text:
    S J S INVESTMENTS, LTD., Plaintiff-Appellant, v. 450 EAST PARTNERSHIP, a/k/a 450 East Ohio Partnership, Indiv. and as Beneficial Owner of 450 East Ohio Street, Chicago, Illinois, Defendant-Appellee.
    First District (5th Division)
    No. 1—91—0801
    Opinion filed July 17, 1992.
    Stephen J. Schostok, of Laser, Schostok, Kolman & Frank, of Chicago, for appellant.
    Gerald D. Mindell, of Sperling, Slater & Spitz, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, SJS Investments, Ltd., appeals from an order granting summary judgment on its complaint for specific performance in favor of defendant, the 450 East Partnership. We consider whether plaintiff elected its remedy under the contract when it requested the return of its earnest money. For the following reasons, we affirm.

In plaintiff’s complaint, it alleged that on February 1, 1988, it contracted with defendant to buy real property located at 450 East Ohio in Chicago. Under the contract, which was attached to the complaint, plaintiff was required to deposit earnest money which would be held in escrow with the title company. The contract stated that “[i]f this contract is terminated without Purchaser’s fault, at the option of Purchaser, it may either have returned to it the entirety of all earnest money deposited, or require specific performance from the Seller.”

The contract was also contingent on plaintiff obtaining a mortgage within a certain time period. If plaintiff was unable to obtain financing, it could give defendant written notice of that fact within two days of the expiration of the period. Then defendant, in its discretion, could consent to plaintiff assuming the existing financing on the property. If defendant failed to consent within 14 days of receiving plaintiff’s notice, then the contract would be declared null and void and the earnest money would be returned to plaintiff.

The contract initially required plaintiff to obtain financing within 45 days or by March 16; however, the parties agreed to extend the time period to May 18 and scheduled the closing for June 15. On May 18, plaintiff notified defendant in writing that it had not obtained the financing. After May 18 but prior to June 15, plaintiff obtained financing but defendant refused to close the sale. Plaintiff alleged that it was ready, willing, and able to complete the sale “by further deposit of such sums and documents” and requested specific performance.

Defendant answered the complaint and denied the material allegations. It also moved for summary judgment, arguing that plaintiff elected its remedy under the contract because it withdrew its earnest money deposit from escrow. In addition to the contract and letters between the parties, defendant relied on the affidavit of its attorney, John J. Vondran. Defendant also moved for sanctions under section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). Plaintiff responded to the motion for summary judgment and relied on the affidavit of its president, Stephen J. Schostok. The following relevant facts were derived from the evidence presented in support of and in opposition to defendant’s motion for summary judgment.

After the parties agreed to extend the mortgage contingency period to May 18, plaintiff’s lender, who had previously committed to financing the sale, advised plaintiff that financing was no longer available. As a result, in a letter dated May 18, plaintiff notified defendant and the title company that it did not obtain financing. However, on the title company’s copy of the letter, plaintiff requested the return of its earnest money. Stephen Schostok, plaintiff’s president, stated in his affidavit that the next day he telephoned defendant and the title company and said he did not want the earnest money returned at that time but wanted to secure financing and close the sale as scheduled. He also asserted that he did not withdraw the earnest money at that time.

In a letter dated June 6, plaintiff informed defendant that a lender promised financing and requested defendant to prepare a closing statement. In a letter dated June 10, defendant responded that it considered the contract expired when plaintiff notified defendant that it did not obtain financing on May 18. Defendant also stated that it did not close the escrow account as a matter of convenience because plaintiff advised that it would continue to seek financing and, if successful, plaintiff would propose a reinstatement of the contract.

Schostok asserted in his affidavit that, on June 14 and 15, plaintiff informed defendant that the sale could close on June 15 because it obtained the financing. John Vondran, defendant’s attorney, told Schostok that he did not receive defendant’s final decision as to whether it would close the sale.

On June 23, defendant informed plaintiff that it would not close the sale and considered the contract terminated. Also on June 23, plaintiff wrote a letter to the title company stating that defendant was in default under the contract and requested the return of its earnest money in escrow. A copy of the letter was sent to defendant. The earnest money was returned to plaintiff.

After considering the documents and affidavits presented for the motion, the trial judge granted summary judgment in defendant’s favor, finding that plaintiff elected its remedy when it requested the return of its escrow deposit from the title company.

Plaintiff appealed. This court dismissed the appeal because the trial judge did not enter a Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) finding although defendant’s motion for attorney fees was still pending. (S J S Investments, Ltd. v. La Salle National Bank (1991), 210 Ill. App. 3d 228, 569 N.E.2d 49.) After the appeal was dismissed, the trial judge entered the requisite Rule 304(a) finding and plaintiff appealed.

Opinion

Plaintiff argues that summary judgment was improper because the trial judge decided a question of fact when it found that plaintiff elected its remedy under the contract. Plaintiff contends that the issue was one of fact because the judge must determine whether it “consciously chose the remedy of escrow withdrawal over specific performance” and asserts that it removed the earnest money as a “temporary measure” rather than as an abandonment of the contract.

Summary judgment should be entered when the pleadings, depositions, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).) In considering whether to grant summary judgment, the trial court must construe the evidence strictly against the movant and liberally in favor of the opponent and should only enter summary judgment when the right of the movant is clear and free from doubt. Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill. 2d 121, 552 N.E.2d 783.

A remedy based on affirmance of a contract is inconsistent with a remedy arising from the same facts and based on disaffirmance of the contract; election of one remedy is an abandonment of the other. (Durr v. Beatty (1986), 142 Ill. App. 3d 443, 491 N.E.2d 902.) The doctrine of election of remedies applies when double compensation is threatened, plaintiff’s conduct has misled defendant causing defendant to change his or her position in reliance on it, or the doctrine of res judicata is applicable. Streams Condominium No. 3 Association v. Bosgraf (1991), 219 Ill. App. 3d 1010, 580 N.E.2d 570.

For its argument that an election of remedies is a question of fact, plaintiff relies on a case from Washington, Puget Sound Service Corp. v. Bush (1986), 45 Wash. App. 312, 724 P.2d 1127. In Puget, the court indicated that whether an election occurred under a contract was a question of fact. However, plaintiff did not present authority from this jurisdiction that supports its position. In fact, there is authority in this jurisdiction for holding that the determination of whether a party has elected a remedy under a contract is appropriate for summary judgment. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 483 N.E.2d 1013; Bruno Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 464 N.E.2d 292.) As a result, plaintiff’s argument is without merit.

Plaintiff also argues that despite the fact that it withdrew its earnest money, it was sufficient to tender performance in the pleadings to obtain specific performance. Plaintiff alleged in its complaint that it was willing to deposit “further sums as necessary.” Plaintiff relies on National Super Markets, Inc. v. First National Bank (1979), 72 Ill. App. 3d 221, 390 N.E.2d 602, and Tantillo v. Janus (1980), 87 Ill. App. 3d 231, 408 N.E.2d 1000; however, neither of those cases considered an election of remedies and they are inapplicable here.

In this case, the contract allowed plaintiff the choice between two remedies: return of its earnest money or specific performance. Plaintiff requested and obtained its earnest money. As a result, it elected its remedy under the contract and could not also obtain specific performance, which would allow plaintiff double compensation. Therefore, the entry of summary judgment in defendant’s favor was proper.

As an alternative ground for affirming summary judgment, defendant argued that a condition precedent of the contract was not satisfied when plaintiff failed to obtain a mortgage. Based on our decision, it is unnecessary to consider this argument.

Affirmed.

McNULTY, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARREN LILES, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0923
    Opinion filed July 17, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Lester Finkle, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Randall Roberts, and Brian Clauss, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Darren Liles, and his sisters, Tara Liles and Latanya Liles, were indicted for first-degree murder and were represented by attorneys Leonard Karlin (Karlin) and Rachel Karlin in a bench trial before Judge Joseph J. Urso. Tara and Latanya were both acquitted, but the defendant was convicted.

The defendant was granted a new trial based on the newly discovered testimony of Chinyere Liles and Kirby Allen, indicating that they, rather than the defendant, may have killed the victim. The defendant’s motion for substitution of judges was granted, and the case was assigned to Judge Christy S. Berkos for the second trial. The defendant was again represented by Leonard Karlin and Rachel Karlin and was again convicted, this time by a jury. He was sentenced to 20 years’ imprisonment. The defendant’s sole claim is that he was denied effective assistance of counsel.

Phyllis Harper testified that she had lived with Julian “Randy” Douglas at 1410 West 14th Street in Chicago. On March 25, 1989, Douglas left the apartment between 3:30 and 4 p.m. to go to the store. Around 4:45 p.m., a little boy who lived in the same building knocked on her door and told her that Douglas was fighting across the street. She went to the courtyard across the street and saw that Douglas had already been put into an ambulance. She saw his body that evening at Cook County Hospital.

Terrence Fulton testified that he lived in one of the rowhouses overlooking the courtyard where Douglas was killed. On March 25, 1989, at 4:30 p.m., he was awakened by some people arguing outside. He stuck his head out of his bedroom window and saw Douglas about 15 feet outside the window, walking east. He saw the defendant and his sisters, Tara and Latanya, walking about 20 or 25 feet behind Douglas. The defendant was carrying a baseball bat.

