author: JUSTICE LINN

text:
      In re MARRIAGE OF JOHN J. O’BRIEN, Petitioner-Appellant, and MARGARET F. O’BRIEN, Respondent-Appellee.
    First District (4th Division)
    No. 1—91—1754
    Opinion filed September 24, 1992.
    William R. Dunn, of Oak Lawn, for appellant.
    Albert Brooks Friedman, Ltd., of Chicago, for appellee.
   JUSTICE LINN

delivered the opinion of the court:

John O’Brien appeals from portions of a judgment for legal separation. He challenges the maintenance award granted to Margaret O’Brien, his wife for more than 50 years, as well as the assessment of a portion of her attorney fees against him. John also contends that the trial court exceeded its jurisdiction in dividing the parties’ marital property during proceedings for legal separation, arguing that the court may only divide property pursuant to dissolution of marriage.

We conclude that the trial court did not abuse its discretion and had authority to enter the orders that it did.

Background

Margaret and John were married in 1937. In September 1988 the parties separated when John moved out of the marital residence, an apartment. The record indicates he filed his petition for dissolution on August 24, 1988. Margaret then filed a counterpetition for legal separation. In her petition, Margaret requested maintenance and attorney fees. After a hearing in September 1989, John was ordered to pay his wife temporary maintenance of $850 per month, pending the final disposition of the parties’ petitions at trial.

In the spring of 1991 the matter was called for trial. At that time, John voluntarily dismissed his petition for dissolution of marriage and agreed to a legal separation. The parties stipulated that John’s net annual income was $45,000, or $3,750 per month. Margaret’s net income in social security benefits was $399 per month, or $4,788 per year. In addition, the evidence revealed that John possessed nonmarital assets of more than $600,000 held in various stocks and bonds. The parties agreed that $55,000 in United States Treasury bills (T-bills) had been jointly owned by the parties for at least five years and that John had removed Margaret’s name from them without her knowledge or consent. The remaining marital assets included a certificate of deposit in the amount of $20,000; stock valued at $16,000; and a $1,200 savings account, all of which were in John’s possession and control. In fact, during the entire period of separation John held the marital assets and received the dividends and income therefrom, subject only to the $850 per month he paid as maintenance to Margaret.

At trial Margaret, who was 83 years old, testified that she had been married to John for 53 years. She had kept the house and cared for the parties’ one child. She was forced to use a walker because of severe arthritis in both knees. Her affidavit of monthly expenses, attached to the pretrial memorandum, lists $1,054, but that was increased to $1,114 because of increases in rent and utilities. Margaret testified, moreover, that her monthly income of $1,249 ($850 in maintenance and $399 in social security) was barely sufficient to survive on. She had a clothing budget of $25 per month, but she had to borrow from that to pay her electric bill. She said she would like additional money to help put her son’s children through college. She requested an award that would increase her monthly income to the range of $1,500 to $2,000. She explained that she was unable to purchase clothing, shoes, or underwear. She could not afford to travel. During the marriage she had made annual visits to her family in Massachusetts. She had travelled abroad and throughout the United States, but since her separation she could not even afford public transportation to take her to church functions and to lunch with friends.

Margaret further testified that John was in exclusive possession and control of the marital assets, from which she received no dividends or income. She testified that he had repeatedly assured her in the past that all the financial assets were owned jointly and that her name was on them. John’s attorney objected at that point, anticipating an argument in favor of dividing the property interests in specific assets. He argued that the court lacked jurisdiction to order any division of property in a separation proceeding. Margaret’s counsel responded that his client was requesting division of the possession of such assets, not division of ownership. The court overruled the objection.

John O’Brien was 85 years old at the time of the hearing, a retired police officer. He admitted that he once had placed his wife’s name on $55,000 in United States T-Bills, saying he did so to provide for her care if something happened to him. He claimed $665,000 in nonmarital assets (which included the $55,000 in T-bills), and testified that most of the nonmarital property was derived from gifts to him from other members of his family.

At the conclusion of trial the court ordered an increase in Margaret’s maintenance to $1,600 per month. The court further ordered the transfer of the $55,000 in T-Bills back into joint tenancy, noting that they were a “gift to the marriage.” The court ordered that Margaret should receive the income therefrom (approximately $367 per month), along with the interest from certain stock (approximately $100 per month). The T-Bills, along with certain stock ($16,000), a savings account ($1,200), and a certificate of deposit ($20,000), were found to be marital assets, with a total value of $92,000. The court ordered that the names of both parties be placed on these assets, to be owned in joint tenancy. John was awarded possession and income from the certificate of deposit and savings account, along with his nonmarital estate of $610,000. Finally, the court ordered John to pay $8,695 to Margaret’s attorney, which incorporated an hourly noncourt rate of $175 per hour and court time of $225.

Opinion

I

John first argues that the trial court’s award of $1,600 per month in maintenance is excessive and contrary to the manifest weight of the evidence. In support of his position he makes a rather novel argument. First he cites Margaret’s testimonial admissions of frugality. Then he uses her thrift as justification for denying an increase of the amount of temporary maintenance on which she managed to subsist during the 2V2 years the proceedings were pending.

Margaret lives in an apartment for which, at the time of trial, she paid $470 in monthly rent. Her electric bill was about $60 per month and she paid a woman $80 per month for household help. She was paying $70 per month for medication, although she did get reimbursement eventually for most of it. She said she would try to buy clothing on sale and if she had extra money she would buy some clothes, visit her sister, and help out her son. She would also get out more and see friends for lunch or coffee.

John, in contrast, lives in a retirement home that rents for $1,275 per month, inclusive of utilities. He has a car and, given his independent wealth, presumably has substantial discretionary income, unlike his wife. He contends, however, that the court erred in awarding Margaret more maintenance than she actually proved she needs. He cites section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 504(a)(1)), which allows for an award of maintenance if the spouse seeking it “lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs.”

While section 504(b) lists a number of factors to be balanced by the court in awarding maintenance, such as the financial resources of the parties, the duration of the marriage, and the age and health of the parties, John chooses to emphasize the standard of living established during the marriage as being the most significant in assessing a party’s reasonable needs. (See In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) According to John, the court abused its discretion because the court’s “exorbitant award of maintenance” was not based on proof of her need for more money. He claims, “She would buy a few clothes and go to see her sister once every year or two.” John adds that the parties have always lived frugally and continue to do so.

Margaret’s lifestyle, we think, continues to be much more frugal than John’s. She testified that she uses the electric oven to help heat her apartment. We note a qualitative difference between the $470 apartmént rented by Margaret and the one that is occupied by John. John has a car but Margaret cannot even afford a cab to meet friends for lunch. Margaret’s paltry income, and therefore her budget, makes new underwear a luxury item. We emphatically reject the notion that her past inability to plan social excursions, buy clothes, and afford carfare means that she failed to “prove” reasonable need for such things.

In his brief, John asks, “Could a reasonable person possibly believe that an 83 year old woman who has severe arthritis and uses a walker, and who has always led and is continuing to lead a frugal existence, would change her lifestyle even if she won the Illinois lottery? The award of maintenance in the amount of $2,067 [$1,600 plus $467 in interest from the T-bills and certain stock] is outrageous.”

In our opinion, if anything is outrageous it is John’s insistence that the reward for frugality is poverty. His wife of half a century has been forced to eke out an existence on her modest allotment of funds while he has set himself up in a much more lavish manner. He left his wife behind in the $470-per-month rental apartment and moved himself to more expensive quarters, all the while retaining possession and control of the marital assets as well as a nonmarital éstate of well over a half a million dollars. In his brief he criticizes the trial court for expressing sympathy for Margaret; we would find it odd under the facts of this case if the court had not.

We have reviewed the record and considered John’s mathematical calculations of the parties’ net income and their needs and expenses. We conclude that the trial court’s comments and findings are well supported by the evidence and that the court’s award of maintenance was not an abuse of discretion. E.g., In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 227, 543 N.E.2d 119; In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E.2d 14.

II

Next, John challenges the basic power of the court to allocate property outside of a marital dissolution proceeding. He states that section 503(d) of the Act, which involves the classification of the parties’ property as marital or nonmarital, only applies to proceedings for dissolution of marriage or declarations of invalidity of marriage, but not to proceedings for legal separation. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) Section 402 of the Act, which applies to legal separations, does not provide for disposition of property. Ill. Rev. Stat. 1991, ch. 40, pars. 401(b), 402.

