author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE LOPEZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1141
    Opinion filed December 13,1991.

      Michael J. Pelletier and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Kenneth T. McCurry, and Monica L. Willis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Jose Lopez (Lopez), defendant, was tried before a jury and found guilty of criminal sexual assault, two counts of aggravated criminal sexual assault and aggravated criminal sexual abuse. Defendant was sentenced to 40 years with the Illinois Department of Corrections. On appeal Lopez argues that the trial court erred in denying his motion to suppress his confession because his request for counsel was not scrupulously honored and that the evidence does not support the imposition of an extended term sentence.

For the following reasons we affirm in part and vacate and remand in part.

At trial, A.A., the complainant, testified he was 12 years old. In 1986 he was nine years old. He testified that on four occasions between November 5, 1986, and January 2, 1987, the defendant committed a number of acts of anal intercourse on him. Although the record and both parties’ briefs contain specific details of the assaults on A.A., we find it unnecessary to repeat them in this opinion.

The assault came to light in April of 1987 when a Chicago police officer gave a talk on child molestation to a school class. After the talk, A.A. raised his hand and told the entire class that a man had been molesting him. His teacher advised A.A. to tell his mother. In May of 1987 A.A. was given an assignment to write a letter to “Dear Anita” (a problem-solving column in the Pilsen newspaper). A.A. wrote a letter about being molested. The letter generated a meeting with school personnel and an aunt. After the meeting A.A. told his mother, sisters and brothers what the defendant had done to him. The police then entered the case.

Lopez argues that a motion to suppress his confession should have been allowed because his request for counsel was not honored by the police or prosecutor. Lopez predicates his argument on the United States Supreme Court case of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. In Edwards the United States Supreme Court held that a defendant’s request for counsel must be scrupulously honored and that once the request for counsel is made questioning must cease and can only be reinitiated when the accused is provided counsel, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386,101 S. Ct. at 1885.

The testimony at the hearing on the motion to suppress established the following.

Detective Lawrence Soltysiak (Soltysiak) testified on behalf of the State. He testified to the following. On May 8, 1987, he went to defendant’s place of employment in the course of an investigation and met with defendant and two of his supervisors. Soltysiak arrested defendant and read him Miranda warnings from a preprinted card. Subsequent to defendant being read his rights, the supervisors requested permission to speak to the defendant in private. Soltysiak agreed and left the room. Thereafter Soltysiak reentered the room and one of the supervisors asked him if it would be all right to call an attorney from the Legal Aid Society.

Defendant was transported to the police station where he arrived at approximately 11 a.m. Soltysiak put defendant into an interview room, again informed him of his rights, told him about the charges being brought, and stated that he would be asking questions again later. Soltysiak then showed the defendant the letter written by the victim and asked the defendant if he would like to talk about it. Defendant stated that he would think about it. Soltysiak testified that he did not physically or psychologically coerce defendant, nor did he ever threaten to do any harm to him. Defendant did not ask for a lawyer during his interview with the detective.

Before taking defendant downstairs to place him in the lockup, Soltysiak received word that there was a phone call from one of defendant’s supervisors. Jerez told Soltysiak that he had information about a lawyer for defendant. Soltysiak handed defendant the phone. Defendant talked to his supervisor and wrote down the name of an attorney and a telephone number. Defendant showed the paper to Soltysiak, then placed it in his pocket. He was then taken downstairs into the lockup. Soltysiak told the lockup keeper that defendant wanted to make a phone call, then left.

Assistant State’s Attorney Robert Bertucci (Bertucci) also testified on behalf of the State. On May 8, 1987, Bertucci was assigned to the State’s Attorney’s felony review unit. He was called to investigate an aggravated criminal sexual assault at Area 4 Headquarters around 6 p.m. on May 8, 1987. When Bertucci met with defendant, he advised defendant of his constitutional rights. Bertucci stated to defendant that he understood that defendant had the name and number of an attorney. Defendant said yes and took the piece of paper with an attorney’s name and phone number out of his pocket. Bertucci then asked defendant if he wanted to use the telephone to call that attorney. Defendant said yes. Bertucci took defendant out of the interview room and informed Soltysiak that defendant wanted to make a call. A phone call was made and defendant said that he left a message with an answering machine. After the telephone call, Bertucci took the defendant back to the interview room. As they were walking back to the interview room, defendant said, “I need to get this off my chest.” He seemed to be crying as he was covering his face with his hands. Then he said, ‘T did it.” Defendant proceeded to make a verbal confession, talking for three to four minutes.

Bertucci took defendant to use the bathroom. While he was in the bathroom, Bertucci was told that the attorney defendant had called, called defendant back. Bertucci advised defendant of the attorney’s call when defendant came out of the bathroom. Bertucci told defendant that the attorney would call back, but defendant said that he did not need an attorney.

At 8:35 p.m., the attorney called. He talked to Bertucci and told him that he would not be representing defendant. Bertucci told the attorney where the case would be going to court. At no time did the attorney state that he represented Lopez.

