not see defendant during the shooting. Two days before the shooting, he had witnessed a bare-hands, boxing-like fight between Poe and defendant. At the end of the fight, defendant left and Poe spoke to a policeman who had arrived.

Tyrone Jackson was another State witness. He knew defendant, but was not a friend of his. He considered Fred Poe to be a friend and regarded Jeffrey Johnson as “like family.” On March 14, 1985, at approximately 1:30 a.m., he was at home, but left to visit his girlfriend, Norma Jean, who lived three blocks from him at 140 North Wood. When he was about 20 feet from the building, he heard five gunshots coming from inside the building. Jackson continued toward the door and tried to pull it open but could not do so. He then pulled the door open with both hands and a man known as “Little Black Kenny” fell out. Jackson knew Little Black Kenny but was not a friend of his. Little Black Kenny was a member of the Disciples street gang, as was defendant.

When Little Black Kenny fell out of the door, he said, “Get the fuck out of here,” and ran off across the parking lot. Jackson then walked straight ahead and came upon a second closed door. He opened the door and could hear someone moaning and mumbling. At this point, Jackson observed a person lying in the comer, but could not tell who it was. When he came closer, he realized that it was Fred Poe. Poe’s chest was full of blood; he was bleeding from his wrist; and his eyes were big.

At this point, Jackson heard a noise and turned around. Michael Charles, a person he knew to be related to defendant, pointed a gun at his face. As Michael Charles “clicked” the gun, defendant, whose street name Jackson knew to be “Bay,” said “Shoots [sic] the motherfucker. Let’s get out of here.” Michael Charles squeezed the trigger five times, but the gun did not fire. Defendant and Michael Charles then ran out a back door, different from the one Jackson had entered.

Jackson then knocked on the doors of the first-floor apartments in an attempt to get help, but no one answered. Although he knew many people in the building, he did not seek help on any other floor. He then exited through the back of the building. He saw no one, but heard noises. He ran home and went to sleep. The next morning, Jackson told his mother what he had seen and then went to speak to Officer William Freeman of the Chicago police department. That evening, he identified defendant and Michael Charles in a lineup.

Officer Freeman testified that Jackson told him that he knew who had killed Fred Poe, naming Robert Dotson, Michael Dotson, and Kennedy Blount, also called Black Kenny. Jackson did not tell him that Robert Dotson had said “shoot the motherfucker.”

Also testifying concerning conversations with Jackson were Officer Charles Toussas, Detective John Thomas, and Assistant State’s Attorney David King. King’s written synopsis of what Jackson told him did not include the instruction to shoot. According to the synopsis, Jackson told him that defendant appeared at the door after the gun misfired, and the two men then left. Detective Thomas could not recall if Jackson told him that defendant had told Michael to shoot him and no such statement was in his report. Only Officer Toussas testified to Jackson having told him about defendant’s statement, but Toussas neither wrote that statement down nor did he ever tell anyone else about it until trial. Jackson testified that he had related this statement to the authorities, specifically naming Officer Freeman, Officer Toussas, Assistant State’s Attorney King, and the “detectives.”

Officer Charles Toussas testified that on March 14, 1985, he arrested defendant in the 1900 block of West Washington after he saw defendant hand a revolver to a second person, who placed it in an open mailbox. The gun was recovered, as was a quantity of .32 caliber ammunition found on defendant. These items were introduced into evidence although none of them were linked to the shooting.

The first arrest of defendant resulted only in a charge of unlawful use of a weapon against him. On March 19, 1985, after his release on bond, Toussas asked Kennedy Blount to call defendant’s home while, with Blount’s permission, Toussas listened on a second phone. A woman answered and Blount asked for defendant, who then came on the line. Blount stated, “What’s up? They got me down in the police station for killing Freddie.” Defendant replied, “Don’t say nothing. Don’t tell 'em nothing. They can hold you two, three days, and then they got to let you go. They got no witnesses.” Defendant also stated “Don’t tell them anything about what we did.” Following the phone call, Toussas went to the 1700 block of North Francisco and placed defendant under arrest for the murder of Fred Poe.

Norma Jean Jones, identified by Tyrone Jackson as his girlfriend at the time of the shooting, testified for defendant and directly contradicted Jackson’s account of having "witnessed the aftermath of the shooting. She testified that on' the night in question, Jackson was in her apartment on the 17th floor of the 140 North Wood building. In the early morning hours while watching television, she heard five shots coming from the front of the building. Jackson wanted to go down but she would not allow him to do so. She also testified that her sister Arlene had been Jackson’s girlfriend.

Arlene Jones testified that she had been Jackson’s girlfriend and was with him at Norma Jean’s apartment until about 11 p.m. on the night of the shooting. He took her home and told her he was returning to Norma Jean’s apartment. The next afternoon, he told her that he had been at Norma Jean’s when Poe was shot and that Norma Jean would not let him out the door.

Both sisters admitted that a defense investigator’s report of what they had told him contained two statements contradicting aspects of their trial testimony. The written statement which Norma Jean signed stated that the shots woke her up. The statement Arlene signed contained a crossed-out portion stating that on the 14th, Jackson had told her he knew who had done the shooting. Arlene testified that she had crossed out that portion because it was not true. The statement, however, also said that Jackson told her he was at Norma Jean’s and she would not let him out. This portion of the statement was not crossed out.

The defense investigator, Carlton Williams, testified that he spoke to these two women without taking notes. He prepared the statements later and was mistaken when he attributed to them the two statements they repudiated at trial. When he later showed the statement to Arlene, she crossed out the erroneous statement and inserted the corrected paragraph.