Citing to the original Historical and Practice Notes (Notes) that follow section 402 of the Marriage and Dissolution of Marriage Act (Ill. Ann. Stat., ch. 40, par. 402, Historical & Practice Notes, at 186-87 (Smith-Hurd 1980)), John contends that the trial court may not adjudicate property rights incidental to a judgment for legal separation.

The Notes do suggest that (contrary to earlier cases) the Illinois Supreme Court in Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382, foreclosed the ability of trial courts to divide property outside of dissolution of marriage. The Notes quote Kujawinski, which stated that “[ojperation of the term ‘marital property’ under the Act is not triggered until the time for dissolution.” (71 Ill. 2d at 573, 376 N.E.2d at 1386.) Under this reasoning the parties’ property cannot be deemed “marital” in nature, for purposes of division, until the time the marriage itself is dissolved. A legal separation does not dissolve the marriage.

Kujawinski did not involve a legal separation, however. Instead, the case involved broad constitutional challenges such as impairment and the obligation of contracts. In fact, the court remarked that the term “ ‘marital property’ is defined ‘only for the purposes of division on dissolution of marriage or legal separation.’ ” (Emphasis added.) (71 Ill. 2d at 572, 376 N.E.2d at 1386, quoting 9A U.L.A. §307, Commissioners’ Note, at 492 (1973).) Of more significance, however, is the fact that John’s argument ignores more recent cases that support the trial court’s authority to divide property in legal separation actions when the parties, by their conduct, submit the property issues to the court.

According to the updated commentary in the current pocket part to the 1980 Smith-Hurd volume upon which John relies, when counterpetitions (for dissolution and for legal separation) are filed, they may be tried together. (See Ill. Ann. Stat., ch. 40, par. 402, Supplement to Historical & Practice Notes, at 33 (Smith-Hurd Supp. 1992), citing In re Marriage of Davenport (1981), 92 Ill. App. 3d 675, 416 N.E.2d 88 (Parties may empower the court to adjudicate marital and nonmarital property rights even if the ultimate judgment is for legal separation).) Later cases reaffirm this principle. In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 499 N.E.2d 1042; accord In re Marriage of Lipkin (1987), 163 Ill. App. 3d 1033, 517 N.E.2d 41 (Parties submitted evidence of their property to the court and could not later complain that the court lacked jurisdiction to dispose of the property).

We believe that Davenport, Leff and Lipkin are correctly reasoned. In the pending case, John filed for divorce and sought a declaration of both his nonmarital and marital property. His petition lists general types of assets, along with his designation of what was marital and what was not. Margaret countersued for separation and maintenance. The record indicates that the litigation dragged on for more than two years. Both sides submitted income and expense statements that necessarily reflected their entire financial picture. The parties submitted the maintenance and attorney fee issues to the court after failing to reach a settlement. Therefore, the mere fact that John withdrew his petition for dissolution on the day of trial and agreed to the separation judgment does not defeat the court’s power, in setting Margaret’s maintenance, to consider the property and income of each. Indeed, it is difficult to understand how the court could set a reasonable amount of maintenance without considering the assets, income, and expenses of the parties. The trial court found, based on John’s admission and stipulation, that Margaret’s name as joint tenant had been placed on the $55,000 in T-bills and later removed without her knowledge. The court found that the T-bills were a gift to the marriage and ordered that Margaret’s name be restored to title and that she should receive the income from the T-bills. The court also allowed John to keep possession of the $20,000 certificate of deposit and receive the income from it, along with a savings account and some stock. John cannot point to a basic inequity in his wife’s being allowed to hold some of the marital property in her possession when he has always enjoyed total control over all of the property.

We conclude that the trial court did not err in awarding possession of some of the jointly held property to Margaret.

Ill

John also challenges the trial court’s assessment of his wife’s attorney fees, all but $5,000 of which were charged to John. He claims that the attorney’s fees were “outrageous and excessive” because the lawyer charged for travel time from his office in Burr Ridge to the Daley Center on 13 occasions. The total time for travel was approximately 18 hours, at the lawyer’s noncourt billing rate of $175 per hour, for a total of $3,167.50. Another six or seven hours of cumulative telephone calls at the same rate totalled $1,155. According to John, the “only real court time, where there were contested hearings,” were the temporary maintenance hearing and the trial, for a total of 4.5 hours. Court time was billed at a rate of $225 per hour and included time billed for status dates and continuances.

After the hearing the court subtracted $800 from the travel time and $315 from the court time and further subtracted the $5,000 that Margaret recalled paying her attorney. The total amount awarded was $8,695, which reflected the reductions and credits from the total bill of $14,810.

Although John maintains that the award is unreasonable, the record suggests that some of the time billed may be attributable to John’s lack of cooperation. Although he filed for divorce in August 1988, seeking to be awarded his nonmarital property and a portion of the marital property, he delayed furnishing his wife with discovery of his assets. In fact, it was not until October 31, 1990, pursuant to court order, that John filed a list of assets, with his own designation of what was marital and nonmarital property. He went through three different lawyers during the years the matter was pending and did not withdraw his petition for dissolution until the date of trial. As far as the hourly rate charged, John’s own attorney stated his belief that it was “all right.”

While the amount of fees might appear high given what should have been a fairly simple case, the record indicates that John, from the beginning, has resisted giving his wife any more maintenance than required for barest necessity. The parties were unable to reach a settlement, even after the depositions and pretrial discovery were completed in late 1990. The trial stipulations indicate that the only asset in dispute as marital property was the $55,000 in T-bills. While John sought to withdraw his petition for dissolution on the day of trial, he challenged the court’s jurisdiction to allocate the marital property. These facts indicate that the time incurred by Margaret’s attorney in this case was not unreasonable. The trial court took into consideration John’s challenge to his wife’s attorney’s travel time and court appearances in which no contested matters were argued. Accordingly, the court disallowed approximately $1,100 of the fee request. Margaret had paid $5,000, leaving an unpaid balance of $8,695. The trial court concluded that the fees incurred were fair, reasonable, and necessary to the representation of Margaret. (See In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) Unless we can state that the trial court abused its discretion in making the award (see In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748 (reversing $16,000 award)), we must affirm.

Affirmed.

JOHNSON and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    DONALD KURR et al., Plaintiffs-Appellees, v. THE TOWN OF CICERO et al., Defendants-Appellants.
    First District (5th Division)
    No. 1—91—1579
    Opinion filed September 25, 1992.

      Joseph G. Bisceglia and Robert P. Zapinski, both of Jenner & Block, of Chicago, and Dennis E. Both, Town Attorney, of Cicero, for appellants.
    John K. Kneafsey and Stephen G. Kehoe, both of Nisen & Elliott, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendants appeal from an order granting plaintiffs summary judgment on the mandamus count of their two-count complaint. The order required defendants to issue a certificate stating that plaintiffs’ property complied with the Town of Cicero’s ordinances. We consider whether the notice requirement of Cicero’s certificate of compliance ordinance was mandatory, whether the building commissioner was required under the ordinance to provide plaintiffs with written notice of any violations, and whether plaintiffs could obtain mandamus if their property violated Cicero’s ordinances. For the following reasons, we reverse and remand.

In count I of plaintiffs’ verified complaint, they alleged that they were the beneficial owners of property located in Cicero. There were two buildings on the property. Prior to 1974, when plaintiffs purchased the property, the front building was renovated into two apartments and the garage was converted into one apartment. Plaintiffs alleged that the work was done pursuant to permits and in accordance with Cicero’s ordinances. In 1989, they agreed to sell the property and applied for a certificate of compliance as required under Cicero’s ordinance. They alleged that Cicero inspected the property twice but refused to issue the certificate due to what it claimed were violations of its ordinances. As a result, plaintiffs could not sell the property. They requested mandamus relief to require defendants to issue the certificate of compliance.

Defendants answered the complaint and denied the material allegations but admitted that without a certificate of compliance, plaintiffs could not sell their property. Defendants also filed a counterclaim alleging that plaintiffs’ property violated Cicero’s ordinances because there were two buildings on one lot when an ordinance allowed only one, the garage was converted into an apartment without a building permit, and the front apartment in the front building had only one means of egress when an ordinance required two. They also alleged that because the rear building had an assessed value of less than $2,000 in 1976, it had to be torn down. They attached a certified copy of a document from the assessor’s office showing that in 1976, one building on the property was assessed at $4,392 and the other was assessed at $111.