The defendant was standing facing Douglas, and Tara and Latanya were standing behind Douglas. The defendant swung the bat and hit Douglas, who fell to the ground. One of the girls kicked Douglas, and then the other girl kicked him twice. Fulton went downstairs and looked out his front door; the only people he saw were the defendant, the two girls and Douglas. He then went back inside and called the ambulance. When he went outside again, he saw two police officers talking to Tara and Latanya; the defendant was sitting on a stump nearby. The defendant got up and began walking west; when he passed Fulton, Fulton saw his face. Douglas was placed in an ambulance and taken away. Fulton walked back to his house and stood outside his front door. The police officers and the two girls who had been with the defendant went to a car and retrieved a bat from the trunk. Although Fulton was about 30 feet away when this happened, he thought the bat looked like the same bat he had seen the defendant carrying earlier. Later that evening, Fulton went to the police station at 3151 West Harrison and identified the bat. He also viewed a lineup and identified the defendant. He testified that before the date of the incident, he did not know the defendant. He had seen Douglas around the neighborhood but had never spoken with him.

On cross-examination, Fulton admitted that he did not tell the police at the scene that the defendant, who was sitting on a stump nearby, was the person who had hit Douglas; he did not identify the defendant until he got to the police station. Fulton also admitted that in his grand jury testimony, when he was asked, “Who did you see hit whom with the bat?” he replied, “I don’t know his name.” It was established that he had previously testified that the window out of which he said he had leaned to view the incident had a screen in it at the time. Fulton also testified that the bat struck Douglas on the left side of his face. (A pathologist later established that the injury that caused the death of Douglas was on the right side.)

Ezille Ross testified that he was visiting his sister at 1410 West 14th Street on March 25, 1989. As he was leaving her house around 4:45 that afternoon, he saw a crowd of people traveling east through the courtyard. He went to the west end of the courtyard and saw Douglas lying on the ground. As he was walking eastbound toward the crowd, he passed the defendant, who was quickly walking westbound. He recognized the defendant from the neighborhood. As he was passing the defendant, he also noticed Terrence Fulton standing in front of his doorway.

Ross saw the police officers go to a car with the defendant’s sisters, and he saw one of the sisters open the trunk of the car and retrieve a bat. That evening Ross went to the police station where he viewed a lineup and identified the defendant.

On cross-examination, Ross testified that he got into an argument with a police officer at the station after he viewed the lineup, and he tried to hit the officer. The officer twisted his arm and bent his fingers back, and then handcuffed him to the wall. He then apologized to the officer, and the officer released him from the handcuffs. He testified that this altercation with the officer did not affect his identification of the defendant; he told the police the same story before this altercation as he did afterward.

Officer Eusebio Razo testified that he was patrolling in a squad car with his partner, Officer Phillips, on March 25, 1989. Around 4:37 p.m., they received a dispatch assignment to go to a disturbance at 1410 West 14th Street. As they were driving down Loomis Street on the way to the scene, they were flagged down by Latanya Liles near 1340 South Loomis. They proceeded about one-half block east, where they saw a large crowd gathered around a man lying in a pool of blood. They noticed that the man had suffered a blow to the head. Razo later learned the man’s name was Julian Douglas.

After the ambulance took Douglas to Cook County Hospital, Officer Razo received several calls on his radio; citizens had called the dispatcher and given information about a bat in the trunk of a car. Razo asked witnesses for information about the bat. He spoke with Latanya Liles, Tara Liles, Thatisha Blandin, and Ezille Ross. The owner of a 1976 Chevrolet parked on Loomis came and opened the trunk of the car; the officers did not find a bat in that car. Razo received another radio transmission, informing him that the 1976 Chevrolet was the wrong car. He asked Tara Liles about a beige 1976 Buick parked on the north side of 1410 West 14th; she had the keys and she opened the trunk for the officers. The officers found a baseball bat in the trunk; Razo identified the Worth brand bat in court as being the same bat he recovered from the trunk of the beige Buick.

Detective Smulevitz and Detective Dorich arrived on the scene; Razo told them about the bat and pointed out the beige Buick to them. The officers drove Ezille Ross to Area 4 headquarters for investigation, and they inventoried the baseball bat. Later that evening, pursuant to instructions received from Detectives Smulevitz and Dorich, Razo and Phillips returned to 1410 West 14th, apartment 903, and drove the defendant to Area 4 headquarters. On cross-examination, Razo admitted that although there were 40 to 60 people in the crowd, he got only the name of one witness, Ezille Ross. Razo said that no one else wanted to cooperate. Razo was also unable to name any of the citizens who had given information about the baseball bat.

Dr. Robert Kirschner, a forensic pathologist with the office of the Cook County medical examiner, testified that he performed an autopsy on Julian Douglas. Douglas had several superficial injuries on the left side of the face, including small lacerations and abrasions. These injuries would be consistent with someone falling to the ground and striking the pavement. The significant injury was to the right side of the neck. Although there was no evidence of any breaking of the skin or abrasions on the right side of the neck, it was, on external appearance, swollen and slightly bruised. The external swelling of the neck extended to the underside of the right side of the jaw, and the neck tissues were slightly black and blue.

He performed an internal examination of the right side of the neck and found that there was extensive bleeding in the subcutaneous tissues and the muscles of the right side of the neck, and he also found a fracture of the first cervical vertebra, the upper component of the spine. There was bilateral hemorrhage within the head, directly over the surface of the brain.

He testified that the injury was caused by a severe blunt force to the right side of the neck, and it must have been an extensive force in order to cause this type of injury, which was unusual and could only occur from a direct blow to the neck with extensive force. The injury would be very consistent with a blow from a baseball bat, but it would not be consistent with someone punching the victim with a fist or hitting him on the top of the head with a brick. He said that because a brick is a rough object, it would leave abrasions; he also said that it would be very difficult to produce enough force to fracture the cervical spine using a brick.

On cross-examination, he said that the injury could have been caused by some smooth, hard object other than a baseball bat. If the attacker was facing the victim and swung a bat from a normal right-handed batter’s position, the bat would hit the victim on the left side of the neck, not the right side.

Detective Gerald Dorich testified that he conducted a lineup around 8:50 p.m. and Ross and Fulton viewed the lineup and identified the defendant. Ross and Fulton were placed in separate rooms and were not allowed to speak to each other before the lineup.

The defendant’s first witness was Latanya Liles. She testified that on March 25, 1989, her cousin, Alonzo Bell, was visiting her home at 1410 West 14th Street, apartment 903. She lived there with her two children and her brother, Leander Liles. Thatisha Blandin also came to her apartment sometime that day.

Around noon, she went to her sister Tara’s house at 1433 West 13th Street, and the two of them went shopping together. When they returned to Latanya’s apartment around 2:30 or 3 p.m., Bell called out the window to them, telling them to come upstairs because someone had broken into the house. When Latanya got upstairs, she discovered that someone had bent the security bars and had stolen her microwave and radio.

Latanya thought that Bell knew who had taken her microwave and radio. She went to the apartment next door and knocked on the door, but the people in that apartment ignored her. She returned to her apartment and retrieved a baseball bat, and then began beating on the neighbors’ door with the bat. She heard her daughters outside calling her, so she dropped the bat by the door and went back to her apartment and looked out the window.

Latanya saw her daughter, Chaya Liles, standing downstairs with Thatisha Blandin; Thatisha told Latanya to come downstairs. About 10 minutes later, Latanya heard a crowd of people yelling up at her window. She looked out the window and saw the crowd pointing at Julian Douglas. Douglas began running, and the crowd ran after him.

Latanya left the apartment and went out to the courtyard, where she saw Julian Douglas lying on the ground. Her sister Tara caught up with her in the courtyard. When she first walked up to the victim with the bat in her hand, she saw Kirby Allen coming out of the courtyard, walking westbound toward her. Latanya came within 3^2 or 4 feet of Douglas. She stayed at the scene for about five minutes and then ran to the phone and called the police. She told the police that the man who had broken into her apartment was lying on the ground and appeared to be injured.

Latanya gave Chaya a tool bag and the bat and told her to take them upstairs; she never saw the bat again. Chaya had recovered the tool bag from Kirby Allen's car. The bat was a new Louisville Slugger; it was a different bat than the one presented in court. She did not see the defendant while she had the bat. She was not present when a bat was removed from the trunk of a Buick; Kirby Allen’s car was an Oldsmobile Delta 88, not a Buick.

After she flagged down the police, the two officers walked over to the victim with Latanya and Tara. Latanya and Tara talked with Officer Razo’s partner; the defendant was standing there, and Latanya told him to take her daughters upstairs.

Around 5 or 5:30 p.m., two officers took Latanya and Tara to the police station at Harrison and Kedzie. Ezille Ross was in the room across the hall from her at the station. She saw Detective Smulevitz twist Ross’ arm and bend his fingers back; then they slammed the door and locked it.

During the State’s cross-examination of Latanya, the prosecutor asked her a question and Karlin interjected, “If you remember.” Karlin was chastised by the judge in front of the jury; a few minutes later, out of the presence of the jury, the judge held Karlin in contempt and fined him $150. Karlin moved for a mistrial, and the judge denied his motion. Latanya admitted on cross-examination that she had called 911 and said, “Send the police to 1410 West 14th Street, apartment 903, officer; somebody broke into my apartment, those dope fiends knows what’s going on. Police better hurry ‘cause I’m gonna kill somebody.”