At the suppression hearing Lopez testified on his own behalf. He testified that on May 8, 1987, he was called into his supervisor’s office. His two supervisors were present when Soltysiak read him his Miranda rights. Soltysiak told Lopez that the victim’s mother had made a complaint against him. On direct examination defendant testified that he did not understand everything that was said; he only understood that he needed a lawyer. However, on cross-examination, defendant stated that he does not have any problems with the English language.

Defendant stated that he asked to speak to a lawyer when the detective interviewed him at Area 4 Headquarters. Defendant received a call from one of his supervisors, who gave him the name and phone number of an attorney. Lopez called the attorney from the downstairs lockup, but the line was busy.

Soltysiak brought defendant back upstairs to the interview room. He asked Lopez questions. Lopez said that his only response was, “When will I get a chance to call my attorney?” He said the detective told him he would have to wait.

Bertucci came into the room and identified himself as an attorney working with the police. He advised defendant of the allegations against him, and began to question defendant. When defendant asked to call the lawyer, Bertucci told him he would have to wait. Bertucci did not allow defendant the opportunity to use the telephone until much later, after defendant had already admitted that he knew the victim’s family and their address.

The trial court made a finding of fact that the defendant was advised of his rights as per Miranda and that the defendant understood the English language. The trial court also found that defendant understood the advisement and that defendant did not specifically request an attorney. Thus, this is not a sixth amendment right to counsel case.

The trial judge stated:

“I did find Assistant State’s Attorney Bertucci’s testimony was believable, very believable, and the evidence that the Defendant stated quote, he needed to get this off his chest unquote, taken in any light is an initiation of the interrogation or questioning by the Defendant.”

The trial judge stated that he found no place in the testimony where defendant wanted a lawyer, that defendant received an adequate advisement of his rights, that he made a knowing and intelligent waiver of those rights, and that there was no counsel at the scene.

For defendant’s confession to be admitted at trial, the State must first prove that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to counsel. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) To establish a valid waiver the State cannot simply rely on proof that Miranda warnings were given. In determining whether a defendant knowingly and intelligently waived his Miranda rights, a court must consider the totality of the circumstances, including the characteristics of the defendant and the details of interrogation without any one circumstance or factor controlling. (People v. Reid (1990), 136 Ill. 2d 27, 55, 554 N.E.2d 174.) A reviewing court’s analysis of a ruling on a motion to suppress is limited to determining whether the trial court’s finding was against the manifest weight of the evidence. People v. Reid (1990), 136 Ill. 2d 27, 56, 554 N.E.2d 174.

Based on this now-settled law, we must affirm the trial court’s ruling not to suppress the evidence. The fact that Lopez was given a Miranda warning is undisputed; that he understood the warnings is also undisputed. The record reflects Detective Soltysiak read him the Miranda warnings from a preprinted card. Defendant said he understood them. After taking him to the police headquarters, Soltysiak reminded Lopez of his rights. Assistant State’s Attorney Bertucci arrived at the scene and readvised Lopez of his rights. Bertucci gave Lopez an opportunity to call a lawyer. Lopez initiated a conversation by stating, “I need to get this off my chest.” Lopez then said, “I did it.” Lopez proceeded to talk for three to four minutes, verbally confessing to the sexual assaults. Lopez’s confession was not in response to any questions posed by Bertucci.

A review of the record indicates Lopez’s confession was an act of conscience rather than a violation of his constitutional rights. The question of waiver in this case was a question of fact. In such a situation the trial judge must, after considering the factors enumerated above, determine whether the defendant knowingly, intelligently and voluntarily waived the right. Further, Edwards holds that once a suspected criminal invokes his right to counsel during custodial interrogation, he cannot be questioned further until counsel has been made available, unless the suspect himself initiates further dialogue. (Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885.) “ ‘The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” People v. Martin (1984), 102 Ill. 2d 412, 425, 466 N.E.2d 228, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019,1023.

The trial court must initially determine whether a defendant has been properly admonished of his fifth amendment rights and whether he knowingly, intelligently and voluntarily waived these rights. In making its decision, the court does not have to be convinced beyond a reasonable doubt, and its findings will not be disturbed unless they are against the manifest weight of the evidence. (People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228.) Based on this record we must conclude that the trial court’s conclusion on the motion to suppress was supported by the manifest weight of the evidence. The record supports the trial court’s ruling that Lopez had reinitiated a discussion with the police when he verbally confessed to the charges against him.

Lopez asserts that his conviction for aggravated criminal sexual assault based on bodily harm was improper and should be vacated. The medical evidence presented showed that the victim’s sphincter muscle was relaxed, indicative of anal penetration. Lopez argues that relaxation of the sphincter muscle is inherent in an act of anal penetration and should not be considered bodily harm in order to elevate the offense. Moreover, he argues that relaxation of the sphincter muscle is not bodily harm. Lopez maintains that permitting this physical condition to be used as the factor raising the level of the offense would amount to permitting the use of the very act which constitutes criminal sexual assault (anal penetration) to enhance that offense to aggravated criminal sexual assault. In support of this proposition, Lopez cites law to the effect that it is improper to enhance the classification of an offense or the sentence where the factor is inherent in the offense or has already been used to enhance the same offense. People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

The State argues that relaxed anal sphincter muscle tone was not an inherent component of defendant’s penetration of the victim’s anus and that the victim suffered bodily harm, as a result of the defendant’s repeated attacks, which manifested in the form of an abnormal anus, or decreased sphincter muscle tone. The State maintains that the defendant did not commit relaxed sphincter muscle tone; he committed penetration.

