author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY MANLEY, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0499
    Opinion filed December 13,1991.

      Randolph N. Stone, Public Defender, of Chicago (Lester Finkle, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Carol L. Gaines, and Pamela Paziotopoulous, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant, Timothy Manley, was charged by indictment with two counts of murder and with one count of armed violence. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2), 33A — 2.) Following a jury trial, defendant was convicted of one count of murder, and was sentenced to a term of 40 years. On appeal, defendant contends that (1) he was deprived of the right to due process by the the prosecutor’s improper reference to defendant’s post-arrest silence; (2) he was deprived of the right to a fair trial by improper comments made by the prosecutor during opening statements and closing argument; (3) the trial court erred in failing to instruct the jury that an attorney has the right to interview a witness; (4) he was not proven guilty of murder beyond a reasonable doubt; and (5) the statute under which he was convicted is violative of the Illinois and the United States constitutions.

The evidence presented to the jury established that on September 27, 1987, defendant and the victim, James Conwell, engaged in a physical altercation which ultimately resulted in Conwell’s death caused by multiple stab wounds to various parts of his body.

At trial, Dennis Ware testified that he lived at 6110 South Eberhart in Chicago, Illinois. Ware stated that this was a three-flat building and that he and his wife, Ann, lived on the second floor. The apartment on the third floor was occupied by Ware’s sister, Lottie Conwell, and her husband, James Conwell, the victim. Lottie and James Conwell had been married for 17 years in 1987 and both worked for the Wilfred Beauty Academy. In September 1987, Lottie Conwell was transferred by her employer from Chicago to Houston, Texas. Prior to the 27th of September, Lottie moved to Houston, and Conwell was to follow her shortly.

Ware testified that he was at home during the evening of September 26, 1987, and at 8 p.m., he saw Conwell, who was on his way to church. Ware and his wife hosted a jewelry demonstration in their home that night, and they went to sleep sometime after their guests left at 12 midnight. At approximately 3:15 a.m. on the 27th, Ware was awakened by a loud rumbling noise coming from the apartment upstairs. The noise became increasingly louder, and Ware went upstairs to Conwell’s apartment after he told his wife to call the police. As he stood outside the door to Conwell’s apartment, Ware heard Conwell holler, “Dennis, Dennis, help me, help me.” Ware knocked and told Conwell to open the door. Conwell continued to call out for help. Ware then heard another male voice say, “okay, motherfucker, okay motherfucker.” Ware was unable to enter the apartment because the door was locked. After two to three minutes, Conwell stopped hollering, and Ware went downstairs to find a key to Conwell’s apartment.

Ware and his stepson then went up the rear staircase to the back door of Conwell’s apartment. Upon looking through the back door window into the apartment, Ware saw Conwell’s legs draped across a stereo cabinet. Ware and his stepson were unable to enter the apartment through the back door because it was locked. They then went around to the front of the building and used a key to enter Conwell’s apartment through the front door. Inside the apartment, Ware observed that the apartment was in disarray with furniture overturned and strewn about. Ware also saw Conwell’s body lying across the stereo cabinet. Police officers and paramedics arrived shortly afterward, and Ware led them to Conwell’s apartment. The following day, Ware observed bloodstains and a finger mark on a window pane in Conwell’s apartment.

Ware testified that he had known Conwell for 17 years and had suspected that Conwell was either homosexual or bisexual. Ware stated further that he had not known Conwell to be a violent person.

Ann Ware’s testimony corroborated that of her husband as to the events occurring on September 26 and 27.

Chicago police officer Keith Calloway testified that at approximately 3:35 a.m. on September 27, 1987, he and his partner responded to a radio transmission reporting a domestic disturbance at 6110 South Eberhart. Upon entering the third-floor apartment at that address, Calloway observed a male body lying on its back over a stereo cabinet. Calloway secured the scene and called his supervisors. Shortly thereafter, the detectives and paramedics arrived. After checking for vital signs, the paramedics pronounced Conwell dead.

Calloway saw bloodstains throughout the apartment. He also observed that there were no signs of forced entry and that nothing appeared to be stolen. Although Calloway searched the entire apartment, he was unable to locate the murder weapon.

