author: Mr. JUSTICE JOHNSON

text:
    Stanley A. Tarala et al., Plaintiffs-Appellants, v. The Village of Wheeling et al., Defendants-Appellees.
    (No. 59442;
    First District (4th Division)
    December 20, 1974.

      Burke and Burke, of Chicago (John M. Burke, of counsel), for appellants.
    Jack M. Siegel, of Chicago, for Village of Wheeling.
    John M. Daley, of Chicago, for Victor Smigel.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs brought this action seeking a declaratory judgment that two zoning ordinances adopted by the Village of Wheeling were null and void. The ordinances in question rezoned certain property from R-l single-family residential to R-4 multiple-family. Following a bench trial before the Honorable Robert J. Downing, the ordinances were declared to be valid. As grounds for reversal, plaintiffs contend that the trial court’s decision was against the manifest weight of the evidence; that the trial court abused its discretion in failing to make a decision for almost 3 months and in allowing a defendant to reopen the case and file an amended answer; that the trial court erred in refusing to allow certain plaintiffs’ testimony as to the value of the property; and that the trial court erred in refusing to allow certain rebuttal testimony. We affirm.

Plaintiffs are property owners residing in a portion of the Village of Wheeling that was affected by the ordinances in question. There are three defendants: The Village of Wheeling; Victor Smigel, a real estate developer and the contract purchaser of certain lots within the rezoned area who had commenced construction of multiple-family structures pursuant to the ordinance; and the Wheeling Trust and Savings Bank, the legal title holder of the rezoned lots.

The validity of two ordinances adopted by the Village of Wheeling is involved in this controversy. Ordinance No. 1182, adopted on April 17, 1972, reclassified 47 lots in Zelosky’s Subdivision from the R-l to the R-4 classification. Ordinance No. 1243, adopted on April 2, 1973, during the pendency of this action, reclassified the remaining lots in the subdivision for multiple-family purposes.

The exact boundaries of the area are described differently by the parties; according to the plaintiffs, its boundaries are “Wheeling Road on the west, 6th Street on the east, Mayer Road on the north, and one block south of Strong on the south”; according to the defendants, “[t]he subdivision lies generally between Wolf Road on the east and Wheeling Road on the west and north and south of Strong Street.”

Strong Street is the only east-west thoroughfare in the subdivision, and the north-south streets are mostly unimproved. There is vacant property to the north and west of the area which has not been developed. A school district and single-family homes are located to the south of the subdivision. An apartment building is located on the southeast boundary, and there are two factory buildings to the southwest of the subdivision.

The area in question, approximately 55 acres, has been subdivided since 1925. It was annexed by the Village in 1970 subject to an R-l zoning classification. About 30 percent of its 140 lots have been developed, and the average size of the lots owned by plaintiffs is approximately 13,000 square feet. All of the present homes are on wells and septic fields, and there is no public sewer and water.

The 1972 ordinance rezoned 47 lots in this area to R-4 multiple-family residential. The lots in question were scattered through the subdivision and were owned by one person, Douglas Cargill, prior to being placed in trust with the Wheeling Trust and Savings Bank. Victor Smigel, the contract purchaser of the lots, proposed to develop each of the 47 lots with six-flat units of SWz stories in height.

The evidence presented at trial may be summarized as follows. .William Lawrence, a professional city planning and zoning consultant, was the first witness to be called by the plaintiffs. Lawrence testified that the highest and best use of the subject property would be realized with an R-3 zoning classification allowing the development of single-family homes on lots of 8,500 square feet. He based his opinion on the character of the existing neighborhood: residential areas platted and developed; a quiet neighborhood that had been entirely single-family and untraversed by heavy traffic. Because the R-4 classification would increase the intensity of use, Lawrence stated that it would have an adverse effect upon the living environment of single-family homes. The witness further testified that the implementation of Smigel’s proposal, six-unit multiple-family units on each lot with off-street parking, would have a serious adverse effect upon the continued development of the area as a single-family neighborhood.

Lawrence’s testimony during cross-examination revealed that there were several manufacturing uses to the south, west and north of the subject area. He explained that the R-3 classification would, be the highest and best use of the property provided that sewer and water requirements were met. The witness further testified that the proposal of defendant Smigel was “unreasonable because it introduces a greatly intensified use into a single-family area.” It was also brought out that Lawrence had testified three times in the Village of Wheeling in favor of putting multiple-family dwellings next to single-family structures in a planned development.

Plaintiff’s next witness was Maynard F. Rupp, a professional consulting planner, who testified that he had been employed to prepare a plan with the State of Illinois for the Village of Wheeling. Rupp’s final report, delivered in 1965 and based upon the 1960 census, recommended a high-density single-family residential area between 6th Street and Wheeling Road, one block north and one block south of Strong. His definition of high density was “anything other than a twenty thousand area foot lot up to a multi-family.”

William Sychowski, a plaintiff in this, cause, testified that he purchased his house in 1969 at a cost of $22,000. The.witness stated that he knew the area was zoned for single-family dwellings when he bought his home and objected to the rezoning because it would change the character of the neighborhood. The court sustained objections to Sychowski’s testimony regarding the costs of improvements to his home and its present value. The witness admitted that his house is located about four or five lots away from a factory building.

Maureen Pitt, another plaintiff in this cause, testified that she objected to the rezoning because it would change the area where single-family homes are located. She was then asked about the effect that the rezoning would have on the value of her home. Defendants’ counsel objected on the ground that the witness was not qualified to give an opinion as to values, and the court sustained the objection. Mrs. Pitt also testified that there are single-family homes adjacent to the Capri apartments to the west, east, south, and directly across the north of Strong Street.

Thomas Collins, a real estate appraiser and broker, testified that the proposed development would have a depreciating effect on the existing homes in the area. Basing Iris opinion on the existing character of the neighborhood, Collins stated that the highest and best use of the property would be along the lines of single-family residential but that the property would have a higher value under the R-4 classification than under an R-3. He further testified that the property could not be presently developed under the R-3 classification without sewer and water and he did not know the cost of putting sewer and water in the subdivision. The witness also stated that he had not made an independent investigation of the actual cost of improving the subdivision and had not appraised any of the properties belonging to the plaintiffs in the case.

Collins testified further that he was not sure as to what effect the Capri apartments had on the single-family homes adjacent to it. He was of the opinion that a six-flat would be more harmonious with the residential property than a factory. Further, Collins stated that it was his opinion that, if the remaining vacant lots other than the 47 lots were developed, an adverse effect would result with respect to the homes already in the area.

Ernest Zimmerman, a witness for plaintiffs, testified that he presently owned two homes in the area and had sold another home in 1968 for $20,000. The court sustained an objection to Zimmerman’s testimony as to the present value of his house, stating that there was a lack of foundation questioning, the property owner was a plaintiff, and there was an absence of any particular showing that he had special knowledge and qualifications to testify as to values. Zimmerman conceded on cross-examination that the Capri apartments were not characteristic of a nice, country atmosphere.

Douglas Cargill, called as an adverse witness by plaintiffs, testified that he began acquiring the 47 rezoned lots in 1955 and had been purchasing the lots since that time. The court sustained an objection to questioning regarding the prices paid by Cargill for the lots in question.

The defendants’ zoning and planning expert was Rolf Campbell, who testified as to his opinion that the proposed development would be compatible with other uses in the area and that it was the highest and best use of the subject property from a zoning and planning standpoint. He stated that his opinion was based upon the suitability of the subject property for the proposed development, the fact that it would allow for the economic installation of sewer and water facilities, the trend of development in the area, and the economic returns to the property owners and the Village. The witness characterized Smigel’s plan as a fine way to develop a problem piece of land and suggested that the traffic generated by the proposed development would be adequately handled by Strong Street without detrimental effects upon the adjacent property.

On cross-examination, Campbell admitted that he did not know if Smigel planned to install water and sewers on several streets but stated that the development of six-flats would permit existing property to receive water and sewer facilities, thereby improving health conditions. Further, Campbell testified that there was no demand for single-family homes in the area because the conditions in the subdivision were not conducive and there was an inability to obtain permits to build single-family homes. The witness also testified, on re-direct, that he thought the entire area should be rezoned as R-4 but that the Village was acting properly in rezoning the 47 lots as R-4.

Paul Spies, a consulting civil engineer, testified for defendants that the homes in the area were presently serviced by wells and septic systems and that there were no street improvements except on Strong Street. It was his recommendation that sewer and water be placed in the entire area. The witness further testified that he was familiar with Smigel’s proposal and that it would include the installation of sanitary sewer throughout the subdivision. The cost of sewer and water under the proposed development, according to the witness, would be approximately $7,300 per lot.

Spies indicated, on cross-examination, that there were other ways to finance sewer and water besides special assessments, including bond issues. He also testified that it would cost less than $6,000 a lot to improve the area with sewer and water if all the lots had been included in arriving at the cost.

Ralph H. Martin, a real estate broker and appraiser, valued the homes in the area at between $10,000 and $32,000 and indicated that the highest and best use of the subject property was R-4. His opinion was based on the fact that the area had not developed over the past 45 to 50 years. Further, the witness testified that, if the entire area were resubdivided, homes would have to be in the $25,000 to $30,000 price range and it would not be possible to produce homes for sale at that price.