At trial, the trial judge found Dr. Demetria Soter qualified to testify as a medical expert. Dr. Soter is a pediatrician at Cook County Hospital, her specialty being pediatric critical care. Dr. Soter testified that on May 7, 1987, A.A. was brought into the Cook County Children’s Emergency Room by his mother and two police officers. A.A. was given to Dr. Soter as a patient.

Dr. Soter testified that A.A. told her that it hurt when defendant raped him, and that he had done it on four separate occasipns. Dr. Soter did a complete physical examination of the child, focusing on the genital area. A.A.’s physical examination was entirely normal, except that upon rectal examination, he had decreased anal sphincter tone. Dr. Soter testified that A.A. did not fight or find the rectal examination as uncomfortable as children usually do. Dr. Soter stated that in most children, the rectal sphincter muscles are very, very tight, but that A.A. allowed them to do the rectal exam and his muscle tone was not tight. It was lax. The doctor testified that in A.A. there was dilation of the rectum, which is suggestive of repeated penetration. There were no bruises and no lacerations. The medical evidence indicated that the victim had no tears, no hematomas, and no superficial abrasions.

Bodily harm is one of the aggravating circumstances set forth by statute which may be used to elevate the offense of criminal sexual assault, a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13), to aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(2)). Lopez was convicted of two counts of aggravated criminal sexual assault; the aggravating factor in one count was the victim’s age (Ill. Rev. Stat. 1987, ch. 38, par. 12— 14(b)(2)), the aggravating factor in the second count was bodily harm (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(2)).

Bodily harm is defined by statute as “physical harm, and includes, but is not limited to, sexually transmitted disease, pregnancy and impotence.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(b).) Bodily harm may be shown by the actual injury, such as bruises, or may be inferred by the trier of fact based upon common knowledge. (People v. Jenkins (1989), 190 Ill. App. 3d 115, 138, 545 N.E.2d 986.) In People v. Haywood (1987), 118 Ill. 2d 263, 277, 515 N.E.2d 45, 51, the Illinois Supreme Court held that it is proper to give “bodily harm,” as defined in section 12 — 14, the same meaning that the court interpreted bodily harm to mean under the battery statute in People v. Mays (1982), 91 Ill. 2d 251, 437 N.E.2d 633. In addressing the question of what constitutes bodily harm, the Mays court stated:

“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent is required.” (Mays, 91 Ill. 2d at 256.)

“ ‘Aggravation’ is a circumstance which increases guilt or enormity or adds to the injurious consequences of the offense, ‘but which is above and beyond the essential [elements]’ of the offense itself.” (People v. Robinson (1981), 92 Ill. App. 3d 972, 978, 416 N.E.2d 793, 799, quoting Black’s Law Dictionary 60 (5th ed. 1979).) A factor implicit in an offense for which a defendant has been convicted cannot be used as an aggravating factor in sentencing for that offense. (People v. Ferguson (1989), 132 Ill. 2d 86, 97, 547 N.E.2d 429.) We find that the aggravated criminal sexual assault conviction based on bodily harm must be vacated. The bodily harm alleged and proved was decreased anal sphincter muscle tone. No other physical evidence was presented. Based on this record, this cannot be used as an aggravating factor raising the level of the offense.

Section 5 — 5—3.2 of the Unified Code of Corrections provides:

“The court may impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed and who was convicted of aggravated criminal sexual assault where the victim was under 18 years of age at the time of the commission of the offense.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(c).

At the sentencing hearing the trial judge stated:

“In my opinion the Defendant is eligible for an extended term, not under the provisions for aggravated sexual assault on account of age, because I believe that would be a double enhancement. I do not believe that is permissible at this juncture under the Statute.
However, under the count wherein he was convicted of criminal sexual assault threatening bodily harm, course of conduct here, apparently began when the boy, [A.A.] was nine years of age, *** and continued when he was ten years of age.
So the Defendant is, in fact, in my opinion eligible under the extended-term provisions on that conviction.”

The record reveals the trial court based the extended-term sentence on the aggravating factor of bodily harm combined with A.A.’s age. Since we vacate the conviction based on bodily harm, we must also find that the trial court improperly imposed an extended-term sentence. We remand the matter to the trial court for the purpose of a new sentencing hearing on defendant’s conviction for aggravated criminal sexual assault based on age.

Accordingly, for the reasons set forth above, we affirm in part and vacate and remand in part.

Judgment affirmed in part and vacated and remanded in part.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LORENZ

license: Public Domain

text:
    TIMOTHY GROARK, Plaintiff-Appellant, v. LINDA ANDERSON, Special Adm’r of the Estate of Donald Barry, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—1407
    Opinion filed December 13,1991.

