author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS ORTIZ, Defendant-Appellant.
    First District (2nd Division)
    No. 1 — 85—3365

    Opinion filed September 5, 1989.

      Randolph N- Stone, Public Defender, of Chicago (Robert Click, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and LaCoulton Walls, Assistant State’s Attorneys, of counsel), for the People.

       This case was assigned to the second division on April 11,1989.

   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant Louis Ortiz was charged by information with aggravated battery, armed violence, and attempted murder, arising out of the shooting of Enrique Cruz. Following a bench trial, defendant was acquitted of attempted murder, but found guilty on three counts of aggravated battery and two counts of armed violence, and sentenced to 15 years in custody of the Illinois Department of Corrections. He appeals from that finding and raises as issues whether: the circuit court erred in failing to suppress an in-court identification of him as fruit of an unlawful arrest and the evidence was sufficient to prove him guilty beyond a reasonable doubt.

On October 18, 1984, at approximately 12:30 a.m., Enrique Cruz (Cruz) was shot near a tavern located on North Damen Avenue in Chicago. Defendant subsequently was arrested and charged in connection with the offense. Prior to trial, defendant moved to quash his arrest and suppress certain evidence, which included photographic and lineup identifications of defendant made by Cruz. At the suppression hearing, Detective John Howe testified that on the evening of November 27, 1987, he was investigating the shooting of Cruz when he arrested defendant. Three weeks earlier, Cruz had informed Howe that shortly before being shot, he was harassed by members of the Warlords and Latin Kings street gangs. According to Howe, Cruz had described the gunman as a white male Hispanic, having dark hair, approximately 5 feet 6 inches tall with a slight build, and about 20 years old. Howe did not recall if Cruz mentioned whether the assailant had a mustache or beard.

Howe, knowing defendant was a member of the Latin Kings who fit the general description provided by Cruz, stopped defendant on the street, searched him, and recovered a .25 caliber handgun. Howe then arrested and photographed defendant. Cruz selected defendant’s picture from a photographic display as the person who shot him. He also identified defendant in a lineup held the next day.

The court found defendant did not adequately fit Cruz’ general description of the gunman as recounted by Howe; citing a lack of articulable facts to warrant the initial stop of defendant, it concluded he was arrested without probable cause. The physical evidence seized pursuant to the arrest, and the photographic and lineup identifications made by Cruz, were-suppressed as a consequence.

The court heard defendant’s motion to suppress Cruz’ in-court identification simultaneously with the trial. Cruz, the State’s first witness, testified that at 12:15 a.m. on October 18, 1984, he went into the subject tavern to see his friend “Marcos.” After having a beer, he stepped outside where he was confronted by 10 to 13 individuals. Four men from this group walked up to Cruz and asked him if he “was a Latin Disciple or if [he] was Folks.” Cruz denied any gang affiliation. Marcos then walked outside and advised the group that Cruz was a family man and did not belong to a gang. Cruz and Marcos returned inside the tavern.

Cruz decided to leave two or three minutes later and was accompanied by Marcos to the front of the tavern. Alone, Cruz proceeded to his van, parked directly across the street. As he put his key in the vehicle door, he heard a shot and turned around. He saw a man, who he later identified as defendant, coming toward him, shooting continuously. Cruz tried to crawl under his van to avoid the shots, but nevertheless was struck four or five times. Defendant jumped over Cruz and ran down a gangway near an empty lot on- the east side of Damen.

Cruz further testified that when he first saw defendant, he was about 20 feet away, but quickly closed to within four or five feet. Cruz looked straight at defendant, whose face was uncovered, for two or three minutes. He described the lighting conditions as “very bright” from “bright street lights” positioned directly above the space where his van was parked. He also remembered additional lighting coming from the street corner, as well as from a light immediately above the tavern’s doorway.

After the shooting, Cruz was taken to a hospital, where he remained for a month and a half. He averred that while still in the hospital, he gave police the following description of his assailant: 5 feet 6 inches or 5 feet 7 inches height; 145 to 160 pounds; a small “fro”; a goatee, with the nubs of a mustache; flat nose; olive color skin; and wearing a dark brown jacket.

On cross-examination, Cruz denied telling police: he was first approached by gang members while still inside the tavern; he “passed out” after the shooting; or Marcos walked him all the way to the street corner before he continued on alone to his van. He acknowledged he was shot in the back, but claimed it occurred when he attempted to crawl underneath his van. He also maintained that a streetlight was located across the street from the tavern and was centered directly over his van.

Upon completion of Cruz’ testimony, the defense moved to have his in-court identification of defendant suppressed, based upon discrepancies in the description Cruz claimed to have provided police, and his “inadequate opportunity” to observe the offender during the shooting. Defense counsel concluded no independent basis of reliability existed for the in-court identification.

The court commented that the State presented evidence that Cruz: had a sufficient opportunity to observe in a place where “considerable” observation was possible; had a memory for events and an ability to communicate those memories; and gave a detailed description to police. Finding a “sufficient attenuation that the in-court identification can stand,” the court denied defendant’s motion to suppress.

Next, Marco Basurto testified he was drinking at the subject tavern with Cruz around 12:15 a.m. on the date of the incident. The two men briefly conversed over a beer, and Cruz eventually went somewhere. A short time later, another patron told Basurto that Cruz was having a problem with a group of men outside the tavern. Basurto went out and saw 10 or 12 persons accusing Cruz of being an opposing gang member, so he told the group that Cruz was not a “gangbanger” and had a house and family. Basurto recognized one of the individuals in that group as defendant. Cruz and Basurto then returned to the bar for about a half hour.

Cruz left, and Basurto walked him outside to the curb. Basurto returned to the tavern as Cruz crossed the street toward his van. Opening the tavern door, Basurto heard gunshots; he jumped inside for protection since the shots sounded close. Basurto then went outside and saw Cruz lying facedown in the middle of the street.

Basurto further testified he had seen defendant a “couple times” before. He also claimed he told police he saw defendant outside the tavern on the night of the shooting.

The parties then stipulated to the testimony of Dr. Murgendra, who treated Cruz at the hospital and diagnosed that he suffered multiple gunshot wounds to the abdomen, right chest and back. The State then rested.

Detective John Howe testified for the defense that he interviewed Cruz at the hospital on November 7, 1984. Howe recalled Cruz was conscious, but in pain and on medication. Cruz told Howe he was confronted by members of the Latin Kings and Warlords street gangs while in the tavern. He also told Howe that Marco walked him all the way to the corner, at which point he continued on alone.

Howe further averred that Cruz was unable to identify the offender from a police photo album, but provided a physical description. According to Howe, Cruz described his assailant as a white male Hispanic, approximately 5 feet 6 inches, slim build, dark hair, around 20 years old. Howe could not recall whether Cruz reported any other descriptive features; no additional characteristics were included in Howe’s police report, prepared 20 days after his interview with Cruz.

Howe stated that the scene of the shooting was well-lighted, but no streetlight was located directly across Damen Avenue from the tavern. He also represented that no empty lot existed on the east side of that block.

The defense next introduced the stipulated testimony of Detectives O’Shea and Johnson, which indicated that they spoke with Miriam Cruz, the victim’s wife, shortly after the shooting. She told them she and her husband were arguing earlier that day and he left the house to go drinking. The defense then rested.

Reviewing the evidence, the court found Cruz to be a “very, very credible witness.” It commented that Cruz was able to articulate what he saw clearly and remembered the events without any difficulty, and noted that Basurto’s testimony corroborated Cruz on several important points, particularly the placement of defendant at the scene shortly before the shooting. The court further found that the area was “extremely well-lit,” providing Cruz with a good opportunity to see the gunman.

The circuit court then found defendant guilty on all three counts of aggravated battery and two counts of armed violence, but acquitted him of attempted murder. Defendant’s motions for reconsideration and a new trial both were denied, and he subsequently was sentenced to 15 years’ imprisonment.

I

The first contention on appeal is that the circuit court erred in failing to suppress Cruz’ in-court identification of defendant as the fruit of an unlawful arrest. Defendant claims the in-court identification was tainted in that: Cruz’ description of the offender to the police differed from defendant’s actual appearance; Cruz’ recollection at trial of the description he gave police was unreliable; Cruz only had a few seconds to view his assailant; and Cruz had two opportunities to review defendant prior to making the in-court identification.

An in-court identification of an offender by a victim consists of three distinct elements: (1) the victim is present at trial to testify as to the occurrence and identify the defendant as the perpetrator; (2) the victim has knowledge of the prior criminal episode, and the ability to articulate the incident and identify defendant based upon his observations at the time of the offense; and (3) defendant is physically present in the courtroom, so that the victim can refer to his appearance and compare it to that of the perpetrator. (United States v. Crews (1980), 445 U.S. 463, 471, 63 L. Ed. 2d 537, 546, 100 S. Ct. 1244, 1250.) The in-court identification need not be suppressed as the fruit of an unlawful arrest if “none of these three elements ‘has been come at by exploitation’ of the violation of the defendant’s Fourth Amendment rights.” (United States v. Crews, 445 U.S. at 471, 63 L. Ed. 2d at 546, 100 S. Ct. at 1250, quoting Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.) In the instant case, none of these elements of an in-court identification were achieved as a result of defendant’s illegal arrest, as the following analysis demonstrates.

A

First, Cruz’ presence at trial did not result from any police misconduct. The police were notified of the shooting shortly after it occurred and began their investigation immediately. Cruz gave the police a description of his assailant as soon as he was released from intensive care, and cooperated throughout the investigation. Cruz’ identity was not discovered nor his cooperation obtained only as a result of an unlawful arrest; rather, “the victim’s identity was known long before there was any official misconduct, and [his] presence in court is thus not traceable to any Fourth Amendment violation.” United States v. Crews, 445 U.S. at 471-72, 63 L. Ed. 2d at 546, 100 S. Ct. at 1250.