Victor Smigel, one of the defendants and the developer of the property in question, testified on his own behalf. He indicated that he owned the 47 lots in question and planned a two-phase project for those lots. Further, Smigel testified that he planned to place sewer and water facilities in the area and also to provide streets, curbs and gutters. Mr. Smigel showed photographs of the buddings he proposed to erect in the area. According to Smigel, the total purchase price of the 47 lots is $560,000; he had already paid $50,000 toward the purchase of the properties and the balance is to be paid on a take-out basis. He testified that he had already expended $2,000 in architect’s fees and $4,500 in engineering fees for the preparation of plans necessary to obtain building permits from the Village. Six building permits, received by Smigel from the Village, were introduced into evidence. On cross-examination, Smigel admitted that he owned only 30 of the lots in question but stated that he had a “verbal agreement” to purchase the remaining 17.

As a rebuttal witness, plaintiffs called Joseph Rains who testified that he had recently inspected homes in the Wheeling area with a view toward purchase but that he decided not to but when he learned of the rezoning. The court ruled that this was not proper rebuttal testimony relating to that of Rolf Campbell.

After the conclusion of the evidence, the court continued the matter to February 9, 1973, for decision. On that date, the Village asked leave to reopen the case and file an amendment to its answer within 45 days. Plaintiffs objected, and the case was then continued to February 28,1973. On that date, the court indicated that it had already reached a decision on the merits of the case but would reserve its decision pending the motion of the Village. The case was then continued until March 12, 1973. The Village was granted another delay on March 12, 1973. On April 11, the court granted the Village leave to file an amendment to the answer. The amendment alleged that an ordinance had been passed by the Village, rezoning the entire area in question to R-4 multiple-family residential. On April 27, 1973, the court decided in favor of defendants and against plaintiffs, declaring that both zoning ordinances were valid. Further, the court specifically found that Smigel proposed to install sewer and water facilities, that the highest and best use of the land would be R-4 multiple-family zoning, and that the plaintiffs had failed to overcome by clear and convincing evidence the presumption of validity attaching to the ordinances.

The first question we shall consider is whether the trial court’s decision was against the manifest weight of die evidence. It is a fundamental proposition of law that a zoning ordinance is presumed valid and the party challenging the validity of the classification has the burden of proving by clear and affirmative evidence that, as applied to him, it is arbitrary, unreasonable, and without substantial relation to the public health, morals, safety and welfare. (Exchange National Bank v. Cook County (1962), 25 Ill.2d 434, 439-40, 185 N.E.2d 250, 253; Bennett v. City of Chicago (1962), 24 Ill.2d 270, 273-74, 181 N.E.2d 96, 98; Atkins v. County of Cook (1960), 18 Ill.2d 287, 293, 163 N.E.2d 826, 830; Forestview Homeowners Ass’n, Inc. v. County of Cook (1974), 18 Ill. App.3d 230, 241, 309 N.E.2d 763, 771; Hutson v. County of Cook (1974), 17 Ill.App.3d 195, 203, 308 N.E.2d 65, 71.) Due to this presumption of validity, if it appears from all of the evidence that there is justification for a legitimate difference of opinion as to the reasonableness of the ordinance, the court wi.ll not substitute its judgment for that of the legislative body. Urann v. Village of Hinsdale (1964), 30 Ill.2d 170, 175, 195 N.E.2d 643, 646; Exchange National Bank v. Cook County (1962), 25 Ill.2d 434, 440, 185 N.E.2d 250, 253; Mutz v. Village of Villa Park (1967), 83 Ill.App.2d 1, 8, 226 N.E.2d 644, 647.

The Supreme Court of Illinois recently summarized the principles governing the validity of zoning ordinances in La Salle National Bank v. City of Evanston (1974), 57 Ill.2d 415, 312 N.E.2d 625. The court said at page 428:

“The law governing the disposition of contentions challenging zoning classifications has been set forth in numerous decisions. As stated in Exchange National Bank of Chicago v. County of Cook, 25 Ill.2d 434, 439-40, It is always presumed, in an attack upon an ordinance, that the enactment is valid, and the burden of proving its invalidity falls upon the one who attacks the ordinance. (Jacobson v. City of Evanston, 10 Ill.2d 61.) Before a court will intervene it must be established by clear and convincing evidence that the ordinance, as applied to plaintiffs, is arbitrary and unreasonable and has no substantial relation to the public health; safety or welfare. These rules are based upon a recognition that zoning is primarily a legislative function, subject to court review smly for the purpose of determining whether the power, as exercised, involves an undue invasion of private constitutional rights without a reasonable justification in relation to the public welfare. (People ex rel. Joseph Lumber Co. v. City of Chicago, 402 Ill. 321; Morgan v. City of Chicago, 370 Ill. 347.) Where it appears, from all the facts, that room exists for a difference of opinion concerning the reasonableness of a classification, the legislative judgment must be conclusive. (Krom v. City of Elmhurst, 8 Ill.2d 104.) # # # > »

Although each zoning case must be decided on its own facts, the factors to be considered in determining the validity of an ordinance were set forth by the Supreme Court of Illinois in La Salle National Bank v. County of Cook (1957), 12 Ill.2d 40, 46-47, 145 N.E.2d 65, 69. Those standards are:

“(1) The existing uses and zoning of nearby property (Krom v. City of Elmhurst, 8 Ill.2d 104; Forbes v. Hubbard, 348 Ill. 166; Langguth v. Village of Mount Prospect, 5 Ill.2d 49), (2) the extent to which property values are diminished by the particular zoning restrictions (Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200, 214; Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265; People ex rel. Kirby v. City of Rockford, 363 Ill. 531; Ehrlich v. Village of Wilmette, 361 Ill. 213), (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public (Chicago Title & Trust Co. v. Village of Franklin Park, 4 Ill.2d 304, 306; Krom v. City of Elmhurst, 8 Ill.2d 104, 115; Evanston Best & Co. v. Goodman, 369 Ill. 207), (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner (Hannifin Corp. v. City of Berwyn, 1 Ill.2d 28, 36), (5) the suitability of the subject property for the zoned purposes * * * (Langguth v. Village of Mount Prospect, 5 Ill.2d 49, 54; Petropoulos v. City of Chicago, 5 Ill.2d 270, 274), and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. Krom v. City of Elmhurst, 8 Ill.2d 104, 111-113; Chicago Title & Trust Co. v. Village of Franklin Park, 4 Ill.2d 304; Petropoulos v. City of Chicago, 5 Ill.2d 270, 274.”

The paramount factor in determining the validity of a zoning ordinance is whether or not the classification is in conformity with surrounding existing uses. (First National Bank v. County of Lake (1955), 7 Ill.2d 213, 228, 130 N.E.2d 267; La Salle National Bank v. City of Chicago (1955), 6 Ill.2d 22, 29, 126 N.E.2d 643, 646; Manger v. City of Chicago (1970), 121 Ill.App.2d 358, 367, 257 N.E.2d 473, 478.) On the question of the existing uses of nearby property in this case, plaintiffs’ witnesses testified that the R-4 classification would increase the intensity of use and have an adverse effect upon the continued development of the area as a single-family neighborhood. Defendants’ evidence showed that only about 30 percent of the area had been developed for single-family use in the 50-year history of the subdivision, that the predominant use of the land rezoned was vacant, and that there was already considerable industrial and multi-family development in the area adjacent to the subdivision. The foregoing indicates that there are factors which point in both directions.

There was similar disagreement between the parties concerning the remaining standards applicable to the validity of zoning ordinances. With respect to the diminution of property values, Thomas Collins, a real estate appraiser and broker, testified for plaintiffs that the proposed development would have a depreciating effect on the existing homes in the area; defendants’ witness, Ralph H. Martin, also a real estate broker and appraiser, testified that the proposed development would have an improving effect on the subdivision and would not affect the value of single-family homes already in existence. With respect to the suitability of the property for the zoned puiposes, witnesses for both plaintiffs and defendants agreed that the existing R-l zoning classification was unsuitable.

After carefully considering all of the evidence presented in this case, it is our opinion that the plaintiffs’ proof failed to overcome the presumption of validity but reveals at best a situation where room exists for a difference of opinion concerning the reasonableness of the R-4 classification. Therefore, the legislative judgment must be considered conclusive. (Urann v. Village of Hinsdale (1964), 30 Ill.2d 170, 175, 195 N.E.2d 643, 646; Exchange National Bank v. Cook County (1982), 25 Ill.2d 434, 441, 185 N.E.2d 250, 254; Williams v. Village of Schiller Park (1956), 9 Ill.2d 596, 598, 138 N.E.2d 500, 501.) In so ruling, we hold that die trial court’s decision was not against the manifest weight of the evidence.

Secondly, plaintiffs contend that the trial court abused its discretion in failing to make a decision for almost 3 months and in allowing the defendant Village of Wheeling to reopen the case and file an amended answer. The trial court’s action in granting the Village leave to file an amended answer was in accordance with the Civil Practice Act, which provides that amendments may be allowed on just and reasonable terms at any time prior to final judgment. (Ill. Rev. Stat. 1971, ch. 110, § 46.) The statute also provides:

“This Act shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” Ill. Rev. Stat. 1971, ch. 110, §4.