The jury returned guilty verdicts for murder and unlawful use of weapons. The trial court denied defendant’s motion for a new trial and sentenced him to 40 years on the murder conviction. No sentence was imposed on the weapons charge because the trial judge ruled that it merged with the murder conviction. Defendant appeals from the judgment.

I

Defendant initially contends that the State failed to prove him guilty of murder and unlawful use of weapons beyond a reasonable doubt. The State maintains that the evidence which was presented at trial provided ample support for defendant’s murder conviction. The State further argues that because no judgment or sentence was entered on the unlawful use of weapons charge, that portion of the conviction is not appealable.

The standard to be applied by a reviewing court considering a challenge to the sufficiency of the evidence in a criminal case is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

A person is legally accountable for the actions of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid, such other person in the planning or commission of the offense. Ill. Rev. Stat. 1985, ch. 38, par. 5—2(c).

To be accountable for the acts of another, one must have a specific intent to promote or facilitate the commission of a crime. (People v. Ramirez (1968), 93 Ill. App. 2d 404, 236 N.E.2d 284.) However, words of agreement need not be adduced at trial. The jury may infer an agreement from the conduct of the accused in attaching himself to a group which combines to act in circumstances showing a common design to do an unlawful act to which all assent. (People v. Bolden (1978), 59 Ill. App. 3d 441, 375 N.E.2d 898.) Bolden is analogous to the case at bar. In that case, the court stated that while there was no evidence as to who actually wounded the victim, there was sufficient evidence from which the jury could believe that as a member of the group, defendant lent aid and assistance. Bolden, 59 Ill. App. 3d at 450.

A similar situation is presented in the instant case, where defendant was observed with his brother Michael Charles and cousin Blount at the scene. Furthermore, his statement of “Shoots [sic] the motherfucker. Let’s get out of here,” is clearly indicative of aid and solicitation. Also noteworthy is that defendant was present at the scene of the crime, was free to leave the area or seek aid from others, but did nothing to disassociate himself from the occurrence. (People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979.) It is the jury’s function to draw conclusions based on the evidence and to decide whether there is a reasonable doubt as to defendant’s guilt. (Young, 128 Ill. 2d 1.) In applying the appropriate standard, we cannot say that the jury could not properly determine that the essential elements of murder had been proven beyond a reasonable doubt.

Concerning the unlawful use of weapons charge, the State’s position regarding appealability is correct. There is no final judgment in a criminal case until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be entertained. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481.) The trial judge explicitly stated that the weapons charge would merge with the murder charge and that no sentence would be entered on it. Thus, there is no appeal-able judgment with respect to that charge.

II

Defendant’s next contention is that he was denied a fair trial when the State introduced an incriminating statement allegedly obtained from him in violation of his sixth amendment right to counsel. Specifically, defendant refers to the telephone call made by Kennedy Blount while Officer Toussas listened on a second phone. The State argues that defendant has waived this issue because he failed to allege it with adequate specificity in his post-trial motion. Although the State is correct that defendant has not challenged the telephone conversation specifically on sixth amendment right to counsel grounds, we shall consider the issue to determine whether plain error exists. 134 Ill. 2d R. 615(a).

Defendant argues that when he was charged with unlawful use of weapons, his sixth amendment right to counsel attached. In felony cases, the sixth amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated. (People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38.) In Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158, the United States Supreme Court adopted an actual imprisonment test to determine whether a defendant’s sixth amendment right to counsel exists in misdemeanor cases. In People v. Lynn (1984), 102 Ill. 2d 267, 464 N.E.2d 1031, our supreme court stated that an indigent defendant’s right to appointed counsel is not absolute when he is charged with a misdemeanor.

Nevertheless, defendant argues that his sixth amendment right to counsel had attached with regard to the unlawful use of weapons charge and that that offense was so closely related to the murder charge that the right extended to any questioning about the murder. Indeed, the Illinois Supreme Court has held that the sixth amendment rights of one who has been formally charged with an offense extend to other offenses which are closely related to the charged offense and for which defendant is subsequently formally accused. People v. Clankie (1988), 124 Ill. 2d 456, 530 N.E.2d 448.

However, defendant’s argument must be rejected for either of two reasons: (1) he has not established any sixth amendment right to counsel for the misdemeanor weapons charge; and (2) assuming arguendo that he had a right to counsel for that charge, a close relationship between that charge and the murder charge has not been established.

In Clankie, defendant had already been indicted for two burglaries of a home when the State surreptitiously tape-recorded his statements in which he implicated himself in a later burglary of the same home. The court, in applying the rationale of the United States Supreme Court in Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477, found that these offenses were so closely related that the right to counsel extended to the later charge. (Clankie, 124 Ill. 2d at 463.) In the instant case, no such relationship exists. Defendant was arrested for unlawful use of weapons on March 14, 1985. The call placed by Kennedy Blount was made on March 19, 1985. No weapon or ammunition was ever recovered from the scene of the shooting. Thus, the two offenses in the instant case lack the close relationship necessary for the Clankie analysis to apply.

Defendant also relies upon People v. Hoskins (1988), 168 Ill. App. 3d 904, 523 N.E.2d 80, for authority that the two offenses are so closely related that the sixth amendment right to counsel renders his statement inadmissible. His reliance on Hoskins is misplaced, however. In that case, the court found that the two offenses arose out of the same underlying situation; defendant confessed to murder after he had been formally charged with aggravated battery of the same victim, who subsequently died. There is no evidence in the case at bar that the two offenses arose out of the same underlying offense, and thus, Hoskins is inapplicable.