Alonzo Bell, the defendant’s cousin, testified that he was visiting Latanya’s apartment on March 25, 1989. Latanya left the apartment around 10 or 11 a.m. to go shopping with Tara; they returned around 2 or 2:30 p.m. Around 12:30 or 1 p.m., while Bell was at the neighbor’s apartment next door, the neighbor heard some noise. Bell came out of the apartment and saw that the gate had been bent. He searched the apartment and then called 911 and asked for the police to come to 1410 South Loomis. The police did not come, so he called again.

There was a crowd of people downstairs; they called to Bell and said that the man who had broken into the apartment was downstairs. Bell and Latanya ran downstairs; Bell followed the crowd across the street toward the townhouses. When Latanya got downstairs, he told her to call the police and tell them that they had the man who had stolen her belongings.

Douglas was standing up when Bell first saw him from about 30 or 40 feet away. He did not see anyone with a baseball bat near Douglas. Bell did not see the defendant until after the police had arrived. Bell testified that he saw Kirby Allen hit Douglas with his fist on the right side of the face. When the police arrived, they found a brick lying by Douglas’ head. The brick was a broken piece of cement pavement with jagged edges; the police officers picked up the brick and threw it in the grass.

Bell was first taken to the Racine police station, and then he was taken to the Harrison police station. He saw Ezille Ross in one of the detective rooms; Ross was on the floor, saying, “Don’t hit me anymore.” An officer took Bell back to Latanya’s apartment around midnight.

On cross-examination, Bell admitted that he had identified the bat at the police station as the same bat that Latanya had earlier that day. However, he said that the bat presented in court was not the same bat he had seen at the police station; the bat that the detectives showed him was a “Louisiana Slugger.” He never saw Latanya near the victim; she was about 25 feet from Douglas, talking to a police officer. He never told the detectives that Kirby Allen had hit Douglas.

Tara Liles testified that Latanya called the police. About one-half hour or one hour later, after the police had left, some children outside called up to them, telling them that the man that had broken into the apartment was outside. Latanya yelled out the window, asking where her “stuff” was. Tara and Latanya went downstairs and the man started running toward the rowhouses; the crowd was following him. When they reached the man, he was lying on the ground. Tara did not see anyone strike him. The defendant was not there.

Tara and Latanya went to the phone; Latanya did not have the bat. While they were at the phone, she saw the defendant walking south on Loomis. Tara did not see Latanya give the bat to anyone or put the bat in a car; however, she later went with the police to Kirby Allen’s car and opened the trunk for the police; she saw them remove a bat from the trunk. She did not think that the bat the police took out of the car was the same bat that Latanya had been carrying earlier, and she did not think that the bat presented in court was the same bat the police had removed from the trunk of Kirby Allen’s car. The bat that was in Kirby Allen’s trunk was a new Louisville Slugger.

On cross-examination, Tara said that she was dating Kirby Allen at the time of the incident. Kirby Allen’s car was a rust-colored 1978 Oldsmobile Delta 88, not a Buick.

Chinyere Liles, Latanya’s daughter, testified that on March 25, 1989, she had been out with her mother, her sister, her aunt and her cousin. They arrived home around 3 or 4 p.m. and saw that the bars on their apartment had been bent. Alonzo Bell told them that their apartment had been broken into. Thatisha Blandin came over and described the man that she had seen downstairs with their microwave and radio.

They looked out the window and saw the man. Chinyere, Kirby Allen, Chaya Liles, and Thatisha Blandin all ran downstairs and told the man that they wanted to talk to him. The man began running through the rowhouses, and they followed him, asking what he had done with their belongings. The man said that he did not know what they were talking about. The man swung at Chinyere, and Kirby Allen struck him in the side. The man fell to the ground; Chinyere dropped a small red brick on the man’s head.

Latanya, Tara and the defendant were not there when Chinyere dropped the brick on the man’s head. While the man was lying on the ground, Tara and Latanya arrived with a crowd of people. Latanya was carrying the bat; she told the man not to move, and she said that she was going to get some help. Latanya told Chaya to put the bat upstairs, and Chaya took the bat and put it in the back of Kirby Allen’s car. The bat was a new Louisville Slugger.

On cross-examination, the prosecutor showed that at the first trial, Chinyere had testified that the defendant was present when they were chasing Douglas, and that the defendant was asking Douglas what he had done with their belongings. The prosecutor also showed that she had testified that the defendant was present when Douglas fell to the ground.

Thatisha Blandin testified that on March 25, 1989, she was with Chaya and Chinyere outside Latanya’s apartment, and they yelled up to the window because they saw the man who had broken into La-tanya’s apartment. Latanya and Tara came downstairs, and they all followed the man. Thatisha did not see who hit the man; she turned her head to see whether Tara and Latanya were coming, and when she turned around, the man was on the ground. Chinyere then dropped a brick on the man’s head. Kirby Allen was there before La-tanya and Tara arrived. Latanya said that she was going to call for help. When they walked closer to the man, he took one last breath and then died. Thatisha said that she did not see the defendant until after the police had arrived.

The defendant’s last witness was Chaya Liles. The prosecutor objected to the defense calling Chaya because she was not on the defendant’s list of witnesses. Karlin said that he did not know what the substance of Chaya’s testimony would be, but that he had learned during Chinyere’s testimony that Chaya was present when the victim was struck; he wanted her to testify about who was present and what she saw. The judge overruled the State’s objection.

Chaya Liles testified that she saw Douglas coming out of the building on March 25. Thatisha yelled to Latanya upstairs, telling her that she saw the man. Latanya came downstairs, and Chaya, Kirby Allen, Chinyere, and Thatisha chased the man over to the rowhouses. They stopped the man and Allen asked, “Are you sure this is the man?” Thatisha replied, “Yes.” The man was going to swing at Chi-nyere; Allen hit him on the left side of his jaw, and he fell to the ground. Chinyere then picked up a brick and dropped it on the man’s head; it bounced off his head onto Chaya’s feet.

Latanya arrived, carrying a baseball bat, and Chaya told her that the man was already on the ground. Latanya gave Chaya the bat and told her to take it back home. Chaya gave the bat to Allen, who left with it. Latanya went to the phone to call the police; the defendant then arrived. The defendant had not been present when the man was hit.

The State called three rebuttal witnesses: Detective Smulevitz, Detective Dorich, and Monica Chow. Detective Smulevitz was called to explain his misunderstanding with Ezille Ross at the police station. Smulevitz admitted that he had twisted Ross’ arm and handcuffed him to the wall after Ross took a swing at him. He testified that a few moments later, he came back into the room and apologized to Ross.

Detective Dorich testified that he interviewed Thatisha Blandin at the police station on the night of the incident, and she told him that she had not seen anyone hit or beat the victim. She also did not mention that Chinyere had dropped a brick on the victim.

Dorich testified that he had also interviewed Alonzo Bell at the police station. Bell said that he had seen someone strike the victim, but he did not say that it was Kirby Allen; rather, he said that it was an unknown black male.

Dorich also said that he had interviewed Tara Liles at the station. She told him that the defendant was present when Douglas was hit. She did not say that either Chinyere or Kirby Allen had hit the victim.

Monica Chow, an official court reporter, testified that she prepared a transcript of a hearing on September 18, 1989, at which Chi-nyere Liles had testified. Chow said that Chinyere had testified that the defendant was present at the scene and was asking Douglas about their belongings.

The defendant maintains that he was denied his right under the sixth amendment to the United States Constitution “to have the assistance of counsel for his defense.” (U.S. Const., amend. VI.) In Peo ple v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, the Illinois Supreme Court adopted the two-pronged standard of review for ineffective assistance of counsel claims enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052: A defendant must show (1) that his counsel’s performance was so deficient that it fell below an objective standard of reasonableness; and (2) that his counsel’s performance so prejudiced his defense as to deny him a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.

The benchmark for judging a claim of ineffective assistance of counsel is whether defense 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, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct. at 2064.) Moreover, to succeed on such a claim, a defendant must overcome the strong presumption that the challenged actions might be considered sound trial strategy. Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-95, 104 S. Ct. at 2065.

A reviewing court need not determine whether defense counsel’s performance was deficient if it determines that the defendant suffered no prejudice as a result of the alleged deficiencies. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, *** that course should be followed.” Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

The defendant first alleges that Karlin’s cross-examination of Terrence Fulton prejudiced him. Before addressing the defendant’s specific references to Karlin’s cross-examination of Fulton, it is appropriate to note that before Fulton testified, Karlin told the judge that he was not prepared to cross-examine Fulton because he had just received the transcript containing Fulton’s testimony that morning and had not had adequate time to examine the transcript. That statement was false. It was later established that Karlin had had a transcript containing Fulton’s testimony at the previous trial for several weeks.

The defendant specifically complains that Karlin confused the jury and failed to impeach Fulton while questioning him about the location of items depicted in photographs of the scene. Indeed, the judge told Karlin that this series of questions was confusing; Karlin responded, “I do whatever I can to try *** to get to the degree of the intelligence of the -witness.” An examination of this portion of the record, however, reveals that Karlin was attempting to show that the witness would have been unable to see the scene of the crime from the window he claimed he was leaning out of when he observed the incident. Later Karlin established that the window Fulton claimed he had leaned out of to see the incident had a screen in it at the time.