Defendants moved for summary judgment on count I of the complaint arguing that plaintiffs were not entitled to mandamus because their property violated the ordinances. The following facts were taken from the affidavits, depositions, and other evidence presented in support of and in opposition to the motion.

After plaintiffs applied for the certificate of compliance, John Se-gal inspected the property on July 13, 1989. Plaintiff Donald Kurr and his real estate agent, Eugene Wojciechowski, were present. Kurr testified in his deposition that during the inspection, Segal told him that there might be a problem with egress from the front apartment. Wojciechowski testified in his deposition that Segal told him during the inspection that Cicero “didn’t like two buildings on one lot.”

Segal prepared an inspection report on the certificate of compliance form. Under a section titled “Violations,” he noted that the electrical panel in the front building had to be upgraded and that smoke detectors had to be installed. Under another section titled “Deficiencies,” he noted that the front apartment in the front building had one legal means of egress and that there was a “cottage” at the rear of the lot. A handwritten note at the top of the form stated “Hold two homes on one lot” with Segal’s signature. Apparently within 30 days of the inspection, plaintiffs requested and received a copy of this form.

Wojciechowski testified in his deposition that several days after the inspection he talked to defendant William Nisk, Cicero’s building commissioner, who said Cicero “didn’t want two houses on a lot.” Nisk said he would reinspect the property.

Nisk inspected the property on August 9, 1989, with plaintiff Donald Kurr present. According to Nisk, the second exit from the front apartment was inadequate. Nisk testified in his deposition that he showed Kurr an alternative place to build the second exit. Nisk also told Kurr of his options concerning the rear building. He said he needed the assessed valuation from 1976 to determine whether the building had to be torn down. If the building had to be torn down, Cicero would pay the expenses. If plaintiffs sold the property on an installment contract, a certificate of compliance would not be required until the end of the contract term. Kurr stated in his affidavit and in his deposition that Nisk told him during the inspection that he could continue to own and rent the property or sell the property on contract without interference from Cicero. If he sold the property, Cicero would demolish the rear building at its expense.

John Mlade, plaintiffs’ attorney, stated in his affidavit that on August 15, Nisk told him that the certificate would not be issued because the rear building did not have an assessed value of over $3,000 and would have to be demolished.

On August 22, Dennis E. Both, Cicero’s attorney, told Mlade that the property violated the ordinances because there were two buildings on one lot and the rear building did not meet the minimum assessed value requirements of the ordinance. On August 25, Both wrote a letter to Mlade stating that the property was nonconforming because the zoning ordinance prohibited two primary residential uses on one lot.

On August 28, Nisk wrote a letter to Kurr stating that the property violated the building code because there were two buildings on one lot, the front apartment in the front building had only one legal means of egress when two were required, and the electrical panel had to be upgraded. As a result of the violations, Cicero would not issue a certificate of compliance.

Kurr stated in his affidavit that the two items listed as violations on Segal’s inspection report were corrected: the electrical panel was upgraded and the buildings had necessary smoke detectors.

On the day that defendants’ motion for summary judgment was scheduled for hearing, plaintiffs filed an emergency cross-motion for summary judgment. They argued that defendants should be barred from asserting that the conversion was done without permits because they did not produce the permits until the day before the hearing. Defendants produced two permits for electrical work on the property which were issued in 1962. Plaintiffs requested summary judgment. Defendants filed a response to plaintiffs’ emergency motion for summary judgment the next day.

After a hearing on both motions, the trial judge construed the language of the certificate of compliance ordinance requiring a “detailed report” of any violations to mean that the report had to be written. Only the violations listed on the certificate of compliance form that Segal prepared, rather than the deficiencies, could be the basis for denying the certificate of compliance. The only violations listed on the form were that plaintiffs had to upgrade the electrical panel and install smoke detectors. Plaintiffs asserted, and defendants did not dispute, that these violations were corrected. As a result, defendants could not deny plaintiffs the certificate of compliance on that basis. The judge entered summary judgment in plaintiffs’ favor on count I of their complaint and ordered defendants to issue the certificate of compliance. Count II of the complaint and the counterclaim remained pending at that time. Defendants appealed.

This court dismissed the appeal for lack of jurisdiction under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) (Kurr v. Town of Cicero (1990), 208 Ill. App. 3d 455, 567 N.E.2d 405), and subsequently, the trial judge entered the required finding. Defendants appealed and the trial judge stayed the order pending appeal.

Opinion

Summary judgment should only be entered if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Ill. Rev. Stat. 1991, ch. 110, par. 2— 1005(c).

Defendants first argue that summary judgment was improperly entered because the notice requirement of the certificate of compliance ordinance was merely directory rather than mandatory. If it was directory, defendants were not required to notify plaintiffs within 30 days of an inspection that their property violated the ordinance.

The ordinance states in relevant part:

“In the event the property inspected is found to be in full compliance with the Minimum Housing Code, Building Code, Electrical Code, Plumbing Code and Zoning Codes of the Town of Cicero, the Building Commissioner shall then immediately cause a Certificate to issue stating that the said property is in full compliance with said Ordinances. If violations of said ordinances are found to exist, the Building Commissioner shall, as soon as practicable, but in no event later than 30 days following such inspection, provide the applicant with a detailed report of the violations to be corrected. *** Upon correction of all violations specified by the Building Commissioner, the Building Commissioner shall then issue the required Certificate of Compliance.” (Emphasis added.) Cicero, Ill., Zoning Ordinance vol. I, ch. 40, par. 40 — 4(A)(4) (1977).

The primary rule of statutory construction is to ascertain and give effect to the intent of the drafters and the court must give the language its plain and ordinary meaning. (Thomas v. Greer (1991), 143 Ill. 2d 271, 573 N.E.2d 814.) Construction of an ordinance is a question of law. Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 569 N.E.2d 1182.

The ordinance states that a report of violations “shall, as soon as practicable, but in no event later than 30 days,” be given to the applicant. The word “shall” may be defined as “must” or “may” depending on the context and the intent of the drafters. (Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 356 N.E.2d 59.) A statute specifying the time for performing an official duty will be considered directory only when the rights of the parties cannot be injured by the failure to act within the time period. (Park Forest, 64 Ill. 2d 264, 356 N.E.2d 59.) But where the statute contains negative words, denying the exercise of power after the time period, or where a disregard of its provisions would injure public rights or private rights, it is mandatory rather than directory. Park Forest, 64 Ill. 2d 264, 356 N.E.2d 59.

In this case, the use of the word “shall” in the ordinance coupled with the negative words “but in no event later than 30 days” leads to the conclusion that the notice provision was mandatory rather than directory. Further, an applicant would be injured if he did not receive notice of the violations because he would not have an opportunity to correct the violations and, as a result, could not obtain the certificate and sell the property. Therefore, the provision was mandatory and defendants were required to notify plaintiffs of any violations within 30 days of an inspection.

Defendants also argue that the ordinance did not require a written report of the violations to be corrected. If it did not require a written report, then the oral communications between the parties would have to be considered to determine whether the notice was sufficient.

The ordinance states that the building commissioner must provide the applicant with a “detailed report” of any violations. The word “detailed” is defined as “marked by abundant detail or by thoroughness in treating small items or parts.” (Webster’s Third New International Dictionary 616 (1971).) The word “report” is defined as “something that gives information: a [usually] detailed account or statement ***[;] NOTIFICATION^] *** a [usually] formal account of the results of an investigation given by a person or group authorized or delegated to make the investigation.” Webster’s Third New International Dictionary 1925 (1971).

The ordinance itself does not expressly state that the report must be written; the only requirement is that it must be detailed. Neither the definition of the word “detailed” nor “report” indicates a requirement that a “detailed report” be in writing. Therefore, a “detailed report” could be either oral or written. As a result, the trial judge ignored the plain language of the ordinance when he found that the report must be written.

Because the building commissioner was required under the ordinance to provide either a written or an oral report of violations within 30 days of an inspection, the question becomes whether plaintiffs were so notified of defendants’ claimed violations: there were two buildings on the lot, which violated the ordinance prohibiting more than one principal detached building on a lot; and the front apartment in the front building had only one exit when the ordinance required two safe, unobstructed exits. See Cicero, Ill., Zoning Ordinance vol. I, ch. 40, par. 2C (1977); Cicero, Ill., Minimum Housing Code art. VII, ch. 19, par. 19-78(i) (1977).