The allowance of amendments to pleadings is largely within the sound discretion of the trial court (Shockley v. Good (1958), 13 Ill.2d 298, 305, 148 N.E.2d 763, 767; Mangel & Co. v. Village of Wilmette (1969), 115 Ill.App.2d 383, 397, 253 N.E.2d 9, 16), and its ruling will not be disturbed on review except in cases of clear abuse. (Moneta v. Hoinacki (1946), 394 Ill. 47, 59, 67 N.E.2d 204, 210; Bowers v. Sturm (1973), 12 Ill.App.3d 346, 350, 297 N.E.2d 628, 631.) We hold that the trial court, in allowing the Village to reopen the case and file an amended answer, acted clearly within its discretion and find no abuse thereof.

Much of the argument presented by the plaintiffs during the course of the trial was directed to “spot zoning” because only a portion of the area had been reclassified. After the proofs had been closed but prior to the date set by the court for decision, the Village commenced proceedings to rezone the entire area to R-4. Notice was given to tire court and to plaintiffs that a proposed amendment was pending, and defendants requested a delay in the proceedings until the Village resolved the matter before it. The court granted the delay, indicating its desire to avoid a piecemeal approach to the controversy. Subsequently, leave was granted to file an amended answer incorporating the provisions of the new ordinance. In our opinion, it was not improper for the court to reserve its judgment until the entire controversy was before it and then base its decision upon the zoning ordinance as it existed at the time of final judgment.

In Bohan v. Village of Riverside (1956), 9 Ill.2d 561, 138 N.E.2d 487, plaintiffs contested the validity of an amendment to a zoning ordinance which was technically defective in that the hearing and notice requirements of section 73 — 8 of the Revised Cities and Villages Act had not been complied with. Subsequent to the filing of the original complaint and without personal notice to the plaintiffs or the trial court, the village adopted a new ordinance which effected the same objective but corrected the technical defects of the prior one. The court found that the subsequent ordinance was lawfully passed and stated:

“The mere pendency of a suit by plaintiffs does not affect the powers of a municipality to pass an ordinance or the manner of exercise of such power as prescribed by statute.” (9 Ill.2d 561, 566.)

And, in Ward v. Village of Elmwood Bark (1955), 8 Ill.App.2d 37, 130 N.E.2d 287, the defendant village passed an amendment to the ordinance on which the suit was brought during the pendency of the trial. The trial court decided that the prior ordinance was void and that the amended ordinance, introduced into the case by defendant’s answer, was inapplicable to the plaintiffs’ property. This court reversed and remanded the cause. In discussing the decisive question of whether the court correctly declared the subsequent ordinance inapplicable to plaintiffs’ property, the court said:

“We need not consider the ordinance in effect when the suit was filed. That ordinance was superseded by the ordinance of March 8, 1954, which was effective to regulate the use of plaintiffs’ property. Plaintiffs had no vested right in the continuance of the earlier ordinance. Fallon v. Illinois Commerce Commission, 402 Ill. 516, 526.” 8 Ill.App.2d 37, 39.

Plaintiffs argue that the trial judge should not have delayed its decision until the amended ordinance was passed in view of the authority of this court to examine the subsequent ordinance on review. They rely upon Mangel & Co. v. Village of Wilmette (1969), 115 Ill.App.2d 383, 253 N.E.2d 9, where the appellate court took judicial notice of a rezoning passed after trial but also found that the trial court did not abuse its discretion in refusing to allow plaintiff, a landowner, to amend his complaint and to reopen proofs so that additional evidence could be presented. This court stated, at page 397:

“The right to allow amendment is within the sound discretion of the trial court. The Civil Practice Act, Ill. Rev. Stats 1967, ch. 110, § 46, allows amendment before final judgment ‘on just and reasonable terms.’
The trial court did not abuse its discretion in this regard. All of the evidence presented to the court concerned itself with a multiple-family residential use. The issue was the amount of density of that type of use. Then after closing its proof, plaintiff sought to present evidence on a totally different category, a specific commercial use. Plaintiff had never requested such a use from the Village. If the trial court had allowed such a reopening of proof it would have usurped the legislative process, and would have improperly constituted itself as a zoning authority. Bredberg v. City of Wheaton, 24 Ill.2d 612, 182 N.E.2d 742 (1962). The trial court’s denial of plaintiff’s request was proper.”

In this case, the reopening of proof and amendment of the answer was sought by the Village in view of its consideration of a proposed amendment to the zoning ordinance which was the subject of this lawsuit. Unlike Mangel, the question of the usurpation of the legislative process clearly was not involved here, for the Village’s authority to pass ordinances continued even though this cause was pending. Thus, Mangel is not authority for plaintiffs’ contention that the trial court in the instant case abused its discretion in allowing the amendment.

Plaintiffs contend, as a further ground for reversal, that the trial court erred in refusing to allow certain of them to testify as to the value of their property. The excluded testimony was that of plaintiffs’ witnesses Sychowski, Ernest Zimmerman, and Maureen Pitt. Plaintiffs assert that one need not be an expert in the sale of real estate to testify as to property values and that the proffered witnesses were qualified to so testify even though they were inexperienced in the field of real estate valuation.

We hold that the trial court’s refusal to allow the testimony of these witnesses was not reversible error. The qualifications of witnesses to testify rest very largely in the discretion of the trial court. It has been held that a person who is acquainted with the property and has a knowledge of values is competent to give an opinion as to the fair market value of the property. (Forest Preserve District v. Kercher (1946), 394 Ill. 11, 20-21, 66 N.E.2d 873, 879; People ex rel. McDonough v. Goldberg (1933), 354 Ill. 423, 429, 188 N.E. 428, 430.) However, there must be some preliminary showing as to the factors upon which tire opinion is based. City of Chicago v. Central National Bank (1955), 5 Ill.2d 164, 175, 125 N.E.2d 94, 100; Buis v. Peabody Coal Co. (1963), 41 Ill.App.2d 317, 326, 190 N.E.2d 507, 512.

In this case, the record indicates that the preferred testimony was not excluded merely because these were lay witnesses. Rather, there was an absence of a preliminary showing of the factors upon which their opinions as to valuation were based. With respect to the valuation testimony of plaintiffs’ witness William Sychowski, the court sustained defendants’ objection on the basis that the witness was not qualified to testify as a real estate expert. With respect to plaintiffs’ witness Ernest Zimmerman, defense objections were sustained because foundation questions had not been asked at the time the court ruled. Similarly, with respect to the testimony of Maureen Pitt as to the effect that the rezoning would have on the value of her home, the court noted that it was not excluding her testimony because she was a lay witness, but that her testimony could be considered self-serving because she was a plaintiff in the case. Sychowski and Zimmerman were also plaintiffs in this cause.

After carefully considering the record before us, we conclude that the overriding basis for the exclusion of the testimony of these witnesses as to value was that there was no foundation testimony to show the factors upon which their opinions were based. In view of the lack of preliminary to establish the qualifications of the witnesses as to the value of property, we hold that the trial court’s refusal to allow their testimony was not an abuse of its discretion.

Finally, plaintiffs contend that the court erred in refusing to allow the rebuttal testimony of Joseph Rains as to the effect that the rezoning would have on single-family homes in the area. Rains testified that he had recently inspected homes in the subject area with a view toward purchase. The defense objected on the ground that Rains’ testimony did not rebut that of its planning and zoning consultant, Rolf Campbell. Plaintiffs explained, out of the presence of the witness, that Rains would testify that he had prepared a contract to purchase a home in the area but decided not to buy when he learned of the rezoning of the surrounding lots. The court sustained defendants’ objection.

We hold that the trial court’s refusal to allow this rebuttal testimony was not reversible error and that Rains’ inexpert opinion regarding his own behavior was not competent rebuttal testimony to the planning evidence given by Rolf Campbell. Campbell, testifying for defendants as a planning and zoning expert, stated that the rezoning would not have a detrimental effect on the single-family homes in the area. Rains was not offered as a planning expert witness but as merely one individual who had decided not to buy a house in the area when he learned of the rezoning. The defendants argued before the trial judge that they, too, could bring in other prospective purchasers to show that there was no adverse effect on the sale of single-family homes in the area. Had the trial court allowed the testimony of prospective purchasers offered by plaintiffs and defendants on the question of the desirability of single-family homes in the rezoned area, it may well have opened up a pandora’s box of unmanageable proportions.

Moreover, we believe that the exclusion of Rains’ testimony was not prejudicial to plaintiffs because the evidence sought to be introduced by his rebuttal testimony was already in the record. William Lawrence, a planning and zoning consultant, testified for plaintiffs in their case in chief that the rezoning would have an adverse effect on single-family homes in the area; and Thomas Collins, a real estate appraiser, testified as to the depreciating effect that the proposed development would have on single-family homes in the area. In reviewing judgments of a trial court, the object is not to determine whether the record is free from error but to ascertain whether a just conclusion has been reached in a trial at which no error occurred which might be prejudicial. (Chicago Title & Trust Co. v. Village of Lombard (1960), 19 Ill.2d 98, 108, 166 N.E.2d 41, 46.) In this case the excluded testimony was in the record in a trial before the court without a jury. Therefore, we find that the court’s refusal to allow this rebuttal testimony was not reversible error.

In view of the foregoing, we hold that the trial court’s decision was not against the manifest weight of the evidence; that the trial court did not abuse its discretion in delaying its decision and in allowing a defendant to reopen the case and file an amended answer; and, that no reversible error was committed in the trial court’s refusal to allow certain plaintiffs to testify as to the value of the property and to allow certain rebuttal testimony. The judgment of the circuit court is, therefore, affirmed.