Additionally, Karlin brought out that Fulton did not tell the police at the scene that the defendant, who was sitting nearby, was the person who hit the victim; Fulton admitted that he did not identify the defendant as the perpetrator until he was at the police station.

The defendant also argues that Karlin bolstered Fulton’s credibility by repeating his direct testimony, and that he also brought out the fact that Fulton knew the defendant’s family because they had been involved in a feud with another family in the neighborhood. The defendant argues that eliciting statements which bolster the testimony of the chief State’s witness falls below the standards required of effective representation, citing People v. Lee (1989), 185 Ill. App. 3d 420, 541 N.E.2d 747.

Lee, however, does not hold that counsel who elicits any prior consistent statements on cross-examination is ineffective as a matter of law. In Lee, the defense counsel elicited the most damaging testimony of all from the defendant’s accomplice: specific, detailed testimony about how he saw and helped the defendant commit the crime. Additionally, defense counsel “repeatedly obtained an answer helpful to his client’s case and then led the witness to recant the helpful answer.” (Emphasis in original.) (Lee, 185 Ill. App. 3d at 441-42.) Defense counsel in Lee further brought out testimony that the witness had spoken with the police about the incident 12 times and had told them the same basic story each time. Lee, 185 Ill. App. 3d at 443.

Here, Karlin did unnecessarily repeat portions of Fulton’s grand jury testimony; however, the record shows that he was attempting to impeach Fulton by showing that before the grand jury Fulton was asked, “Who hit? Who hit the man with the bat, the man or woman?” and Fulton replied, “I don’t know.” Unfortunately for the defendant, the prosecutor was able to establish that the next question asked of Fulton before the grand jury was, “Was it a man or a woman?” and Fulton replied, “A man.”

Karlin also asked Fulton how he knew the defendant’s family; Fulton replied that he met the defendant’s family when they were fighting with another family. Contrary to the defendant’s argument, that testimony was inconsequential. Moreover, it came out while Karlin was establishing that although Fulton knew the defendant’s name before testifying before the grand jury, he did not mention the defendant’s name during that testimony; he simply referred to “the boy” or “the man.” Karlin did show that when Fulton was directly asked before the grand jury, “Who did you see hit whom with the bat,” Fulton replied, “I don’t know his name.” We judge that the cross-examination of Fulton did not fall below the accepted standards of Strickland.

After Thatisha Blandin testified, Karlin told the judge that he wished to call an additional witness, Chaya Liles. The State objected, arguing that Chaya was not on the defendant’s list of witnesses. Karlin said that he had not interviewed Chaya because he did not know that she was present when the victim was struck. He said that he learned during Chinyere’s testimony Chaya was present, and he wanted to call Chaya to testify about who was present and what she saw. The defendant now maintains that Karlin’s failure to interview Chaya before putting her on the stand constituted ineffective assistance.

Initially, we note that, like the trial judge, we will not accept on blind faith Karlin’s statement that he had not interviewed Chaya or that he first learned of Chaya’s presence at the scene during the testimony of Chinyere Liles that morning. Although the transcript of the proceedings before Judge Urso is not in the record, the record does disclose that Chinyere Liles testified on the motion for a new trial. We find it hard to believe that Karlin did not interview Chinyere Liles before she testified on the motion for a new trial before Judge Urso (or that he did not interview Chi-nyere Liles before she testified in the jury trial before Judge Berkos), and we find it hard to believe that the interview would not disclose the presence of Chaya Liles at the scene. Consequently, Karlin’s statement that he did not know of Chaya Liles’ involvement until Chinyere Liles testified at the jury trial is very hard to believe.

Moreover, Chaya’s testimony was, in fact, consistent with that of Latanya, Chinyere and Thatisha. Her testimony supported the defense theory that Kirby Allen punched the victim, the victim fell to the ground, and Chinyere dropped a brick on the victim’s head. She also testified that the defendant was not present when the victim was hit; she said that he did not arrive until Latanya went to the phone to call the police.

In general, whether to call a particular witness is a matter of trial strategy, and such a decision will not support a claim of ineffective representation. (People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481.) The bulk of her direct testimony lent support to the defense theory. Thus, defense counsel’s tactical decision to call Chaya did not substantially prejudice the defendant and did not constitute ineffective assistance of counsel.

The defendant also argues that his attorneys demonstrated their ineffectiveness by calling six witnesses, each of whose testimony contradicted the testimony of the other defense witnesses to some extent.

The testimony of the defense witnesses differed on some points. Latanya testified that she came within three or four feet of the victim; Alonzo Bell said that Latanya never came closer than 25 feet from the victim; Tara said that Latanya was about 12 feet from the victim. Bell testified that he saw Kirby Allen punch the victim. Although Chinyere, Chaya, and Thatisha also saw Kirby Allen punch the victim, neither Latanya nor Tara saw this. Latanya admitted that she had a bat with her, but said that it was not the bat presented in court; her bat was a new Louisville Slugger, and the bat presented in court was a Worth brand bat. Tara, however, testified that she never saw Latanya carrying a baseball bat while they were outside. In our judgment these discrepancies in the witnesses’ testimony were minor.

Although the testimony of the defense witnesses in this case was inconsistent on some points, there were certain common themes running through their testimony. For instance, most of the defense witnesses testified that Latanya had a bat, that Kirby Allen punched the victim, that Chinyere dropped a brick on the victim’s head, and that the defendant did not arrive on the scene until after the victim was lying on the ground. The defense witnesses might not have presented a convincing story that Chinyere killed the victim with a brick, but their testimony may have been intended simply to suggest that perhaps Kirby Allen or Latanya assaulted Douglas and to create a reasonable doubt about whether the State had prosecuted the right person. We judge that the defendant has failed to demonstrate that a different result would have been obtained without these witnesses’ testimony, and he has also failed to overcome the strong presumption that the decision to call these witnesses was sound trial strategy.

Last, the defendant complains of the trial judge’s admonishments to Karlin, his issuance of two contempt orders against Karlin, and his remark to the jury after they had rendered their verdict that this was “absolutely the most disruptive, discourteous, unprofessional trial” over which he had presided, and that Karlin was “an absolute disgrace to the profession of law.”

It is unclear whether the defendant contends that the trial judge’s remarks and hostility toward Karlin improperly influenced the jury, or whether his remarks and his issuance of two contempt citations are simply evidence of Karlin’s incompetence. The defendant seems to argue that the trial judge’s remarks demonstrate that he thought Karlin was ineffective. If, however, the defendant is maintaining that the trial judge’s remarks improperly influenced the jury, we note that the remarks made by the trial judge during trial, which were entirely justified, were made out of the presence of the jury and did nothing to abate the fervor with which Karlin continued to represent the defendant. (Cf. People v. Connor (1988), 177 Ill. App. 3d 532, 532 N.E.2d 520.) To the contrary. Moreover, the judge pointedly observed at the hearing on the post-trial motion that while Karlin’s conduct was “totally unprofessional” and “totally discourteous,” he added, “I didn’t say anything about him being incompetent.” The judge then denied the post-trial motion which was based on ineffective assistance of counsel.

We judge that Karlin’s performance did not fall below an objective standard of reasonableness. He made opening statements, frequent and vehement objections, to some extent conducted effective cross-examination of the State’s witnesses, moved for a mistrial at least three times and tried to rearrange the order of witnesses to his advantage. He even tried to convince the jury that the judge was treating him unfairly, sometimes a successful trial tactic. His performance, although far from perfect, did not represent ineffective assistance of counsel that would justify an order of a new trial.

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

Judgment affirmed.

McNAMARA and LaPORTA, JJ., concur.

      He was held in contempt a second time during closing arguments. In an unpublished Rule 23 order we reversed both contempt orders. We found that the first finding of contempt was not supported by the record. We found that the remarks of Karlin during closing argument were contemptuous but that there was a variance between the written order and the reasons given by the judge at the time he held Karlin in contempt.

      Latanya Liles and Thatisha Blandin also named Chaya Liles in their testimony.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SHLIMON, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—3112
    Opinion filed July 17, 1992.

      John Thomas Moran, Jr., of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Eileen O’Neill, and Laura Bertucci, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, John Shlimon, was found guilty of murder and was sentenced to a 50-year term of imprisonment. Defendant appeals, contending that: (1) he was not proved guilty beyond a reasonable doubt; (2) the State’s repeated references to gang membership, symbols and signs were unduly prejudicial to defendant; (3) the State’s closing argument emphasizing defendant’s gang membership pandered to the jury’s fear of gangs; (4) defendant was denied effective assistance of counsel; (5) the trial court improperly considered at sentencing defendant’s involvement in a gang-related incident while incarcerated; and (6) the 50-year sentence is excessive.

The record reveals that on the evening of September 15, 1989, the deceased, Peter Coma, age 17, organized a dance with some friends at a club located in Chicago. Admission was charged to enter, and approximately 250 teenagers were in attendance. Around 9 p.m., a fist fight developed between two boys inside the dance hall. The dance organizers directed the boys to leave the hall, and the fight resumed in the parking lot directly across the street. Other teenagers then joined in the fight. As the organizers attempted to quell the melee, the deceased was shot in the head. Three days later, defendant surrendered to the police.