      Gary B. Friedman, Ltd., of Chicago (Anthony J. Basile, of counsel), for appellant.
    Robert L. Bartolone and Sandra Young, both of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff filed suit for injuries resulting from a collision between plaintiff and defendant’s car. Before trial, defendant died. At trial, the court precluded plaintiff from testifying, both as his own witness and as defendant’s adverse witness, to certain facts occurring in the presence of the deceased pursuant to the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201). Defendant subsequently produced the only other occurrence witness, John Porter, who testified to facts occurring in the presence of the deceased. Plaintiff’s counsel requested but was denied permission to recall plaintiff in order to rebut Porter’s testimony. Instead, plaintiff submitted an offer of proof to preserve for review the testimony which plaintiff had been precluded from introducing to the jury. After deliberation, the jury found for the defendant. Plaintiff appealed. We consider whether the defendant waived the protection of the Dead Man’s Act and whether the trial court improperly precluded plaintiff from presenting to the jury the testimony in the offer of proof.

We reverse and remand for a new trial.

Relevant to our disposition are the following facts as disclosed by the record. On July 4, 1982, Timothy Groark (plaintiff) suffered a fractured right knee and other injuries resulting from a collision with defendant’s car. After plaintiff filed suit, defendant, Donald Barry, died, and Linda Anderson was named the special administrator of his estate.

Certain facts concerning plaintiff’s injuries were not disputed. On the day of his injuries, plaintiff was at a neighborhood party at 3836 West 86th Place in Chicago. Fireworks were on display so barricades were used to prevent cars from traveling down 86th Place. At around 8 p.m., plaintiff and a friend, John Porter, heard a loud noise which sounded like two cars colliding. Plaintiff and Porter ran to the sidewalk on 86th Place to get the license plate number of one of the cars which was attempting to leave the scene. The driver of the car, Donald Barry, stopped short of the barricades and proceeded to back up going west on 86th Place. At this point, Porter was standing between two parked cars on the street. Plaintiff was in the street next to the car in front of Porter. Plaintiff yelled out the license plate number as Barry’s car continued to back toward him. As Barry’s car passed, plaintiff sustained his injuries.

At trial, there was a single, dispositive issue: whether Barry’s car hit plaintiff causing the injuries or whether plaintiff kicked Barry’s car causing the injuries.

Plaintiff produced three witnesses during his case in chief: Dr. Robert Miller, the physician who began treating plaintiff’s injuries three days after the incident; Edward Goliak, a Chicago police officer who took statements after the incident; and plaintiff himself. Dr. Miller testified, in part, that the cause of plaintiff’s injuries could not have been caused by a kick unless the car was traveling at a relatively high rate of speed. Officer Goliak testified that when Barry appeared in his office to explain the incident, Barry stated that after he struck the car and then plaintiff, he became frightened and drove off. On cross-examination, Goliak admitted that based on Barry’s statement he did not know whether Barry’s car hit plaintiff or plaintiff kicked Barry’s car.

Although plaintiff testified during his case in chief, the court precluded him from testifying to facts occurring in the presence of Barry pursuant to the Dead Man’s Act (Act) (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201). For example, plaintiff’s testimony opened with the following exchange with his counsel:

“Q. Did anything unusual occur on July 4, 1982?
A. I was struck by a vehicle.”

Defense counsel immediately objected and requested a side bar. The attorneys argued whether the Act applied. The court decided the Act applied but offered plaintiff’s counsel five minutes to find authority to the contrary. The record reflects that the court then struck both the question and answer.

Plaintiff continued to testify to the uncontested facts prior to sustaining his injuries. Plaintiff described the party, the barricades on the street, and the reason he was in the street when he was injured. Plaintiff also described his effort to seek medical attention; the extent of the injury to his knee; details of the doctor’s treatment and recovery therapy; the inconvenience of having a cast on his leg; his recurring pain; and the effect of the injury on his life and family. Plaintiff was not allowed to testify that prior to his injury Barry’s car was speeding backwards and fishtailing and that Barry’s car hit him and he did not kick Barry’s car.

After plaintiff rested, defendant moved for a directed verdict. Defendant argued that while there was evidence that there was contact between plaintiff and Barry’s car, there was no evidence that Barry caused plaintiff’s injuries. The court denied the motion.

Defendant called a total of four witnesses: plaintiff, who was called as an adverse witness under section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102); Dr. Labanauskas, the emergency room resident who treated plaintiff; Dr. Maskin, a physician hired by defendant; and John Porter, plaintiff’s friend.

Defense counsel asked plaintiff, as an adverse witness, one. question: “Did the car hit you or did you kick the car?” Plaintiff answered, “The car hit me.” Before cross-examination, the court advised plaintiff’s counsel to limit the cross-examination to clarification of the single question. Counsel asked plaintiff, “What was the car doing when it struck you?” Defendant objected. Although plaintiff’s counsel argued that the question was proper, the court did Hot allow the question. No further attempt was made at cross-examination.

Dr. Labanauskas testified that when plaintiff arrived at the emergency room plaintiff stated that he kicked the car. Dr. Maskin, after reviewing portions of plaintiff’s medical records, testified that it was his opinion plaintiff suffered no injury.