During the first inspection, Segal said that Cicero did not “like” two buildings on one lot. In his written report on the certificate of compliance form, which plaintiffs do not dispute they received within 30 days, Segal noted “hold two homes on one lot.” He listed the two alleged violations as deficiencies. Several days after the inspection, Nisk told Wojciechowski that Cicero did not “want” two homes on one lot.

During the second inspection, plaintiffs were told that if they wanted to sell the property, the rear building would have to be demolished. They were also told, orally and in writing, within 30 days of the second inspection that the property violated the ordinance because it had two homes on one lot and because the front apartment had only one means of egress.

Plaintiffs dispute that they were given sufficient oral or written notice within 30 days of the first or second inspection. Both plaintiffs and defendants recognize in their arguments on appeal that whether the notice was sufficient is a question of fact which cannot be resolved on summary judgment. As a result, summary judgment in plaintiffs’ favor must be reversed.

Lastly, defendants argue that plaintiffs were not entitled to mandamus in any event because they did not show that their property complied with Cicero’s ordinances.

“Mandamus is discretionary and is appropriate only where there is a clear right to the requested relief, a clear duty of the respondent to act, and clear authority in the respondent to comply with the writ.” (Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 467-68, 537 N.E.2d 784, 791.) Before a writ oi mandamus can be issued, plaintiff must show compliance with all the valid requirements of any applicable ordinances. (Space Station 2001, Inc. v. Moses (1983), 118 Ill. App. 3d 658, 455 N.E.2d 266.) When there are issues of fact to be decided, mandamus is improper. Owen v. Mann (1985), 105 Ill. 2d 525, 475 N.E.2d 886.

In this case, plaintiffs argue that the property does not violate the ordinances because the two items noted as violations on Se-gal’s form were corrected. Even if Segal’s characterization of the items as deficiencies rather than violations was significant, plaintiffs’ argument completely ignores the second inspection of the property where defendants asserted those items as violations. Plaintiffs must show compliance with the ordinances prohibiting two buildings on one lot and requiring two safe, unobstructed exits. Also, to avoid tearing down the rear building, they would have to show that it had an assessed value of over $2,000 on July 1, 1976. (See Cicero, Ill., Zoning Ordinance vol. I, ch. 40, par. 2L(9)(b)(1) (1977).) Plaintiffs do not dispute that there are two buildings on the lot, but in the trial court, they argued that the rear building had an assessed value of over $2,000 and that the second exit from the front apartment was adequate. The question of whether plaintiffs’ property complied with these ordinances is one of fact and neither mandamus nor summary judgment can be granted when issues of fact remain to be decided.

Defendants raise several other arguments challenging summary judgment in plaintiffs’ favor. They argue that the trial judge erred when he denied defendant Henry Klosak’s motion to dismiss but they did not cite supporting authority. As a result, this court will not consider that argument. (.Board of Regents for Regency Universities v. Human Rights Comm’n (1990), 196 Ill. App. 3d 187, 552 N.E.2d 1373.) It is not necessary to discuss defendants’ remaining claims of error based on the finding that summary judgment in plaintiffs’ favor was improper.

Reversed and remanded.

MURRAY and GORDON, JJ., concur.

      This is an apparent misquote of Cicero’s ordinance, which states that the assessed valuation must be over $2,000. Cicero, Ill., Zoning Ordinance vol. I, ch. 40, par. 2L(9)(b)(1) (1977).


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCISCO RIVERA, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—1303
    Opinion filed September 25, 1992.

      Michael J. Pelletier and Anne E. Meyer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Francisco Rivera, was found guilty of possession of heroin, cocaine and cannabis with intent to deliver, and was sentenced to 10 years’ imprisonment. Defendant appeals, contending that the State bolstered its witnesses’ testimony through inadmissible evidence and improper statements in closing arguments. Defendant also asks that the sentencing order be corrected.

The pertinent evidence is as follows. On August 1, 1986, at approximately 10:45 a.m., Chicago police officers John Mason, Charles Bowers, Steven Chasen, John Matthews and four other police officers executed a search warrant at an apartment located at 1263 North Springfield, Chicago. Three officers went to the rear entrance of the apartment building, knocked on the door, and stated that they had a search warrant. After receiving no response, the officers gained entry into the building by using a sledge hammer.

Officer Matthews went into the kitchen of the apartment followed by the other officers, and observed defendant stepping out of the bedroom into the hallway. Matthews identified himself and stated that he had a search warrant. Defendant was escorted into the living room of the apartment, where the officers saw defendant’s 18-year-old wife and 14-year-old brother. Upon entering the bedroom, Matthews discovered a plastic bag containing crushed green plant leaves that he suspected to be marijuana on top of the dresser. Further search of the bedroom uncovered seven clear plastic bags containing a powder substance between the mattress and box spring.

Matthews informed defendant that he was under arrest, and the officers read his Miranda rights to him. Defendant stated that he understood his rights. Matthews further testified that defendant acknowledged that the “stuff belongs to me” and that his wife had no knowledge of the presence of narcotics. Defendant had lived in the apartment since February 1986. All of the foregoing conversations were conducted with defendant in English.

A subsequent search of the apartment revealed a triple beam scale and men and women’s clothing in a bedroom closet. A suitcase containing $2,000 in denominations of $10, $20, and $100 bills was found behind the sofa in the living room. Defendant told the officers that the money in the suitcase belonged to him. Prior to transporting defendant to the police station, the officers permitted him to go to the bedroom, where he retrieved a pair of socks from the dresser and his shoes which were next to the bed.

At the police station, Matthews completed a case report. Defendant provided the information requested by the officers in English, and again stated that he lived in the apartment where the narcotics were found.

At trial, Arlene Koszykz, a chemist with the Chicago police department, testified that she received the envelope containing the contraband confiscated in the search of defendant’s apartment. Koszykz tested two bags of a brown chunky substance which indicated the presence of heroin in the amount of 45.97 grams. The bag containing a white chunky substance was found to contain 3.5 grams of cocaine. Koszykz also tested the plant substance and found the presence of 29.99 grams of marijuana. On March 2, 1989, Koszykz performed a confirmatory analysis of one of the bags previously tested, which again indicated the presence of cocaine.

Defendant presented the testimony of two witnesses who testified that they had known defendant for several years, and that they had never heard anyone suggest that he was involved in selling drugs or other illegal activities.

In rebuttal, the State offered the testimony of Officer Mason, who had since retired from the police force. The parties stipulated that if called, Mason would testify that he was one of the officers who effectuated a search warrant at defendant’s apartment. During the search, the officers found a suitcase containing a large amount of money, which defendant stated belonged to him. After finding several bags of narcotics in the bedroom, Matthews informed defendant that he was under arrest and escorted him to the kitchen. Officer Bowers advised defendant of his constitutional rights and read Miranda warnings to him. Defendant stated that the narcotics belonged to him and that his wife was not involved. Mason would further testify that defendant told the police on two separate instances that he lived in the apartment.

On appeal, defendant first asserts that he was denied a fair trial because the State improperly bolstered the testimony of Matthews with prior consistent statements contained in the police report. Defendant complains Matthews testified that prior to transporting defendant to the police station, he went into the bedroom where he retrieved a pair of socks and defendant’s shoes. On cross-examination, defense counsel sought to impeach Matthews’ credibility on this point by eliciting an admission from Matthews that he failed to mention this fact in his police report. In its attempt to rehabilitate Matthews on redirect examination, defendant contends that the State improperly questioned Matthews again about the contents of the police report.

However, while defendant objected at trial to questions concerning the contents of the police report, he failed to include this issue in his post-trial motion. Error in the admission of evidence is waived if the objection to the evidence is not properly designated by the objector (People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227), and error properly raised at trial is waived if not set forth in the post-trial motion of the defendant. (People v. Woith (1984), 126 Ill. App. 3d 817, 467 N.E.2d 614.) While the plain error rule can be invoked in instances where the error complained of is so egregious that it deprives defendant of a fair trial, we do not find that the circumstances of this case warrant its application. The evidence amassed against defendant in this case did not consist exclusively of Matthews’ testimony, and proof of defendant’s guilt was also adduced through the testimony of Officers Chasen and Bowers concerning the circumstances of defendant’s arrest.