Although defendant insists that application of Maine v. Moulton (1985), 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477, renders his statement inadmissible, his interpretation of that case is incorrect. The evil which the United States Supreme Court sought to avoid in Moulton was the use of a defendant’s incriminating statement against him for the offense with which he had been charged and for which sixth amendment rights had attached. The Court specifically held, however, that statements regarding other crimes were not rendered inadmissible simply because sixth amendment rights had attached to other charges. In the instant case, when the call was placed, defendant had been charged with unlawful use of weapons, not with murder. Defendant’s contention that any questioning about the murder was prohibited is contrary to Moulton.

In support of his argument, defendant points out that the two charges were tried together. Though that is true, it is unrelated to the question of whether the offenses were sufficiently related for sixth amendment purposes. We conclude that the two offenses were not so closely related that any sixth amendment right which may have existed as to the weapon charge extended to the murder charge.

Ill

Defendant next contends that he was deprived of a fair trial when the State allegedly made a prejudicial and improper final argument.

A prosecutor has wide latitude in closing argument, and the trial court’s determination of the propriety of that argument will not be disturbed absent a clear abuse of discretion or substantial prejudice to the defendant. Where allegedly improper comments do not constitute a material factor in the conviction, or where they are of such minor character that prejudice to the defendant is not their probable result, the verdict will not be disturbed on appeal. People v. Neumann (1986), 148 Ill. App. 3d 362, 373-74, 499 N.E.2d 487.

Defendant argues that the State repeatedly misstated and distorted the evidence. Specifically, he contends that the prosecution misstated the evidence concerning the fight which occurred on March 12, 1985, between Fred Poe and defendant. He argues that the State, in the absence of any evidence, repeatedly told the jury that Poe had won the fight, thus providing a motive for defendant to kill him. The prosecutor has a right to comment on the evidence and to draw any legitimate inferences, even if the inferences may be to the detriment of the defendant. (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847.) The prosecutor’s comments about the fight were within the bounds of permissible inference.

Defendant also alleges as error that the prosecution impermissibly attacked him as a “punk” and an “animal,” referred to defense counsel as “desperate,” and said that Tyrone Jackson had been called “everything from scum to shit.” A prosecutor’s reference to a defense as desperate has not been found to be plain error. (People v. Husted (1981), 97 Ill. App. 3d 160, 422 N.E.2d 962.) Though we decry the use of invective, especially the use of a word such as “shit” when it was not part of the evidence, we do not believe that the verdict would have been different if these comments were not made.

The next instance in which defendant alleges that the People misstated the evidence concerns Tyrone Jackson’s testimony that as Michael Dotson held him at gunpoint, defendant stated “Shoots [sic] the motherfucker. Let’s get out of here.” Defendant contends that the State misstated the evidence when it argued:

“ ‘Kill the motherfucker, too, and let us go’. What does that show you, ladies and gentlemen? Kill the motherfucker, too. Does that show you they knew a little bit about who killed Freddy Poe?” (Emphasis added.)

The State contends that defendant has waived this assertion of error because, not only did he fail to allege it in the post-trial motion, he also failed to object to the comments during closing argument. Though the quoted argument does distort defendant’s statement, we do not believe it rises to the level of plain error. We note, moreover, that the jury was instructed by the trial court to base its verdict only upon the evidence. We have considered defendant’s other allegations of error concerning the State’s closing argument and find them without merit.

IV

Defendant’s final contention is that the trial court abused its discretion in sentencing defendant to 40 years in the penitentiary. The State maintains that the trial court in no way abused its discretion where the sentence was properly based on the circumstances of the crime and the factors in aggravation and mitigation.

The trial court is normally the proper forum in which a suitable sentence is to be determined, and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight. Absent an abuse of discretion by the trial court, a sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The reviewing court will find an abuse of discretion “only if the judgment of the trial court is manifestly unjust or palpably erroneous.” (People v. Anderson (1986), 112 Ill. 2d 39, 46, 490 N.E.2d 1263.) In the instant case, it cannot be said that the judgment of the trial court was either manifestly unjust or palpably erroneous.

The trial judge based his sentence on the nature and circumstances of the offense. He expressed concern that this was a gang-related murder and stated that “a sentence that is much more than the minimum is necessary to deter such conduct which is a blight on society and in particular to the project buildings of this city.” The trial judge took into consideration not only defendant’s role in Poe’s murder, but also the fact that defendant encouraged his brother to kill a witness, Tyrone Jackson. In rejecting the State’s requested sentence of life imprisonment, the judge considered that defendant was 17 years of age at the time of the offense and that he lacked substantial criminal background.

Defendant’s reliance on People v. Steffens (1985), 131 Ill. App. 3d 141, 475 N.E.2d 606, is misplaced. In Steffens, the defendant was a juvenile at the time of the offense and had only a prior juvenile adjudication for burglary. Here, defendant was 17 years old and had a prior juvenile adjudication for unlawful use of weapons. We find no abuse of discretion in the trial court’s sentence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES KUBIK, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—1525
    Opinion filed May 21, 1991.

      Randolph N. Stone, Public Defender, of Chicago (James W. Younger, Jr., Ronald P. Alwin, and Timothy J. Deeming, Assistant Public Defenders, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Kevin Sweeney, and James Veldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a jury trial, defendant James Kubik was found guilty of murder, rape, and conspiracy to commit both murder and rape. (Ill. Rev. Stat. 1979, ch. 38, pars. 9—1, 11—1, 8—2.) He received consecutive prison terms of 40 years for murder and 30 years for rape. The circuit court had denied a motion for severance and, during the joint trial, admitted defendant’s confession with the interlocking confessions of two nontestifying codefendants. Defendant appealed, his conviction was affirmed (People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744), and the Illinois Supreme Court denied leave to appeal. Defendant appeals from the dismissal of his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122—1 et seq.).