B

Second, the illegal arrest did not taint Cruz’ ability to provide reliable identification testimony during trial. An in-court identification need not be suppressed when based upon a witness’ independent recollection of his initial encounter with the offender, uninfluenced by the unlawful arrest. (United States v. Crews, 445 U.S. at 473, 63 L. Ed. 2d at 547, 100 S. Ct. at 1251; People v. Houston (1986), 151 Ill. App. 3d 102, 112, 502 N.E.2d 1111.) Recently, our supreme court enumerated the circumstances to be considered in evaluating the reliability and independent basis of an in-court identification (People v. Slim (1989), 127 Ill. 2d 302, 307-08, 537 N.E.2d 317):

“(1) the opportunity the victim had to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the victim at the identification confrontation; and (5) the length of time between the crime and the identification confrontation.”

Application of these factors to the instant record demonstrates that Cruz’ in-court identification was not the result of exploiting the unlawful arrest but was based instead on circumstances sufficiently independent of the arrest to expurgate any taint. People v. Houston, 151 Ill. App. 3d at 112.

Of the five circumstances reviewed in Slim, the most important is the victim’s opportunity to view the offender. (People v. Moore (1983), 115 Ill. App. 3d 266, 270, 450 N.E.2d 855.) Cruz testified defendant first shot from about 20 feet away, and eventually neared to within four or five feet; defendant’s face was uncovered, and Cruz looked straight at him during the shooting; and Cruz and Howe averred that the lighting conditions were “very bright” and the area was “well-lighted.” There is no basis, therefore, to reject the circuit court’s conclusion that Cruz had a sufficient opportunity to view his assailant.

Next, Cruz’ degree of attention during the shooting decidedly was focused on defendant. As the victim in the incident, he was more than a mere casual observer. (See People v. Frisby (1987), 160 Ill. App. 3d 19, 33, 512 N.E.2d 1337.) He also testified that he did not lose consciousness during the attack and was able to watch defendant until his escape down a gangway on the east side of Damen. Indeed, the circuit court commented on Cruz’ ability to articulate clearly the events surrounding the incident.

Concerning the accuracy of his prior description, Cruz gave police a detailed report of defendant’s appearance while still in the hospital. Defendant repeatedly urges that Cruz only gave police a general description and failed to mention important characteristics, such as a beard and mustache. Defendant relies on the fact the police report did not include any reference to facial hair. Cruz, however, insisted throughout his testimony that his initial description included such details; the investigating officer, Detective Howe, did not contradict that testimony, but merely stated he did not remember if Cruz mentioned a beard and mustache.

In a bench trial, the court must determine the credibility of the witnesses, evaluate the evidence and resolve any inconsistencies therein. (People v. Slim, 127 Ill. 2d at 307.) The circuit court was well aware of the discrepancies between the description inserted into the police report and the description provided by Cruz at trial, and nevertheless determined Cruz to be “steadfast” and “very, very credible.” The court also may have considered the police report’s description to be unreliable since it was prepared almost three weeks after Howe’s interview of Cruz. The evidence of record, therefore, is not so unsatisfactory or improbable that we may reject the circuit court’s finding as to the accuracy of Cruz’ prior detailed description of defendant.

Next, Cruz’ identification of defendant demonstrated a convincing level of certainty. He initially was shown two photograph albums, but did not identify anyone; defendant’s photograph was not part of that display. Later, however, he positively selected defendant twice in separate, nonsuggestive pretrial identification procedures. Certainly, as defendant suggests, such intervening identifications might affect the reliability of courtroom identifications under some circumstances. (United States v. Crews, 445 U.S. at 472-73, 63 L. Ed. 2d at 546-47, 100 S. Ct. at 1250-51.) The instant case does not provide such a situation; however, the record contains ample support for the court’s conclusion that Cruz’ in-court identification had an independent origin.

Finally, the length of time between the shooting and the first identification confrontation was approximately V-k months. Under the circumstances presented, which include the nature of the assault, Cruz’ “considerable” opportunity to view the offender, and his extended hospital stay which delayed the initial police interview, the length of time was not significant. See People v. Slim, 127 Ill. 2d at 313-14 (and cases cited therein).

There is no basis for this court to dispute the circuit court’s finding that Cruz’ in-court identification of defendant was based on his independent recollection of the initial encounter with the offender, uninfluenced by the two pretrial identifications. His ability to identify defendant, therefore, was not a result of or tainted by the unlawful arrest. United States v. Crews, 445 U.S. at 473, 63 L. Ed. 2d at 547, 100 S. Ct. at 1251.

C

Third, defendant’s presence at trial cannot be deemed a suppressible fruit; the illegality of his arrest cannot deprive the State of the opportunity to prosecute him using evidence untainted by police misconduct. (United States v. Crews, 445 U.S. at 474, 63 L. Ed. 2d at 547, 100 S. Ct. at 1251.) Because none of the three elements that make up an in-court identification “came at the exploitation” of defendant’s unlawful arrest, the circuit court did not err in refusing to suppress Cruz’ in-court identification of defendant.

II

Defendant next contends that the State failed to prove his guilt beyond a reasonable doubt. He asserts that the testimony of the State’s two witnesses, Cruz and Basurto, was conflicting and impeached on several points. Particularly, he argues that Cruz, the sole eyewitness, was impeached or contradicted on the following items: the offender’s age; the description he gave to police; whether he was first confronted by the gang members outside or inside the tavern; whether he consumed half a can or two to three beers; the amount of time he spent in the tavern after he returned from the initial confrontation; how far Basurto walked with him when he departed; the presence of a streetlight directly across the street from the tavern; the existence of an empty lot on the east side of the block; the time he left home to go to the tavern; and, his testimony that he was looking at defendant the entire incident despite evidence he was shot in the back. Defendant characterizes these points as “vital,” and concludes the resulting conflicts and inconsistencies in these facts create reasonable doubt.

A court of review will not disturb a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant’s guilt; the question is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.) A positive identification by a single, credible witness is sufficient to support a finding of guilt. (People v. Molstad (1984), 101 Ill. 2d 128, 133, 461 N.E.2d 398.) In resolving defendant’s guilt or innocence when dependent upon the credibility of the witnesses and the weight to be given their testimony, it is the exclusive province of the trier of fact to resolve any conflicts in the evidence. People v. Collins, 106 Ill. 2d at 261-62.

The circuit court, as trier of fact in the instant case, resolved the conflicts in the evidence in favor of the State and against defendant, concluding that Cruz was a “very, very credible” witness. Cruz’ identification of defendant as his assailant was found reliable; the court determined that Cruz had a good opportunity to view his attacker in an area with considerable lighting where adequate observation was possible. Further, Cruz looked at defendant’s uncovered face during the incident from a continuously decreasing distance. The fact Cruz was shot in the back does not necessarily make his identification testimony unreliable; as the circuit court noted, he still would have had “a considerable opportunity to observe” defendant. The evidence here is not so unsatisfactory as to provide a basis to reject Cruz’ positive identification of defendant as his assailant, which alone is sufficient to support the conviction. People v. Molstad, 101 Ill. 2d at 133.

Further, the other instances of Cruz’ impeachment raised in defendant’s brief are not so significant as to raise a reasonable doubt. In reviewing the effect of such impeachment on Cruz’ credibility, this court also may take note of any corroboration. (See People v. Kline (1982), 92 Ill. 2d 490, 505-06, 442 N.E.2d 154.) A review of the record reveals significant corroboration of Cruz’ testimony by both Basurto and Howe with respect to the occurrence and progression of the major details of the shooting; in addition, in finding Cruz credible, the circuit court noted Cruz’ ability to recollect events at the time of the shooting, Detective Howe’s corroboration regarding lighting at the scene, and Basurto’s placement of defendant at the tavern immediately prior to the shooting. In contrast, the purported inconsistencies and impeachment of Cruz asserted in defendant’s brief involve mostly minor details rather than “vital questions of fact.”

The court was presented with sufficient evidence which, if believed, established defendant’s guilt beyond a reasonable doubt. As trier of fact, it believed Cruz and resolved the inconsistencies against defendant; we cannot say its determination was erroneous.

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

Judgment affirmed.

SCARIANO and DiVITO, JJ., concur.

       The reliance on these two pretrial identifications, which were suppressed by the circuit court, is not intended to provide evidentiary value to those identifications; to do so would undermine the objectives of the exclusionary rule. Instead, “the accurate pretrial identifications assume significance only to the extent that they indicate that the witness’ ability to identify [defendant] antedated any police misconduct, and hence that [his] in-court identification had an ‘independent source.’ ” United States v. Crews, 445 U.S. at 473 n.18, 63 L. Ed. 2d at 547 n.18, 100 S. Ct. at 1251 n.18.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILLIAM PEARSON, Petitioner-Appellant.
    First District (2nd Division)
    No. 1 — 86—1748
    Opinion filed September 5, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and William D. Carroll, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

Petitioner-appellant William Pearson was convicted by a jury in 1979 of murder, three counts of armed robbery, attempted armed robbery, unlawful use of weapons, and armed violence. He was sentenced to imprisonment for concurrent terms of 40 years for murder, 20 years for each armed robbery, 10 years for attempted armed robbery and 5 years for unlawful use of weapons. No sentence was entered on the armed violence conviction. He now appeals from an order of the circuit court dismissing his petition for post-conviction relief.