Patrick Michael, age 17 at the time of the shooting, testified that the deceased was his best friend. Michael, who was also one of the organizers of the dance, testified that the deceased arrived at the dance hall around 8 p.m. At 9:15 p.m., a fight developed between two rival gang members inside the dance hall. After the fight broke up, the two members involved in the altercation were told to leave and not start any trouble.

At the time the two gang members were ejected from the dance hall, approximately 50 people were standing outside waiting to enter the building. Michael walked to the area where the crowd was waiting. At that moment, Michael’s friend, Sargon Bablonejad, arrived. Michael saw the two people who were previously involved in the fight walk into the street. More people arrived and began shouting gang slogans, such as “King love, Royals.” A larger fight involving approximately 20 people began in the parking lot across the street from the dance hall.

Michael recognized defendant, whom he had known for 18 months, as one of the participants in the fight. Michael began escorting all the people waiting in line to the inside of the building so that no one would get hurt. The fight continued for approximately 15 minutes. The fighters then dispersed. As defendant ran towards a waiting car, Michael followed closely behind. He told defendant to forget about the fight and leave the premises. Michael then headed toward the rear parking lot of the dance hall, and together with the deceased, tried to gather more people inside the building.

Defendant entered the driver’s side of a small two-door, gold Cutlass automobile, approximately two or three car lengths away from Michael, and four to five car lengths away from the deceased. Defendant was sitting on the driver’s side windowsill of the car, with his body leaning out and his feet inside the car. As defendant extended his hand, Michael saw that he held a gun. Michael began screaming at defendant to forget the incident and leave. Michael continued advancing toward the car, which was slowly moving away. He heard the click of the gun and defendant laugh, but thought that he was joking. Upon hearing another gunshot, Michael saw sparks flying from the gun as defendant sped off down the street.

A few persons in the crowd began screaming that the deceased had been hit. Michael found the deceased lying on his back, bleeding from his head. The police arrived. Michael named defendant as the shooter and told police that defendant was approximately 5 feet 10 inches tall, wore a goatee, and had a blue and white bandana around his head. Defendant was dressed in a green and blue checkered shirt with a gray undershirt and dark trousers and gym shoes. Michael stated that he was about two car lengths away from defendant’s car for approximately five seconds. Defendant was the only person hanging out of the car when Michael saw the sparks fly after the gun was fired.

Bablonejad, age 19, testified that he arrived at the dance hall at 8 p.m. According to Bablonejad, neither he, Michael, nor the deceased was a member of any gang. Bablonejad was outside the dance hall at 9 p.m. when he saw a group of people being pushed outside the building. It was his intention to break up any fights. He knew the fight was among rival gang members, the Latin Kings and the Simon City Royals. The deceased had also come downstairs to break up the fight.

Bablonejad noticed defendant, whom he had seen on numerous occasions and knew as a neighborhood acquaintance. Bablonejad stated that on the night of the murder, defendant had a goatee, wore a blue and white bandana around his head, and was dressed in a flannel shirt with a gray undershirt. Defendant walked towards him and made a hand signal that he recognized as a sign of the Latin Kings. Bablone-jad saw that defendant carried a gun in the waistband of his pants.

Defendant entered a car that was pulled around the alley on the east side of the building. Bablonejad was walking behind Michael and saw the deceased also standing in the vicinity of the car. Defendant was sitting on the door of the driver’s side, with half of his body hanging outside the car, when he pulled out his gun. Bablonejad and Michael asked defendant to leave the area because they did not want any trouble. Bablonejad saw defendant point the gun towards the crowd. After the gun clicked, defendant began laughing. The second shot struck the deceased. Bablonejad drove to the deceased’s parents’ home and informed them that the deceased had been shot. Two days later, Bablonejad identified defendant at a lineup.

Detective James Spencer of the Chicago police department, together with Detectives Louis Wachtovic and Andy Sobolewski, were assigned to investigate the homicide of the deceased. Sobolewski learned from Michael that defendant had leaned out of the passenger window of a car and had shot the deceased. In the following days, the officers attempted to locate defendant.

Three days after the shooting, defendant’s attorney contacted the police and turned defendant over to police custody. Defendant was placed in a lineup that evening, and Bablonejad identified him as the shooter. Spencer testified that Bablonejad told him that defendant fired the gun from the passenger window.

Rhonda Malone, age 17, testified for defendant that on the night of the offense at approximately 9:15 p.m., she was driving a black Pontiac Grand Am with her friend, Angelic Tedder. Malone saw defendant in front of the dance hall, together with another friend named Romeo. Malone called to defendant and Romeo and they entered her car. She drove defendant to an intersection approximately 2V2 miles away. Malone had not met defendant prior to the night of the offense and could not describe what he was wearing. Romeo told Malone two months prior to trial that defendant had been arrested for murder. Romeo told her that he heard the report of a gunshot during the fight. According to Malone, defendant was not holding a gun in his hand.

Tedder, age 15, also testified as a defense witness. Tedder’s testimony essentially paralleled that of Malone. Tedder stated that defendant and Romeo entered Malone’s car and that they were not carrying guns nor did they fire any shots from the car window. Tedder could not remember the clothes defendant wore on the night of the shooting.

The jury found defendant guilty of murder. At the sentencing hearing, the State presented the following evidence as aggravation: that defendant was on probation at the time of the shooting for robbery and that he had “numerous contacts with the law, some of them gang related.” Additionally, the State informed the court that a report had been filed by the Cook County Department of Corrections that defendant was involved in an incident in the jail in which an inmate received a tattoo for the Latin Kings. Defendant decided that the tattoo should be removed and proceeded to use a hot iron to burn the tattoo off the inmate’s arm. The report was not introduced into evidence at trial.

On appeal, defendant first asserts that he was not proved guilty beyond a reasonable doubt. Specifically, defendant argues that the State’s case consisted solely of the two occurrence witnesses, Michael and Bablonejad, and that their opportunity to observe was limited because the shooting was at night and the street was illuminated only by residential streetlights. Defendant also points out that Michael told the police that he saw defendant fire a gun at the deceased, but testified at trial that he did not see the gun fired. Defendant further contends that Michael and Bablonejad contradicted each other on relevant parts of their testimony.

The critical inquiry on review of a sufficiency of the evidence claim 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. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.) Once defendant has been found guilty of the crime charged, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that, upon judicial review, all of the evidence is to be considered in the light most favorable to the prosecution. People v. Migliore (1988), 170 Ill. App. 3d 581, 525 N.E.2d 182.

The test of a positive identification is whether the witness had an opportunity to view the offender for a sufficient length of time under conditions adequate for observation. (People v. Palmer (1989), 188 Ill. App. 3d 414, 545 N.E.2d 743; People v. Gholston (1984), 124 Ill. App. 3d 873, 464 N.E.2d 1179.) These conditions need not be perfect and the observation need not be prolonged. People v. Palmer, 188 Ill. App. 3d 414, 545 N.E.2d 743; People v. Williams (1986), 143 Ill. App. 3d 658, 493 N.E.2d 362.

In this case, we are not persuaded by defendant’s assertion that he was not proved guilty beyond a reasonable doubt. Both Michael and Bablonejad recognized defendant, whom they had known for some time through a neighborhood acquaintanceship, as one of the participants in the fight. They held a brief conversation with defendant in which they told him to leave the premises and forget about the fight. Both witnesses immediately told the police that defendant was responsible for the shooting and never wavered in their identification of defendant as the shooter. Michael and Bablonejad were consistent in their initial description of defendant’s appearance and also in their identification of him in the lineup.

The jury had the opportunity to assess the credibility of the two identification witnesses, Michael and Bablonejad, as well as that of the two defense witnesses, Malone and Tedder. We do not believe that simply because the shooting occurred at night under the illumination of residential streetlights the eyewitnesses were unable to identify defendant. Nor do we find that inconsistencies in the eyewitnesses’ testimony render their testimony unbelievable.

Relatedly, defendant argues that the State’s failure to produce other occurrence witnesses from the crowd outside the dance hall created an inference that defendant was not the shooter. However, the State is not obligated to produce every witness to a crime. (People v. Smith (1971), 3 Ill. App. 3d 64, 278 N.E.2d 551.) In this case, the testimony of Michael and Bablonejad, in conjunction with that of Officers Spencer and Sobolewski, was more than adequate to prove defendant’s guilt. Accordingly, we reject defendant’s assertion that he was not proved guilty beyond a reasonable doubt.

We turn now to defendant’s contention that the State’s introduction of evidence of defendant’s alleged gang membership was highly prejudicial where there was no proof that such membership was actually related to the crime charged.

Evidence of gang membership is admissible where there is sufficient proof that such evidence is related to the crime charged. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840; People v. Anderson (1987), 153 Ill. App. 3d 542, 505 N.E.2d 1303.) Evidence of gang membership may be used to show motive for the commission of the offense, thus tending to identify a particular person as the offender. (People v. Rivera (1986), 145 Ill. App. 3d 609, 495 N.E.2d 1088; People v. Orr (1986), 149 Ill. App. 3d 348, 500 N.E.2d 665.) In People v. Gonzalez (1991), 142 Ill. 2d 481, 568 N.E.2d 864, our supreme court determined that gang-related evidence is admissible if it is relevant to an issue in dispute and its probative value is not substantially outweighed by its prejudicial effect. The court characterized relevant evidence as that which has a tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. People v. Gonzales, 142 Ill. 2d 481, 568 N.E.2d 864.