John Porter testified that plaintiff kicked the car. He also testified during direct examination to facts addressing all of the following: Barry’s driving maneuvers before and during impact, including the direction and operation of the car; the layout of 86th Place and the intersecting streets; a description of the path that he and plaintiff took from the party to the street; the precise location of the impact on the street; and the position and precise movements of plaintiff’s body and knee before and during impact. On cross-examination, Porter testified that he could not estimate the speed of Barry’s car but when pressed stated it was not a high speed. Porter denied that Barry’s car was fishtailing. Plaintiff’s counsel, in turn, presented Porter’s pretrial deposition in which he stated the car fishtailed slightly. Porter responded that he did not recall making the statement. Porter added that at the time of the incident he was trying to help plaintiff and that it was not possible that plaintiff put his knee up to brace himself from the blow from Barry’s car. Finally, Porter admitted that he had a conversation with plaintiff about being paid for his testimony but Porter insisted that the conversation was intended as a joke. On redirect, Porter stated that an attorney for the plaintiff called him before his deposition concerning his testimony.

After defendant rested, plaintiff’s counsel moved to recall plaintiff to rebut Porter’s testimony. The trial court again gave counsel five minutes to find supporting authority. However, after a short recess, plaintiff rested.

Defendant again moved for a directed verdict. The court reserved ruling on the motion.

Before closing arguments began the following morning, plaintiff moved to reopen the record to introduce plaintiff’s rebuttal testimony. Plaintiff cited to subparagraph (a) of the Dead Man’s Act as authority. (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(a).) Defendant objected. The court allowed plaintiff to make an offer of proof to preserve for review plaintiff’s rebuttal testimony. The offer of proof included, in part, plaintiff’s testimony that Barry’s car struck his knee causing the injuries; that Barry drove the car backward 20 to 25 miles per hour; and that the car fishtailed.

After deliberation, the jury returned a verdict in favor of defendant. Plaintiff filed this appeal.

Opinion

In relevant part, the Illinois Dead Man’s Act states:

“In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under a legal disability, except in the following instances:

(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.” (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201(a).)

The purpose of the Act is to preclude introduction of testimony concerning events which only a deceased might have been able to contradict; however, subparagraph (a) permits the deceased’s representative to waive the protection of the Act by introducing testimony concerning an event which occurred in the presence of the deceased; the waiver allows the opposing party to present testimony concerning the event so that the trier of fact does not formulate a one-sided picture of the event. Goad v. Evans (1989), 191 Ill. App. 3d 283, 547 N.E.2d 690.

In light of the above authority, defendant presents three alternative arguments as to why plaintiff is not entitled to a new trial. We address each argument separately.

First, defendant concedes having waived the protection of the Act as to the issue of whether Barry’s car hit plaintiff or plaintiff kicked Barry’s car, but defendant argues that the jury did not formulate a one-sided picture in this regard because testimony was presented on both sides of this issue. However, defendant denies having presented testimony concerning Barry’s conduct prior to the collision and, therefore, plaintiff did not have the right to testify that Barry’s car was speeding backwards 20 to 25 miles per hour and fishtailing. In sum, defendant argues that the waiver of the Act as to one aspect of the event did not amount to waiver of the Act as to another aspect of the event.

The appellate court has addressed the scope of waiver of the Act in Zorn v. Zorn (1984), 126 Ill. App. 3d 258, 464 N.E.2d 879. There, a father purported to convey to his three children a remainder interest in a plot of property. After the father died, his wife filed suit to have the conveyance declared invalid on the ground of undue influence. The children were named as defendants. Prior to trial, the wife moved to preclude the testimony of the three children concerning conversations and transactions with the deceased pursuant to the Act. At trial, however, the wife called one of the children as an adverse witness and questioned her about events which took place in the presence of the deceased on the day of the conveyance. Defense counsel argued that the wife had waived the protection of the Act and, therefore, the child had the right to testify on cross-examination to conversations with the deceased occurring several months prior to the day of the conveyance. These conversations were intended to show that the deceased had requested the children to act as they had. The trial court precluded the cross-examination.

On appeal, the court traced the historical development of the meaning of the word “event” as it appears in the Act. The court concluded that the event in Zorn included “all of the connected incidents and conversations leading up to the signing of the deed.” (Zorn, 126 Ill. App. 3d at 263, 464 N.E.2d at 883.) Therefore, defendant not only waived the Act as to the events occurring on the day of the conveyance, but defendant also waived the Act as to conversations occurring several months prior to that day. The preclusion of the child’s cross-examination constituted reversible error. In closing, the court noted that the scope of waiver of the Act must be determined on a case-by-case basis and that the basic principle of relevancy .should act as a restraint on the unbridled testimony of the opposing party.

Here, we hold that defendant’s waiver of the Act was not limited to the testimony concerning whether Barry’s car hit plaintiff or plaintiff kicked Barry’s car. The waiver extended to all other facts prior to the collision which were relevant to the disposition of the case. Plaintiff’s testimony that Barry’s car was speeding backwards 20 to 25 miles per hour and fishtailing was relevant to whether Barry negligently caused plaintiff’s injuries. Therefore, preclusion of such testimony, whether in the instance of plaintiff’s cross-examination as an adverse witness or in the instance of counsel’s request to recall plaintiff after Porter testified, amounted to reversible error.