DIERINGER and BURMAN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JOHNSON.

license: Public Domain

text:
    The People ex rel. Robert Lee Dofford, Relator-Appellant, v. Thomas Israel, Warden, Illinois State Penitentiary at Menard, Respondent-Appellee.
    (No. 60178;
    First District (4th Division)
    December 20, 1974.
    Paul Bradley and Eva Weisner, both of State Appellate Defenders Office, of Chicago, for appellant.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE JOHNSON.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larky B. Hester, Defendant-Appellant.
    (No. 60112;
    First District (4th Division)
    December 20, 1974.
    James J. Doherty, Public Defender, of Chicago (Joseph Gluszek, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant, Larry B. Hester, was charged by complaint with the offenses of aggravated assault and failure to possess a State firearm owner’s identification card. Following a bench trial, defendant was found guilty of both offenses and sentenced to a term of 6 months in the House of Correction.

The only issue presented on appeal is whether the defendant was proven guilty beyond a reasonable doubt.

At trial, Officer George Cascio of the Chicago Police Department testified that on the night of July 11, 1972, he and his partner, Officer Timothy O’Meara, received a radio flash message describing a vehicle wanted in connection with certain traffic violations. The officers subsequently observed the defendant’s car near Austin and Madison Streets in Chicago. Officer Cascio noted that the license number of defendant’s car matched the license number of the wanted vehicle. The officers turned on their mars light and siren and attempted to curb defendant’s automobile, but defendant refused to pull over. After a high-speed chase, the defendant drove into a dead-end street in the Village of Forest Park. Defendant slammed on his brakes and brought his car to a halt. The police officers stopped their car at a distance estimated by Officer Cascio to be approximately 30 to 50 feet from defendant’s car. The original police report of the incident indicated the distance between the two vehicles was approximately 15 feet. Officer Cascio further testified that defendant, immediately after stopping his car, jumped out of the driver’s side and fired a shot in the direction of the police squad car. The bullet did not strike the squad car and was not recovered. Officer O’Meara then fired a shot in return, and the defendant dropped his weapon. Officer Cascio recovered the revolver, along with the five remaining rounds of live ammunition, from the ground and placed defendant under arrest. The defendant did not possess a State firearm owner’s identification card. Defendant was handcuffed and taken to St. Anne’s Hospital, because he was injured and bleeding. Officer Cascio testified he did not know the cause or extent of defendant’s injury, but apparently defendant hit the windshield of his car when making the sudden stop, the windshield being shattered, and defendant suffered no physical abuse from either officer. Defendant first testified he was in the hospital 2 weeks, then changed it to 5 days, and finally said 2 days. He also said he filed a complaint against the officers. However, no complaint was located and no disciplinary action was taken against Officer Cascio or Officer O’Meara as a result of the defendant’s arrest.

The defendant, Larry Hester, testified he was driving his girlfriend’s car on the night in question and did not know there was a gun in the car until after his arrest. Defendant, however, did not know the address of his girlfriend and could not contact her to corroborate his story. Defendant further testified that Officer O’Meara struck him in the eye with a pistol then beat him to the ground.

At the close of all the evidence the trial court found the defendant guilty of aggravated assault and failure to possess a State firearm owner’s identification card, and sentenced him to a term of 6 months in the House of Correction.

The defendant contends the evidence failed to prove him guilty beyond a reasonable doubt. In support of his contention, tire defendant cites the decision in People v. Williams (1972), 3 Ill.App.3d 1036, wherein the appellate court held that although the matter of credibility is essentially a question for determination by the trial court, nevertheless it is the duty of tihe reviewing court to reverse when the evidence is so unsatisfactory that it does not establish the alleged violation beyond a reasonable doubt.

We believe tire evidence in the case at bar established the guilt of the defendant beyond a reasonable doubt. It is a well established principle of law that it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony. (People v. Hampton (1973), 14 Ill.App.3d 427.) A trial court’s finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to tire defendant’s guilt. (People v. Durley (1972), 51 Ill.2d 590.) The testimony elicited from Officer Cascio in the present case was credible and uncontradicted. Under the circumstances, we will not disturb the finding of the trial court.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Edward Hossa et al., Defendants-Appellees.
    (Nos. 59952-5 cons.;
    First District (4th Division)
    December 20, 1974.
   Opinion by

Mr. JUSTICE JOHNSON.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.

No appearance for appellees.


author: Mr. JUSTICE BURMAN

text:
    Dovie Thurman et al., Plaintiffs-Appellants, v. The Department of Public Aid et al., Defendants-Appellees.
    (No. 59901;
    First District (4th Division)
    December 20, 1974.

      Rehearing denied January 24, 1975.

    Thomas J. Grippando, Legal Assistance Foundation, of Chicago, for appellants.
    William J. Scott, Attorney General, of Chicago (Paul J. Bargiel and A. Zola Groves, Assistant Attorneys General, of counsel), for appellees.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiffs, recipients of public aid, commenced an action on September 7, 1972, seeking injunctive relief, declaratory judgment, and administrative review against the Illinois Department of Public Aid, its director, and the Cook County Department of Public Aid. They challenge the standards applied and the allowances granted by the Department as being violative of section 12 — 4.11 of the Illinois Public Aid Code. Ill. Rev. Stat. 1971, ch. 23, par. 1 — 1 et seq.

With regard to standards of financial assistance, section 12 — 4.11 of the Code states that the Department of Public Aid shall:

“Establish standards by which need for public aid will be determined and amend such standards from time to time as circumstances may require.
The standards shall provide a livelihood compatible with health and well-being for persons eligible for financial aid under any Article of this Code. •* * *
The quality and quantity of the items included in the standards established for food, clothing and other basic maintenance needs shall take account of the buying and consumption patterns of self-supporting persons and families of low income, as determined from time to time by the United States Department of Agriculture, the United States Bureau of Labor Statistics, and other nationally recognized research authorities in the fields of nutrition and family living.” (Ill. Rev. Stat. 1971, ch. 23, par. 12 — 4.11.)

Our attention is called particularly to the part which states that the Department shall establish such standards of assistance as will maintain a livelihood compatible with health and well-being. Plaintiffs maintain that the Department has not set standards which conform to this statutory direction. Plaintiffs further argue that their allowances are below those set forth by the Public Aid Code. Section 12 — 4.11 states that:

“The items in the standards shall be priced periodically for changes in cost, as provided in Section 12 — 4.15, and allowances adjusted as indicated by the findings of such surveys.” (Ill. Rev. Stat. 1971, ch. 23, par. 12-4.11.)

Section 12 — 4.15 additionally provides that the Department shall:

“Make periodic surveys of cost of living factors in relation to the needs of recipients of public aid to assure them a standard of living compatible with health and well-being.” (Ill. Rev. Stat. 1971, ch. 23, par. 12 — 4.15.)

Plaintiffs charge that the Department has not complied with this statutory mandate since their present allowances fail to reflect increases in the cost of living. Upon these grounds plaintiffs seek an increase in public assistance retroactively to July, 1970, in accordance with the price surveys and monthly cost of living reports of the United States Department of Labor.

On April 10, 1972, an administrative hearing was held before a hearing officer of the Illinois Department of Public Aid. Upon review of the record, the hearing officer held that the Department’s assistance standards provided a livelihood compatible with health and well-being, and that those standards were not erroneously applied by the Department. Pursuant to these findings, the decision of the Cook County Department of Public Aid was affirmed. Subsequently, plaintiffs sought administrative review of the Department’s decision. The report of proceedings was filed by the Department as its answer to the complaint. On November 6, 1973, the court handed down an opinion holding that the policy issues raised by plaintiffs were moot, and an order dismissing the suit was immediately entered. In his opinion, the trial judge recited that he had heretofore ruled that the suit was not properly a class action; that the pending suit of Mabry v. Edelman, No. 73 CH 5805, was heard by him in connection with a petition for temporary injunction; it was established in that suit that the State of Illinois, as of October 1, 1973, adopted what is commonly known as a “Flat Grant” welfare policy; and that pursuant to the change in welfare policy, the Department had established standards for assistance in conformity with section 12 — 4.11 which were not below those required by statute and which were increased to reflect a rise in the cost of living as established by current surveys. Plaintiffs moved to vacate the order of dismissal. On November 19, 1973, an order was entered denying the motion, and all counts of the complaint were dismissed. Plaintiffs appeal from the above orders entered on November 6 and 19. . .

The issues presented for review are as follows: (1) Was the matter properly brought as a class action; (2) Do plaintiffs have an adequate remedy at law thereby precluding actions for injunctive relief or declaratory judgment; (3) Can a class action for declaratory judgment and injunctive relief be joined in a complaint for administrative review; (4) Does the Court have jurisdiction to order retroactive payments from July 1970; (5) Can new evidence be introduced on administrative review; (6) Does the adoption of the “Flat Grant” welfare policy by the State of Illinois as of October 1, 1973, render the issues moot; and (7) Did the trial court’s determination of mootness demonstrate prejudice?