Chicago police detective Dennis Dwyer testified that he arrived at the scene shortly after 4 a.m. on September 27, 1987. Upon examining Conwell’s body, Dwyer noticed that both arms were outstretched and that there was a gas bill in Conwell’s left hand and a telephone in his right hand. Dwyer observed that the apartment was in disarray and that there was a lot of blood in the dining room and in the television room. The south wall of the apartment contained three windows, one of which was open. Dwyer observed blood on the frame and sill of the open window. He also saw bloody footprints in the gangway below the window. The footprints led out of the gangway and then north along the sidewalk.

Officer Frank De Marco testified that he was a lab technician and that he went to the scene at about 4:10 a.m. on September 27, 1987. De Marco observed a body in the dining room, but he was unable to find a murder weapon. De Marco testified further that he observed a fingerprint in blood on a window frame in the dining room. De Marco photographed the apartment, including the window sill and frame, and focused upon the fingerprint impression left on the window frame. De Marco affixed an identification tag onto the window frame and took the frame to the crime lab.

Officer William Kovacs testified that he was a latent fingerprint examiner for the Chicago police department. Kovacs explained the basic elements and factors in fingerprint identification. Kovacs also described the Automated Fingerprint Identification System (AFIS), which is a computerized data base with 800,000 fingerprints stored in its memory. On October 13, 1987, Kovacs processed through AFIS an image of the fingerprint found at Conwell’s apartment. AFIS identified a print of defendant, numbered 635212, as a potential or likely match to the print found at Conwell’s apartment. After personally comparing the two prints, Kovacs found 23 points of similarity, found no unexplained dissimilarities, and concluded that both prints belonged to the same person. Kovacs stated that these points of similarity are conclusive as to the identification of a latent print and the defendant’s print on the AFIS card matched the print found at the scene.

Detective Gerald Liberty testified that sometime after October 13, 1987, he retrieved through AFIS the defendant’s name and the address of 4728 South Ingleside. When Liberty went to defendant’s apartment, he discovered that the apartment had been abandoned. Liberty subsequently spoke with defendant’s brother, Tony Manley, who indicated that defendant was in Mariana, Arkansas, with their mother.

Liberty testified further that he procured a warrant for defendant’s arrest for first degree murder, and on November 5, 1987, he and Detective Dwyer travelled to Mariana, Arkansas, to arrest defendant. The officers picked defendant up from the jailhouse in Mariana and brought him back to Chicago. Defendant had casts on both of his legs and was in a wheelchair.

Liberty also stated that prior to the retrieval of Manley’s name through AFIS, the police investigation focused on possible male lovers of Conwell because some witnesses initially suggested that Conwell was homosexual.

Dr. Tom Reinsel testified that on September 29, 1987, he was working at Cook County Hospital and treated a patient identified as “Tim R Baffield,” who had sustained fractures in his left leg and in his right heel and had been brought in from the University of Chicago Hospital. The patient gave his address as 4728 South Ingleside and stated that his social security number was [ XXX-XX-XXXX ].

Reinsel stated that the patient had surgery on his left leg and casts were put on both legs. Aside from the injuries to his legs, the patient suffered from no other injuries and had no other complaints. He had no cuts, lacerations, stab wounds, or bruises. The patient told the hospital staff that he sustained his injuries in a fall down a flight of stairs. Reinsel testified that the patient’s injuries were not consistent with those to be expected from a fall down stairs. Reinsel testified that the patient’s injuries were consistent with those to be expected from a fall from a third-floor window, landing feet first on a concrete sidewalk. The patient stayed in the hospital until October 7,1987.

Paul Razor testified that he was a supervisor at Cermak Health Services and that he processed defendant when he was brought to the Cook County jail on November 7, 1987. Defendant gave his address as 4728 South Ingleside and stated that his social security number was [ XXX-XX-XXXX ]. Razor specifically recalled processing the defendant because he had casts on both of his legs.

Robert Kuhlmann, supervisor of the emergency medical technician department at Cermak Health Services, testified that he spoke with defendant on November 17, 1987, and that defendant stated that he sustained his injuries by jumping from a third-story window.