Second, defendant argues that the testimony in the offer of proof was cumulative. We disagree. For example, plaintiff was able to present to the jury evidence that Barry’s car was fishtailing pursuant only to the cross-examination of Porter during which it was revealed that Porter had stated in a pretrial deposition that the car fishtailed slightly. Porter responded that he did not recall making the statement. We do not agree that plaintiff’s affirmative testimony on this matter would have been cumulative.

Third, defendant argues that if error occurred, it was harmless. We disagree. We believe that the preclusion of plaintiff’s testimony in the offer of proof had a material effect on the result of the trial. For example, Porter, an occurrence witness, testified for the defendant that Barry’s car did not hit plaintiff. However, plaintiff, also an occurrence witness, could have affected the credibility of Porter’s testimony by presenting evidence that Barry’s car fishtailed.

In conclusion, we hold that defendant waived the protection of the Act and that the trial court improperly precluded plaintiff from introducing to the jury the testimony in the offer of proof. Plaintiff is entitled to a new trial.

Reversed and remanded for a new trial.

GORDON and McNULTY, JJ., concur.


author: JUSTICE McNULTY

text:
      In re MARRIAGE OF DANIEL SCHWEIHS, Petitioner-Appellant, and MELINDA SCHWEIHS, Respondent-Appellee (Liberty Federal Savings Bank, Third-Party Defendant-Appellant).
    First District (5th Division)
    1—90—2462
    Opinion filed December 13, 1991.

      Rock, Fusco, Reynolds & Garvey, Ltd., of Chicago (Francis J. Pendergast III, of counsel), for appellant Liberty Federal Savings Bank.
    Davis, Friedman, Zavett, Kane & MacRae, of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Melinda Schweihs and Daniel Schweihs each filed petitions for dissolution of marriage in the circuit court of Cook County, Illinois. These cases were consolidated on November 7,1989.

On July 15, 1986, the Schweihses, as husband and wife, executed a mortgage to Liberty Federal Savings and Loan Association, now known as Liberty Federal Savings Bank (Liberty), of their marital residence at 353 Melrose, Kenilworth, Illinois, to secure a $255,000 note, which had been signed by them. Liberty holds a first lien mortgage on their marital residence.

As of July 24, 1990, the Schweihses were joint tenants of their marital residence and Melinda Schweihs, a homemaker, lived there with her two children. Also as of that date, the Schweihses had failed to make their monthly mortgage payments for the months of May, June and July of 1990 to Liberty, including that portion to be applied towards an escrow to cover real estate taxes.

On July 17, 1990, Liberty issued a notice to the Schweihses stating that if the current monetary default of approximately $9,000 was not cured promptly, the mortgage loan would be accelerated and foreclosure proceedings would be initiated. Thereafter, Liberty was served with an emergency notice of motion by Melinda Schweihs to add Liberty as a third-party defendant to the consolidated dissolution case and her petition for a preliminary injunction.

Counsel for Liberty and Melinda Schweihs appeared at a hearing on July 24, 1990, at which time the trial court, over Liberty’s objection, added Liberty as a third-party defendant to the dissolution proceeding and entered a 10-day temporary restraining order enjoining Liberty from foreclosing on the Schweihses’ marital residence.

Subsequently Melinda Schweihs served upon Liberty a motion for preliminary injunction and Liberty responded by serving notice on all parties of its motion to dissolve the temporary restraining order. A hearing was held on these motions on August 3, 1990, at which time the court granted Melinda Schweihs’ motion for a preliminary injunction against Liberty and enjoined Liberty from instituting a mortgage foreclosure action against the Schweihses. For the following reasons, we affirm.

The trial court was authorized to join a mortgagee of marital property threatening foreclosure as a party to the mortgagor’s dissolution proceeding and to enjoin the mortgagee from initiating a foreclosure proceeding in a different division of the circuit court of Cook County in aid of its own jurisdiction so that the interests of all parties in the property may be adjudicated in one proceeding.

The circuit court of Cook County domestic relations division had jurisdiction over the Schweihses and their marital property as a result of the pending dissolution of marriage proceeding. We presume that the marital property will be distributed pursuant to section 503(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(b)) so as to avoid the impairment of any contractual obligations owed to third parties who are not parties to the dissolution proceedings. (Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 574, 376 N.E.2d 1382, 1387.) Marital property is subject to distribution within those limitations set by laws governing transfers, assignments and conveyances of such property. Kujawinski, 71 Ill. 2d at 574, 376 N.E.2d at 1387.

Circuit courts have various divisions such as probate and domestic relations, but those divisions are not jurisdictional. (Higgins v. Stockman (1983), 111 Ill. App. 3d 457, 444 N.E.2d 192.) The following cases illustrate this principle.