We find a discussion of the various issues unnecessary since we are in accord with the trial court that they are moot. A question is said to be moot when it presents or involves no actual controversy (Wick v. Chicago Telephone Co., 277 Ill. 338), or, as in the case at bar, where the issues have ceased to exist (Jones v. Clark, 355 Ill. 527). As pointed out by the court, subsequent to the commencement of this action, the “Flat Grant” policy was adopted in the State of Illinois. Under this system, the Department established new standards for assistance in conformity with section 12 — 4.11. The Department made periodic surveys and adjusted the allowance to reflect increases in the cost of living. Under the new policy, 76 or 80 percent of the recipients have enjoyed a definite increase in allotments, and an additional $3,000,000 per month is being distributed. Furthermore, the “Flat Grant” policy has made provision for individuals who apply for allowances in hardship cases. Thus, plaintiffs in this case may apply for an additional allotment to which they may be entitled. In essence, through the adoption of the “Flat Grant” policy, plaintiffs have secured what they basically sought. As stated in People ex rel. Newdelman v. Weaver, 50 Ill.2d 237, 241, <“* * * [A]n appellate court will not review a case merely to decide moot or abstract questions, to establish a precedent, or * * # to render a judgment to guide potential future litigation [Citations.]’”

Plaintiffs strenuously argue that the trial judge improperly referred to Mabry v. Edelman, 73 CL 5805, in his opinion of November 6, 1973, since it is a separate cause of action, wholely unrelated to the instant case. They particularly emphasize that Mabry merely involved a hearing for a temporary restraining order, and therefore they are not bound by any evidence introduced in that cause. We must point out, however, that statutes are a matter of public knowledge, and when, one comes to the attention of the court, it must take judicial notice of same. (Ill. Rev. Stat. 1973, ch. 51, par. 48a.) Judicial notice denotes the duty and power of a court to accept for purposes of trial the truth of a well known fact, commonly and generally known, without proof thereof. (City of Chicago v. Williams, 254 Ill. 360.) On prior occasion our supreme court has held that judicial notice may be taken of the published reports and public records of the Department of Public Welfare. (Department of Public Welfare v. Bohleber, 21 Ill.2d 587.) Having personally ruled on the Mabry case and knowing that the “Flat Grant” welfare policy had been adopted by the State, the trial court was duly bound to conclude that the issues raised by this case were moot. Appellant’s argument that the court was prejudiced is clearly unsupported by the record. On the contrary, we must say that the record discloses that a very conscientious and knowledgeable judge gave considerable time and effort to the parties and the issues.

For the reasons stated the judgment of the circuit court is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jose Perez, Defendant-Appellant.
    (No. 59656;
    First District (2nd Division)
    December 24, 1974.
    James J. Doherty, Public Defender, of Chicago (Marc L. Fogelberg, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Raymond J. Prosser, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

The defendant, Jose Perez, was convicted, following a bench trial, of having committed the offense of delivery of a controlled substance on September 27, 1972, in violation of section 401(b) of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56½, par 1401(b))-. He was sentenced to not less than 3 nor more than 9 years in the Illinois State Penitentiary. On appeal, defendant contends he was denied due process of law by the prosecution’s misrepresentation that no informer existed, and by the refusal of the trial court to order disclosure of the informer’s identity.

Prior to trial, the defendant filed a written motion for discovery which included, among other requests, the following:

“8a That the prosecution disclose whether the name, address or telephone number of any person has been omitted from their 5 answer to the discovery of the accused or whether such name, address or telephone number of any person has been withheld from their answer to the discovery of the accused on the ground that such person or persons are confidential sources, whose identity is privileged from disclosure and if so:
(1) That the prosecution be ordered to compel any such person to be brought to the Court at any time, date, or place out of the presence of the defendant and defense counsel to assert whether or not this person in fact does exist -and that such person or persons be examined by the Court as -. to their knowledge of the defendant and the facts as charged in the indictment and as to any matter which might be of benefit to the accused and that thereafter the Court to order such disclosure as it deems proper and equitable. * * *
11a That pursuant to Supreme Court Rule' 415(b), an order be entered upon the People to from time to time make such amendments to their answer as may be required by new or modified information in their possession, knowledge or control.”

The State answered, “None” to paragraph 8a and stated it would comply with paragraph 11a. However, at no time prior to trial, did the State disclose the existence of an informer.

At trial, on May 31, 1973, Chicago Police Officer Dennis Muchowicz testified that on September 27, 1972, he was doing undercover work, and that morning he met Patrolman Robert Lombardo and Investigator Philip Cline at police headquarters and received $47 from the State’s Attorney’s fund because they had planned to make a controlled purchase of narcotics. At 1:15 that afternoon he was at North Avenue and Western with these officers and had a conversation with a “non Chicago police person” (hereafter informer) at that location, after which he proceeded with the informer to LeMoyne and Campbell, where the informer parked the car and he (Officer Muchowicz) “motioned the defendant over to the car and asked him if he had any good stuff.” The defendant said, “I can get you anything you want.” He told the defendant he had only $47 and the defendant reached into either his jacket or pants pocket and said, “Here’s four bags of good stuff, give me the money.” He took the four bags and gave the defendant the $47. He then drove to a prearranged location, where he met Officers Cline and Lombardo, and gave the four bags to Officer Cline, who conducted a field test, which was positive for heroin. He arrested the defendant on December 27, 1972. On cross-examination he was asked if he was still in contact with the informer, but answered he hadn’t talked with the informer in about 3 months. An objection was sustained to a question concerning the identity of the informer. His police report of September 27, 1972, indicated he thought the defendant was 24 years old and 150 pounds, but his report in December indicated the defendant was 29 and weighed 130 pounds.

Chicago Police Officer Robert Lombardo substantially corroborated Officer Muchowicz’ testimony. Concerning the alleged delivery itself, he testified that he and Investigator Cline were on the southeast corner of LeMoyne and Campbell and saw Muchowicz in the passenger side of the car, with the informer in the driver’s seat. He observed the informer and Muchowicz “engage in a conversation” with the defendant and observed “a transaction.” He could not hear what was said. He did not actually “see anything in the defendant’s hands pass to” Officer Muchowicz. When he left the corner, he observed the defendant still standing there.

Chicago Police Officer Philip Cline also testified and corroborated Muchowicz’ testimony. He went to LeMoyne and Campbell and from a block and a half away (from east of Campbell on LeMoyne) he observed Muchowicz pull up to the curb in a personal auto with the informer. The defendant, who was standing on the sidewalk, walked to the car and engaged in a conversation with the passenger, Muchowicz. He “observed a short conversation” and “observed Munchowicz receive something from the defendant” and Muchowicz “in turn handed currency to the defendant.” He was using binoculars at this time and he had never seen the defendant before.

Defendant contends that he was denied due process of law by the State’s misrepresentation in its discovery answer that no informer-witness existed, and by the refusal of the trial court to order disclosure of the informer’s identity when, at trial, it became evident that an informer participated in the delivery of narcotics.

We initially note that the State’s denial as to the existence of the informer cannot be considered as the result of inadvertence or lack of knowledge. Defendant’s request did not fall under a “catch-all” discovery provision, but specifically asked whether the identity of any person had been withheld from the discovery answer on tire ground that such person is a confidential source whose identity is privileged from disclosure. Furthermore, there can be no serious assertion that the denial resulted from an unawareness of the informer’s existence. (See Ill. Rev. Stat. 1973, ch. 110A, pars. 412(f), 412(b).) A possible explanation for the State’s conduct is that it believed it was under no obligation to reveal the identity of the informer, or his existence. Under Supreme Court Rule 412(j) (ii), “[disclosure of an informant’s identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused.” (Ill. Rev. Stat. 1973, ch. 110A, par. 412(j) (ii).) However, this determination is to be made by the court, not the State. Defendant, under the presumption of innocence, can hardly be expected to seek a timely judicial determination on the issue when the existence of an informer becomes apparent only at the time of trial. The State’s conduct at this stage of the proceedings left much to be desired; by its concealment, the State not only frustrated the purpose of discovery, but became, in effect, the self-appointed arbiter of defendant’s constitutional rights.

Notwithstanding its denial, it is the State’s position that the failure to disclose the existence of the informer was merely harmless error. The State contends that defendant was not prejudiced since disclosure of the informer’s identity was not warranted in any event.

In a recent decision, People v. Lewis, 57 Ill.2d 232, 311 N.E.2d 685, the Illinois Supreme Court, in a consolidated appeal of three cases, was presented with the issue of whether the defense must be furnished with the name and address of an informer involved in a sale of narcotics. In each of the three cases considered, only three persons were immediately present at the alleged sale, namely, the purchasing agent, the defendant, and the informer.

Following Roviaro v. United States, 353 U.S. 53, the court held that disclosure of an informer’s identity at trial was required where the informer was in the dual role of “informer-participant” in the sale of narcotics. In adopting the language of Roviaro, the court stated:

‘“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ ” 57 Ill. at 235.

The State contends that under the Roviaro and Lewis decisions, disclosure of an informer’s identity is constitutionally required only where the informer is the sole witness, other than the purchasing agent, who can testify on the issues involved. In support thereof, the State refers us to People v. Williams, 38 Ill.2d 150, 230 N.E.2d 214. As applied to the present case, the State argues that the corroborating testimony of the two surveillance agents, Robert Lombardo and Philip Cline, obviated the constitutional requirement of disclosure.

We do not read the Roviaro and Lewis decisions to be immutably limited to situations in which the informer-participant is the sole witness to the sale of narcotics, nor, under the circumstances of the instant case, can the State’s misrepresentation be deemed harmless error. The test to be applied is that of balancing the public interest in protecting the flow of information against the individual’s right to intelligently prepare his defense. Roviaro v. United States, supra; People v. Lewis, supra.