Leon Malone testified that he had been friends with Conwell. Malone stated that he and Conwell had attended church together in the evening of September 26, 1987, and that he had driven Conwell home after church. Malone testified that Conwell was not violent, but was always calm and collected. Malone stated that he never saw Con-well use drugs and he never suspected Conwell of being homosexual.

Glenn Gibson testified that on the date of Conwell’s death, he had been employed as an investigator for the medical examiner’s office. Gibson testified that Ware told him that Conwell was a hairdresser and was homosexual. Ware also stated that he believed Conwell’s death related to this fact and that the offender was in Conwell’s apartment for this purpose.

Dr. Robert Kirschner testified that in September 1987 he was employed as a forensic pathologist and performed an autopsy on the body of James Conwell. Kirschner stated that Conwell’s clothing was heavily stained with blood and that he had suffered a total of 28 stab wounds to various parts of his body, primarily on the back of the head, back of the neck, and on the hands and legs. Conwell sustained a large, gaping stab wound in the left shoulder region and a smaller wound in the mid-line of the upper portion of the back.

Kirschner testified that the wounds on Conwell’s hands, arms, and legs were consistent with defense wounds which are sustained when a person attempts to ward off a weapon. Kirschner also indicated that Conwell’s wounds were similar to those that could be inflicted on someone who had been stabbed while wrestling with another person.

Kirschner determined that the cause of Conwell’s death was extensive bleeding as a result of multiple stab wounds and that there was no single fatal injury or stab wound which pierced any internal organs.

Defendant testified that in the early morning hours of September 27, 1987, he was walking home from a friend’s house when he met Conwell, who indicated that he needed a dollar in order to buy some alcohol. Defendant gave Conwell a dollar, and Conwell bought one-half pint of Seagram’s gin. Conwell then offered defendant a drink.

Conwell introduced himself as “Mike” and invited defendant to his apartment, saying that he had some marijuana and would invite some women over. Defendant initially refused to enter Conwell’s apartment, but eventually agreed and went to the third-floor apartment at 6110 South Eberhart. Conwell asked defendant to be quiet so they would not disturb other members of Conwell’s family who also lived in the building.

Defendant testified that once inside the apartment, Conwell admired defendant’s ring and watch and then rubbed defendant’s palm and thigh. Defendant pushed Conwell away, indicating that he was not interested in engaging in homosexual behavior, and stated that he wanted to leave the apartment. Conwell told defendant to wait while he got some marijuana from another room. When Conwell returned, however, he was holding a large butcher knife and said to defendant, “[mjotherfucker, you are going to give me that ring or anything I ask you for. You are going to give it to me.”

Defendant testified that he was scared and rushed after Conwell, beginning a struggle that spread throughout the apartment. As they wrestled, Conwell was cut repeatedly by the knife.

After defendant stabbed Conwell in the leg a couple of times, both Conwell and the knife fell to the floor. Conwell then stood up, picked up the knife, and came toward defendant. Because Conwell was between defendant and the only door in the room, defendant went to the ledge of a dining room window and lowered himself out of the window. When defendant saw Conwell coming at him with the knife in one hand and a chair in the other hand, he released his hold on the window ledge and fell three stories to the ground below. Defendant attempted to take a few steps before his legs collapsed beneath him.

Defendant testified that he crawled to the back porch of a nearby building, where he fainted. When defendant regained consciousness, it was daylight, and he remained on that porch for the entire day. Defendant ultimately crawled out of the alley and asked a passerby to call a paramedic.

Defendant stated that he was initially taken by ambulance to Billings Hospital, but was subsequently transferred to Cook County Hospital. Upon admission to the hospital, defendant identified himself using the last name of “Baffield,” which is the last name of defendant’s father. Defendant also gave the hospital staff his correct address and social security number. Defendant remained in the hospital for seven or eight days and was treated for the fractures in his legs.

Defendant testified that he did not tell any of his family members or any hospital personnel what happened at Conwell’s apartment, and he acknowledged that he lied to hospital personnel about the cause of his injuries. Defendant stated that aside from the fractures to his legs caused by his jump from the third-floor window, defendant sustained no other injuries during the altercation with Conwell.