Defendant was tried jointly with codefendants Daniel Visnack and Randall Weidner for the rape and murder of Visnack’s wife. Defendant’s confession revealed the following. On August 6, 1979, Visnack offered defendant and Weidner a car, money, and a gun in exchange for the murder of Sharon Visnack. On the morning of August 7, 1979, defendant and Weidner went to Visnack’s apartment and gained access with a key that Visnack had provided. Defendant entered Sharon’s bedroom, grabbed her, tied her hands behind her back, taped her mouth with duct tape that he had brought from his home, and raped her. He then went through the apartment looking for something to take. Later, defendant placed a plastic bag over Sharon’s head and secured it with duct tape. After she managed to rip the bag off her head, defendant placed another plastic bag over her head and used more duct tape. Sharon could not free herself and died from asphyxiation.

Defendant stated that since he wanted the intrusion to look like a burglary, he “messed up” the apartment. To hide the fact that he had a key, defendant found a screwdriver in Visnack’s toolbox and used it to break the lock on the door. Thereafter, he returned to his parents’ home and burned some of his clothing as well as Visnack’s screwdriver in his barbecue grill.

On August 14, 1979, defendant was arrested by Officer Kelly Matthews of the Calumet City police department; he was advised of his constitutional rights and taken to the police station. At the station, defendant again received his constitutional rights and he confessed to the crimes. Later, defendant gave a second confession in the presence of several police officers, an assistant State’s Attorney, and a court reporter. His confession was corroborated by the condition of the body and the evidence found at the crime scene.

The police also found independent evidence linking defendant to the rape and murder. At the time of his arrest, police officers matched defendant’s shoeprint with a print they had found on a plastic bag at the crime scene. During a search of defendant’s residence, police found a roll of duct tape that matched a piece taken from Sharon’s body. A search of defendant’s grill revealed the screwdriver that he had used to break the lock on Visnack’s door. Codefendants Visnack and Weidner also gave confessions which revealed the same basic facts contained in defendant’s confession.

Prior to trial, defendant filed a motion to suppress the confessions. He asserted that they were the product of an earlier statement to him by Officer Matthews to the effect that he would get the electric chair if he did not give a statement. He also asserted that he had informed a priest about Matthews’ alleged threat, although the priest had not heard the threat and could not substantiate what defendant had told him.

At the hearing on the motion, defendant reiterated his contention that his confession was involuntary. The priest’s testimony was not offered and defendant’s attorney did not call every State witness who was present when defendant gave his second confession. The circuit court denied the motion to suppress the confessions as well as a motion for severance which had also been filed.

During their joint trial, none of the codefendants testified. The jury heard the confessions, including a tape recording of Visnack’s confession. The circuit court instructed the jury to consider each codefendant’s confession only against the one who gave it. The independent evidence linking defendant to the rape and murder was also admitted.

On direct appeal, defendant argued, inter alia, that the circuit court erred in denying defendant’s motion for a severance and that the prosecutor’s improper comments during closing argument resulted in prejudice. As noted previously, defendant’s conviction was affirmed and the Illinois Supreme Court denied leave to appeal.

Subsequently, defendant filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Illinois. On September 17, 1986, defendant voluntarily dismissed the petition. On September 18, 1986, defendant filed for relief under the Post-Conviction Hearing Act. The State responded with a motion to dismiss. On May 17, 1987, the circuit court granted the motion without an evidentiary hearing. This appeal followed.

I

Defendant first maintains that his rights under the confrontation clause of the sixth amendment to the United States Constitution were violated through the admission of his nontestifying codefendants’ interlocking confessions at their joint trial. He argues that the Supreme Court’s pronouncement in Cruz v. New York (1987), 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, created a new procedural rule that bars the admission of a nontestifying codefendant’s interlocking confession. In the alternative, defendant argues that Cruz reaffirmed a more venerable interpretation of the confrontation clause. Under either analysis, defendant maintains that Cruz should be applied retroactively on collateral review. He therefore argues that the circuit court’s dismissal of his post-conviction petition without an evidentiary hearing was error.

The State maintains that defendant raised this issue on direct appeal, albeit before Cruz was decided, and therefore collateral review is precluded by the doctrine of res judicata. The State also argues that Cruz should not be given retroactive application on collateral review. Alternatively, the State maintains that the admission of the two nontestifying codefendants’ confessions constituted harmless error in light of the overwhelming evidence against defendant.

The Post-Conviction Hearing Act provides that “[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article.” (Ill. Rev. Stat. 1985, ch. 38, par. 122—1.) (Compare Illinois’ collateral review mechanism with the writ of habeas corpus, 28 U.S.C. §2254 (1988).) The purpose of the Act is “to afford to the convicted an opportunity to inquire into the constitutional integrity of the proceedings in which the judgment was entered.” People v. Pier (1972), 51 Ill. 2d 96, 98, 281 N.E.2d 289, 290. See People v. Howard (1981), 94 Ill. App. 3d 797, 798-99, 419 N.E.2d 702, 704.