In the present case, defendant argues that because the deceased was not a gang member, any evidence of gang affiliation was unrelated to the shooting of the deceased and did not establish a motive. However, the evidence established that members of both the Latin Kings and the Simon City Royals were present at the dance. About 9 p.m., members of the two rival gangs began fighting inside the hall. After the organizers ordered the fighters to leave the dance, the fight resumed in the parking lot where additional gang members, including defendant, joined in the altercation. Bablonejad testified that defendant made a hand signal that he recognized as a sign of the Latin Kings, thereby supporting an inference that he was, in fact, a gang member. When the deceased, Michael and Bablonejad attempted to break up the fight, defendant became angered and fired shots at the crowd. As such, we find that reference to gangs as well as defendant’s gang affiliation was inevitable under the circumstances. This evidence provided proof that defendant’s gang membership, and his participation in the fight with the rival gang, was substantially related to and established a motive for the shots fired into the crowd which struck the deceased.

Defendant next assigns as reversible error comments made by the prosecutor in closing and rebuttal arguments concerning defendant’s gang membership and gang-related activities that pandered to the juror’s fears. During closing argument, the prosecutor argued:

“Imagine the courage it took for Patrick Michael and Sargon to get up on that stand, relive that moment, point the finger at that man and identify him as the shooter, knowing he is a gang member. Think of how each and every one of you felt when your name was called off and you sat in those chairs and the Judge asked you questions about your personal selves. Think how nervous you were and possibly how frightened you were, knowing that you could potentially be deciding a murder case.”

Defendant also argues that the State elicited testimony from Michael that he was so threatened by gang reprisals that he left high school and went to live with relatives in California, and later moved to London out of fear for his safety. In addition, the prosecutor commented that the jury should tell defendant that he is “not going to intimidate you. And you can tell him that by coming back and telling him that he is guilty of the first degree murder of [the deceased].”

Defendant cites People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222, as support for his position that prosecutorial comments which suggest that witnesses were afraid to testify because defendant had threatened or intimidated them, when not based upon any evidence in the record, are highly prejudicial and inflammatory. The State counters that defendant has waived this issue on appeal by failing to make any objections at trial and by failing to raise the issue in his post-trial motion. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

We concur with defendant that the remarks made by the prosecutor were inappropriate and constitute error. Having so decided, we must determine whether the prosecutorial comments were so egregious that we need invoke the plain error doctrine. The plain error doctrine may be applied when the evidence is so close that there is a possibility that an innocent man may have been convicted due to an error which is obvious from the record, or the alleged error deprived the accused of substantial means of enjoying a fair and impartial trial. People v. Palmer (1989), 188 Ill. App. 3d 414, 545 N.E.2d 743.

In this case, we do not find that the evidence was so closely balanced that application of the plain error doctrine is warranted. Michael and Bablonejad both testified that defendant was a participant in the gang fight which occurred in the parking lot moments before the deceased was shot. They saw defendant leave the fight and head toward the Cutlass automobile. Bablonejad testified that defendant carried a gun in his waistband. Both witnesses testified that they saw defendant lean from the window ledge of the car, aim his pistol toward the crowd, and fire two shots. Finally, Michael and Bablonejad knew defendant and were consistent in their identification of defendant as the perpetrator of the offense. Accordingly, we find no reason to invoke the plain error doctrine because of the improper prosecu-torial comments during closing argument.

Defendant further argues that he was inadequately represented by counsel because defense counsel failed to bar testimony concerning defendant’s gang activity, lineup identification procedures, and failure to submit voluntary and involuntary manslaughter instructions to the jury, and to argue about defendant’s potential for rehabilitation in view of the fact that he was only 17 years old at the time of the shooting.

In order to prevail upon a claim of ineffective assistance of counsel, defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for defense counsel’s alleged errors, the outcome of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There is a presumption that counsel’s conduct falls within the range of reasonable professional assistance. People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600.

We do not believe that defense counsel’s failure to file a motion in limine to bar testimony about defendant’s gang activity rises to the level of a cognizable claim for ineffective assistance of counsel because it would have been properly denied. As previously discussed, the facts in this case were such that reference to defendant’s gang affiliation was unavoidable. An attorney’s decision to file or not to file a motion is regarded as a matter of trial strategy (People v. Green (1967), 36 Ill. 2d 349, 351, 223 N.E.2d 101), which must be given great deference. (Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 695, 104 S. Ct. at 2066.) Similarly, decisions concerning defense counsel’s choice of jury instructions, lineup identification procedures and argument concerning defendant’s potential for rehabilitation can also be characterized as tactical decisions within the judgment of defense counsel. When counsel is planning a trial strategy, judgments must be made and any errors in judgment do not constitute ineffective assistance of counsel. People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227.

We do not believe that the outcome of the trial would have been different if the alleged errors defendant alludes to had not been made. Accordingly, defendant’s claim for ineffective assistance of counsel must fail.

Defendant next contends that he is entitled to a new sentencing hearing because the State introduced in aggravation testimony about an incident that defendant was involved in while awaiting trial. Specifically, the State informed the trial judge that it had a report from a jail investigator that defendant had participated in the gang-related burning of a tattoo off another inmate. We find, however, that defendant’s failure to object to the introduction of this testimony at trial or in his post-trial motion results in waiver. People v. Clark (1987), 160 Ill. App. 3d 877, 513 N.E.2d 937.

Finally, defendant contends that the 50-year sentence is excessive. Defendant argues that because he fired random shots into a crowd of people, his actions do not demonstrate a calculated murder. Further, because he was 17 years old at the time of the offense, his potential for rehabilitation was not given adequate consideration.

It is well established that the trial court has wide discretion in sentencing and is in a superior position to determine what is proper, and that we may not substitute our judgment merely because the factors to be considered might have been balanced differently. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Del Percio (1983), 118 Ill. App. 3d 539, 454 N.E.2d 1169.) The sentence imposed by the trial judge was within the statutory range for first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(1)) of not less than 20 nor more than 60 years. In light of defendant’s history of criminal activity, we do not find the judge abused his discretion in imposing sentence in the present case.

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

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NICOLE RAY et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—90—2385
    Opinion filed July 20, 1992.

      Theodore Gottfried, of State Appellate Defender’s Office, of Springfield, and Joshua Sachs, of Chicago, for appellants.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Bennett E. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendants Ricardo Council, Kenneth Banks, and Nicole Ray were indicted for armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) and possession of a controlled substance with intent to deliver. (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1401(b)(2).) The charges stemmed from defendants’ arrests following a Chicago police undercover drug investigation. Following a bench trial, the circuit court found defendants guilty of possession of a controlled substance and sentenced each to a two-year period of felony probation. Defendants appeal.

We reverse.

On October 23, 1988, Chicago police officer Paul Kusinski took part in the investigation with his partner, Officer James Moriarty. The two officers went to 1856 West North Avenue, where they previously had arranged, by telephone, to purchase narcotics.

Kusinski testified that as he approached the building in question, he observed Antoine Sales walking a dog. As Kusinski neared Sales, Sales dropped to the ground a clear plastic bag containing three smaller packets of a tan powder, which Kusinski believed to be heroin. Kusinski then placed Sales under arrest. Concerned for the dog’s safety, Sales asked if he could leave the animal in his apartment. When the officers consented, all three entered the building. Sales gave Kusinski a key ring which held keys which opened the apartment building’s main door and the door of the apartment to which Sales directed the officers.

Upon entering the apartment, Kusinski looked into the living room area and saw defendants seated on a couch. On the coffee table in front of the couch lay a handgun and $492 in United States currency; in addition to a clear plastic bag containing 21 smaller packets of white powder. Kusinski estimated that the couch was 18 inches from the table. Defendants were arrested, and Kusinski subsequently recovered other drug paraphernalia from the apartment, including a triple-beam scale, a grinder, a telephone beeper, and a bottle of Anes-thetol. A cable television bill for the apartment, in defendant Council’s name, was also found on top of the television. No drugs were found on defendants’ persons.

The parties stipulated that, if called to testify, Hugh Adams, a Chicago police chemist, would state that he analyzed the powder confiscated at the time of the arrest and found that the bags contained 9.4 grams of cocaine.

At the close of the State’s evidence, all three defendants moved for findings in their favor. The circuit court granted the motions as to the armed violence charges but denied the motions regarding the possession charges. Defendants rested. Following arguments, the court, as noted above, found defendants not guilty of possession with intent to deliver but found the three guilty of possession of cocaine, the lesser included offense, and entered the above-noted sentence.

Defendants maintain that the evidence presented did not prove them guilty of any crime. We agree.

In evaluating the sufficiency of proof upon review, this court must assess whether the evidence, when viewed in the light most favorable to the State, allows a rational trier of fact to find the elements of the offense beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453, citing Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781.