When the informer is a participant or a witness to the offense charged, the materiality of his testimony seems clear. (United States v. Barnes (8th Cir. 1973), 486 F.2d 776; People v. Williams, 40 Ill.2d 367, 240 N.E.2d 580.) Of course, whether his testimony strengthens or weakens the State’s case is an entirely separate matter. In this respect however, the desirability of calling the informant as a witness, or at least interviewing him in preparation for a trial, is a matter for the accused rather than for the State to decide. (Roviaro v. United States, supra; People v. Lewis, supra.) In the case at bar, the State’s misrepresentation effectively precluded defendant from interviewing the informant to determine whether he possessed evidence or information which, in any way, impeached the credibility of the State’s case or which would have been of assistance in the defense of the charge. While Supreme Court Rule 412 (]) (ii) recognizes the so-called informer’s privilege, the rule of nondisclosure is not absolute. (People v. Lewis, supra.) In Roviaro, the court stated:

“Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” 358 U.S. at 60-61.

We believe that the informant in the instant case was potentially a crucial witness or source of information for the defense. From the record at bar, it appears that the informer not only assisted in staging the transaction but also drove Officer Muchowicz to the exact location of the sale. Someone knew the seller as “Indio,” yet none of the officers had ever seen the seller previously. It is reasonable to assume that the informant therefore was acquainted with the seller and knew him as “Indio.” Obviously, the informant heard what was said at the time of the purchase and observed what each participant did in consummating the transaction.

Officer Muchowicz was the only officer who participated in the delivery although Officers Cline and Lombardo took a surveillance position from approximately 60 feet. Lombardo described what he called a “transaction,” but on cross-examination he stated that he did not see anything pass from defendant’s hands. Cline, however, testified that with the aid of binoculars, he saw defendant’s approach, conversation, and also observed Muchowicz receive something from the defendant and then saw that Muchowicz “handed currency to the defendant.” Subsequently, a report was completed by Officer Muchowicz wherein he described the seller as a male Puerto Rican, 24 years old, 150 pounds, 5 feet 8 inches tall, and with a scar on the left eyebrow. Defendant was not arrested -until 3 months later and the arrest report was also completed by Officer Muchowicz wherein he described the seller as a male Puerto Rican, 29 years old, 180 pounds, 5 feet 8 inches tall, and with no marks, scars, or deformities.

We cannot say that the corroborative testimony of the surveillance officers obviates disclosure under Roviaro and Lewis, and thereby vitiated any possible prejudice defendant may have incurred by virtue of the State’s failure to disclose. Muchowicz, the only officer who viewed defendant from close range and who could testify to the particulars of tiie transaction, gave varying descriptions of defendant. (See People v. Barney, 60 Ill.App.2d 79, 208 N.E.2d 378.) There was no contemporaneous arrest and certainly the informant’s knowledge of the occurrence was potentially crucial to the issue of identification as well as the particulars of the transaction. As stated in Gilmore v. United States (5th Cir. 1958), 256 F.2d 565, 567:

“As Anonymous [the informant] was a principal actor before and during this performance, who he was and what he knew was certainly material and relevant. In this testimony there might have been the seeds of innocence, of substantial doubt, or overwhelming corroboration. As the inferences from it covered the full spectrum from innocence to guilt, the process of truth-finding, which should be the aim of every trial, compelled its disclosure.”

Unlike People v. Williams, 38 Ill.2d 150, 230 N.E.2d 214, cited by the State, we believe that the informer’s knowledge was potentially significant on the issue of defendant’s guilt or innocence. Although the informer possessed information which was material, the State’s conduct prevented defendant from making a determination of whether his knowledge or testimony would aid in the defense. Such conduct cannot be condoned nor can it be divorced from the question of whether defendant was prejudiced at trial. Accordingly, we hold that the States concealment, and the subsequent refusal of the trial court to order disclosure, denied defendant a fair trial.

In light of the foregoing, the judgment of the circuit court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

HAYES, P. J., and LEIGHTON, J., concur.

       Other State agents were on surveillance and able to corroborate the presence of defendants at tire scene, but in no instance were they able to corroborate the essential elements of sale.


author: Mr. JUSTICE STAMOS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Brown, Defendant-Appellant.
    (No. 59699;
    First District (2nd Division)
    December 24, 1974.

      James J. Doherty, Public Defender, of Chicago (Patrick M. Gleason and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerome Charles Randolph, and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE STAMOS.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John D. Ferguson, Defendant-Appellant.
    (No. 57569;
    First District (2nd Division)
    December 24, 1974.

      James D. Montgomery, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Brown, Defendant-Appellant.
    (No. 58556;
    First District (2nd Division)
    December 24, 1974.

      Mel Cahan, of Chicago (Henry A. Gentile, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Perkerson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Dr. Arturo Rios et al., Plaintiffs-Appellant, v. Nolan B. Jones et al., Defendants-Appellees, Cross-Appellants.
    (No. 59965;
    First District (1st Division)
    December 27, 1974.

      Harry G. Fins and Harold A. Harris, both of Chicago, for appellants.

      William J. Scott, Attorney General, of Chicago (Paul J. Bargiel and George Klumpner, Assistant Attorneys General, of counsel), for appellees.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs are 62 physicians employed by the Department of Health of the State of Illinois. They are all foreign-born United States citizens who received degrees of Doctor of Medicine in foreign countries and were licensed to practice medicine in those countries.

In 1951, the Medical Practice Act was amended (Ill. Rev. Stat. 1951, ch. 91, par. 14a) to provide that the Department of Registration and Education might in its discretion issue without examination a limited license to practice medicine in all its branches to any applicant who coúld furnish the Department with satisfactory proof that he was 21 years of age or over, of good moral character, had had such training at schools which were reputable and in good standing as under the circumstances the Department should deem sufficient and had been appointed a physician in a hospital maintained by the State. The limited license would entitle a physician to practice medicine only in the hospital designated on his license and in any case under the supervision of one of the medical officers of the hospital who was regularly licensed under the Act and under the regulations established by the hospital.

In 1957, the section was amended to include the requirement that the applicant serve a 1-year internship at the hospital approved by the Department. It also provided that the holder of a State hospital permit (also referred to in the Act as a limited license) could practice medicine in all its branches in any hospital or facility maintained by tire Department.

The section was again amended by Public Act 77 — 2757 which became effective on September 1, 1972, and provided, in part, that all State hospital permits in effect on the effective date of the amendment and issued before July 1, 1973, would expire on July 1, 1973. Each person holding a permit could apply for a renewal subject to certain requirements which included passing an examination. Whereas the previous section had in effect made the limited license permanent, the amendment provided that each renewal would be for 1 year, that the Department could not issue more than two renewals to each holder and that the Department had no authority to issue a State hospital permit for an indefinite period.

All of the plaintiffs received State hospital permits or limited licenses before July 1, 1965. Each of them served a 1-year internship in an approved hospital; each was required to pass a physicians civil service examination; and each o£ them has received periodic promotions and increases in salary. They were informed by the defendants, the Directors of the Department of Personnel, Registration and Education and Mental Health that, unless they took and passed academic medical examinations pursuant to Public Act 77 — 2757, they would lose then- employment and civil service status.

The plaintiffs filed a complaint seeking to enjoin the defendants from enforcing the Act’s requirement that they take an examination. The trial court entered an order enjoining the defendants from enforcing the Act only as to those plaintiffs having 10 years or more of civil service, holding the Act unconstitutional as to them, and denied injunctive relief as to the remainder. The plaintiffs who were denied relief have appealed and the defendants have cross-appealed from the order granting relief to those plaintiffs having 10 years or more of service.

Section 13a of the Medical Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 14a) provides, in part:

“As a condition precedent to the renewal of any state hospital permit on July 1, 1974 or on any renewal date thereafter, the permit holder shall be required to show proof of having passed an examination given by the Department of Registration and Education or to have passed an examination deemed by the Department to have been at least equal in all substantial respects to the Department’s examination. The Department shall have no authority to issue- a renewal of a permit to an individual who has failed to pass this examination.”

But the next sentence of the Act provides that “[a]n applicant for renewal of a state hospital permit must submit proof to the Department of Registration and Education that he is pursuing such course of instruction and study as will provide the applicant with the necessary qualifications to successfully pass an examination for the issuance of a license to practice medicine in all of its branches.” The plaintiffs contend that it is unclear under these provisions whether a license will issue if the applicant passes an examination or if he merely submits proof that he is pursuing a course of study that will provide him with the necessary qualifications to pass the examination. Consequently, the plaintiffs argue, the Act is void for vagueness.

In their brief the defendants said:

“The plain and obvious meaning of the statute is that all persons who apply for the renewal of their hospital permits at any time between the effective date of the Act and July 1, 1974, must submit with their application a proof of study. A different condition precedent for renewal applies after July 1, 1974 — namely, the applicants must show proof of successfully passing an examination given by the Department of Registration and Education or equal in all substantial respects to the Department’s examination.”

Such a construction reads into the Act language which, obviously, is not present. It is the function of the legislature, not the courts, to prescribe the necessaiy qualifications to practice medicine. It is the function of die courts to construe the Act of the legislature to give effect, subject to constitutional limits, to the intent of the legislaure. In so doing, however, the courts cannot inject provisions not found in a statute, however desirable or beneficial they may be. Droste v. Kerner, 34 Ill.2d 495, 504, 217 N.E.2d 73.