A defendant is entitled to an evidentiary hearing on a petition for post-conviction relief when he alleges a substantial constitutional deprivation. (Ill. Rev. Stat. 1985, ch. 38, par. 122—1; People v. Albanese (1988), 125 Ill. 2d 100, 104-05, 531 N.E.2d 17, 23; People v. James (1986), 111 Ill. 2d 283, 291-92, 489 N.E.2d 1350, 1354.) The allegations must contain a sufficient factual recounting of the basis for defendant’s post-conviction claim. (People v. Porter (1988), 122 Ill. 2d 64, 73-74, 521 N.E.2d 1158, 1161-62; People v. Potter (1988), 174 Ill. App. 3d 217, 218-19, 528 N.E.2d 373, 374-75; People v. Dredge (1986), 148 Ill. App. 3d 911, 913, 500 N.E.2d 445, 446.) In this case, defendant alleged that he was denied a fair trial because the court denied his motion for severance and admitted his nontestifying codefendants’ inculpating confessions at their joint trial.

The confrontation clause guarantees an accused’s right of cross-examination; its reach extends to the States through the fourteenth amendment to the United States Constitution. (Cruz v. New York, 481 U.S. at 189, 95 L. Ed. 2d at 169, 107 S. Ct. at 1717; Pointer v. Texas (1965), 380 U.S. 400, 403, 13 L. Ed. 2d 923, 926, 85 S. Ct. 1065, 1067; United States ex rel. Sanders v. Lane (7th Cir. 1987), 835 F.2d 1204, 1206.) Its purpose is to ensure the fairness and accuracy of criminal trials. (Parker v. Randolph (1979), 442 U.S. 62, 73, 60 L. Ed. 2d 713, 733, 99 S. Ct. 2132, 2139 (opinion of Rehnquist, J.), citing Dutton v. Evans (1970), 400 U.S. 74, 89, 27 L. Ed. 2d 213, 227, 91 S. Ct. 210, 220; Chambers v. Mississippi (1973), 410 U.S. 284, 295, 35 L. Ed. 2d 297, 309, 93 S. Ct. 1038, 1045-46; Roberts v. Russell (1968), 392 U.S. 293, 294, 20 L. Ed. 2d 1100, 1102, 88 S. Ct. 1921, 1922; Bruton v. United States (1968), 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628.) The right of cross-examination is a fundamental guarantee of liberty, and its roots are found deep within the philosophical underpinnings of our adversarial system. See, e.g., Thompson v. South Carolina (D. S.C. 1987), 672 F. Supp. 896, 900, citing Pointer v. Texas, 380 U.S. at 404, 13 L. Ed. 2d at 926-27, 85 S. Ct. at 1068.

The United States Supreme Court’s interpretation of the confrontation clause, in the context of the admissibility of a nontestifying co-defendant’s interlocking confession, has significantly changed since defendant was tried and took his direct appeal. In Bruton v. United States (391 U.S. at 137, 20 L. Ed. 2d at 485, 88 S. Ct. at 1628), the Court held that an accused’s rights under the confrontation clause were violated when a nontestifying codefendant’s inculpating confession was admitted at their joint trial. The Court further held that limiting instructions were not “an adequate substitute for [the accused’s] constitutional right of cross-examination.” Bruton, 391 U.S. at 137, 20 L. Ed. 2d at 485, 88 S. Ct. at 1628.

In Parker v. Randolph (442 U.S. at 75, 60 L. Ed. 2d at 724-25, 99 S. Ct. at 2140), a divided Court, in a plurality opinion, held that the “admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” The Court stated that “the incriminating statements of a codefendant will seldom, if ever, be of the ‘devastating’ character referred to in Bruton when the incriminated defendant has admitted his own guilt.” Parker, 442 U.S. at 73, 60 L. Ed. 2d at 723, 99 S. Ct. at 2139. See People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525 (adopting Parker in Illinois); People v. Bassett (1974), 56 Ill. 2d 285, 294-95, 307 N.E.2d 359, 365.

Later, in Cruz v. New York (481 U.S. at 193, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719), the Court reversed Parker and held:

“[W]here a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, see Lee v. Illinois [(1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056], the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him.”

The Cruz Court explicitly rejected Parker’s “interlocking exception” and reasoned that “ ‘interlocking’ bears a positively inverse relationship to devastation.” (Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) The view espoused in Parker was controlling at the time of defendant’s trial and direct appeal. See People v. Visnack (1985), 135 Ill. App. 3d 113, 124, 481 N.E.2d 744, 751.

In Teague v. Lane (1989), 489 U.S. 288, 300, 103 L. Ed. 2d 334, 349, 109 S. Ct. 1060, 1069, quoting Bowen v. United States (1975), 422 U.S. 916, 920, 45 L. Ed. 2d 641, 647, 95 S. Ct. 2569, 2573, the Court stated that “when ‘issues of both retroactivity and application of constitutional doctrine are raised,’ the retroactivity issue should be decided first.” No reported Illinois authority addresses the issue of whether Cruz carries a retroactive application under the Post-Conviction Hearing Act. We resolve that question today.