Upon hearing the arguments of counsel and considering the trial court’s instructions, the jury found defendant guilty of first degree murder. Defendant subsequently filed a motion for a new trial which was denied by the court. Thereafter, the trial court sentenced, defendant to a term of 40 years. Defendant has appealed his conviction.

We initially consider defendant’s claim that he was deprived of the right to due process because the prosecutor made improper references to defendant’s post-arrest silence.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the United States Supreme Court held that the warnings mandated by the Miranda decision operate as a prophylactic means of safeguarding fifth amendment rights and that silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Supreme Court held further that because of the nature of the warnings the State is required to give to the person arrested, every post-arrest silence is “insolubly ambiguous.” Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.

Although the Miranda warnings do not contain an express assurance that silence will carry no penalty, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Thus, a defendant’s silence at the time of arrest and after receiving Miranda warnings may not be used for impeachment purposes, and such use violates the due process clause of the fourteenth amendment. Doyle, 426 U.S. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245. See also People v. Moody (1990), 199 Ill. App. 3d 455, 464, 557 N.E.2d 335, 341; People v. Johnson (1988), 170 Ill. App. 3d 828, 834, 525 N.E.2d 546, 551.

Yet, the rule established in Doyle is subject to certain exceptions. The State may properly comment on post-arrest silence where the defendant asserts at trial that he gave his exculpatory statement to the police when arrested. In such a situation, the defendant may be impeached with evidence that he did not do so. (Johnson, 170 Ill. App. 3d at 834, 525 N.E.2d at 551.) In addition, where the defendant’s exculpatory testimony at trial is manifestly inconsistent with statements made after arrest, the State may present evidence or comment on the defendant’s failure to give the same statement at the time of arrest. (Johnson, 170 Ill. App. 3d at 834, 525 N.E.2d at 551.) Finally, a defendant may be impeached by evidence of silence prior to arrest and prior to receipt of the Miranda warnings. (Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) Where the defendant’s failure to speak has occurred before the petitioner was taken into custody and given the Miranda warnings, it is clear that the defendant’s silence was not induced by governmental action. (Jenkins, 447 U.S. at 240, 65 L. Ed. 2d at 96, 100 S. Ct. at 2130.) In such circumstances, the fundamental unfairness recognized in Doyle is not present, and the introduction of prearrest silence does not constitute a violation of the fourteenth amendment. Jenkins, 447 U.S. at 240, 65 L. Ed. 2d at 96,100 S. Ct. at 2130.

In the instant case, the record reveals that during his cross-examination of the defendant, the prosecutor inquired as follows:

“[PROSECUTOR]: And of course, when you got out of [Con-well’s apartment] you called the police and told them, ‘Hey, this guy attacked me with a big knife’?
[DEFENDANT]: No, I didn’t.
[PROSECUTOR]: You never told anybody that, did you?
[DEFENDANT]: No.
[PROSECUTOR]: In fact, this story you told the ladies and gentlemen of the jury here today in court, when was the first time you told that story to anyone?”

Defense counsel’s objection to this question was initially overruled, but after a sidebar, the trial judge sustained the objection.

This question makes no reference to defendant’s silence after his arrest and receipt of Miranda warnings. Rather, it is a general inquiry as to whether defendant had ever told anyone about Conwell’s homosexual advance and attack with the butcher knife. We hold that this question was permissible, especially in light of the fact that defendant had the opportunity to speak with family members and medical care providers long before he was arrested and given the warnings required under Miranda. Clearly, this prearrest silence may be used to impeach a defendant who presents exculpatory evidence at a later trial. (Jenkins, 447 U.S. at 240, 65 L. Ed. 2d at 96, 100 S. Ct. at 2130.) We hold that the prosecutor’s cross-examination of the defendant on this subject was appropriate because defendant was not arrested or given Miranda warnings until more than five weeks after the death of Conwell.

Moreover, we note that the objection to this question was ultimately sustained by the trial judge. Consequently, any potential error caused by this question was cured by the trial court’s ruling on the objection. People v. Shum (1987), 117 Ill. 2d 317, 348, 512 N.E.2d 1183, 1194, cert, denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060.