To achieve a successful prosecution for possession of a controlled substance, the State must establish that the accused had knowledge of the presence of narcotics and that the narcotics were in the accused’s immediate and exclusive control. (People v. Nettles (1961), 23 Ill. 2d 306, 178 N.E.2d 361, cert. denied (1962), 369 U.S. 853, 8 L. Ed. 2d 12, 82 S. Ct. 939; People v. Griffin (1990), 194 Ill. App. 3d 286, 550 N.E.2d 1244; People v. Valentin (1985), 135 Ill. App. 3d 22, 480 N.E.2d 1351.) These elements can be proven by a showing of actual possession, which is established by evidence which demonstrates that defendant has exercised some dominion over the contraband. (People v. Jackson (1961), 23 Ill. 2d 360, 178 N.E.2d 320.) The act of dominion may be that defendant had the contraband on his person, that he tried to conceal it, or that he was seen throwing it away. (People v. Howard (1975), 29 Ill. App. 3d 387, 330 N.E.2d 262.) Here, the evidence reveals that defendants were in the room, that cocaine was on a table in the same room, and that defendants were 18 inches away from it. Mere proximity, however, is insufficient to establish actual possession. People v. Howard, 29 Ill. App. 3d at 389; People v. Washington (1974), 17 Ill. App. 3d 383, 308 N.E.2d 339; People v. Robinson (1968), 102 Ill. App. 2d 171, 243 N.E.2d 594.

Our courts, however, have recognized that the element of knowledge is seldom susceptible to direct proof (People v. Bell (1972), 53 Ill. 2d 122, 290 N.E.2d 214; People v. Hill (1988), 169 Ill. App. 3d 901, 524 N.E.2d 604, appeal denied (1988), 122 Ill. 2d 585, 530 N.E.2d 256), and, to that end, actual possession need not be demonstrated in order to uphold a conviction if constructive possession can be inferred from the facts. (People v. Stamps (1982), 108 Ill. App. 3d 280, 438 N.E.2d 1282, appeal denied (1982), 92 Ill. 2d 571.) The mere presence in the vicinity of contraband cannot establish constructive possession. (People v. Kissinger (1975), 26 Ill. App. 3d 260, 325 N.E.2d 28; People v. Crowder (1972), 4 Ill. App. 3d 1079, 283 N.E.2d 342.) Where drugs are found on premises rather than on defendant, the State must prove that the defendant had control of the premises in order to permit the inference that defendant had knowledge and control over the narcotics. (People v. Nettles, 23 Ill. 2d 306, 178 N.E.2d 361; People v. Green (1977), 54 Ill. App. 3d 252, 369 N.E.2d 589; People v. Kissinger, 26 Ill. App. 3d at 260; People v. Mosley (1971), 131 Ill. App. 2d 722, 265 N.E.2d 889.) Knowledge and possession are questions of fact to be resolved by the trier of fact, whose findings should not be disturbed upon review unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt of guilt. People v. Valentin, 135 Ill. App. 3d at 22; People v. Ortiz (1980), 91 Ill. App. 3d 466, 414 N.E.2d 1072, appeal denied (1981), 83 Ill. 2d 573.

Based on the foregoing, the scant evidence presented here cannot support defendants’ convictions. The State failed to present any evidence which tended to show that defendants owned, rented, or lived in the apartment in question. (See, e.g., People v. Mack (1957), 12 Ill. 2d 151, 145 N.E.2d 609; People v. Green, 54 Ill. App. 3d at 252.) A review of the arrest reports and presentence investigation reports reveals that each defendant gave, as his or her address, an address other than the North Avenue building. Moreover, no testimony was presented which established that any of defendants admitted that the apartment was their residence or that they kept clothing or other personal belongings there or that they had a key to the premises. Indeed, the only person who was identified as having the key to the apartment was Sales. But for the lone cable television bill, no evidence was presented which linked defendants to the premises. As to that bill, we note the invoice was six months old.

The State cites People v. Lenoir (1984), 125 Ill. App. 3d 260, 465 N.E.2d 1027, in support of upholding the convictions. There, defendant was found alone in a bedroom with the door shut. Around him on a bed and within his reach were several items, including food, a loaded gun, bags of a green, leafy material, and a film container containing pills. Next to defendant, on a night stand, was a pill bottle which also contained contraband. The appellate court rejected defendant’s arguments that he was merely a visitor to the house, that the drugs were only near him, and that he failed to exercise any dominion or control over them. The court ruled that defendant was in possession and control of the items around him and that he knew what they were. (People v. Lenoir, 125 Ill. App. 3d at 265.) However, as noted above, in order to establish constructive possession, the State must prove defendant had the control of the premises, an element not proved here and not mentioned in People v. Lenoir. Accordingly, we do not find People v. Lenoir persuasive under the circumstances presented here. Therefore, the judgment of the circuit court is reversed.

Reversed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    RICHARD SMITH, Plaintiff-Appellee, v. TEXACO, INC., et al., Defendants-Appellants (Bullard Abrasive Products, Inc., et al., Defendants-Appellees).
    First District (1st Division)
    Nos. 1—91—0254, 1—91—0255 cons.
    Opinion filed July 20, 1992.

      O’Connor, Schiff & Myers, of Chicago (Neil D. O’Connor, Joseph A. Girardi, and Loretta M. Griffin, of counsel), for appellants.

      Law Office of John C. Meyer, of Chicago (John C. Meyer, of counsel), for appellee Bullard Abrasive Products, Inc.
    Johnson & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for ap-pellees Lamb Airfoil Company, Inc., and Mine Safety Appliance Company.
    No brief filed for appellee Richard Smith.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Richard Smith brought action against several defendants, including Texaco, Inc., and Texaco Refining & Marketing, Inc. (collectively Texaco), General Gas & Oil Company (General Gas), Mine Safety Appliance Company (Mine Safety), Lamb Airfoil Company, Inc. (Lamb Airfoil), and Bullard Abrasive Products, Inc. (Bullard), for injuries he sustained in an explosion while working on an underground gasoline storage tank. On November 30, 1990, plaintiff negotiated settlements of his claims against Bullard, Mine Safety and Lamb Airfoil (collectively, settling defendants). These defendants, thereafter, petitioned the circuit court for findings of good faith pursuant to the Joint Tortfeasor Contribution Act (Act) (Ill. Rev. Stat. 1987, ch. 70, pars. 301 through 305).

On December 6, 1990, the circuit court granted Texaco and General Gas leave to file counterclaims for contribution against the settling defendants. On December 7, 1990, after a hearing regarding whether the settlements were made in good faith pursuant to the Act (Ill. Rev. Stat. 1987, ch. 70, pars. 301 through 305), the circuit court found that the settlement met the criteria of the Act. On December 13, 1990, the circuit court entered an order on its December 7 good-faith findings and dismissed with prejudice Texaco’s and General Gas’ counterclaims against the settling defendants. Texaco and General Gas appeal the December 13 order.

On April 1, 1985, plaintiff was injured in an explosion which occurred at an automobile service station. Plaintiff alleges he sustained severe burns and quadriplegia as a result of the explosion.

The service station was owned and operated by Joseph Paggie and Martin Ewasiuk, individually and doing business as Pag-Mar Texaco Services (Pag-Mar). Pag-Mar contacted Thomas Hurley (Hurley), individually and doing business as Fiberglass Services Tank Relining Company (Fiberglass), and retained Fiberglass to repair a leak in one of the station’s underground storage tanks. The tank had allegedly been used by Pag-Mar to store gasohol. The gasohol had been sold to Pag-Mar by General Gas, which plaintiff alleged purchased the gasohol from Texaco.

In late March 1985, plaintiff and his employer, Hurley, began the tank repair work. Hurley had planned on repairing the holes and installing a lining in the tank. After digging down to the top of the tank and removing the manway hatch cover, plaintiff and his employer removed gasohol from the tank by siphoning it out and soaking it up. During this phase, plaintiff used a Lamb Model 3 Air Mover to remove the combustible vapors in the tank. The air mover was manufactured by Mine Safety and Lamb Airfoil and distributed and sold by Mine Safety. The air mover was specifically developed to ventilate confined areas like underground storage tanks.

After siphoning and soaking up the gasohol, the tank was closed because Hurley wanted to have it inspected by a lining manufacturing company. At this time, the holes in the lining at the bottom of the tank were not plugged and liquid continued to seep in through those holes. The inspection took place on April 28 or 29, and the tank remained closed over the weekend until Monday, May 1, 1985. On that morning, plaintiff began to grind old sealant off the perimeter of the manway opening on the tank with a grinding wheel manufactured, distributed and sold by Bullard. According to plaintiff’s complaint and deposition, a piece of the grinding wheel separated from the device, fell into the tank and ignited gasohol vapors remaining in the tank, causing the explosion and injuring plaintiff.

Plaintiff brought suit against Paggie, Ewasiuk, Pag-Mar, Hurley, Fiberglass, Texaco, Bullard, Lamb Airfoil and Mine Safety. Plaintiff engaged in settlement negotiations with Mine Safety, Lamb Airfoil and Bullard. On November 30, 1990, plaintiff reached a settlement agreement with Mine Safety and Lamb Airfoil whereby plaintiff agreed to release those two defendants from all liability in exchange for the total sum of $35,000. Plaintiff reached a similar agreement with Bullard for $200,000. The settling defendants filed motions requesting the circuit court to find the settlements to have been made in good faith and that all contribution claims against them be dismissed with prejudice.

Texaco and General Gas objected to the settlement agreements and filed their responses to the settling defendants’ motions for good-faith findings. The basis for the objections was that the settlement agreements were not in good faith in light of the totality of circumstances, and the settlement figures of $35,000 and $200,000 did not reasonably approximate the settling defendants’ pro rata share of any potential liability.