The issue raised on this appeal is whether the trial court properly dismissed the post-conviction petition without an evidentiary hearing, where petitioner alleged ineffective assistance of counsel based on (1) trial counsel’s failure to call as a witness a physician who would have testified that on the night of the crime petitioner was struck by two bullets of different calibers, thereby corroborating petitioner’s defense theory that he was the victim, rather than the perpetrator, of the crime; (2) appellate counsel’s failure to raise the issue of the trial court’s refusal to allow a defense witness to testify for the purpose of impeaching a State’s witness with a prior inconsistent statement; and (3) appellate counsel’s failure to raise the issue of systematic exclusion of blacks during jury selection.

The evidence presented at petitioner’s trial established that, on December 3, 1978, petitioner had been drinking and gambling at an “after hours” bar in Chicago. Petitioner announced a hold-up, brandished a sawed-off shotgun and pistol, and fired several shots into the ceiling. The other patrons in the bar dove for cover, more shots were fired, and petitioner fled with a large sum of money. Sammy Priest was fatally wounded during the hold-up.

Petitioner denied committing the robberies. He claimed that he was robbed and shot after winning money in a dice game. Petitioner admitted that he fired some shots, but claimed that he fired in self-defense.

During the State’s case in chief, Sherry McWoodson testified that on the night of the hold-up, petitioner arrived at her home with money and guns and stated that he had shot someone and that he hoped that person was dead. Two. days after her testimony, defense counsel requested leave to add Maggie Sprott to the list of defense witnesses. Defense counsel told the court that he had learned that Sprott, a friend of both petitioner and McWoodson, had a conversation with McWoodson before McWoodson testified. Defense counsel made an offer of proof that Sprott would testify that McWoodson admitted to her that petitioner never stated that he had shot someone. The trial court denied defense counsel’s request to allow Sprott to testify on the ground that no foundation had been laid on cross-examination for impeaching McWoodson by confronting her with a prior contrary statement. Defense counsel did not request leave to recall McWoodson for the purpose of laying a foundation.

On Friday, September 21, 1979, after the State rested, petitioner’s attorney informed the court that he intended to call a certain physician, believed to be petitioner’s treating physician, to testify that petitioner had been struck twice by bullets of different calibers. Petitioner’s attorney indicated that he had not anticipated the need to call petitioner’s physician until after a State’s witness had testified that petitioner had been shot only once. Petitioner’s attorney requested a continuance to locate the doctor and his request was granted until the following Monday. On Monday morning, petitioner’s attorney informed the court that he had learned that a different physician, Dr. Richard Pearson, appeared to have treated petitioner, but that Dr. Pearson needed to review his records to determine whether he had examined petitioner. Petitioner’s attorney requested a one-day continuance to bring in Dr. Pearson. That request was denied.

The record reflects that petitioner’s attorney had known about Dr. Pearson for some time, but never subpoenaed him or any other physician. In his motion for a new trial, petitioner submitted a letter written by Dr. Pearson, stating that Dr. Pearson had removed two bullets from petitioner that, “to the best of [Dr. Pearson’s] recollection,” were of different calibers.

Petitioner’s appellate counsel raised two issues on appeal: first, whether the trial court erred in denying the request for a one-day continuance; and second, whether the trial court erred in denying petitioner’s motion for a new trial based on the State’s failure to honor his request for disclosure of arrest records of certain State witnesses. However, petitioner’s convictions and sentences were affirmed. (People v. Pearson (1981), 102 Ill. App. 3d 732, 430 N.E.2d 304.) Significantly, the court did not find any abuse of discretion in the trial court’s denial of the motion for a continuance because of “the obvious lack of diligence of defense counsel in determining the identity of the treating physician” and the “lack of certainty surrounding [Dr. Pearson’s] expected testimony.” People v. Pearson (1981), 102 Ill. App. 3d 732, 737, 430 N.E.2d 304.

The Illinois Supreme Court denied petitioner leave to appeal. (People v. Pearson (1982), 91 Ill. 2d 564, 440 N.E.2d 126.) On February 17, 1984, the United States District Court denied petitioner’s pro se habeas corpus petition. On January 21, 1985, the district court’s order was affirmed on appeal.

On August 26, 1985, petitioner filed his petition in the circuit court for post-conviction relief. Petitioner alleged ineffective assistance of trial counsel based on defense counsel’s failure to subpoena Dr. Pearson or take other measures to compel his attendance; to present evidence corroborating petitioner’s theory that he was framed; to request a ballistics examination to determine the caliber of the bullet inside Sammy Priest’s skull; to move to suppress incriminating statements elicited from petitioner in violation of his Miranda rights; and to request a voluntary manslaughter instruction.

Petitioner also alleged that he was denied due process of law by the trial court’s denial of his motion for a continuance; the trial court’s failure to take action sua sponte to secure Dr. Pearson’s attendance; the trial court’s failure to order a hearing sua sponte regarding petitioner’s statements elicited in violation of Miranda-, the trial court’s refusal to permit Maggie Sprott to testify; the State's failure to disclose the arrest records of certain witnesses; and defense counsel’s failure to request a voluntary manslaughter instruction. Petitioner alleged further that he was denied an impartial jury by the systematic exclusion of blacks during jury selection. Finally, petitioner alleged ineffective assistance of appellate counsel based on appellate counsel’s failure to rise on appeal each of the above contentions.

The State filed a motion to dismiss the petition. On June 12, 1986, the State’s motion was granted and the petition was dismissed without an evidentiary hearing.

I

Petitioner maintains that the ineffective assistance of counsel allegations in his post-conviction petition were sufficient to withstand a motion to dismiss and to require an evidentiary hearing. Petitioner asserts first that an evidentiary hearing was required on his claim of ineffective assistance of trial counsel because his trial counsel never called Dr. Pearson as a witness even though he had access to petitioner’s medical records and knew about Dr. Pearson prior to the trial. In support of his argument, petitioner relies on People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83. In that case, the defendant was convicted of voluntary manslaughter for killing someone in a dispute over a “crap” game. Defense counsel failed to call two witnesses who would have testified that the deceased had a gun, a reputation for violence, and had threatened the defendant. The court held that the allegations in the petition for post-conviction relief were sufficient to withstand a motion to dismiss and to require an evidentiary hearing, because the expected testimony corroborated the defendant’s testimony and its cumulative effect might have resulted in a not guilty finding. Petitioner asserts that, like the expected testimony in Stepheny, Dr. Pearson’s testimony was “crucial” to his defense, because Dr. Pearson would have testified that petitioner was shot twice by bullets of different calibers, thereby corroborating petitioner’s claim that he was a victim of the robbery and fired shots only in self-defense.

A post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 279; People v. James (1986), 111 Ill. 2d 283, 291, 489 N.E.2d 1350.) An evidentiary hearing is allowed only if the petitioner makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record in the case or by accompanying affidavits. (People v. Del Vecchio, 129 Ill. 2d at 279; People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830.) Generally, the issue of a trial counsel’s competence is waived where the defendant’s appellate counsel fails to raise the issue on direct appeal. (People v. Owens (1989), 129 Ill. 2d 303, 308.) However, the waiver rule is relaxed where the facts relating to the issue of incompetency do not appear on the face of the record (People v. Owens, 129 Ill. 2d at 308), or where fundamental fairness so requires (People v. Del Vecchio, 129 Ill. 2d at 280; People v. Burns (1979), 75 Ill. 2d 282, 388 N.E.2d 394).

In this case, petitioner was represented by appellate counsel different from trial counsel (see People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340), and the facts relating to petitioner’s claim of incompetency were contained in the record. Accordingly, petitioner has waived the issue of ineffective assistance of trial counsel by not raising it on direct appeal.

Fundamental fairness does not require relaxation of the waiver rule in this case, because the record does not support petitioner’s claim of ineffective assistance of trial counsel in violation of the sixth amendment. To prevail on such a claim, a defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) A claim of ineffective assistance of counsel may be disposed of on the ground of lack of sufficient prejudice without considering whether counsel’s performance was deficient. Strickland v. Washington, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Albanese, 104 Ill. 2d at 527, 473 N.E.2d 1246.

In this case, the record does not support petitioner’s contention that his trial counsel’s conduct was deficient. Unlike trial counsel’s alleged conduct in People v. Stepheny (1970), 46 Ill. 2d 153, 263 N.E.2d 83, relied on by petitioner, trial counsel in this case plainly made efforts to procure Dr. Pearson as a witness. Indeed, in arguing on direct appeal that the trial court erred in denying his motion for a one-day continuance, petitioner urged, contrary to his position here, that his trial counsel was diligent in his efforts to procure Dr. Pearson as a witness.

The record also does not support petitioner’s contention that he was prejudiced by his trial counsel’s failure to call Dr. Pearson as a witness. Had Dr. Pearson been called as a witness, he would have testified that petitioner was struck by two bullets of different calibers. Petitioner claims that this testimony would have corroborated his theory at trial that he was winning at gambling and fired shots in self-defense only after he was robbed and shot at by another disgruntled gambler.

However, the testimony that petitioner had been shot twice would have been cumulative, because one of the State’s witnesses had already testified that petitioner was in the hospital for a gunshot wound and petitioner himself testified that he had been shot twice. Moreover, the expected testimony regarding the calibers of the bullets was uncertain, because Dr. Pearson indicated that he was not sure if the bullets were of different calibers and the medical records submitted by petitioner in support of his motion for a new trial do not indicate that the bullets were of different calibers. Finally, four State witnesses testified that petitioner, without provocation, announced a hold-up, brandished two guns, fired shots and fled with the money. Unlike the expected testimony of the witnesses in Stepheny, Dr. Pearson’s testimony would not have contradicted that other evidence of petitioner’s guilt. Given the evidence presented at trial that petitioner was shot, the uncertain nature of the testimony regarding the calibers of the bullets, and the overwhelming evidence of petitioner’s guilt, it is not likely that Dr. Pearson’s testimony would have changed the outcome of the trial.