In response to subsequent examination by the prosecutor, defendant admitted that he had lied to hospital personnel about the cause of his injuries and that he did not tell hospital personnel or any of his family members how he sustained his injuries or what had happened in Conwell’s apartment. Defense counsel did not object to any of this questioning by the prosecutor.

The prosecutor subsequently questioned defendant as follows:

“[PROSECUTOR]: You got arrested on this murder charge approximately 14 months ago, correct?
[DEFENDANT]: Yes.
[PROSECUTOR]: November of 1987, correct?
[DEFENDANT]: Yes.
[PROSECUTOR]: And during the past 14 months you have had time to think about what you would say at your trial, correct?”

The trial court overruled defense counsel’s objection to this question.

We hold that this examination did not refer to post-arrest silence by defendant, but merely inquired as to whether after his arrest defendant had time to think about his trial testimony. It would be virtually impossible for defendant to not think at all about his future testimony during the time period before the trial commenced. We perceive these questions to be almost rhetorical. Thus, in our view, these questions cannot be considered prejudicial as an improper reference to defendant’s post-arrest silence.

During rebuttal closing argument, the prosecutor stated:

“[PROSECUTOR]: You know the defendant had about 14 months to think up the story.”

Defense counsel’s objection to this statement was overruled.

We find that this argument did not refer to defendant’s post-arrest silence, but rather to the evidence adduced at trial that defendant had 14 months to contemplate his trial testimony.

A prosecutor is given wide latitude during closing argument, and the trial court’s determination of the propriety of closing argument will generally be followed absent a clear abuse of discretion. (People v. Harris (1990), 196 Ill. App. 3d 663, 675, 554 N.E.2d 367, 375; People v. Dodds (1989), 190 Ill. App. 3d 1083, 1097, 547 N.E.2d 523, 534.) Arguments based on facts or reasonable inferences drawn from the facts are within the scope of proper argument even where they reflect unfavorably on the accused. Shum, 117 Ill. 2d at 348, 512 N.E.2d at 1194; People v. Albanese (1984), 102 Ill. 2d 54, 78, 464 N.E.2d 206, 218, cert, denied (1984), 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268; Harris, 196 Ill. App. 3d at 675, 554 N.E.2d at 367; People v. Bracy (1986), 152 Ill. App. 3d 566, 576, 504 N.E.2d 764, 770-71.

Defendant specifically admitted on cross-examination that he had thought about his testimony prior to the commencement of the trial. Thus, the prosecutor’s statement during rebuttal closing argument was permissible because it constituted fair comment on the evidence that had been presented to the jury.

Because the trial court is in the best position to determine the prejudicial effect, if any, of a remark made during argument, the character and scope of argument to the jury is left largely to the trial court, and every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324, 327; People v. Pittman (1984), 126 Ill. App. 3d 586, 594, 467 N.E.2d 918, 925.

Based upon the record before us, we do not believe defendant has established that he was deprived of the right to a fair trial by any improper questioning or argument by the prosecutor which referred to defendant’s post-arrest silence. See Pittman, 126 Ill. App. 3d at 594, 467 N.E.2d at 925.

We next address defendant’s assertion that he was deprived of a fair trial by improper comments by the prosecutor during opening statements and closing arguments.

Although every defendant is entitled to a trial that is free from improper comments or arguments that engender prejudice, a conviction will not be disturbed on review unless such remarks constitute a material factor in the conviction, or result in substantial prejudice to the accused. People v. Johnson (1987), 119 Ill. 2d 119, 139-40, 518 N.E.2d 100, 109-10, cert, denied (1988), 486 U.S. 1047, 100 L. Ed. 2d 629, 108 S. Ct. 2027; People v. Terry (1984), 99 Ill. 2d 508, 517, 460 N.E.2d 746, 750; People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200, 1205.

In determining whether the prosecutor’s comments or arguments constituted prejudicial error, the test employed is whether the jury would have reached a contrary verdict had the improper remarks not been made. (Pittman, 126 Ill. App. 3d at 594, 467 N.E.2d at 925; People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68, 76.) In making this determination, reference must be made to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. (Witted, 79 Ill. App. 3d at 165, 398 N.E.2d at 76; People v. Mitchell (1975), 35 Ill. App. 3d 151, 164, 341 N.E.2d 153, 163.) As previously noted, every reasonable presumption must be indulged in that the trial judge has performed his duty and properly exercised the discretion vested in him. Smothers, 55 Ill. 2d at 176, 302 N.E.2d at 327.