Defendant next assigns as reversible error certain improper comments made by the State during its closing argument. Defendant points to the following comments made about the police chemist as improper and compromised his right to a fair trial:

“Now you saw defense attorney also had [Arlene Koszykz] on the witness stand for two hours or more. You saw the cross-examination. You saw that this defense attorney knows what he is talking about when he talks about narcotics. And you better believe if she was wrong in her analysis that although they do not have to prove anything, they do not have to call witnesses. If that expert was wrong, you better believe they would have had an expert in here to say that she was wrong.”

Defendant points out that such argument is improper because it permits an inference that defendant is under a duty to present evidence and call witnesses on his behalf.

In addition, defendant argues that the following comment about Mason’s stipulation constitutes reversible error:

“But not only that you have to remember they agreed to what Sergeant Mason would have testified to. Sergeant Mason is retired. He’s off the police force. There is no way that that man’s testimony would have been stipulated to if they did not believe it would be the truth.
* * *
*** [T]he only thing that police officer could lose his pension or [sic] would be getting convicted of a crime and you know perjury is a crime. And you know if they thought that officer was going to lie, they would not have agreed to that.”

Defendant contends that the State’s argument is inappropriate because it suggests that Mason was more believable because he was a retired police officer with a pension to lose if he were caught committing perjury. (See People v. Clark (1989), 185 Ill. App. 3d 231, 542 N.E.2d 138.) Also, defendant correctly asserts that the State misinformed the jury that defendant had agreed to the veracity of Mason’s testimony simply by stipulating to it.

Defendant also contends that the State made improper comments about the police officers’ credibility in general. In closing argument, the prosecutor stated:

“Now Chicago police officers, what is your perception of police officers in our community? You think about that. You know as kids you growing up [sic] you always think about things, you always think about what you wanted to be as boys. They dream about being engineers, company boys, whatever. But they always have one thing every boy I know, every kid I know growing up wants to be a police officer. Everybody looks up to police officers. They’re heroes. Everybody when they’re growing up as little kids they think they’re running around with little superman outfits under their uniforms.
* * *
That same police officer is also the same guy who goes out there and resuscitates the elderly victim who collapses on the street. He’s the same officer who goes out in the alley on Saturday night on midnights in an alley we wouldn’t be caught in. He’s the one that gets shot at. He’s the one that has to go into Cabrini Green when there is family disturbance. He has to go on the South Side and confront the people in the car, a car whose occupants he cannot see clearly at night. These are the same people, ladies and gentlemen with what’s happening in the streets in our city. With what you see in the news each night, what you read in the paper each day. Perhaps the image is tarnished. It’s only your perception that has changed. Maybe they do have a big S on their chest. Perhaps.”

In People v. Threadgill (1988), 166 Ill. App. 3d 643, 520 N.E.2d 86, this court held that the prosecutor’s comments to the effect that police officers were putting their lives on the line for jurors and the jurors could back them up or turn their backs on them, and that a not guilty verdict would be tantamount to not supporting law enforcement, constituted reversible error. The court held that this argument was calculated to inflame the jurors’ fears and exceeded the bounds of propriety.

The prosecutor is allowed substantial latitude in closing argument, and misstatement by a prosecutor does not deprive defendant of a fair trial, unless such remark clearly affected the outcome of the trial. (People v. Patrick (1990), 205 Ill. App. 3d 222, 562 N.E.2d 1027.) Improper remarks will not require reversal of defendant’s conviction unless they constitute a material factor in defendant’s conviction. People v. Patterson (1986), 140 Ill. App. 3d 421, 488 N.E.2d 1283.

At the outset, we note that defendant failed to specifically object to the comments complained of in his post-trial motions. As previously discussed, it is well established that in order to preserve an issue for review, defendant must object both at trial and in his post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124; People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) Defendant acknowledges that while the errors may not have been properly preserved for appeal, they should be addressed under the doctrine of plain error. The plain error rule can be invoked in instances where 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 a fair and impartial trial. People v. Palmer (1989), 188 Ill. App. 3d 414, 545 N.E.2d 743.

We agree with defendant that the remarks made by the prosecutor during closing argument were inappropriate and constitute error. However, we do not believe that the evidence was so closely balanced that the application of the plain error rule is warranted. In this case, defendant admitted that the narcotics found in the apartment belonged to him and that his wife had no knowledge of their existence. A significant amount of cash was found in a suitcase in the living room which defendant acknowledged as belonging to him. In addition, a triple beam scale was found in the closet containing men’s clothing belonging to defendant. The police chemist testified that the drugs tested positively as heroin, cocaine, and marijuana. Defendant also admitted that he lived in the apartment where the drugs were confiscated. Accordingly, we find no reason to invoke the plain error doctrine because of the improper prosecutorial comments made during closing argument.

Finally, defendant contends that the sentencing order must be corrected because it erroneously states that he was convicted of delivery of a controlled substance when he was actually convicted of possession of a controlled substance with intent to deliver. The State concedes that defendant’s order of sentence and commitment should be corrected to reflect that he was found guilty of possession of cannabis and a controlled substance with intent to deliver. (Ill. Rev. Stat. 1985, ch. 56½, pars. 704 (c), 1402(a)(1), (b).) It is so ordered.

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: PRESIDING JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD TELLEZ, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—0129
    Opinion filed September 25, 1992.
    Rehearing denied December 10, 1992.

      Michael J. Pelletier and James E. Chadd, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE EGAN

delivered the opinion of the court:

Following a jury trial, the defendant, Ronald Tellez, was convicted of the murder of Archer Mueller and sentenced to a term of natural life imprisonment. The defendant contends that evidence of other crimes and evidence that he possessed numerous weapons were improperly admitted and that the trial judge erred in barring him from fully exploring the nature of the plea agreement entered into by the State’s crucial prosecution witness. No issue is made of the sufficiency of the evidence.

Archer Mueller, who owned a vending machine business at 12255 South Western Avenue in Blue Island, Illinois, suffered three gunshots on the night of March 28, 1986, and died sometime between 9:30 p.m. and 2:10 a.m. of the following day. The defendant, a Blue Island police officer, was arrested approximately 16 months later in July 1987 and was subsequently indicted for murder, theft, armed violence and solicitation to commit murder. He was tried only for murder.

Before trial, the defendant filed a motion in limine which sought to preclude the admission of evidence that the defendant had committed the murder of Harold Rowley in South Bend, Indiana, in 1984. The defendant also moved to exclude evidence that he had possessed numerous weapons at the time of his arrest. The trial judge denied the motions.

Mueller’s employees called him at his office by telephone and spoke to him at 9:30 p.m. on March 28, 1986. When they called again at around 10:15 p.m., no one answered. Arnold Mueller, Archer’s twin brother and business partner, was called by an employee who unsuccessfully tried to get into the company office. Arnold arrived at the office at 2:10 a.m. He noticed that all of the lights were on. He discovered that the outer glass door was open, but the inner door, which was operated by a buzzer, was locked. He used his key to open the inner door to the office and noticed that the door to the cashier’s office, which should have been locked, was open. He observed the victim’s keys hanging in the door lock.

The walk-in vault should have been open, but it was closed and locked. He operated the combination lock to open the vault door and discovered his brother lying facedown on the floor of the vault. He subsequently noticed that the file-cabinet drawers in the cashier’s office were open, and the rent-receipt envelope was empty. The envelope was kept in a safe in the cashier’s office and had contained at least $335 in cash.

Arnold believed that the only people who had a key to the inner door were himself, his brother, and Joe Winsler, another employee. He later discovered, however, that his brother had been secretly married to Connie Branco and that she also had a key to the inner door.

Tom Doornkaat, a Blue Island police officer, testified that he arrived at the scene at 2:30 a.m. and found no sign of forced entry into the office. He was acquainted with the defendant, who was also a Blue Island police officer. According to Doornkaat, the defendant’s service weapon prior to the time of the murder was a Ruger .357 magnum, but after the night of the murder, the defendant carried a Smith and Wesson 66.

Hayden Baldwin, an evidence technician for the Illinois State Police, testified that he arrived at the scene at 3:30 a.m. and found no signs of forced entry. Based upon the coagulation of the victim’s blood, he determined that the death had occurred four to six hours earlier. The victim had sustained two gunshots in the back and one shot in the head. He found a key to the inner door on the floor near the victim.