II

Petitioner maintains next that an evidentiary hearing was required on his claim of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise the issue of the trial court’s refusal to allow Maggie Sprott to testify that Sherry McWoodson had perjured herself. Petitioner argues that Sprott should have been allowed to testify despite defense counsel’s failure to confront McWoodson with her prior contrary statements, because defense counsel learned of the prior contrary statements after McWoodson testified. Petitioner maintains that his case was devastated by McWoodson’s testimony, so that he was substantially prejudiced by his inability to impeach McWoodson with Sprott’s testimony.

Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence to refrain from raising an issue counsel believes to be without merit unless counsel’s appraisal of the merits is clearly wrong. (People v. Frank (1971), 48 Ill. 2d 500, 505, 272 N.E.2d 25.) In order to support a claim of ineffective assistance of appellate counsel in a post-conviction proceeding, the petitioner must establish substantial prejudice which likely affected the outcome of the case. People v. Adams (1987), 164 Ill. App. 3d 742, 747, 518 N.E.2d 266.

In this case, appellate counsel was not clearly wrong in his appraisal of the merits of the issue regarding the trial court’s preclusion of Sprott’s testimony. Generally, a proper foundation must be laid before prior inconsistent statements of a witness can be offered for purposes of impeachment. (People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409; People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185.) The purpose of this rule is to protect the witness against unfair surprise and to provide an opportunity for the witness to correct, explain, or deny the statement. (People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876.) Where a proper foundation was not laid originally because counsel was not then aware of the prior inconsistent statement, it is within the discretion of the trial court to permit the witness to be recalled for the purpose of perfecting the foundation. (People v. Henry (1970), 47 Ill. 2d 312, 322, 265 N.E.2d 876.) Failure to permit the witness to be recalled may constitute reversible error. People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185.

Trial counsel in this case was not aware of McWoodson’s prior inconsistent statement until after McWoodson testified. However, trial counsel did not request leave to recall McWoodson in order to lay a foundation for impeachment. Accordingly, the court properly precluded Sprott’s testimony regarding McWoodson’s prior inconsistent statement on the ground that no foundation had been laid. In any event, the overwhelming evidence of petitioner’s guilt suggest that any error in the trial court’s ruling regarding Sprott’s testimony would have been harmless. (See Delaware v. Van Arsdall (1986), 475 U.S. 673, 89 L. Ed. 2d 674, 106 S. Ct. 1431.) Thus, petitioner was not substantially prejudiced by appellate counsel’s failure to raise the issue on direct appeal.

Ill

Finally, petitioner maintains that an evidentiary hearing was required on his claim of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise the issue of systematic exclusion of blacks during jury selection. Petitioner argues that, even though Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, was controlling during the pendency of his appeal, appellate counsel should have urged the appellate court to follow cases such as People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890, or to apply the sixth amendment fair-cross-section requirement to petit juries.

We hold that appellate counsel appropriately refrained from raising the issue of systematic exclusion of blacks during jury selection. During the pendency of petitioner’s direct appeal, Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, had not been decided and the Swain standard controlled over fourteenth amendment claims of exclusion of blacks during jury selection. During voir dire in petitioner’s case, the State excused 10 blacks, leaving only one black juror. Defense counsel moved for a mistrial, alleging systematic exclusion of blacks. The trial court denied the motion, stating that it could not find “an intentional exclusion of persons as a pattern, because there [had] been some blacks accepted by the State and one black excluded by the defense.” Given this record and the heavy burden of proof under the standard set forth in Swain, appellate counsel appropriately concluded that petitioner would not prevail on a fourteenth amendment claim of systematic exclusion of blacks during jury selection.

Appellate counsel also appropriately refrained from raising the issue as a sixth amendment claim. In People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202, and People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220, the Illinois Supreme Court declined to extend the sixth amendment fair-cross-section requirement, enunciated in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, to petit juries. We do not believe appellate counsel was patently wrong in failing to raise a claim that would have ultimately been rejected by the Illinois Supreme Court.

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

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.


author: JUSTICE RIZZI

text:
    BERNARD HEEREY, Plaintiff and Counterdefendant, v. BENITTA BERKE et al., Defendants (Benitta Berke, Counterplaintiff and Third-Party Plaintiff-Appellant; Nathaniel I. Grey et al., Third-Party Defendants-Appellees).
    First District (3rd Division)
    No. 1 — 87—1836
    Opinion filed September 6, 1989.

      Steven R. Dobrofsky, of Chicago, for appellant.
    Richard H. Victor, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Third-party plaintiff, Benitta Berke (Berke), appeals from an order of the circuit court of Cook County dismissing with prejudice counts VI and VII of her amended third-party complaint. Counts VI and VII alleged that a letter drafted and published by third-party defendants Nathaniel I. Grey (Grey), an attorney, and Foss, Schuman, Drake & Bernard (Foss), a law partnership, constituted libel per quod and libel per se. Berke argues on appeal that she sufficiently alleged causes of action for libel per quod and libel per se. Berke additionally argues that (1) it was error for the trial court to apply the innocent construction rule to count VI, the libel per quod action, when it ruled on the section 2 — 615 motion to dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) and (2) that the trial court misapplied the innocent construction rule when it dismissed count VII, the libel per se action. We affirm.

The following facts were alleged in counts VI and VII of the amended third-party complaint. Berke is an attorney, businesswoman, and owner of property located at 1161 North State Street in Chicago. Since 1983, Heerey has owned the adjacent and contiguous property located at 1159 North State Street. On May 7, 1985, Berke wrote Heerey demanding the removal of an electrical conduit which constituted a trespass on her property. In response, on May 9, 1985, Grey, of counsel to Foss, wrote to Benitta Berke on behalf of Heerey, with copies sent to Joseph Berke, Lou Wolf and Bernard Heerey, the following:

“Please be sure that any attempts made to ownership of the property you claim to own are in fact legal and not extralegal. In recent months, there was [an] arson attempt in the first floor of the building at 1159 North State Street, and I need to be sure that there are no covert threats and extralegal self-help to be inferred from your letter of May 7,1985.”

This May 9, 1985, letter from Grey is the subject of the alleged libel. Grey and Foss presented separate motions to dismiss counts VI and VII of the complaint for failure to state causes of action for libel per quod and libel per se. The trial court dismissed both counts. This appeal followed.

On appeal, Berke argues that the trial court erred in dismissing count VII. It is Berke’s position that the trial court misapplied the innocent construction rule to count VII, the libel per se action. We disagree.

The trial court may apply the innocent construction rule when ruling on motions to dismiss filed pursuant to both section 2— 615 and section 2 — 619. (Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 489, 515 N.E.2d 668, 673-75; Renard v. Columbia Broadcasting System, Inc. (1984), 126 Ill. App. 3d 563, 566, 467 N.E.2d 1090, 1093.) When ruling on a motion to dismiss, the trial court accepts as true all well-pled facts, as well as all reasonable inferences favorable to the party opposing the motion which may be drawn from the facts. (Richardson v Dunbar (1981), 95 Ill. App. 3d 254, 255-56, 419 N.E.2d 1205, 1207.) The court does not, however, accept as true mere conclusions of law or fact. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 273, 504 N.E.2d 193, 196.) The complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that would entitle the plaintiff to relief. (Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 752, 484 N.E.2d 873, 877.) On review, the allegations of the complaint are to be interpreted in the light most favorable to the plaintiff. (Richardson, 95 Ill. App. 3d at 256.) Although the question of whether a statement is reasonably understood as defamatory is generally a question of fact for the jury, it is nevertheless the role of the court to determine, in the first instance, if the alleged defamatory remark is reasonably susceptible to an innocent construction. Berkos, 161 Ill. App. 3d at 485.

Defamatory writing is either libelous per se or per quod. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 263, 371 N.E.2d 874, 877.) An action for defamation based upon libel per se requires that the words used by the defendant are in and of themselves so obviously and materially harmful to the plaintiff that a showing of special damages or the injurious character is unnecessary. (Bruck, 56 Ill. App. 3d at 264; Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145, 1147.) To be defamatory per se, the words themselves, without the aid of extrinsic facts to explain them, must be so obviously and inevitably hurtful that damage is presumed. (Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348, 243 N.E.2d 217, 220.) A writing is libelous per se and is actionable without proof of special damages if it contains a false statement which imputes to the plaintiff any of the following: (1) commission of a crime; (2) infection with a loathsome disease; (3) unfitness or want of integrity in performing the duties of an office or employment; and (4) words which adversely reflect on a particular party’s abilities in his or her business, trade or profession. Owen, 113 Ill. 2d at 277; Allen v. Ali (1982), 105 Ill. App. 3d 887, 889, 435 N.E.2d 167, 168-69; Britton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 548, 428 N.E.2d 650, 652.

There is no general rule defining what words are defamatory, and each case must be decided based upon its own facts. (Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 266, 371 N.E.2d 874, 879.) In order for words charging the commission of a crime to be libelous per se, the offense must be indictable, involve moral turpitude and be punishable by death or imprisonment rather than á fine. (Bruck, 56 Ill. App. 3d at 264.) To constitute libel per se, however, the offensive accusation need not state the commission of a crime in terms of art or with the particularity of an indictment. Zeinfeld v. Hayes Freight Lines, Inc. (1968), 41 Ill. 2d 345, 348, 243 N.E.2d 217, 220.