Initially, we must decide whether Cruz created a new procedural rule or reaffirmed a more venerable interpretation of the confrontation clause. (See Desist v. United States (1969), 394 U.S. 244, 263, 22 L. Ed. 2d 248, 263, 89 S. Ct. 1030, 1041 (Harlan, J., dissenting).) The latter always carries a retroactive application on collateral review (see Yates v. Aiken (1988), 484 U.S. 211, 215, 98 L. Ed. 2d 546, 553, 108 S. Ct. 534, 537; United States v. Johnson (1982), 457 U.S. 537, 549, 73 L. Ed. 2d 202, 213, 102 S. Ct. 2579, 2586), while the former “should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’ [or] *** if it requires the observance of ‘those procedures that ... are “implicit in the concept of ordered liberty.”’” (Teague v. Lane, 489 U.S. at 311, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075, quoting Mackey v. United States (1971), 401 U.S. 667, 692-93, 28 L. Ed. 2d 404, 420-21, 91 S. Ct. 1160, 1180 (Harlan, J., concurring in part and dissenting in part), quoting Palko v. Connecticut (1937), 302 U.S. 319, 325, 82 L. Ed. 288, 292, 58 S. Ct. 149, 152.) Thus, Teague settled the long-standing debate by “adopting] Justice Harlan’s view of retroactivity for cases on collateral review.” (Teague, 489 U.S. at 310, 103 L. Ed. 2d at 356, 109 S. Ct. at 1075.) Teague is now the law of the land. See Saffle v. Parks (1990), 494 U.S. 484, 487-88, 108 L. Ed. 2d 415, 424, 110 S. Ct. 1257, 1259-60.

In Butler v. McKellar (1990), 494 U.S. 407, 412, 108 L. Ed. 2d 347, 355, 110 S. Ct. 1212, 1216, quoting Penry v. Lynaugh (1989), 492 U.S. 302, 314, 106 L. Ed. 2d 256, 275, 109 S. Ct. 2934, 2944, and Teague v. Lane (489 U.S. at 301, 103 L. Ed. 2d at 349, 109 S. Ct. at 1070), the Court reasoned that “a case announces a ‘new rule’ when it breaks new ground or imposes a new obligation on the States or the Federal Government. [Citation.] Put differently, and, indeed, more meaningfully for the majority of cases, a decision announces a new rule ‘ “if the result was not dictated by precedent existing at the time defendant’s conviction became final.” ’ ” (Emphasis in original.) Butler and Teague were decided in the context of the writ of habeas corpus, the Federal mechanism for collateral review. This rationale has been adopted for purposes of Illinois’ Post-Conviction Hearing Act by the Illinois Supreme Court in People v. Flowers (1990), 138 Ill. 2d 218, 516 N.E.2d 674.

The Illinois courts have interpreted Cruz as a new procedural rule. Severance is now an issue where a nontestifying codefendant’s interlocking confession is sought to be admitted at a joint trial. (See People v. Duncan (1988), 124 Ill. 2d 400, 412, 530 N.E.2d 423, 426; People v. Collins (1989), 186 Ill. App. 3d 35, 41, 541 N.E.2d 1308, 1311; People v. Smith (1988), 172 Ill. App. 3d 94, 104, 526 N.E.2d 849, 855; People v. Wilson (1987), 161 Ill. App. 3d 995, 1000-02, 515 N.E.2d 812, 815-16; People v. Elston (1987), 158 Ill. App. 3d 652, 655, 511 N.E.2d 710, 712-13; People v. Lincoln (1987), 157 Ill. App. 3d 700, 704, 510 N.E.2d 1026, 1029-30.) Therefore, Cruz imposed a new obligation on the State. Moreover, because the confessions were interlocking, the circuit court’s denial of the severance motion was dictated by Parker at the time defendant’s conviction became final.

We note that another court has reached the opposite conclusion, although before Butler, and retroactively applied Cruz as a reaffirmation of existing law. (See People v. Graham (1988), 531 N.Y.S.2d 172, 177, 140 Misc. 2d 417, _.) In Graham, the New York court seemingly relied on Cruz’ dictum and viewed the Court’s holding “as ‘no more than [a] reaffirm[ation of the] central proposition of Bruton.’” (Graham, 531 N.Y.S.2d at 177, 140 Misc. 2d at _, quoting Cruz v. New York, 481 U.S. at 193, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719.) That analysis, however, does not bridge the eight-year gap between Parker and Cruz. The Graham court did go on to reason that “the application of [the] traditional retroactivity analysis leads [us] to the same result.” Graham, 531 N.Y.S.2d at 177-78, 140 Misc. 2d at _.

The next question is whether the new rule announced in Cruz carries a retroactive application on collateral review. The relevant exception to the general rule of nonretroactivity is limited to “those procedures that ... ‘are implicit in the concept of ordered liberty.’” (Teague v. Lane, 489 U.S. at 307, 103 L. Ed. 2d at 353, 109 S. Ct. at 1073.) In Sawyer v. Smith (1990), 497 U.S. 227, 242, 111 L. Ed. 2d 193, 211, 110 S. Ct. 2822, 2831, quoting Teague v. Lane (489 U.S. at 311, 103 L. Ed. 2d at 357, 109 S. Ct. at 1076), the Court stated that “[a] rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” (Emphasis in original.) As for the element of accuracy, the Cruz Court held that a nontestifying codefendant’s interlocking confession was inadmissible at a joint trial. The application of Cruz directly impacts on what evidence is admissible at trial. Therefore, Cruz improved the accuracy of the truth-finding function. As for the second element, Cruz altered our understanding of the sixth amendment. The nontestifying codefendant’s interlocking confession was admissible under Parker’s interlocking exception. The Court’s pronouncement in Cruz extinguished that exception. It follows that our interpretation of the confrontation clause, in this narrow context, has significantly changed. The right of cross-examination is essential to the fairness and the constitutional integrity of a criminal proceeding. Accordingly, the rule announced in Cruz satisfies both elements.