In the case at bar, defendant asserts that he was prejudiced by the prosecutor’s comment during opening statements that while standing outside the door of Conwell’s apartment, Dennis Ware heard “a male voice yelling something to the effect, okay, motherfucker; you’re going to get it now.” Although defense counsel made no objection to this comment during opening statements, defendant argues that it was improper and prejudicial because at trial Ware testified only that he heard a male voice say “okay, motherfucker.” Defendant contends that the additional phrase, “you’re going to get it now” constituted a threat to Conwell’s life but was not testified to by Ware at trial.

Although Ware did not testify at trial that he heard this additional phrase, the prosecutor stated at the hearing on defendant’s motion for a new trial that he included this phrase in his opening statement because it was a quote from police reports of what Ware told the officers. The prosecutor also stated that during a pretrial conference in preparation for testimony, Ware included that phrase as a part of the events he saw and heard on the night of Conwell’s death. The prosecutor explained that Ware apparently forgot to include this phrase when he actually took the stand to testify. Upon consideration of the arguments of counsel, the trial judge denied defendant’s motion for a new trial, specifically finding that defendant had not been prejudiced by this comment.

Thus, the record indicates that the prosecutor had no way of knowing that Ware’s memory would fail as to this statement. (See People v. Wills (1987), 153 Ill. App. 3d 328, 342-43, 505 N.E.2d 754, 763.) Based upon the record as a whole, we hold that this remark did not constitute a material factor in defendant’s conviction or result in substantial prejudice to him. Consequently, defendant has not established that he is entitled to a new trial on the basis of this comment, and the trial court properly denied his motion for a new trial.

Defendant also refers to the prosecutor’s comment during opening statements that when he looked through the window of the back door to Conwell’s apartment, Ware “saw a horrible sight, a sight that will last with him the rest of his life.” Ware testified that when he looked through the window of the back door, he saw Conwell’s legs lying over the stereo and Ware assumed that he was dead.

Although Ware did not specifically state that it was a “horrible sight,” we do not find it unreasonable for the prosecutor to describe the scene in such a fashion where Conwell was Ware’s brother-in-law, living in Ware’s building, and someone whom Ware had known for 17 years. In addition, we cannot say that this comment can be attributed to deliberate misconduct by the prosecutor which resulted in substantial prejudice to defendant. See Wills, 153 Ill. App. 3d at 342, 505 N.E.2d at 763.

Defendant contends further that the prosecutor made several remarks during closing arguments which were improper and prejudicial.

Specifically, defendant asserts that the prosecutor erroneously referred to the number of police officers in the area of Conwell’s apartment after the body was discovered where no such evidence had been elicited. The transcript of the trial indicates that the prosecutor stated “you can imagine how many squad cars are going to be arriving at the scene. *** Now, if you had just been attacked and tried to escape with your life, wouldn’t you want to talk to the police? Wouldn’t you want to tell them what happened?”

Thus, this comment clearly was intended to call the jury’s attention to defendant’s prearrest silence. It was not an impermissible reference to the number of police officers responding to the scene of the crime and did not unfairly prejudice the defendant. Moreover, the evidence adduced at trial established that at least five law enforcement officials arrived on the scene in addition to the paramedics who responded to the call for medical assistance. Consequently, the prosecutor’s comment was proper based upon this evidence.

Defendant also complains that the prosecutor stated that the loud noises heard by the Wares was Conwell “attempting to get away from the attacker.” This comment was proper comment on the evidence adduced at trial and the inferences that can be fairly drawn therefrom. (See Shum, 117 Ill. 2d at 348, 512 N.E.2d at 1194; Albanese, 102 Ill. 2d at 78, 464 N.E.2d at 218; Harris, 196 Ill. App. 3d at 675, 554 N.E.2d at 375.) Both Dennis and Ann Ware testified that they heard loud noises coming from Conwell’s apartment. Dennis Ware stated that he heard Conwell call repeatedly for help. Kirschner testified that Conwell’s wounds were consistent with those normally recognized to be defense wounds, and defendant testified that he sustained absolutely no injuries inflicted by Conwell. Consequently, the prosecutor’s comment was proper based on the evidence presented to the jury at trial.