In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, 199, our supreme court gave the following explanation of how to apply the innocent construction rule to determine whether language constitutes libel per se:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.” Chapski, 92 Ill. 2d at 352.

Although statements made in the form of insinuation, allusion, irony or question may be considered as defamatory, applying the rule of innocent construction to the case at bar, we find as a matter of law that the language of the May 9, 1985, letter does not constitute libel per se. The statements when considered in context may reasonably be innocently interpreted. Specifically, the comments may reasonably be interpreted as indicating a concern for the future that there be no covert threats and/or extralegal self-help implied by Berke’s letter. In addition, the reference to the arson attempt may reasonably be interpreted as referring to someone other than Berke. Where language which otherwise might be considered actionable is conditioned or qualified such as by inclusion of the word “if,” it is not actionable per se. (Bruck v. Cincotta, 56 Ill. App. 3d at 264, 371 N.E.2d at 878.) The words do not import commission of a crime by Berke and may not be so construed by reference to words not part of the language complained of. Richardson, 95 Ill. App. 3d at 260.

Berke further argues that the trial court erred when ruling on the section 2 — 615 motion to dismiss when it applied the innocent construction rule to count VI, the libel per quod action and dismissed the cause of action. We disagree.

As previously stated, the trial court may apply the innocent construction rule when ruling on a section 2 — 615 motion to dismiss. Words libelous per quod are false but require an innuendo to give them a libelous meaning and require evidence to show that as a matter of fact some substantial injury has followed from their use. (Bruck, 56 Ill. App. 3d at 264.) Loosely translated, per quod means “with explanation.” (Allen v. Ali (1982), 105 Ill. App. 3d 887, 889, 435 N.E.2d 167, 169.) In order to prevail, a plaintiff must plead the defamatory meaning of otherwise ambiguous words and special damages. (Renard, 126 Ill. App. 3d at 566.) That is, specific factual allegations of extrinsic facts, malice, and special damages must be alleged with particularity. Pruitt v. Chow (7th Cir. 1984), 742 F.2d 1104; Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 260, 419 N.E.2d 1205, 1210.

The allegations in count VI state that Grey and Foss maliciously composed and published the false, malicious and defamatory letter, intending to convey that Berke was an arsonist. It is further alleged that the letter was composed and published in a wilful, wanton and reckless manner, in total disregard of Berke’s rights, and that as a result Berke has been exposed to hatred, contempt, ridicule, embarrassment and humiliation. The allegations also state that the letter has caused Berke to suffer distress of mind, mental anguish, acute nervousness, bodily pain and that her reputation for honesty and integrity, business opportunities, as well as her standing in her profession have been impaired. General allegations as to damages, such as damage to one’s health, emotional distress, damage to reputation and economic loss, are insufficient to state a cause of action for defamation per quod. (Richardson v. Dunbar (1981), 95 Ill. App. 3d 254, 260, 419 N.E.2d 1205, 1210; Bruck v. Cincotta (1977), 56 Ill. App. 3d 260, 266, 371 N.E.2d 874, 879-80.) Therefore, we find that the allegations contained in count VI are insufficient to state a cause of action for libel per quod.

Since Berke failed to aver any special damages, specific defamatory meaning and/or malice, her right to recover depends on whether the alleged libelous statements constitute libel per se. (Fried v. Jacobson (1983), 99 Ill. 2d 24, 26, 457 N.E.2d 392, 394.) In view of our prior conclusion that a libel per se action was not alleged in the third-party complaint, we hold that the trial court properly sustained the motions to dismiss this cause on its pleadings. The subject words are simply not defamatory, either per se or per quod.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

FREEMAN, P.J., AND McNAMARA, J., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


author: PRESIDING JUSTICE FREEMAN

text:
    MOHAMMAD ALTAF, Plaintiff, v. HANOVER SQUARE CONDOMINIUM ASSOCIATION NO. 1 et al., Defendants (Hanover Square Condominium Association No. 1 et al., Third-Party Plaintiffs-Appellants; Economy Preferred Insurance Company, Third-Party Defendant-Appellee).
    First District (3rd Division)
    No. 1 — 88—2871
    Opinion filed September 6, 1989.

      Stuart D. Gordon, of Moss & Bloomberg, Ltd., of Bolingbrook, for appellants.
    Orner & Wasserman, Ltd., of Chicago (Esther Joy Schwartz, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

Third-party plaintiffs appeal from the trial court’s grant of a motion for summary judgment in favor of third-party defendant, Economy Preferred Insurance Company (Economy Preferred), and the denial of the third-party plaintiffs’ cross-motion for summary judgment. The third-party complaint sought a declaratory judgment regarding whether Economy Preferred had a duty to defend third-party plaintiffs, Hanover Square Condominium Association No. 1 and five members of its board of directors, and whether Economy Preferred had a duty to indemnify the third-party plaintiffs, regarding an underlying property damage action.

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

The record indicates that the underlying suit was brought by Mohammad Altai, a condominium unit owner, against the third-party plaintiffs, the condominium association and members of the association’s board of directors. Altai’s complaint seeks recovery for property damage to his unit resulting from a fire which began in an adjacent unit. At the time of the occurrence, Economy Preferred provided liability insurance to the condominium association under “Special Multi-Peril Policy No. SP-08865.” In addition, Economy Preferred provided errors and omissions coverage to the board members under a directors and officers liability supplement endorsement to the policy.

In count I of the underlying complaint, plaintiff cites section 12 of the Condominium Property Act (Ill. Rev. Stat. 1985, ch. 30, par. 312), which sets forth the authority of the board of managers to obtain insurance for the property against loss or damage by fire or other hazards. Plaintiff asserts that the condominium association and board of directors had a duty to obtain insurance which would fully insure replacement costs; process with diligence any claims declared under the policy; and oversee the insurance company’s response to claims made under the insurance policy. Plaintiff alleges that defendants breached an implied contract by failing to assist him in having his premises restored as required by statute.

Count II of the complaint, also entitled “Breach of Contract,” cites the bylaws of the condominium association and an enabling declaration filed with the Cook County recorder of deeds. The enabling declaration provides, among other things, that the association or manager will obtain and continue in effect blanket insurance, comprehensive public liability insurance, and other liability insurance it deems desirable. The bylaws state, among other things, that the association or board of directors are responsible for providing for the maintenance and repair of the common elements. Plaintiff alleges that defendants failed to assist him in processing his claim with defendants’ insurance company and that defendants’ insurance company failed to replace furnishings and clothing and other things, and delayed the repair work being performed on plaintiff’s unit.

Count III, entitled “Negligence,” alleges that defendants failed in their duties to provide an insurance company “which processed and completed all insurance claims” and to see that all claims filed with the insurance company were processed quickly and diligently. Plaintiff also alleges that defendants failed to replace damaged property with like property or compensation. Plaintiff alleges that defendants failed also in their implied duties inherent in their positions as board members. A fourth count, also entitled “Negligence,” eventually was dismissed on plaintiff’s motion.

Defense of the underlying suit was tendered to Economy Preferred, which declined coverage and denied owing a duty to defend the association or the board members regarding the allegations of the underlying suit. Defendants/third-party plaintiffs then filed their third-party complaint. Cross-motions for summary judgment were filed, briefed and argued. The trial court granted summary judgment in favor of Economy Preferred, finding that it had no duty to defend or indemnify the third-party plaintiffs.

The record indicates that the special multiperil insurance policy issued by Economy Preferred provided general liability coverage for the association’s common areas. The additional directors and officers liability supplement endorsement excluded coverage under exclusion “E,” which excludes claims that are:

“E. Based on or attributable to any Wrongful Act in procuring, effecting and maintaining insurance, or with respect to amount, form, conditions or provisions of such insurance.”

The endorsement defines “Wrongful Act” as the following:

“A. ‘Wrongful Act’ means any negligent act, any error, omission or breach of duty of Directors or Officers of the Named Insured while acting in their capacity as such.”

After the defense was tendered to Economy Preferred, Economy Preferred sent a letter to counsel for the association and Board members, indicating that it had no contractual duty to defend or indemnify the defendants. Further, Economy Preferred indicated that coverage was provided only for damages “caused by an occurrence,” defined in the policy as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Economy Preferred asserted that the allegations of the complaint were not based upon an “occurrence.” In addition, Economy Preferred indicated that coverage is not provided under the directors and officers endorsement, since paragraph “E” negates coverage for the claims asserted in the complaint.

The third-party complaint which defendants then filed was drawn in four counts. Count I cites policy language, which provides that Economy Preferred would:

“Defend any civil suit against the insured or any of them, alleging a Wrongful Act which is covered under the terms of this supplement, even if such suit is groundless, false or fraudulent.”

Third-party plaintiffs allege that Economy Preferred’s refusal to appear on behalf of the association and board members is contrary to the terms of the policy in that Economy Preferred has a contractual duty to defend.

Count II of the third-party complaint seeks indemnification for legal fees and costs incurred in the suit and for any judgment which might be entered against third-party plaintiffs in the underlying action. Count III seeks indemnification from Economy Preferred in the event that plaintiff recovers on his complaint against third-party plaintiffs. Count IV of the third-party complaint eventually was dismissed.

In its order the trial court found and declared that: (1) Economy preferred had no duty to defend the third-party plaintiffs regarding the underlying complaint; (2) Economy Preferred had no duty to indemnify the third-party plaintiffs under the policy regarding any claimed losses by plaintiff arising from the fire; and (3) Economy Preferred is not obligated to pay any fees or costs incurred by the third-party plaintiffs in defending the suit. Third-party plaintiffs then appealed.