We reject the State’s assertion that Teague stands for the proposition that decisions like Cruz never carry a retroactive application on collateral review. In so arguing, the State relies on People v. James (1986), 111 Ill. 2d 283, 289, 489 N.E.2d 1350, 1353. However, the James court addressed the collateral retroactivity of the United States Supreme Court’s pronouncement in Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. Our supreme court noted that Edwards did not carry a retroactive application because it “bears only a tangential relation to truthfinding at trial.” (People v. James, 111 Ill. 2d at 289, citing Solem v. Stumes (1984), 465 U.S. 638, 79 L. Ed. 2d 579, 104 S. Ct. 1338 (holding that Edwards did not carry a retroactive application under the writ of habeas corpus).) We do not address the other examples cited by the State as they do not address the issue presented in this case.

Returning to the issue of the sixth amendment right of cross-examination, Bruton was given full retroactive application to cases on habeas review in Roberts v. Russell (392 U.S. at 294-95, 20 L. Ed. 2d at 1102-03, 88 S. Ct. at 1922). The Illinois Supreme Court interpreted Roberts as mandating a retroactive application of Bruton under Illinois’ Post-Conviction Act, despite prior affirmance on appeal. (See People v. Ikerd (1970), 47 Ill. 2d 211, 212-13, 265 N.E.2d 120, 121; People v. Davis (1970), 46 Ill. 2d 554, 557, 264 N.E.2d 140, 142; People v. Somerville (1969), 42 Ill. 2d 1, 6, 245 N.E.2d 461, 464-65.) Today, the Federal courts retroactively apply Cruz on habeas corpus review. (See United States ex rel. Lee v. Flannigan (7th Cir. 1989), 884 F.2d 945, 951; Sanders v. Lane (7th Cir. 1987), 835 F.2d 1204, 1206; Reddy v. Coombe (S.D.N.Y. 1990), 730 F. Supp. 556, 565-66.) Our research has not disclosed any authority supporting the proposition that Cruz does not retroactively apply on collateral review.

Our rationale is consistent with Illinois’ “fundamental fairness” exception to the finality rule of res judicata. (See Teague v. Lane, 489 U.S. at 297, 103 L. Ed. 2d at 347, 109 S. Ct. at 1068 (discussing Illinois’ Post-Conviction Hearing Act), citing People v. Ikerd, 47 Ill. 2d at 212-13.) In defining fundamental fairness, “ ‘ “[t]he relevant frame of reference ... is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the [mechanism for collateral review] is made available.”’” (Butler v. McKellar (1990), 494 U.S. at 413, 108 L. Ed. 2d at 355, 110 S. Ct. at 1216, quoting Teague v. Lane, 489 U.S. at 306, 103 L. Ed. at 352, 109 S. Ct. at 1072, quoting Mackey, 401 U.S. at 682, 28 L. Ed. 2d at 414, 91 S. Ct. at 1175 (opinion of Harlan, J.).) The framework of the Post-Conviction Hearing Act enables courts to review the constitutional integrity or “fundamental fairness” of the trial proceedings. A trial is fundamentally fair and thus meets constitutional muster if “conducted under those procedures essential to the substance of a full hearing” which are “ ‘implicit in the concept of ordered liberty.’” (Mackey, 401 U.S. at 693, 28 L. Ed. 2d at 421, 91 S. Ct. at 1180, quoting Palko, 302 U.S. at 325, 82 L. Ed. at 292, 58 S. Ct. at 152.) Accordingly, based on the fundamental conceptual nature of the right of cross-examination, we conclude that Cruz carries a retroactive application under the Post-Conviction Hearing Act.

Moreover, the writ of habeas corpus permits the Federal courts to review State court decisions involving Federal constitutional claims such as the one presented by defendant in this case. Although Illinois’ retroactivity analysis need not comport with the analysis employed by the Federal courts (see People v. Eyler (1989), 133 Ill. 2d 173, 225, 549 N.E.2d 268, 291), the availability of the Federal collateral remedy, read inconsistently with Illinois’, would invite inconsistent results and would obscure finality. Application of Illinois’ Post-Conviction Hearing Act should thus be consistent with the Federal writ of habeas corpus and Cruz must extend to those defendants seeking post-conviction review.

The State next asserts that the Bruton-Cruz error was harmless in light of the overwhelming evidence against defendant. Although it is true that a Bruton-Cruz violation can be harmless error (see Cruz, 481 U.S. at 194, 95 L. Ed. 2d at 172, 107 S. Ct. at 1719; Schneble v. California (1972), 405 U.S. 427, 430-32, 31 L. Ed. 2d 340, 344-45, 92 S. Ct. 1056, 1059-60; Harrington v. California (1969), 395 U.S. 250, 252, 23 L. Ed. 2d 284, 286-87, 89 S. Ct. 1726, 1727-28; People v. Silas (1989), 185 Ill. App. 3d 920, 928, 541 N.E.2d 1239, 1244; People v. Nunn (1989), 184 Ill. App. 3d 253, 267, 541 N.E.2d 182, 192; People v. Brown (1989), 184 Ill. App. 3d 569, 574, 540 N.E.2d 500, 503), that determination should be made at the circuit court level through an evidentiary hearing. Considering, however, that this is a case of first impression in Illinois and that defendant and the State have stipulated to the harmless error question being decided here, we address the issue.

In reviewing a Bruton-Cruz violation, the court must weigh the properly admitted evidence of guilt against the possible prejudicial effect of the codefendant’s interlocking confession in determining whether such admission was harmless beyond a reasonable doubt. (See Schneble v. California, 405 U.S. at 430, 31 L. Ed. 2d at 344, 92 S. Ct. at 1059; People v. Brown, 184 Ill. App. 3d at 574-75, 540 N.E.2d at 503.) In defendant’s direct appeal, we considered the evidence of guilt to be overwhelming. People v. Visnack, 135 Ill. App. 3d at 124, 481 N.E.2d at 751.