In oral argument the Assistant Attorney General said that the examinations referred to in the amendment are those leading to a general license. Why then should the first examination referred to be qualified only by the requirement that it be prepared or approved by the Department, while the other examination following a certain course of study is qualified as one that would grant a “license to practice medicine in all of its branches”? It could be argued that the Act refers to two separate types of examination. Under the defendants’ interpretation, tire phrase “to practice medicine in all of its branches” means two different things in the same section of the Act.

Under the first paragraph of section 13a an applicant is required to show that he has already completed training at a school approved by the Department and that he has served a 1-year internship in a hospital. It is unreasonable to assume that the school referred to is anything but a medical school. That being so, the requirements for a limited license— graduation from a medical school and a 1-year internship — are the same as the requirements for a general license. If the defendants’ interpretation is correct, what further course of study and instruction must an applicant for a limited license show that he is pursuing since he has graduated from a medical school and has completed a 1-year internship?

We believe that it is just as reasonable to construe the Act to mean that an applicant must pass one examination and also provide proof that he is pursuing a course of study that would enable him to pass another examination that in turn would entitle him to a general license. It is particularly significant that a limited license has a maximum life of 2 years under the amendment. Thus, after 2 years, what is the holder of a limited license who is a graduate of a medical school with a 1-year internship to do? The answer is obvious: He either gets a general license to practice medicine or he seeks some other line of endeavor. The next question is: How can he get a general license?

Section 5 of the Act (Ill. Rev. Stat. 1971, ch. 91, par. 5) sets out the minimum standards of professional education that must be met before an applicant may be examined for a general license to practice medicine. Section 5, subsection 1(b), provides that the applicant must be a graduate of a medical college, which in turn must meet certain requirements, and he must have completed 12 months’ clinical training in a hospital. Section 5, subsection 1(c), provides that if the applicant is a graduate of a medical school in another country he must have been a resident of this State for 5 years before matriculating in the foreign school, and after testing, he must have received internship training and a medical degree from an Illinois medical school. Since the plaintiffs were not residents of Illinois before attending medical school, they do not come within the purview of section 5, subsection 1(c).

As we have pointed out, section 5, subsection 1(b), refers to medical schools, and section 5, subsection 1(c), refers to foreign medical schools. We construe section 5, subsection 1(b), therefore, to mean medical schools in this country. Thus, the plaintiffs at present do not qualify for examination under section 5, subsection 1(b). The only other section under which a graduate of a foreign medical school may qualify for a general license is section 13 (Ill. Rev. Stat. 1973, ch. 91, par. 14), which provides that the Department may issue a license without examination to a person who has been licensed in another country. The requirements for a general license in the foreign country must be deemed by the Department to be the equivalent of the requirements for a general license in this State, and the foreign country in which he was licensed must accord the same privilege to persons licensed in this State. The burden of proof is on the applicant, and the decision is within the discretion of the Department. Consequently, if the Department exercised its discretion against them, the plaintiffs could qualify for a general license under the Act only by resuming their education at the medical school level in this country, assuming their acceptance by the school. Their acceptance is by no means assured.

In Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 98, 187 N.E.2d 722, the court said:

“Statutes which are so incomplete, vague, indefinite and uncertain that men of ordinary intelligence must necessarily guess at their meaning and differ as to their application, have uniformly been declared unconstitutional as denying due process. [Citations.]”

And in Baggett v. Bullitt, 377 U.S. 360, 367, 12 L.Ed.2d 377, 382, 84 S.Ct. 1316, the United States Supreme Court said:

“[A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. [Citations.]”

Whether the construction given by the defendants truly represents the legislative intent is debatable but immaterial. The point to be made is that the Act is susceptible of more than one interpretation. And under the interpretation given by the defendants an applicant is still faced with the quandary of determining what further “course of instruction and study” a graduate of a medical school with a 1-year internship must pursue. We therefore judge that this section is so uncertain that men of ordinary intelligence must guess at its meaning and differ as to its application and that, therefore, it denies due process.

The plaintiffs also contend that they possessed, in both their licenses and employment, a “property right” which the amendment deprives them of without due process. The main thrust of the defendants’ argument is that, although the plaintiffs’ employment concededly represents a property right, the State may regulate property rights through its police power, which it will reasonably exercise through the examination required under the Act. There can be no quarrel with the defendants’ position that the State may require licensing of physicians under its obligation to safeguard the public health. And there can be no quarrel with the defendants’ argument that an examination represents a reasonable exercise of the police power. But the defendants have cited no case factually apposite that would support a requirement that one who possesses a “property right” of employment may be required to submit to an examination in order to retain that “property right” of employment. On this point the defendants rely principally on Dent v. West Virginia, 129 U.S. 114, 32 L.Ed. 623, 9 S.Ct. 231. In that case the statute required every physician to obtain a certificate from the state board of health that he was a graduate of a reputable medical college; or that he had practiced medicine for 10 years in the state; or that he had passed an examination by the board. The defendant had been practicing medicine for 6 years. He had a diploma from a medical college which the board had rejected when he applied for a certificate. The Supreme Court upheld the statute, which, passed in 1882, was apparently the first statute in West Virginia that dealt with the licensing of physicians. Licensing laws must begin sometime. It is one thing to require a license initially; it is quite another to require one who already has a license to pass another examination to keep it. The Dent case would be authority here if the defendant had been a holder of a State license at the time of the passage of the Act. The defendants also cite certain language in Reetz v. Michigan, 188 U.S. 505, 510, 47 L.Ed. 563, 23 S.Ct. 390. That case involved a statute, passed in 1889, which required a diploma from a medical school or a satisfactory examination. But, most important, the statute also provided that an applicant should be given a certificate of registration if he could give sufficient proof to the board that he had already been registered as a physician under the previous statute. The Board of Registration found that the defendant had failed to submit sufficient proof of a previous registration. The case hinged on the question of whether the Act constituted an unlawful delegation of judicial power to the board. If the defendants’ argument is correct, then a statute requiring all doctors practicing under a general license to submit to another examination would be constitutionally permissible, and so would an Illinois Supreme Court rule requiring all lawyers to submit to another bar examination.

The trial court held that Perry v. Sindermann, 408 U.S. 593, 33 L.Ed.2d 570, 92 S.Ct. 2694, was dispositive of the issues before it. In that case the respondent was employed by a State college system for 10 years, the last 4 as a junior college professor under a series of 1-year written contracts. The regents declined to renew his employment without an explanation or a prior hearing. The teacher’s complaint alleged that he had not been retained because of his public utterances and, in addition, that he had an implied contract of employment. The Supreme Court upheld a reversal of summary judgment for the regents, reasoning that if the teacher could prove the allegations of his complaint that he was not being retained because of his exercise of a constitutional right, he would be entitled to retention; and, if he could establish the existence of an implied contract, due process required that he be given a hearing before termination of employment.

We believe that the facts of this case are even stronger than Perry since that case involved an implied contract of employment, which the court recognized as a property right. It was conceded by all parties in Perry and in Board of Regents v. Roth, 408 U.S. 564, 33 L.Ed.2d 548, 92 S.Ct. 2701, decided the same day, that public employment under tenure provisions constituted a property right which could not be impaired without due process of law. We agree with the trial court’s conclusion that the Perry case was controlling here but disagree with its holding that it was applicable only to those doctors having 10 years’ or more service. The fact that the teacher in the Perry case had 10 years’ employment was accidental and had no bearing on the decision. The defendants seek to distinguish Peny from this case because, they say, Perry did not involve the police power. We are not prepared to accept the proposition that the State’s control of the schools is necessarily apart from its general police power. But assuming that it is, the defendants’ argument is a distinction without a difference.

All of the plaintiffs had passed examinations and had received promotions and increases in wages pursuant to the provisions of the Personnel Code. They are, therefore, entitled to the protection of the civil service laws. Section 8b of the Personnel Code (Ill. Rev. Stat. 1973, ch. 127, par. 63bl08b) provides for “tenure on the basis of merit and fitness.” Section 8b.16 provides for discharge only after a hearing and only for good cause. The identical issue before us was present in People ex rel. Baird v. Stevenson, 270 Ill. 569, 571, 110 N.E. 814, and the question was thus posed:

“ ‘Can the State Civil Service Commission require a person already by law in the classified civil service of the State without prior examination, to take an examination which will test his or her competency, efficiency and qualifications to perform the duties of the office in which he or she is employed, and discharge such person for failure and refusal to take such an examination?’ ”

The court answered the question as follows (270 Ill. 569, 572):

“There is nothing in the statute which authorizes the State Civil Service Commission to require a member of the classified State civil service to take an examination before the commission, whether the officer or employee became a member of such classified service through an entrance examination or by the express terms of the statute declaring that those who held offices or places of employment when the amended act took effect should become members of the classified State civil service without original examinations. All are secured in their positions by a prohibition against removal except upon written charges and a hearing with an opportunity to defend against the charges.”

We judge that the Stevenson case is clearly applicable and controlling here.