At oral argument of this appeal, this court raised the issue of jurisdiction, since the notice of appeal contained a file stamp date which was outside of the 30-day filing period set forth in Supreme Court Rule 303(a)(1). (107 Ill. 2d R. 303(a)(1).) The final order granting summary judgment in favor of Economy Preferred and denying the appellants’ cross-motion for summary judgment was entered on August 17, 1988. The order contained the required language under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that the order was appealable. The notice of appeal was received and stamped by the clerk’s office on September 19, 1988, a Monday, which constitutes the 31st day after the final order was entered. See Ill. Rev. Stat. 1987, ch. 1, par. 1012.

Third-party plaintiffs filed a supplemental brief, citing the recent Illinois Supreme Court case of Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 533 N.E.2d 1072, which held that notices of appeal mailed within the 30-day period and received thereafter are timely filed. (Harrisburg-Raleigh Airport Authority, 126 Ill. 2d at 340.) Appellants also submitted an affidavit of Stuart D. Gordon, a former attorney of third-party plaintiffs, who stated that he mailed the notice of appeal to the clerk of the circuit court on September 13, 1988. That date is within the 30-day filing period. (107 Ill. 2d R. 303(a)(1).) The record indicates that Gordon mailed copies of the notice of appeal to counsel for the other parties on September 13, 1988. We find that under Harrisburg-Raleigh Airport Authority, and based upon the affidavit of Gordon and the record previously prepared on appeal, the notice of appeal was timely filed. This court therefore has jurisdiction to consider this appeal.

Third-party plaintiffs initially contend on appeal that Economy Preferred had a duty to defend pursuant to its agreement under the policy. They argue that the trial court erred in granting summary judgment in favor of Economy Preferred to the extent it relied on Economy Preferred’s argument that plaintiff’s claimed losses were not covered since the claims failed to arise from an “occurrence” as defined by the policy. Further, they contend that the policy language providing coverage for claims arising out of a “wrongful act” applies to the plaintiff’s claims. In addition, third-party plaintiffs argue that even if coverage for claims is limited to those arising out of an “occurrence,” the fire which damaged plaintiff’s property constitutes such an “occurrence,” and therefore coverage has been provided.

Economy Preferred responds that initially, in its letter refusing to defend third-party plaintiffs and in its original motion for summary judgment, it asserted that plaintiff’s claims were not covered because the claims did not arise from an “occurrence” as defined under the policy. Subsequently, however, in its response to the cross-motion for summary judgment and at the hearing before the trial court, Economy Preferred abandoned this argument. Further, Economy Preferred asserts that this argument was not a factor in the court’s granting of summary judgment in favor of Economy Preferred.

We note that third-party plaintiffs, the appellants in this matter, failed to include in the record on appeal a copy of the transcript of proceedings from the hearing on the cross-motions for summary judgment. An appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error. Supreme Court Rule 321 (107 Ill. 2d R. 321) provides, in pertinent part:

“The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law trial court record ***. The trial court record includes any report of proceedings prepared in accordance with Rule 323 and every other document filed and judgment and order entered in the cause.”

In the instant case there was no report of proceedings filed. Nor is there a bystander’s report which is authorized under Rule 323(c) (107 Ill. 2d R. 323(c)). Further, appellants failed to file an agreed statement of facts in lieu of a report of proceedings pursuant to Rule 323(d) (107 Ill. 2d R. 323(d)).

In the absence of a complete record on appeal, and upon a claim of error, it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.) Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Foutch, 99 Ill. 2d at 392.) In the absence of a report of proceeding, particularly when the judgment order states that the court is fully advised in the premises, a reviewing court “will indulge in every reasonable presumption favorable to judgment, order or ruling from which an appeal is taken” (In re Pyles (1978), 56 Ill. App. 3d 955, 957, 372 N.E.2d 1139, 1141) and must presume that the evidence heard by the trial court was sufficient to support the judgment absent any contrary indications in the record (In re Marriage of Macaluso (1982), 110 Ill. App. 3d 838, 846, 443 N.E.2d 1).

Since the written order of the trial court fails to indicate that the court relied on the initial argument of Economy Preferred that the “occurrence” language of the policy did not provide coverage for plaintiffs claims, we may presume that the trial court did not rely on this argument in reaching its decision. The absence of the transcript of proceedings allows us to indulge in this presumption, particularly in view of the representation by Economy Preferred that it abandoned that argument before the trial court. Further, as discussed below, even if it is arguable that the fire which caused the property damage to plaintiff in the underlying action may be considered an “occurrence” under the policy, we find that the exclusionary language of endorsement “E” excludes plaintiffs claims from coverage.

Third-party plaintiffs next contend that some of the plaintiffs claims in the underlying complaint do not fall within the “wrongful act” policy exclusion. They cite, from count I, allegations that the directors failed to obtain insurance which would “process with diligence any claims declared under said policy” and which would “oversee the insurance company’s response to claims made under the insurance policy.” Further, count I alleges that the board members failed to assist plaintiff in having his premises restored as required by the Condominium Property Act. From count II, third-party plaintiffs cite the allegation that defendants failed to assist plaintiff in the processing of his claim with defendants’ insurance company. Finally, count III alleges that defendants had a duty to see that all claims filed with the insurance company were processed diligently and that defendants failed to compel completion of plaintiff’s unit.

Third-party plaintiffs contend that the cited allegations do not relate to the defendants’ failure to procure, effect or maintain insurance. Rather, they contend that the allegations relate to defendants’ purported failure to assist plaintiff in his claim, their failure to push Economy Preferred to act with dispatch, and their failure to monitor Economy Preferred’s adjustment of the claim. Therefore, these allegations fall outside of the policy exclusion.

An insurance company’s obligation to represent its insured depends on the allegations of the complaint and the provisions of the insurance policy. (Tuell v. State Farm Fire & Casualty Co. (1985), 132 Ill. App. 3d 449, 477 N.E.2d 70.) An insurer has a duty to defend an action brought against the insured if the complaint alleges facts within, or potentially within, coverage. (Tuell, 132 Ill. App. 3d at 452, citing Thornton v. Paul (1978), 74 Ill. 2d 132, 144, 384 N.E.2d 335.) The duty to defend applies where the complaint alleges several causes of action or theories of recovery against an insured, even if only one or some of them are within policy coverage. (Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 194, 355 N.E.2d 24.) The complaint must be liberally construed and all doubts resolved in favor of the insured. Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 446 N.E.2d 1091.

The cited allegations set forth a failure to provide diligent and efficient processing and monitoring of claims. We find that these allegations, when read in the context of the complaint as a whole and in the context of each count of the complaint, relate to “procuring, effecting and maintaining” insurance. Therefore, the allegations come within the exclusionary language of exclusion “E” of the policy endorsement. Accordingly, Economy Preferred did not have a duty to defend third-party plaintiffs against the claims alleged in the underlying complaint.

Third-party plaintiffs cite case law for the proposition that the exclusionary language of an insurance policy must be strictly construed against the insurer. (Herrera v. Benefit Trust Life Insurance Co. (1984), 126 Ill. App. 3d 355, 466 N.E.2d 1172.) Further, they cite the rule that if a policy provision is ambiguous, the ambiguity must be construed in favor of the insured. (Simioni v. Continental Insurance Cos. (1985), 135 Ill. App. 3d 916, 482 N.E.2d 434.) Third-party plaintiffs assert that there is no ambiguity in exclusion “E” and that the language clearly does not exclude the claims made by plaintiff.

We agree that the exclusionary language is not ambiguous. We find, however, that the allegations of the complaint fail to set forth facts which bring the plaintiff’s claims outside of exclusion “E.” See Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539.

Third-party plaintiffs also contend that since plaintiff’s claims are arguably within coverage, Economy Preferred had an absolute duty to defend and third-party plaintiffs were entitled to summary judgment in their favor. Third-party plaintiffs assert that even if Economy Preferred believed that it had a valid defense of exclusionary coverage, Economy Preferred had three options: (1) to secure a declaratory judgment while defending under a reservation of rights; (2) to defend under a reservation of rights and seek a declaratory judgment in a subsequent suit; or (3) to defend without a reservation of rights.

We need not address, however, the issue of Economy Preferred’s alleged absolute duty to defend, under a reservation of rights or otherwise, since we have found that the exclusionary language of the policy shows that Economy Preferred had no duty to defend.

Finally, third-party plaintiffs contend that Economy Preferred is required to indemnify them for any damages awarded to plaintiff for damages resulting from conduct not excluded from coverage by the policy. Economy Preferred responds that the issue of indemnification has been raised prematurely and is not yet ripe for determination by this court.

The court in Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 466 N.E.2d 1091, stated that a declaratory judgment action to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not then ripe for adjudication. In view of our finding that the exclusionary language of the policy shows that Economy Preferred owes no duty to defend third-party plaintiffs, we must also find that Economy Preferred cannot be liable to indemnify third-party plaintiffs regarding the underlying litigation. Accordingly, we hold that the trial court properly determined that Economy Preferred had no duty to indemnify.

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

Judgment affirmed.

WHITE and CERDA, JJ., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN WAYDE PATRICK, Defendant-Appellant.
    First District (4th Division)
    No. 1 — 87—2335
    Opinion filed September 7, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Dennis E. Urban, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Judy L. DeAngelis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant entered a negotiated plea of guilty to a charge of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)), and in accordance with the terms of that agreement, was sentenced to five years’ imprisonment to run concurrently with the five-year term previously imposed on his separate jury conviction of possession of a stolen motor vehicle. Defendant now requests that his cause be remanded so that he may be given an opportunity to file a motion to withdraw his guilty plea because the trial court failed to admonish him in accordance with Supreme Court Rule 605(b) (107 Ill. 2d R. 605(b)).