The jury heard defendant’s confession which detailed the rape and murder of Sharon Visnack. The substance of the confession revealed that Sharon had been raped; defendant had placed a plastic bag over her head; duct tape was used to secure the bag; a second bag was used after Sharon freed herself from the first; a screwdriver had been used to break the lock on the door; Visnack’s apartment had been “messed up”; and Sharon had worn a nightgown when he assaulted her. These details matched the condition of the body and the surroundings in which it was found.

The jury also received independent evidence linking defendant to the rape and murder. Expert testimony established that the screwdriver found in defendant’s grill was the one used to break Visnack’s lock; the shoeprint found on a plastic bag at the crime scene matched defendant’s shoeprint taken at the time of his arrest; and a piece of duct tape found on Sharon’s body had been torn from a roll found in defendant’s home. Based on the accuracy of defendant’s confession, and the independent evidence linking him to the offenses, we hold that the admission of the codefendants’ confessions was cumulative of the overwhelming evidence against defendant and, therefore, did not deny him a fair trial.

II

Defendant next maintains that he was denied his sixth amendment right to effective assistance of counsel at trial and on direct appeal. He argues that his trial attorney was incompetent in failing to call a witness at the suppression hearing, failing to insist that all the State’s witnesses be produced at the hearing, and failing to object to the prosecutor’s comments during closing argument. Defendant also argues that his appellate attorney was incompetent for failing to raise the issue of his trial attorney’s competence.

The State maintains that defendant’s arguments concerning the competence of his trial attorney are barred as res judicata. The State also argues that his attorney’s decisions were tactical in nature and therefore did not rise to the level of a sixth amendment violation. Alternatively, the State maintains that defendant was not prejudiced in light of the overwhelming evidence against him. Regarding defendant’s allegations that his appellate counsel was incompetent, the State argues that the attorney acted in a reasonably prudent manner.

“The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” (Strickland v. Washington (1984), 466 U.S. 668, 685, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063. See People v. Johnson (1989), 128 Ill. 2d 253, 265-66, 538 N.E.2d 1118, 1123; People v. Caballero (1989), 126 Ill. 2d 248, 260, 533 N.E.2d 1089, 1091; People v. Albanese (1984), 104 Ill. 2d 504, 524-25, 473 N.E.2d 1246, 1255 (adopting Strickland in Illinois).) “ ‘The benchmark for judging any claim of ineffectiveness must be 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.’ ” People v. Albanese, 104 Ill. 2d at 525, quoting Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.

In Strickland, the Court announced two components used to test the issue of an ineffective assistance of counsel claim.

“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

See People v. Flores (1989), 128 Ill. 2d 66, 80-81, 538 N.E.2d 481, 485; People v. Johnson (1989), 128 Ill. 2d 253, 265-66; People v. Bryant (1989), 128 Ill. 2d 448, 458, 539 N.E.2d 1221, 1226; People v. Jimerson (1989), 127 Ill. 2d 12, 32, 535 N.E.2d 889, 897-98; People v. Harris (1988), 123 Ill. 2d 113, 155, 526 N.E.2d 335, 353.

Initially, we address defendant’s claims regarding the competence of his trial attorney. Defendant argues that his attorney’s failure to call the priest as a witness at the suppression hearing was tantamount to a sixth amendment violation. We disagree for two reasons. First, the decision of whether to call a witness is largely a matter of tactics. (People v. Flores (1989), 128 Ill. 2d at 85-86, 538 N.E.2d at 485-86; People v. Wright (1986), 111 Ill. 2d 18, 26-27, 488 N.E.2d 973, 977.) Counsel is given wide latitude in making tactical decisions. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) Only the most egregious of tactical blunders may provide a basis for a sixth amendment claim. Therefore, defendant cannot satisfy the first component. Second, we do not see any material benefit in the priest’s testimony. He did not hear Officer Matthews’ alleged threat and could not offer any direct evidence. At best, the witness could provide only evidence of a prior consistent statement as to what defendant had told him. Therefore, defendant cannot claim that the outcome of the suppression hearing would have been any different and cannot satisfy the second component of his claim.

Defendant next argues that his attorney was incompetent in failing to insist that all the State’s witnesses be produced at the suppression hearing. We find no merit in this contention either. Based on defendant’s recounting of the facts, the only persons who were present at the time of Officer Matthews’ alleged threat were the officer and defendant. Both testified at the hearing. The only persons required to be present at a hearing to suppress a confession are those whose testimony is material to the question of voluntariness. (People v. Monroe (1981), 95 Ill. App. 3d 807, 812, 420 N.E.2d 544, 548. See People v. Jones (1984), 128 Ill. App. 3d 842, 846-48, 471 N.E.2d 590, 594.) The State was not required to produce every person who came in contact with defendant after Officer Matthews’ alleged threat. Therefore, no other testimony was required.

Defendant next maintains that his attorney was incompetent in failing to object to certain comments of the prosecutor in closing argument. We have considered these allegations and find them lacking merit. On defendant’s direct appeal, we concluded that although counsel made only 5 objections to the 15 instances of improper conduct complained of, those errors did not rise to the level of plain error required for consideration under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). (People v. Visnack, 135 Ill. App. 3d at 125, 481 N.E.2d at 752.) Our conclusion was based on the “overwhelming evidence against defendants.” (Visnack, 135 Ill. App. 3d at 124, 481 N.E.2d at 751.) We affirm our earlier conclusion.

Since defendant has not satisfied the Strickland requirements regarding his trial attorney, we find no merit in his contention that his appellate attorney was incompetent.

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

Affirmed.

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