James Collier, an Illinois State policeman, testified that he assisted the Blue Island police in the investigation. In July 1986, he received information from the United States Secret Service that John Branco had information about the Mueller murder. Branco was a Federal prisoner in California. Collier went to the Federal prison in California to interview Branco. Thereafter, Collier worked with the FBI and with the Federal Bureau of Prisons to obtain a furlough for Branco, who had agreed to assist in the investigation of the Mueller murder. In April 1987, Collier secured a furlough for Branco and obtained court approval to record Branco’s conversation with the defendant and with other suspects in the murder. Branco was flown to Chicago and taken to the Holiday Inn in Alsip, Illinois. On April 27, 1986, Branco was fitted with a recording device by Special Agent William O’Donnell of the Illinois State Police.

John Branco testified he was the father of Connie Branco, who was the victim’s wife at the time of the murder. He was on parole after serving concurrent prison terms of 15 years for counterfeiting and three years for fraud. He acknowledged that he had been friends with members of organized crime. His daughter visited him in the California prison in June 1986 and told him that she had been involved in Archer Mueller’s murder. Branco told her that he was concerned for her safety. He then contacted the United States Secret Service, repeated his conversation with his daughter about the murder, and later agreed to cooperate with the FBI in the investigation. In April 1987, Branco flew to Chicago in the custody of the FBI. On April 27, 1987, Branco was fitted with a recording device, and at approximately 3:30 p.m., he met the defendant at a lounge in Alsip. His conversation with the defendant lasted for 20 to 30 minutes and was recorded by the device he secretly wore. The recording of that conversation was admitted into evidence and was played for the jury. The prosecution also provided each member of the jury with a transcript of the recorded conversation.

During the recorded conversation, the defendant said that he had wanted to meet Branco for some time. He also told Branco that he had been qualified on 14 different weapons and had been a member of the United States Army Special Forces in Panama, where he conducted 33 operations. The defendant admitted that he “took out” Archer Mueller. He said that he had to go through two closed doors and had to wait for someone to leave before he could kill Mueller. He wore a ski mask, and put two or three shots exactly where he wanted them, making sure the job was done. He was the second Blue Island police officer on the scene following the discovery of Mueller’s murder.

He also told Branco that he had “hit” a man who owned Corby’s restaurant in South Bend, Indiana. He described the manner in which he “assassinated” Mueller. He said that he would kill in “the blink of an eye” if ordered to do so, and he did not need a reason to kill someone and did not kill for personal reasons. He worked alone during his “hits” but used an outsider if necessary to conduct collateral tasks, such as driving a car. He also told Branco that he had all of the weapons he needed secreted in a certain location.

When they left the lounge, Branco introduced the defendant to John Bonino, an undercover FBI agent, who was posing as a member of the Mafia and was waiting in a car which was parked outside the lounge.

John Bonino testified that he subsequently met the defendant on May 14, 1987, at a tollway oasis in Hinsdale, Illinois. Bonino wore a hidden recording device and taped his conversation with the defendant. The prosecution played the tape of this conversation for the jury and also provided each member of the jury with a transcript of the taped conversation.

During that conversation, the defendant told Bonino that he understood he would be working as a “hit man” for organized crime in Chicago. The defendant also said that he shot Mueller three times in the side and took an envelope of checks and some money to give the impression that Mueller had been shot during a robbery. Connie Branco had “set the whole thing up.” Connie Branco gave him a key to open one of the doors in Mueller’s office, and he used an object to open the second door. He agreed to kill Mueller so that he could meet John Branco.

On May 21, 1987, Bonino again met with the defendant at the tollway oasis and again recorded their conversation. This conversation primarily concerned future work for organized crime and included a brief discussion about the murder of Harold Rowley in South Bend, Indiana. At the end of the conversation, Bonino gave the defendant $250.

Connie Branco testified she was the wife of the victim and had been charged with murder and solicitation to commit murder in connection with his death. At the time of trial, she was incarcerated in the county jail. She had entered into a plea agreement with the State. Under the terms of that agreement, she agreed to plead guilty to the charge of solicitation to commit murder and promised to testify truthfully in the murder trial of the defendant. In exchange, the State agreed to drop the murder charge and to recommend a 10-year sentence for the conviction of solicitation to commit murder.

Connie Branco married Archer Mueller in November 1984. She worked in the office of the business owned by Mueller and his brother. She also owned a restaurant. She had a set of keys to the business office. Mueller was a heavy drinker, and they had violent fights. She and Mueller separated in 1985, and she filed for divorce. She continued to work at the office after her separation from Mueller. She had known the defendant since 1979 and had dated him at one time. The defendant frequently visited her at the business office.

Once in January 1986, she met Mueller at his office. He was upset because a sheriff had tried unsuccessfully to serve him with a complaint for divorce. Mueller told her at that time that he would never give her a divorce. They argued, and Mueller hit her. She ran out of the office and drove to her restaurant. The defendant came into the restaurant, and she told him about her fight with Mueller.

The defendant said that she should get rid of Mueller and offered to do it for her. He also said that it would not cost her anything if she could arrange for him to meet her father so the defendant could prove to him he could “kill like the Mafia does.” The defendant had wanted to meet her father for several years. The defendant told Connie that he would need help from someone and that she would have to pay that person $3,000 for expenses.

Over the next few months she met with the defendant several times, and on three occasions she gave him money totalling $3,000. She also gave him the key to the inner office door and supplied him with information about Mueller. He told her that he would “hit” Mueller sometime at the end of March 1986, while she was on a cruise with her children and with her previous husband, Joe Henke. She was not to contact him when she returned from the cruise because of the investigation that would follow the murder.

She went on a cruise in March 1986 with her two children and with her former husband, Joe Henke. Mueller, who paid for the trip, was killed while she was gone. She was aware that under the terms of Mueller’s will, she and her children were to receive 60% of his considerable estate. The defendant visited her in June 1986 at her restaurant and told her that he had killed Mueller. He said that he had committed the crime in a manner which made it appear to be a Mafia “hit.” He asked her for money to get a car so he could get out of town because he had just robbed someone. He also asked again to meet her father.

After this testimony, the defendant moved for a mistrial, claiming that the State had improperly introduced evidence of another crime. The trial judge struck Branco’s testimony referring to the defendant’s commission of a robbery and admonished the jury to disregard it.

Branco testified further that she visited her father in the California prison in June 1986. She stated that when her father came to Chicago in April 1987, she had a conversation with him and an FBI agent. At that time, her father asked her to set up a meeting with the defendant, and she did so. At the defendant’s request, she also set up a meeting for the defendant with Bonino, whom she later learned was an FBI agent.

She was arrested in July 1987 and charged with murder and with solicitation to commit murder. She reached an agreement to cooperate with the State in March 1988. On cross-examination, she testified that she was unaware that her conversations with her father and with Bonino about her arrangement to have Mueller killed had been recorded.

Dr. Robert Stein, chief medical examiner for Cook County, performed the autopsy on the victim on March 29, 1986. Stein testified that the victim died of multiple gunshot wounds, one in the head and two in the back.

Michael Henehan, a Blue Island police officer, testified that he had known the defendant since 1980, and that the defendant’s closest friend was James Gentile, an attorney who had an office in Blue Island. Gentile stored guns and ammunition in the second-floor apartment of the building he owned in Blue Island. Henehan identified eight different guns which had been stored in a safe in Gentile’s apartment. Henehan stated that he had been friends with the defendant and Gentile, and the defendant had access to the guns and ammunition which were kept in Gentile’s apartment. The defendant used a Ruger .357 during his first five or six years on the Blue Island police force. The defendant began to carry a different service weapon in April or May of 1986. When he was arrested in July 1987, the defendant was carrying a .380 caliber Llama semiautomatic as a back-up weapon.

Donald Riedman, a firearms identification expert, testified that the bullets recovered from the victim’s body were .38 or .357 magnum caliber and nylon-coated.

Earnest Peele, an evidence technician, testified that when he compared the bullets recovered from the victim’s body with some of those stored in Gentile’s apartment, he found that the two sets of bullets shared similar characteristics and composition.

David Schultz, a Blue Island police officer and range instructor, testified that the defendant originally used a Ruger .357 as his service weapon, but shortly after March 1986, he switched to a Smith & Wesson model 66.