We remand.

The record shows that defendant was separately charged with the offenses of burglary and possession of a stolen motor vehicle which occurred at different times and places. A jury found defendant guilty of the possession charge, and on March 6, 1987, he was sentenced to a term of five years’ imprisonment. Following that judgment the court advised defendant of his appeal rights, including the necessity of filing a written notice of appeal within the next 30 days. The court also told him that counsel would be available to assist him if he did not have the means to hire his own attorney.

At that point in the proceedings, the court inquired about the pending burglary case, then proceeded to other matters. On the next call defense counsel informed the court that pursuant to his conference with the State, defendant had decided to change his plea on the burglary charge in exchange for the State’s recommendation that he be sentenced to a five-year term concurrent with the term imposed on the prior conviction.

The court then meticulously admonished defendant in accordance with Supreme Court Rule 402 (107 Ill. 2d R. 402) and specifically inquired as to whether counsel had an adequate opportunity to discuss the change of plea with defendant, defendant’s wife and other members of defendant’s family. Counsel responded:

“Yes, I have. In addition, your Honor, I would also indicate that by virtue of the fact that we are entering a plea of guilty to the second charge I have discussed with Mr. Patrick, as the court has explained, his Appellate rights and he has indicated he does not direct me to file a Notice of Appeal with respect to either one of these cases.”

The court then continued the admonitions and accepted defendant’s plea based on defendant’s perceived understanding- of the proceedings, the facts which substantiated the charge of burglary, and defendant’s representations as to the voluntariness of his plea. The court then sentenced defendant in accordance with the plea agreement, and the parties discussed the time defendant would be credited on this charge.

The record further shows that judgment was entered on this plea on March 6, 1987, and that no further action was taken until August 6, 1987, when this court granted defendant leave to file a late notice of appeal from the judgment. Meanwhile, defendant filed a timely notice of appeal from his possession conviction, and that judgment was affirmed in an unpublished order filed on June 30, 1989. People v. Patrick (1st Dist. 1989), No. 1 — 87—0975 (unpublished order under Supreme Court Rule 23).

Defendant contends solely that his cause should be remanded to the circuit court for further proceedings because the trial court failed, inter alia, to admonish him of the necessity of filing a motion to withdraw his plea within 30 days of the imposition of sentence prior to taking an appeal, and that any claim of error or issue not raised in that motion would be deemed waived for purposes of appeal. (107 Ill. 2d R. 605(b).) The State responds that defendant was properly admonished as to his appellate rights in the case which concluded shortly before this one began, and that since he failed to file a timely notice of appeal, he has waived his right to appeal. In the event that this argument is rejected, the State adds that defendant’s appeal should be dismissed because he failed to include facts showing the basis for his proposed motion to withdraw. The end result is that we are once again faced with the confluence of concerns and issues arising from the plea process and the Illinois Supreme Court Rules attendant thereto.

In People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the supreme court stated that the rules concerning guilty pleas (107 Ill. 2d Rules 402, 604(d), 605(b)) are “meant to mesh together not only to ensure that defendant's] constitutional rights are protected, but also to avoid abuses by defendant!].” (124 Ill. 2d at 103.) In addition, the court stated that “they have been constructed to *** avoid some of the excesses that both the State and defense counsel occasionally employ while they attempt to zealously represent their opposing interests!] [citations] *** and *** represent our best efforts at ordering the complex and delicate process of plea bargains and guilty pleas.” (124 Ill. 2d at 103-04.) Wilk also discussed the purpose of Rule 604(d), which requires the filing of a motion to withdraw within 30 days of sentencing in a plea proceeding, and affirmed its prior ruling that compliance with this rule is a condition precedent to an appeal from a plea of guilty. (124 Ill. 2d at 107.) The court in Wilk added that where a defendant fails to perfect his appeal in this manner, the omission may amount to ineffective assistance of counsel, and defendant’s remedy lies in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.).

In the Wilk case, most of the defendants in question had inarguably been admonished by the respective trial courts in accordance with Rule 605(b), which contrasts with the situation in this case where it is clear that the court failed to admonish defendant in any manner concerning the procedures necessary to perfect his appeal rights after entering judgment on his plea. In such cases, courts have held that defendants should not be penalized for failing to follow the proper procedure to preserve those rights (People v. Balsar (1989), 178 Ill. App. 3d 876, 533 N.E.2d 1140; People v. Dorsey (1984), 129 Ill. App. 3d 52, 471 N.E.2d 1053), and corrective measures were initiated.

The State asserts, however, that the record shows that the trial court advised defendant of his appellate rights at the conclusion of the sentencing hearing which occurred shortly before the plea proceeding, and that he also discussed these rights with his attorney, who then advised the court that defendant did not wish to appeal either judgment. Thus the State concludes that the trial court was not required to admonish defendant a second time when the plea proceeding was concluded. In making this argument, the State relies on People v. Favelli (1988), 176 Ill. App. 3d 618, 531 N.E.2d 386. We find Favelli distinguishable from the case at bar, however, because unlike the situation here, the trial court in Favelli admonished defendant in accordance with Rule 605(b) after imposing sentence on defendant’s guilty plea. On appeal the reviewing court held that the trial court was not required to admonish defendant a second time after denying defendant’s motion to reconsider the sentence which had been imposed. 176 Ill. App. 3d at 624.

In this case, there were two distinct proceedings which are governed by different appellate rules. At the conclusion of plea proceedings, the trial court was required to admonish defendant in accordance with Rule 605(b), but did not do so. Although it appears that this failure was merely an oversight on the part of the court, which had scrupulously adhered to the requirements of Rule 402 in accepting defendant’s plea, and that the record reveals no obvious reason for withdrawal, we do not believe that the court’s appellate admonitions to defendant at the close of his jury case, the representations of defendant’s counsel that defendant did not wish to appeal the decision in either case, or defendant’s failure to act in a timely manner, overcome the fact that the Rule 605(b) admonitions were not given to defendant in this case. (See People v. Ryant (1976), 41 Ill. App. 3d 273, 354 N.E.2d 395; People v. Balsar (1989), 178 Ill. App. 3d 876, 533 N.E.2d 1140.) In addition, since the bases for withdrawing the plea have not been proffered (see People v. Saldana (1977), 53 Ill. App. 3d 636, 368 N.E.2d 1055), we have no recourse but to remand the cause to the circuit court of Cook County with directions that defendant be provided an opportunity to file a motion to vacate his plea of guilty within 30 days of the filing of our mandate in the trial court and to thereafter proceed in accordance with Supreme Court Rule 604(d). Saldana, 53 Ill. App. 3d 636, 368 N.E.2d 1055.

Remanded with directions.

LINN and McMORROW, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARLEAN TYLER, Defendant-Appellant.
    First District (5th Division)
    No. 1 — 87—1151
    Opinion filed September 8, 1989.

      Michael J. Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Chapman & Cutler, both of Chicago (Susan Mullane, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Gael O’Brien, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, defendant was convicted of two counts of aggravated battery and one count each of armed violence and attempted murder. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 4(a), 12 — 4(b)(1), 33A— 2, 8 — 4.) She was sentenced to eight years’ imprisonment for attempted murder and now appeals. She raises the following two issues: (1) whether the trial court erred when it refused to instruct the jury on self-defense; and (2) whether she was proven guilty beyond a reasonable doubt of attempted murder. We reverse and remand for new trial.

The State presented the following witnesses. Tanya Steele testified that on July 12, 1985, she was 15 years old. At approximately 10:30 p.m., she was sitting on the steps of a church near her house with her younger brother, Nicholas Steele, and her friend, Monica Campbell. Defendant, her sister, Felicia Tyler, and their friend, Simone Camp, walked past the group on the church steps when defendant and Felicia called Tanya a bitch. Tanya told Nicholas not to say anything, and Monica told Tanya not to say anything. Tanya, Nicholas, and Monica ignored the insult. Defendant stated, “What did you say?” Although Tanya, Nicholas, and Monica did not respond, defendant continued making comments until Tanya stated, “Leave me alone. Get out of my face.” Defendant hit Tanya with an open hand in the face. Tanya hit defendant in the face. Tanya then felt a pain or punch in her side and later learned she was stabbed. Monica moved Tanya away from defendant, and Tanya testified that defendant did not come toward her anymore. Tanya testified that she saw a blade, approximately eight inches long, in defendant’s hand during the incident but did not know when she saw it. After Tanya was stabbed, she walked away with Monica and Nicholas, and she was taken to the hospital.

Tanya testified she did not threaten or insult defendant and she was not carrying any weapons. She had known defendant for approximately nine years prior to the incident.

Nicholas’ testimony substantially corroborated Tanya’s testimony with a few additions. Nicholas testified that before defendant stabbed Tanya, defendant stated, “You can get your sister. I will kill her and anybody else.” He saw defendant take a knife from her purse and stab Tanya. He testified the blade of the knife was approximately four or five inches long. Monica pulled Tanya away as defendant tried to stab Tanya again;

Dr. Rodrigo Floro testified that he examined Tanya in the emergency room of the hospital. She had a stab wound in the lower right abdominal area and she was in shock. The doctor testified she lost a considerable amount of blood and her injury was life-threatening. The doctor performed emergency surgery to save Tanya’s life, and she remained in the hospital for approximately 11 days.