In re Marriage of Wojcicki (1985), 135 Ill. App. 3d 248, 481 N.E.2d 939, involved a dissolution of marriage proceeding in which appellee wife was required to quitclaim her interests in certain properties to appellant husband. The trial court’s ruling was upheld on appeal by the appellate court, and the supreme court denied leave to appeal. When the husband brought post-trial proceedings to compel the wife to quitclaim the properties, she filed a partition action in the chancery division of the circuit court regarding the properties. Summary judgment was granted in favor of the husband in the partition action based on that court’s belief that it was bound by the dissolution court’s factual finding as affirmed on appeal with respect to the ownership of the property. In affirming the propriety of this ruling the appellate court stated:

“[Djivisons of the circuit court have equal and concurrent subject matter jurisdiction and ‘[w]here two actions between the same parties, on the same subject, and to test the same rights, are brought in different courts in Illinois having concurrent jurisdiction, the court which first acquired jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the entire controversy to the exclusion of all coordinate courts.’ [Citations.] *** [A] trial judge in the domestic relations division of the circuit court constitutionally has jurisdiction to hear all justiciable matters. [Citations.] ***
* * *
*** [W]e affirm the chancery court’s judgment granting summary judgment in favor of respondent [husband] in the partition action.” Wojcicki, 135 Ill. App. 3d at 251, 253.

Similarly in In re Estate of Jeziorski (1987), 162 Ill. App. 3d 1057, 516 N.E.2d 422, plaintiffs filed an action in the probate division of the circuit court of Cook County to contest the validity of a decedent’s will and for tortious interference with an expectancy. The trial court in the probate division granted defendants’ motion to strike the tortious interference action stating that “a complaint for malicious interference properly belongs in the law division.” (Jeziorski, 162 Ill. App. 3d at 1060, 516 N.E.2d at 434.) Thereafter plaintiffs filed their tort action for malicious interference in the law division of the circuit court and subsequently moved in the probate division to vacate the order striking the malicious interference count and seeking to transfer that action to the law division. The probate court denied this motion. Thereafter, defendants filed a motion to strike plaintiffs’ malicious interference action in the law division and the court granted this motion on the res judicata effect of the dismissal order in the probate division. On appeal the reviewing court reversed the judgment of the probate court dismissing the tort claims of plaintiffs and remanded the cause to the probate division with directions that plaintiffs proceed there with both the probate and tort counts of their complaint.

The court stated:

“In the action before us, the plaintiffs have complied with both the Probate Act and the Code of Civil Procedure by pleading in the alternative their tort causes of action against defendants for intentional interference with an expectancy and abuse of a confidential relationship. Yet the plaintiffs have been left without a forum ***. It is our opinion, consistent with the procedural rules, that litigation of this nature should not be pled in separate complaints and plaintiffs should be allowed to proceed in the probate division on all counts in their complaint. ***
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*** [T]he probate court is a court of general jurisdiction and, as such, can hear other issues including tort claims. [Citations.] *** By allowing plaintiffs an opportunity during the probate proceedings to be heard and present evidence regarding tort actions, a further collateral attack on the probate decree in a later tort action in the law division would not be required. The trial court can hear all the evidence in one proceeding. We do not believe it is necessary for plaintiffs to exhaust their probate remedies before bringing an action in tort.” Jeziorski, 162 Ill. App. 3d at 1063, 1064, 516 N.E.2d at 427.

The court which first acquires jurisdiction may protect it by enjoining pursuit of related litigation in other courts of coordinate jurisdiction. In In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 502 N.E.2d 459, attorney Birndorf represented Mrs. Baltzer in a dissolution proceeding pending in the circuit court of Du Page County and in connection therewith had filed a petition therein for attorney fees. At some point Birndorf withdrew as her attorney and subsequently filed a complaint in the circuit court of Cook County against her seeking recovery of fees claimed for legal services rendered to Mrs. Baltzer in the Du Page County dissolution case.

Mrs. Baltzer, represented by new counsel, filed a motion in the Du Page County proceedings for an order striking the Cook County proceedings, or in the alternative, for an order requiring Birndorf to pursue his action for fees in the Du Page County proceedings. Birndorf entered a special and limited appearance pro se and filed a motion to quash Mrs. Baltzer’s motion on the grounds that (1) the Du Page County court lacked jurisdiction over him because he was not a party to the dissolution case and (2) he was not required to seek fees from his former client in that litigation. The trial court denied the motion to quash and entered an order directing Birndorf to dismiss the action he had filed for fees in Cook County.

The appellate court affirmed on the ground that the Du Page County court had retained personal jurisdiction over Birndorf to resolve the issue of fees sought in the petition he filed in that court as a party in interest.

It further observed:

“In the present case, the dissolution proceeding, and the unresolved petition for attorney fees filed by Birndorf therein, were still pending in the Circuit Court of Du Page County when he brought the new action for his fees against his former client in the circuit court of Cook County.
The orderly administration of justice does not permit one court of this State to ignore an action pending in another court of this State. [Citation.] *** A court has the power, if not the duty, to protect its prior rights to jurisdiction over a controversy and for that purpose may issue an injunction restraining persons from proceeding in other courts. [Citations.]
*** If a determination of the reasonableness of a request for attorney fees were to be heard in another court and venue, as sought here, it may well require the use of the court records in the pending dissolution proceeding for consideration in a separate fee action and cause an unwarranted disruption of the judicial process. It would also appear to be an unnecessary impediment to judicial economy to require a second judge to acquire the knowledge of the proceedings in the dissolution action already known to the judge who has heard it.” Baltzer, 150 Ill. App. 3d at 895-96, 502 N.E.2d at 463-64.