Gregory Jefferson testified that he had known the defendant for four or five years. From June 1986 to December 1987, Jefferson worked at the restaurant owned by Connie Branco. During this time, Jefferson frequently saw the defendant at the restaurant. The defendant asked Jefferson to watch Connie and to listen in on her telephone conversations. Jefferson remained in contact with the defendant and with the defendant’s girlfriend, Laura Steele, after the defendant was arrested in July 1987. After his arrest, the defendant directed Jefferson to fill in blanks in a post-dated diary kept by the defendant alleged to be a record of his investigation of the Mueller murder. The defendant’s girlfriend paid Jefferson to make these post-dated diary entries. The defendant offered to pay Jefferson to memorize the diary entries and to testify falsely on the defendant’s behalf. Jefferson, however, turned everything over to the police.

Joseph Baskys, a Blue Island police officer, testified that on March 28, 1986, the defendant worked from 10:31 p.m. to 7:24 a.m. The defendant lived within one mile of the victim’s office and less than one mile from the police station, and he could drive those distances in a few minutes.

Willie Davis, an Illinois State police officer, testified that he searched the home of the defendant and Laura Steele on July 15, 1987. Davis stated that he recovered numerous weapons, as well as ammunition and different kinds of make-up from the basement of the defendant’s home.

The defendant moved to exclude the testimony of Laura Steele regarding her activities with the defendant in South Bend in 1984. The State opposed the defendant’s motion, arguing that the testimony would corroborate the admissions made by the defendant during his tape-recorded conversations with John Branco. The trial court denied the motion.

Laura Steele testified that she lived with the defendant from October 1984 to July 1987. She denied that she owned the make-up cream, recovered by the police during the search of the defendant’s home. She remained in contact with the defendant after his arrest and visited him while he was in jail, but she denied that the defendant ever told her he was working on a secret investigation of the Mueller homicide. While the defendant was in jail, she carried a letter from the defendant to Jefferson. The defendant also directed her to deliver to Jefferson a copy of the defendant’s diary as well as several hundred dollars which she had obtained from Gentile.

On July 22, 1984, she and the defendant drove to South Bend, Indiana, and stayed at the Holiday Inn where the defendant registered as Paul Gomez. While in South Bend, they drove past Corby’s restaurant. The defendant told Steele the restaurant was owned by a man named Rowley and that the defendant was to see Rowley that night. The couple then drove past Rowley’s house. That evening, the defendant left the motel to attend his meeting with Rowley. Before he left, the defendant told her that, if he did not return, she was to take a bus home and tell no one about the trip. The defendant subsequently returned to the motel, and he and Steele drove back to Chicago the following day.

Rodney Beck testified that he went to high school with the defendant. The defendant sent him a letter in the early part of 1989 asking him to get someone he trusted to state that he had seen a brown, two-door car occupied by three men parked in the rear wash section of the Tower Car Wash at 123rd Street and Western Avenue at approximately 9:30 p.m. on March 28, 1986. (The victim was killed at 12255 South Western.) The defendant further requested that the person describe the driver of the brown car as a Mexican with long black hair, long side-burns, and wearing a blue T-shirt. The front passenger was to be described as little and old, with gray or light brown hair. The rear passenger was to be described as Mexican and having long hair. The defendant offered to pay several hundred dollars for this statement. The defendant’s letter also requested that Beck have Jefferson point out Dan Peters, who was not further identified, so that Peters would be blamed for Mueller’s murder. Beck refused to comply with any of the defendant’s requests, and he turned the evidence over to the police.

The parties stipulated that the defendant was a friend of Gary Kessen, who was the stepson of Harold Rowley.

James Eichorst testified that during July 1984, he was the manager of Corby’s tavern and restaurant, which was owned by Harold Rowley. On July 31, 1984, he was at the restaurant with Rowley. At approximately 7 p.m., Eichorst left Rowley at the restaurant and went to Rowley’s home. As he walked in the front door of Rowley’s home, he felt a gun at the back of his head, and was told not to move or he would be killed. A pillow case was then placed over his head, and he was tied up and placed in a bedroom where he remained for four hours. During this time, Eichorst heard two different voices. When Rowley arrived home at approximately 11 p.m., Eichorst heard three shots. Eichorst later learned that Rowley had been shot and killed.

According to Eichorst, Rowley always kept a .380 Llama weapon in a specific place in his home prior to the shooting. The weapon was not found in Rowley’s home after his death. Eichorst identified the .380 Llama that had belonged to Rowley. At the time of his murder, Rowley was in the midst of a divorce from his wife, Rose Kessen, the mother of the defendant’s friend, Gary Kessen.

Martin Gersey, a South Bend police officer, testified that during his investigation of Rowley’s murder, a .380 Llama handgun was found to be missing. He identified the Llama gun box which was found in Rowley’s home and which bore the serial number 806313. The gun box was empty when the officers searched Rowley’s home.

Douglas Hoglund, a Blue Island police officer, identified the .380 Llama handgun which bore the serial number 806313. Hoglund testified that he recovered the gun during a search of the defendant’s car at the time of his arrest. In addition, Hoglund recovered two pairs of latex gloves from the defendant’s car.

The defendant testified that he became a Blue Island police officer on March 1, 1979. He stated that he knew Gary Kessen, but had never met Kessen’s stepfather, Harold Rowley. He acknowledged that he went to South Bend in July 1984 with Laura Steele and registered at a hotel under the name of Paul Gomez. He and Steele drove by Rowley’s home to see if Kessen’s car was parked outside. The defendant later went drinking and left Steele at the hotel because she was not old enough to drink with him. He never found Kessen and ultimately returned to the hotel. He denied that he returned to South Bend and killed Harold Rowley on July 31,1984.

He met Connie Branco in 1980, and they became friends shortly thereafter. During the week before Mueller’s death, he purchased a Smith & Wesson 66 for himself and sold his Ruger to Connie Branco. He sold the Ruger to Connie because she indicated that she needed a weapon to protect her business. He denied that he ever had any nylon-covered bullets in his home.

The defendant testified that his involvement in the Mueller murder was based upon an undercover investigation which he initiated because he wanted to solve the case. His desire to solve the case was based upon his belief that if he was successful, he would be promoted to the rank of detective. His meetings and conversations with Connie Branco, with her father, and with John Bonino were all a part of his private scheme to find Mueller’s killer. He had served in the military, but he was never assigned to the Special Forces in South America and did not perform a single operation there.

He identified the diary which chronicled his undercover investigation of the Mueller homicide. He admitted that he wrote the diary while in jail and well after the time that he had conducted the investigation. He also admitted that he had asked Gregory Jefferson to keep him informed of Connie’s activities, to make post-dated entries in the diary, and to testify falsely on his behalf.

The defendant testified that he told Connie that he wanted to work for organized crime in order to gain her trust and confidence. At Connie’s direction, the defendant lied to Branco about his involvement in Mueller’s murder. Connie said that her father would trust the defendant if he took responsibility for the Mueller homicide. He also lied to Branco about his involvement in the Rowley homicide and about several other things in his background.

He testified that he did not shoot or kill either Rowley or Mueller. His confessions to both murders were false and were only a part of his undercover investigation. He admitted, however, that while he was in jail he told William Coleman, a fellow inmate, that he killed Mueller. He did so only because he needed to portray a certain image in jail.

On March 28, 1986, the defendant worked two shifts. The first shift began at 6:30 a.m. and concluded at 3:30 p.m. The second shift began at 10:30 p.m. and concluded at 7:30 a.m. on March 29, 1986. He went home between shifts to sleep, shave, and shower. The .380 Llama which was recovered from his car was given to him by Row-ley’s stepson, Gary Kessen.

Gary Williams, a military technician for the United States Army, testified that the defendant was never in the Special Forces, but served as a unit clerk in Fort Ord, California, and was responsible for paperwork.

Floyd Turner, an investigator with the Cook County public defender, testified that on May 11, 1989, he interviewed Gregory Jefferson. According to Turner, Jefferson told him that, although the diary entries were made a year after the events actually occurred, the substance of the entries in the defendant’s diary was true. Jefferson also told Turner that the defendant asked Jefferson to watch Connie because the defendant suspected she was responsible for Mueller’s death and because the defendant was afraid for his life while he was in jail.