On December 13, 1990, the circuit court entered a finding of good faith over Texaco’s and General Gas’ written and oral objections. The circuit com!; found that there was no evidence or allegation of fraud, duress, collusion or tortious conduct in the negotiations between plaintiff and the settling defendants, and that both settlement agreements were made in good faith pursuant to the Act. The circuit court dismissed with prejudice the plaintiff's complaint against Mine Safety, Lamb Airfoil and Bullard. The court also dismissed all counterclaims, cross-claims and third-party actions filed against the settling defendants. The circuit court found that its orders and motions were final and appealable. (134 Ill. 2d R. 304.) Texaco appealed and filed appellate briefs.

On July 19, 1991, General Gas filed a motion for leave to adopt Texaco’s appellate briefs as its own. On August 5, 1991, we granted General Gas’ motion.

Texaco and General Gas argue that the circuit court erred in finding that the settlements were in good faith. We disagree.

Section 2(a) of the Act creates a right of contribution among two or more persons who are subject to liability in tort arising from the same injury. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) When an alleged tortfeasor settles with a plaintiff in good faith, he is discharged from all contribution liability. (Ill. Rev. Stat. 1987, ch. 70, par. 302(d).) Since the Act does not define what constitutes a “good-faith” settlement, the issue is left to the discretion of the trial court. (Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 751-52, 520 N.E.2d 932, 937.) The circuit court may evaluate counsel’s arguments, affidavits, depositions, other discovery evidence and evidence received at the hearing. Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 128, 478 N.E.2d 581, 587.

The settling defendants state that once the settling parties represent to the court that a good-faith settlement has been reached and its terms are made known to the court, a presumption of validity arises. (See Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 829, 537 N.E.2d 871, 872, citing Wasmund v. Metropolitan Sanitary District (1985), 135 Ill. App. 3d 926, 482 N.E.2d 351.) Further, the settling defendants state that a presumption of validity is created whenever there is a resolution of a claim by virtue of a release or covenant. (Bituminous Insurance Cos. v. Ruppenstein (1986), 150 Ill. App. 3d 402, 501 N.E.2d 907.) Although these are accurate statements of Illinois law, they are irrelevant to the issue of whether a settlement was made in good faith pursuant to the Act.

A presumption of validity of a settlement or release agreement arises by the mere existence of an agreement which is legal and binding on its face. (See McComb v. Seestadt (1981), 93 Ill. App. 3d 705, 417 N.E.2d 705.) A party to such an agreement can overcome that presumption by proving through clear and convincing evidence that there was fraud in the inducement, fraud in the execution, mutual mistake or mental incompetency. (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639.) When, however, a party argues that the agreement was not made in good faith pursuant to the Act, the mere existence of a document, legal and binding on its face, does not give rise to a presumption of good faith, as the settling defendants argue.

The settling defendants cite Wasmund for the proposition that the mere existence of the settlement gives rise to a presumption of good faith. Wasmund does not state that proposition. Rather, Wasmund held that there was no evidence that the settlement was invalid. What Wasmund did state was that Illinois case law has not specifically defined “good faith.” Wasmund further held that the circuit court was within its discretion in finding the settlement to be in good faith. Wasmund, 135 Ill. App. 3d at 930, 482 N.E.2d at 354.

The issue presented on appeal is whether the circuit court was within its discretion in entering a finding of good faith regarding the settlement agreement. In the case at bar, the same circuit court judge who presided over the pretrial conference during which the settling defendants and plaintiff engaged in settlement negotiations heard arguments on the motions for good-faith findings. We initially note that Texaco and General Gas admitted that they had no knowledge of any fraud, duress, collusion or tortious conduct related to the settlements. Texaco and General Gas, however, objected at the hearing on the motions for good-faith findings, and continue to argue on appeal that the settlements do not meet the criteria for a good-faith finding on the basis of the small percentage of settlement in relation to the possible liability and, furthermore, that the totality of the circumstances show a lack of good faith.

Texaco and General Gas correctly argue that the Illinois Supreme Court has stated that when considering whether a settlement agreement was made in good faith, the entire circumstances surrounding the settlement must be taken into account. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 318, 546 N.E.2d 524, 529.) It is, however, within the circuit court’s discretion to determine what is required before a finding of good faith may be made. Ruffino, 181 Ill. App. 3d at 832, 537 N.E.2d at 872, citing Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 520 N.E.2d 932; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.

The record on appeal indicates that prior to entering the order finding the settlements to have been made in good faith, the circuit court acknowledged the facts that (1) there were arms’ length negotiations between the settling defendants and plaintiff; (2) the negotiation sessions were “lengthy” and “very serious”; (3) the settling defendants had asserted affirmative defenses and continued to deny liability; (4) the settling defendants stated that they determined the amount they were willing to contribute toward settlement based upon defense costs and “very tenuous liability exposure”; (5) the settling defendants represented that there were no side agreements, no additional deals or any additional consideration apart from those contained in the settlement agreements presented to the court; (6) Texaco and General Gas argued that Bullard was an ongoing concern with assets and $5.5 million in primary coverage and $5 million in excess coverage, but settled for less than 4% of its coverage; and (7) Texaco and General Gas argued that the settling defendants did not pay their pro rata share. It is clear that the circuit court considered the totality of the circumstances surrounding the settlements before making a finding of good faith. We agree with the circuit court that the totality of the circumstances does not indicate a lack of good faith.

Next, Texaco and General Gas argue that the circuit court erred in entering its finding of good faith because of the great disparity between the potential value of plaintiff’s claim and the comparative liability of the settling defendants. Contrary to this argument, Illinois courts have consistently rejected challenges to good-faith settlements based upon alleged disparities between the value of settlements and settling tortfeasors’ relative culpability for claimant’s damages. (Ruffino, 181 Ill. App. 3d 827, 537 N.E.2d 871; Doellman v. Warner & Swasey Co. (1986), 147 Ill. App. 3d 842, 498 N.E.2d 690; Lowe, 124 Ill. App. 3d 80, 463 N.E.2d 792; O’Connor v. Pinto Trucking Service, Inc. (1986), 149 Ill. App. 3d 911, 501 N.E.2d 263.) It has been recognized that settlements may be substantially different from the results of litigation because damages are often speculative and the probability of liability uncertain. (O’Connor, 149 Ill. App. 3d at 916, 501 N.E.2d at 267.) In Wasmund, this court expressed the inherent difficulty of ascertaining a settling defendant’s relative culpability for a claimant’s injuries.

“ ‘All involved in the personal injury settlement business are aware of its large imponderables — the risk of victory or defeat at the jury’s hands, the risk of a high or low verdict, the unknown strengths and weaknesses of defenses, the inexact appraisal of damage elements, the defendant’s solvency and the extent of insurance coverage. In advance of a jury verdict, most cases permit only a rough estimate of value. When one tortfeasor chooses to settle and another chooses to litigate, inequality in the ultimate cost does not signalize bad faith.’ ” Wasmund, 135 Ill. App. 3d at 929-30, 482 N.E.2d at 353-54, quoting River Garden Farms, Inc. v. Superior Court (1972), 26 Cal. App. 3d 986, 997-98, 103 Cal. Rptr. 498, 506-07.

The only evidence presented of the settling defendants’ relative culpability was statements made by General Gas and Texaco that the settling defendants were primarily liable for plaintiff’s injuries. The record reveals no evidence that the settlement figures are not within the range of relative fault attributable to the settling defendants. Although the sum paid may be disproportionate to the sum prayed for in the complaint, it is not out of proportion to what the trial court may have considered the probable recovery of the plaintiff may have been. The circuit court was not required to ignore its own experience, since good or bad faith is a question of fact in each case. See Wasmund, 135 Ill. App. 3d at 930, 482 N.E.2d at 354.

We find that although a “totality of the circumstances” evaluation must include a consideration of the factor of “equitable apportionment,” it is not the sole basis for determining good faith pursuant to the Act. Further, we caution the circuit courts not to become “rubber stamps” in determining good faith. In the present case, the circuit court did not merely rubber stamp the settlements. Not only did the circuit court, in fact, truly evaluate the totality of the circumstances surrounding the settlements, but General Gas and Texaco have failed to even demonstrate that the settlement figures were disproportionate to the settling defendants’ potential liabilities, taking into consideration the settling defendants’ defenses and continual denial of liability. We hold that the circuit court did not abuse its discretion in entering the findings of good faith.

Last, Texaco and General Gas argue that we should adopt California’s “reasonable range” test set forth in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985), 38 Cal. 3d 488, 698 P.2d 159, 213 Cal. Rptr. 256. Under Tech-Bilt, California courts consider numerous factors in determining good faith, placing emphasis on whether the settlement is within the range of the settling defendant’s share of liability for claimant’s injuries. Illinois courts have adopted the totality of the circumstances test and have rejected the argument that there cannot be a determination of good faith unless there is a showing of relative liabilities of the parties and have refused to place emphasis on any one factor in determining good faith. (Ruffino, 181 Ill. App. 3d at 831, 537 N.E.2d at 874; see also Barreto, 133 Ill. App. 3d 119, 478 N.E.2d 581; Lowe, 124 Ill. App. 3d 80, 463 N.E.2d 792.) Accordingly, we find that the circuit court properly applied the totality of the circumstances test and refused to use the reasonable range test.

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

Affirmed.

CAMPBELL and MANNING, JJ., concur.