The above-mentioned considerations pertain as validly to the administrative problem of parallel actions pending in different administrative divisions of a circuit court as they do to parallel actions pending in courts of co-equal jurisdiction in different counties of the State.

In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 412 N.E.2d 698, is particularly pertinent to the resolution of the case at bar. In Peshek, wife brought suit to dissolve her marriage in the circuit court of Cook County. Husband sought leave to file a third-party action against the wife’s parents and Amalgamated Trust and Savings Bank as trustee. The husband’s complaint alleged that he and his wife had purchased a lot in Barrington and had built a home thereon with a present value of $300,000. The third-party complaint further alleged that the wife’s parents were to hold the property in trust to secure sums of money that the parents had advanced the parties.

The trial court denied the husband’s motion to file his third-party complaint with the suggestion that the suit be filed in the chancery division. The husband filed suit in the chancery division and the divorce court then proceeded to adjudicate the issues between the parties without regard to the Barrington property.

On appeal the husband contended that the trial court erred in denying him leave to file his third-party complaint because neither the Illinois Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.) nor the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) prohibits such action and that section 503(c) of the latter act requires the trial court to divide all the parties’ marital property in just proportion.

On review the appellate court agreed with the husband’s position. The reviewing court noted that while the Illinois Marriage and Dissolution of Marriage Act makes no provision for the filing of a third-party action during a dissolution proceeding to determine the parties’ right in alleged marital property held by a third person, it determined that such authority existed under the Civil Practice Act. Ill. Rev. Stat. 1977, ch. 110, par. 25.

Section 25 provided in pertinent part:

“(1) If a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in. If a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party.” (Ill. Rev. Stat. 1977, ch. 110, par. 75.)

A party is necessary to a full determination of the issues if he is:

“one whose presence in the suit is required for any of three reasons: (1) to protect an interest which the absentee has in the subject matter of the controversy which would be materially affected by the judgment entered in his absence [citations]; (2) to reach a decision which will protect the interests of those who are before the court [citations]; or (3) to enable the court to make a complete determination of the controversy [citation].” Lerner v. Zipperman (1979), 69 Ill. App. 3d 620, 623, 387 N.E.2d 946, 949.

Applying the above-stated principles to the facts of the case in Peshek, the reviewing court observed:

“[0]ur courts *** operate in a unified court system with original jurisdiction of all justiciable matters. [Citations.] *** [A] trial court judge in the domestic relations division of the circuit court has jurisdiction to hear all issues which are justiciable in nature. [Citations].
The allocation of judicial responsibility to various divisions of the circuit court does not reflect any constitutional barriers to jurisdiction but rather only administrative convenience. [Citations.] As such, divisions of the circuit court have equal and concurrent subject matter jurisdiction. [Citations.]” Peshek, 89 Ill. App. 3d at 967, 412 N.E.2d at 704.

Finally the court stated:

“It is unclear from the record whether the trial court denied the respondent’s [husband’s] motion based on the misconception that the parties stipulated that the court could ignore the Barrington property in making its various awards or whether the court was motivated by administrative convenience in denying respondent’s motion for leave to file his third-party complaint. *** [I]f the convenience factor did, in fact, affect the trial court’s decision, it should not have been a deciding factor. We believe that the trial court should have entertained the respondent’s motion to file a third-party complaint and granted a full and complete hearing in the dissolution proceeding as to the ascertainment of the parties’ marital assets including the Barrington property. This approach avoids piecemeal litigation and would, therefore, appear to be consistent with the unified court system now in existence in Illinois.” Peshek, 89 Ill. App. 3d at 968, 412 N.E.2d at 705.

The principles enunciated in Peshek are determinative of the case at bar. There is no dispute that the Schweihses’ marital residence in which Melinda Schweihs and her two minor children currently reside is marital property subject to disposition under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503). Petitioner has a valid first mortgage on the premises to secure a note executed by the parties. Further, the mortgage payments were in arrears and at the time Liberty was made a party to the dissolution proceeding it had sent a letter to Melinda Schweihs threatening to foreclose due to the payment default. In allowing Melinda Schweihs to enjoin Liberty from instituting a foreclosure action in another division of the court, the trial court judge in the domestic relations division of the court has not deprived Liberty of a cause of action and a forum, but, rather, has provided it. The only action Liberty was prohibited from taking was the initiation of a separate foreclosure suit in a different division of the circuit court of Cook County. The trial court in the domestic relations division already had jurisdiction of the Schweihses and the property pursuant to the dissolution action. By allowing the joinder of Liberty in that action, the court acted to preserve the marital asset and the Schweihses’ equity in it while at the same time providing a forum for Liberty to seek relief from any impairment of its security interest by the mortgage payment default. In fact, the record reveals that the trial judge suggested that Liberty bring its concerns before the court by appropriate motion or pleading. In this way the court was avoiding piecemeal litigation and was in a position to deal with the property in question in a manner most equitable to all parties concerned. The facts of the instant case and the principles enunciated in the Peshek case set forth above demonstrate that the joinder of Liberty and the issuance of an injunction were proper.

Accordingly, we affirm the ruling of the trial court.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.