The parties stipulated that the defendant’s fingerprints were not found on the envelope or checks taken from Mueller’s office.

Jess Hamblen, a sales representative for the Federal Cartridge Corporation, testified for the defendant that millions of rounds of nylon-coated ammunition were manufactured per year, and that consumers were able to buy this ammunition just like any other type of ammunition.

In rebuttal, the State recalled Connie Branco, who testified that she did not buy a Ruger handgun from the defendant.

Miles Cooperarían, deputy chief and internal investigator for the Cook County Department of Corrections, testified that police officers are given additional protection while in jail, and the defendant made no complaint of intimidation or physical abuse by inmates or by officers.

At the sentencing hearing, the State requested that the defendant receive the death penalty under the contract murder provision of the sentencing statute. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(b)(5).) The jury determined, however, that the defendant should not be sentenced to death. Thereafter, the trial judge imposed a prison term of natural life.

The defendant initially contends that he was deprived of his right to a fair trial because the prosecution was permitted to introduce evidence that the defendant had committed other crimes. Specifically, the defendant asserts that he suffered prejudice by the State’s introduction of evidence that he had committed the murder of Harold Rowley in 1984. The defendant also contends that he was prejudiced by the introduction of evidence that he possessed numerous weapons at the time of his arrest.

Evidence of other crimes may be admitted if relevant to establish any fact material to the prosecution other than the propensity of the defendant to commit a crime. (People v. Illgen (1991), 145 Ill. 2d 353, 583 N.E.2d 515; People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) When such evidence is offered, the trial judge must weigh its probative value against its prejudicial effect and may exclude the evidence if its prejudicial effect substantially outweighs its probative value. Illgen, 145 Ill. 2d at 365; People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.

Evidence is considered relevant if it has the tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. (Illgen, 145 Ill. 2d at 365-66; Stewart, 105 Ill. 2d at 54.) Evidence of the commission of other crimes may be relevant to establish the accuracy and validity of a confession which the defendant has asserted was untrue or coerced. See People v. King (1986), 109 Ill. 2d 514, 488 N.E.2d 949.

Based upon the arguments of defense counsel in presenting the motion in limine, the trial judge was aware that the defendant intended to deny any involvement in Mueller’s death. Counsel also advised the judge that the defendant intended to testify that his confessions of guilt to the murders of both Mueller and Rowley were false and part of a private undercover investigation. In ruling on the motion in limine, the judge noted that the prosecution should be permitted to introduce evidence which would substantiate and corroborate the defendant’s confession to the murder of Mueller.

The defendant testified on his own behalf and did state that he was not guilty of killing either Mueller or Rowley. He also testified that he confessed to both crimes in an attempt to make his undercover role more convincing and that he had fabricated those confessions.

The decision of the trial court regarding the admissibility of evidence of other crimes will not be disturbed on review unless it constitutes a clear abuse of discretion. (Rigen, 145 Ill. 2d at 364; People v. Franklin (1990), 135 Ill. 2d 78, 552 N.E.2d 743.) We find that the trial judge did not abuse her discretion in admitting evidence of the defendant’s involvement in Rowley’s killing, because that evidence refuted the claim that his confessions to the murders of both Mueller and Rowley were false and were fabricated to support his role in the undercover investigation. See King, 109 Ill. 2d at 530-31.

We also find that the defendant was not prejudiced by the admission of evidence that he possessed numerous weapons at the time of his arrest. As the defendant now argues, there is nothing incriminating about a police officer owning several weapons. This evidence also corroborated the defendant’s recorded conversation in which he said that he had access to numerous weapons.

The defendant maintains that, assuming the admissibility of the Rowley homicide, the State erred by introducing excessive details of that offense. At the hearing on the motion in limine, the State argued that it should be permitted to show that the defendant had confessed to John Branco, not only the Rowley killing, but another murder in Franklin Park around September or October 1985. The defendant argued that the evidence of both crimes was not admissible at all unless the State could show beyond mere suspicion that the defendant had committed those crimes. In response, the State proffered the evidence it would introduce to prove that the defendant had, in fact, killed Rowley and it also proffered some proof corroborating the confession of the Franklin Park murder. The judge ruled that the proffered testimony of the Rowley killing satisfied the preliminary requirements but that the proffered proof of the Franklin Park killing did not. Consequently, the State was required to introduce what would be considered detailed evidence of the Rowley killing. We find it very significant that it was the trial judge, sua sponte, who cautioned against the introduction of excessive detail. She invited the defendant’s attorney to voice an objection at any time that he felt the State was proving too much concerning the Rowley crime. The defendant’s attorney made no such objection. Even if we could say that the State did prove too much, considering the overwhelming nature of the properly admitted evidence, we do not believe the admission of those details affected the verdict. See People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59.

In addition, we do not believe that the defendant was prejudiced by Connie Branco’s statement that the defendant had been involved in a robbery. Defense counsel objected to the admission of this testimony and moved for a mistrial on the ground that the prosecution had introduced evidence of the defendant’s involvement in another crime. The trial court denied the defendant’s motion for a mistrial, but struck Branco’s reference to the defendant’s commission of a robbery and instructed the jury to disregard that evidence. Generally, the trial court can correct an error by sustaining a timely objection and by instructing the jury to disregard the comment. (Franklin, 135 Ill. 2d at 100.) We recognize that that rule is subject to exception. However, we again hold that the evidence of a robbery did not affect the verdict, considering the overwhelming nature of the State’s proof.

We next consider the defendant’s claim that he was improperly precluded from fully exploring the nature of the plea agreement of Connie Branco. He maintains that he was deprived of his right to a fair trial because the trial judge prevented him from cross-examining Connie Branco. The defendant’s cross-examination would have explored the fact that she had received credit against her sentence for the two years and several months that she had already served before testifying and could serve as little as five years because she would receive day-for-day good conduct credit while in prison. The trial judge ruled that this evidence was inadmissible because it was too speculative.

The defendant also contends that the trial judge erred in excluding the testimony of Moses Collins, a supervisor in the public defender’s office, who would have stated that the crime of solicitation to commit murder was a Class X felony which carried a maximum sentence of 60 years’ imprisonment. In making this evidentiary ruling, the trial judge stated that although the State could recommend a sentence of 10 years for Branco, the court was not obligated to follow that recommendation. Thus, the sentence which would ultimately be imposed upon Connie Branco was speculative.

The scope of cross-examination is generally within the trial court’s discretion, and the widest latitude should be allowed the defendant in cross-examination for the purpose of establishing interest, bias, or motive to lie. (People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708.) The evidence of interest, bias, or motive to lie must not be remote or uncertain because the evidence must potentially give rise to the inference that the witness has something to gain or lose by his testimony. (People v. Triplett (1985), 108 Ill. 2d 463, 475-76, 485 N.E.2d 9; People v. Sanders (1986), 143 Ill. App. 3d 402, 407, 493 N.E.2d 1.) A court of review is limited to a determination of whether the trial court abused its discretion and whether the defendant was prejudiced as a result. Sanders, 143 Ill. App. 3d at 407.

In this case, defense counsel was permitted to cross-examine Connie Branco about her involvement in the murder of Mueller and about the plea agreement she had entered into with the State. She knew she could receive the death penalty or a sentence of natural life without parole if convicted on the murder charge. She acknowledged that she had entered into a plea arrangement with the State and that under the terms of that arrangement, she agreed to plead guilty to the charge of solicitation to commit murder and promised to testify truthfully in the murder trial of the defendant. In exchange, the State agreed to drop the murder charge and to recommend a 10-year sentence for her conviction for solicitation to commit murder. Thus, the record reflects that the jury was fully aware of the charges which had been brought against Branco and was also aware of the nature and terms of her plea agreement.

As a general rule, the widest possible latitude should be given the defendant on cross-examination of an accomplice. Although we do not agree that the proof the defendant sought to establish was inadmissible, we find that the defendant sufficiently established the interest of Connie Branco in testifying for the State and that the defendant was not prejudiced by the exclusion of this evidence. Consequently, we hold that the defendant is not entitled to a new trial on this basis.

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

Judgment affirmed.

McNAMARA and RAKOWSKI, JJ., concur.

      Justice Rosemary LaPorta participated in oral argument before her death. Justice Daniel McNamara was substituted on the panel. He has listened to the oral argument tape and has read the briefs.