The defendants also maintain that the legislature intended that the amendment be applied retroactively. It is the general rule that statutes will not be construed retroactively unless express language provides otherwise. (Stigler v. City of Chicago, 48 Ill.2d 20, 24, 268 N.E.2d 26.) And in any event, a statute may not be given retroactive application if its effect will be the impairment of a vested right. (Hogan v. Bleeker, 29 Ill.2d 181, 190, 193 N.E.2d 844.) Therefore, assuming the statute were sufficiently clear to satisfy constitutional requirements, it could not apply to the plaintiffs. Although the case was not expressly decided on constitutional grounds, we think it appropriate to cite Schleifer v. Department of Registration and Education, 326 Ill.App. 259, 61 N.E.2d 398 (abstract opinion). The petitioner graduated in 1938 from the University of Vienna Medical School, which was deemed reputable and in good standing by the Department of Registration and Education. In 1941, the Department passed a resolution suspending recognition from all medical schools except tiróse in the United States and Canada. The rule was made retroactive to 1936. In 1942, the petitioner completed his internship at a hospital in Chicago. The appellate court reversed an order denying his petition for a writ of mandamus and held:

“Under die circumstances it would appear that in order to become licensed to practice medicine in this State, petitioner would have to repeat an entire medical course of four years in a school recognized by the Department because of the rules and regulations promulgated. It seems to us that, under the existing circumstances, this renders the rules unreasonable and arbitrary.”

The same prospect that faced the petitioner in Schleifer — beginning all over in a medical school — confronts the plaintiffs here if the retroactive application of the amendment is upheld as a reasonable exercise of the police power.

The plaintiffs filed an amendment to the complaint which contended that they were entitled to a license by eminence under section 13 of the Medical Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 14). The trial court dismissed the amendment and that ruling is assigned as error by the plaintiffs. There is no showing that the plaintiffs ever applied for a license under section 13. They therefore failed to exhaust their administrative remedies and the trial court’s ruling was correct. (See Chicago Welfare Rights Organization v. Weaver, 56 Ill.2d 33, 305 N.E.2d 140.) The Federal cases cited by the plaintiffs are not persuasive.

For the foregoing reasons we conclude that the statute may be applied only prospectively and not to tire plaintiffs; that to apply it to the plaintiffs would constitute an unconstitutional abridgment of a vested right; and that the statute is unconstitutionally vague. In view of our holding, it is unnecessary to pass on the plaintiffs’ motion to dismiss the defendants’ cross-appeal or the other arguments of the plaintiffs.

That part of the judgment granting relief to all the plaintiffs having over 10 years’ tenure is affirmed; that part of the judgment denying relief to the other plaintiffs is reversed.

Judgments affirmed in part and reversed in part.

BURKE and GOLDBERG, JJ„ concur.


author: Mr. JUSTICE BARRETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James White, a/k/a Jimmie Claggette, Defendant-Appellant.
    (No. 58587;
    First District (5th Division)
    December 27, 1974.

      James J. Doherty, Public Defender, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Defendant was convicted after a jury trial of unlawful use of weapons. Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a) (4).

Defendant raises three contentions on appeal: (1) that references to unrelated charges of aimed robbery and burglary, appearing in the testimony of the arresting officer and in the State’s opening statement, were prejudicial; (2) that the trial court erred in allowing the State to reopen its case at the conclusion of defense counsel’s closing argument; and (3) that the State’s closing and rebuttal arguments were improper and prejudicial.

The record shows that Sergeant Frank J. Hughes of the Chicago Police Department testified. He was a criminal investigator for area 4 robbery and on July 9, 1971, he interviewed Leola Sims. On July 11, he showed her a photograph of defendant. Thereafter, he accompanied her when she appeared before Judge Sulski, who issued a warrant for defendant’s arrest. After searching for defendant at four different residences, on July 13, in the company of Investigators O’Connor and Piekarski, he observed defendant crossing the street in the area of Madison and Oakley. He left his car and placed defendant under arrest, calling him Claggette. Defendant stated that his name was Terry White, not Claggette. A search of defendant revealed a .38-caliber revolver with five live rounds of ammunition hidden in the small of his back underneath his jacket.

On cross-examination, he stated that the arrest warrant was for a charge of robbery for which defendant had not been convicted, and that the gun recovered from defendant had been stolen from a Mr. Holland in the burglary of his home.

On redirect examination, he testified that the home that had been burglarized was three blocks from where he arrested defendant, and that he knew that defendant had used the name Terry White before because the name was on his arrest record.

On recross, he testified that Miss Sims had given him the name of Jimmie Claggette as the man who robbed her.

Investigator Thomas Piekarski of the Chicago Police Department testified as follows:

On July 13, 1971, he and Investigator O’Connor accompanied Sergeant Hughes in a search for defendant. In the area of Madison and Western Avenues, he observed defendant crossing the street and immediately notified Hughes, who placed defendant under arrest. A crowd had gathered at the scene, and at the time Hughes was arresting defendant, the witness was watching the crowd. When he brought defendant back to the squad car, Hughes was holding a gun in his hand that was different from the two that he was previously carrying.

The gun, the bullets, and the arrest warrant were entered into evidence.

After both sides rested and made their closing arguments, the State, over defense objections, was granted leave to open its case and called Leola Sims as a witness.

Leola Sims testified as follows:

On July 9, 1971, she was at the beauty parlor that she owns and was robbed by defendant, who was armed with a gun smaller than the gun that was the subject of the unlawful-use-of-weapons charge. She has seen defendant for several years in the neighborhood and knew his name to be Jimmie. On July 9, she spoke with Investigator Hughes regarding the robbery. On July 11, she identified defendant’s photograph as that of the man who had robbed her. Thereafter, she accompanied Hughes and had a warrant issued for defendant’s arrest.

After the State made its rebuttal argument, the matter was submitted to the jury.

Opinion

Defendant’s first contention is that references to unrelated crimes were prejudicial. These references included the following: (1) in his opening statement, the prosecutor indicated that Sergeant Hughes would testify that he spoke to Leola Sims in connection with his investigation of an armed robbery of her; (2) in his opening statement, the prosecutor indicated that Hughes would testify that he told defendant to “hold it, he was under arrest for aimed robbery”; (3) Hughes testified on redirect examination that the home that was burglarized was three blocks away from where defendant was arrested; and (4) on redirect examination the officer testified that he knew that defendant had used the name Terry White before because it was on his arrest record.

We note that the trial court informed the jury that the statements of counsel were not to be considered as evidence, and that on direct examination, the only mention of “robbery” was the testimony that Sergeant Hughes was then in the robbery division. There was no statement that Leola Sims had been robbed, nor did the officer testify that he told defendant he was under arrest for robbery.

Furthermore, defense counsel did not object to the opening statement or to the testimony. A party cannot sit by and permit evidence to be introduced without objection and then, on appeal, urge an objection that might have been obviated if made at trial. (People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817.) Indeed, on cross-examination defense counsel specifically asked the officer whether the arrest warrant was for robbery and introduced the subject of the burglary. She told the jury during opening argument that defendant had an arrest record. If a defendant procures, invites, or acquiesces in the admission of evidence, even though it is improper, he cannot complain on appeal. People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389.

Defendant urges us to consider these alleged errors under Supreme Court Rule 615(a), which grants us the discretion to review plain errors affecting substantial rights even when they were not brought to the attention of the trial court. (Ill. Rev. Stat. 1973, ch. 110A, par. 615(a).) We do not think this case is an appropriate one in which to employ the plain-error doctrine, because the evidence against defendant is clear and uncontradicted. People v. Douglas, 130 Ill.App.2d 938, 267 N.E.2d 43.

Defendant next contends that the trial court erred in allowing the State to reopen its case to introduce the testimony of Leola Sims after defense counsel’s closing argument. It is a well-established rule that it is within the sound discretion of the trial court to determine whether a case may be reopened for further evidence and that unless this discretion clearly has been abused, a court of review will not reverse the trial court’s decision. People v. Cross, 40 Ill.2d 85, 237 N.E.2d 437.

In the case at bar, defense counsel argued in her closing statement that die police were not looking for one person, but were going down the street seeing whom they could pick up on suspicion and charge later. “It wasn’t that they were looking for and found a man from a photograph.” Defense counsel repeatedly pointed out that the prosecution had failed to call Leola Sims to confirm the officers testimony concerning his reason for arresting defendant and asked the jury to draw the inference that Sergeant Hughes was not to be believed.

We think the trial court did not abuse his discretion in allowing the State to reopen its case. Defense counsel, by her closing argument, invited the admission of Miss Sims’ testimony. People v. Kelly, 378 Ill. 273, 38 N.E.2d 9.

Defendant now argues that references by Miss Sims to the armed robbery allegedly committed by defendant were prejudicial. Although she objected to the calling of Miss Sims after closing arguments on the ground that the State had the opportunity to call her during its case in chief, defense counsel did not object to the content of the testimony. Thus defendant cannot be heard to raise the objection on appeal. (People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817.) Furthermore, a defendant cannot object to matters that he himself caused to be placed before the jury. People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389.

Defendant’s final contention is that the closing and rebuttal arguments of the prosecutor were prejudicial and improper. Since defendant failed to call any of the alleged improprieties to the attention of the trial court, he may not raise them on appeal. People v. Edwards, 55 Ill. 2d 25, 302 N.E.2d 306.

Defendant’s counsel on appeal was not the attorney who represented him at trial. This court asked counsel at oral argument whether, in view of the number of alleged errors for which there was no objection made at trial, defendant wished to urge that trial counsel was incompetent. Counsel on appeal indicated trial counsel was not incompetent and that defendant did not wish to urge this point on appeal.

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

SULLIVAN, P. J, and LORENZ, J, concur.