Defendant’s first witness was her sister, Felicia, who testified that on the evening in question she was walking with defendant and their friend, Simone, when they heard Nicholas and Tanya calling them bitches and whores. Defendant asked Tanya why Nicholas was calling them names and Tanya stated to Nicholas, “Don’t be scared. Tell them why you are calling them names.” A verbal confrontation began, and Tanya stated in a hostile, loud voice, “So what? Do that mean bitch [sic]?” Felicia asked Tanya why she was “getting smart.” Tanya punched Felicia on the shoulder and stated, “Shut up and stay out of it.” Felicia punched Tanya in the chest. Then Tanya struck defendant and defendant struck her back. As Tanya walked away, she was calling defendant, Felicia, and Simone names and stated, “You all take your ass home, bitches, because I’m going to get you all back.”

Felicia did not see a knife in defendant’s hand during the incident, but as they were walking home, she saw defendant throw a knife in some bushes.

Simone’s testimony substantially corroborated Felicia’s, but Simone also testified that after Tanya hit Felicia, Tanya stated to defendant, “E arlean, what the hell are you going to do?” Tanya then hit defendant. When Tanya started to hit defendant again, defendant hit Tanya. Tanya’s friend pulled her away as Tanya tried to hit defendant again.

Defendant testified that on the night in question she was 19 years old. She was walking with Felicia and Simone when they heard Tanya and Nicholas calling them bitches and whores. Defendant asked Tanya why she and Nicholas were calling them names. Tanya said, “Bitch, so what?” Defendant said, “Tanya, I’m just trying to talk to you nicely, and ask you why you’re calling us names.” Tanya said, “Go ahead, Nicholas, tell them what we were saying.” Felicia asked Tanya why she was “getting smart” with defendant and Tanya punched Felicia. Felicia punched Tanya in return. Tanya then punched defendant in the face and stated, “No, bitch, what you going to do [sic]?” Defendant hit Tanya back in the face. When Tanya tried to hit defendant again, defendant punched Tanya with an open pocket knife and Monica pulled Tanya back. As defendant walked away, Tanya stated, “I will get you bitches and whores back.” While defendant was walking home after the altercation, she threw the knife in the bushes.

Defendant indicated that the blade of the knife was two or three inches in length. When asked why she used the knife, defendant testified, “Because I was afraid, and it was three of them. I didn’t know what she was going to do, which direction she was coming from next.” She thought that she was going to get beaten.

On cross-examination, defendant testified she did not know she stabbed Tanya and she also indicated the blade of the knife was 3V2 to 4 inches. Defendant admitted that on the day after the incident, she told an assistant State’s Attorney she was not afraid when she and Tanya punched each other. She also testified she was not afraid of Tanya, Monica, or Nicholas.

On redirect, she testified she voluntarily went to the police station the day after the incident and spoke with the police and an assistant State’s Attorney. She told the assistant State’s Attorney she was not “real afraid” of Tanya. Defendant testified she was not afraid at the time of the incident. When asked why she threw the knife away, she answered, “Because I was afraid at the time when I had the knife.”

On recross, defendant admitted she knew she stabbed Tanya in the stomach at the time of the incident.

The State called Monica Campbell as a rebuttal witness who testified that before Tanya was stabbed, defendant stated, “I’ll get your sister and you and whoever.” Defendant hit Tanya in the face, and Tanya hit her back in the face. Monica saw defendant move toward Tanya with her hand and Monica pulled Tanya away. Monica testified she did not see Tanya and Felicia hit each other that day.

Simone Camp testified in surrebuttal that she did not hear defendant say, “I will get you and your family at all cost.”

Both sides rested, and the judge held a jury instruction conference with the assistant State’s Attorney and defendant’s counsel. Defendant’s counsel stated, “I haven’t had a chance, although I know most of the instructions are pulled by the prosecution, but I haven’t had a chance to look at any instructions yet.” After a discussion of the State’s instructions, defendant’s counsel stated, “Well, I thought they were going to pull all the instructions. I didn’t see any self-defense instruction.” They discussed whether there was any evidence presented concerning self-defense. The next day after argument on the issue, the judge denied defendant’s request for a self-defense jury instruction stating, “There has never been one utterance by her that, at the time she stabbed the victim, she was afraid.”

The jury returned a verdict finding defendant guilty of two counts of aggravated battery and one count each of armed violence and attempted murder. Defendant now appeals.

Opinion

Defendant argues that the trial court erred when it denied her request for a self-defense jury instruction. The trial court denied the request, finding that defendant did not present sufficient evidence to justify the instruction.

Although the State did not raise the issue, the record in this case does not indicate that defendant tendered a self-defense jury instruction to the trial court. At the jury instruction conference, defendant’s counsel admitted he had not prepared any instructions, and there is no statement in the transcript of proceedings that defendant tendered ■ a self-defense instruction. Although jury instructions were included in the record on appeal, a proposed self-defense instruction was not included in the record.

Supreme Court Rule 366(b)(2)(i) provides that a party cannot raise on appeal the failure to tender a certain jury instruction unless that party tendered the instruction at the trial court level. (107 Ill. 2d R. 366(b)(2)(i).) Failure to tender an instruction can result in waiver of that issue on appeal. People v. Brophy (1981), 96 Ill. App. 3d 936, 422 N.E.2d 158.

In Brophy, the record indicated that defendant’s counsel objected several times to the form of self-defense instructions at the trial court level and defendant also raised the issue in his post-trial motion. However, the record did not indicate that defendant tendered proposed instructions to the trial court. The appellate court found that defendant clearly raised the issue at the trial court level and, therefore, it would be unfair to invoke the waiver rule.

Similarly here, the record discloses that defendant orally requested a self-defense instruction and that the parties argued the issue before the judge. Defendant again raised the issue in his post-trial motion. Although defendant’s failure to tender a self-defense jury instruction to the trial court risked waiving the issue on appeal, we believe that under the circumstances of this case the court was adequately apprised of defendant’s objection. We will, therefore, consider the issue of whether the trial court properly denied defendant’s request for a self-defense jury instruction.

Section 7 — 1 of the Criminal Code of 1961 provides the circumstances under which a person may use self-defense:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.” (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1.)

A defendant must affirmatively raise the issue of self-defense (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 14) by presenting evidence “that unlawful force was threatened against the defendant; that the danger of harm was imminent; that defendant was not the aggressor; that defendant actually believed that danger existed and that the kind and amount of force used was necessary to avert that danger; and that defendant’s beliefs were reasonable.” (People v. Zolidis (1983), 115 Ill. App. 3d 669, 673-74, 450 N.E.2d 1290, 1294.) “[Vjery slight evidence” presented on the issue will justify instructing the jury on self-defense; however, jury instructions are not required on issues which' are “wholly unrelated to the case but are based upon the merest factual reference or witness’s comment.” (See People v. Bratcher (1976), 63 Ill. 2d 534, 540-41, 349 N.E.2d 31, 34.) Even when conflicting evidence is presented on the issue of self-defense, a defendant is entitled to a jury instruction on the issue because the credibility of witnesses is for the jury to determine. People v. Dowdy (1974), 21 Ill. App. 3d 821, 316 N.E.2d 33.

In the present case, defendant presented evidence that Tanya instigated the confrontation when she repeatedly shouted insults at defendant, Felicia, and Simone. Also, Tanya struck both defendant and Felicia first. When Tanya attempted to strike defendant a second time, defendant pulled out a pocket knife and stabbed Tanya. When asked why she used the knife, defendant testified, “Because I was afraid, and it was three of them. I didn’t know what she was going to do, which direction she was coming from next.” She also testified she was afraid at the time she had the knife. Defendant testified she thought that she was going to get beaten. Although on further questioning defendant testified she was not afraid of Tanya or afraid at the time, any conflict in defendant’s testimony must be resolved by the jury. The evidence presented satisfies the very slight evidence standard, and therefore, the jury should have been instructed on the issue of self-defense.

The State argues that defendant’s act of stabbing Tanya was a ‘‘disproportionate response” to Tanya’s actions and establishes that defendant was not acting in self-defense. However, the reasonableness of defendant’s use of force and the amount of force used are questions of fact that must be resolved by the jury. People v. Conwell (1978), 64 Ill. App. 3d 995, 382 N.E.2d 64.

Defendant also argues she was not proven guilty beyond a reasonable doubt of attempted murder because there was insufficient evidence presented that she intended to kill Tanya.

When a defendant claims he was convicted with insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found defendant guilty of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) A reviewing court will not reverse a criminal conviction unless the evidence presented was so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. Young, 128 Ill. 2d1, 538 N.E.2d 461.

A person commits the crime of attempt when with the intent to commit a specific offense, in this case murder, he performs any act which is a substantial step toward the commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4.) To support a conviction for attempted murder, the State must prove that the defendant intended to kill his victim. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28.) The specific intent to kill may be inferred from the circumstances, such as the character of the assault and the use of a deadly weapon. People v. Treadway (1985), 138 Ill. App. 3d 899, 486 N.E.2d 929.

In the present case, the evidence, viewed in a light most favorable to the prosecution, establishes that defendant told Tanya that she would kill Tanya and “anybody else.” After a verbal altercation, Tanya hit defendant. Defendant responded by stabbing Tanya with a pocket knife. There was testimony that defendant attempted to stab Tanya a second time but Monica pulled Tanya away. Also, there was testimony that the blade of the knife was between two inches and eight inches in length. The doctor who treated Tanya testified that Tanya’s injury was life-threatening and required emergency surgery. The State, therefore, presented sufficient evidence that defendant possessed the requisite intent to kill and defendant was proven guilty beyond a reasonable doubt of attempted murder. Our determination removes the risk of subjecting defendant to double jeopardy when she is tried again. People v. Littlejohn (1986), 144 Ill. App. 3d 813, 494 N.E.2d 677.

Reversed and remanded.

MURRAY, P.J., and COCCIA, J., concur.