During rebuttal closing argument, the prosecutor responded to defense counsel’s argument that defendant acted in self-defense by arguing that defendant was a “cold-blooded murderer.” The prosecutor argued further to the jury that “[i]f you think through the hocus-pocus, mumbo jumbo, bunch of lies *** [f]rom that witness stand, you will see what a liar is. But you have to think through what he told you, take a closer look, and you will see it doesn’t hold up.”

The prosecutor is entitled to comment on the accused’s credibility (People v. Carter (1988), 177 Ill. App. 3d 593, 601, 532 N.E.2d 531, 536) and may comment on the evidence presented at trial and the inferences to be drawn therefrom (Shum, 117 Ill. 2d at 348, 512 N.E.2d at 1194; Albanese, 102 Ill. 2d at 78, 464 N.E.2d at 218). In addition, it is not improper to call the defendant a “liar” if conflicts in the evidence make such an assertion a fair inference. People v. Tiller (1982), 94 Ill. 2d 303, 319, 447 N.E.2d 174, 182, cert, denied (1983), 461 U.S. 944, 77 L. Ed. 2d 1302, 103 S. Ct. 2121; People v. Townsend (1985), 136 Ill. App. 3d 385, 395, 483 N.E.2d 340, 347.

The evidence established that Conwell repeatedly called for help and that the 28 stab wounds which caused him to bleed to death were characterized as defense wounds. It was also undisputed that defendant sustained no stab wounds or other injuries inflicted by Conwell. In this instance, it was within the bounds of permissible argument for the prosecutor to challenge the veracity of the defendant’s trial testimony and to argue that defendant’s account of the events on September 27, 1987, did not coincide with the other evidence presented to the jury.

Defendant also complains that he was deprived of the right to a fair trial by the prosecutor’s suggestion that his testimony that “Baffield” was his father’s name was untrue.

Although the State did not present any evidence which contradicted defendant’s assertion that his father’s name was “Baffield,” we find that this comment was not a material factor in defendant’s conviction or caused substantial prejudice against the defendant. Consequently, defendant’s conviction will not be reversed on this basis. See Johnson, 119 Ill. 2d at 139-40, 518 N.E.2d at 109-10; Terry, 99 Ill. 2d at 517, 460 N.E.2d at 750; Baptist, 76 Ill. 2d at 29, 389 N.E.2d at 1205.

Defendant next asserts that the prosecutor improperly argued that his testimony was “concocted in the hopes that he could sell [the jury] on this theory of second degree murder *** [because] he knows you’re not going to buy a not guilty [verdict].” As noted above, the prosecutor is entitled to comment on the accused’s credibility (Carter, 177 Ill. App. 3d at 601, 532 N.E.2d at 536), and it is not improper to argue that the defendant has testified falsely if conflicts in the evidence make such an assertion a fair inference (Tiller, 94 Ill. 2d at 319, 447 N.E.2d at 182; Townsend, 136 Ill. App. 3d at 395, 483 N.E.2d at 347). Based upon the record as a whole, it was within the bounds of permissible argument for the prosecutor to challenge the veracity of the defendant’s trial testimony and to argue that defendant’s account of the events on September 27, 1987, did not coincide with the other evidence presented to the jury.

Defendant also contends that it was error for the prosecutor to suggest two alternative theories as to what transpired prior to Con-well’s death on September 27, 1987. The record indicates that the trial judge repeatedly advised the jury that they were to consider only the evidence presented at trial, that the comments made by counsel during opening statements and closing arguments were not evidence, and that such comments should be disregarded when not based upon evidence adduced during the trial. Consequently, any prejudice which might have resulted from these remarks was offset by the trial court’s admonishments to the jury. See People v. Jennings (1986), 142 Ill. App. 3d 1014; 1025, 492 N.E.2d 600, 606-07; Townsend, 136 Ill. App. 3d at 394-95, 483 N.E.2d at 347.

Defendant argues further that it was improper for the prosecutor to refer to him as a “depraved human being.”

Although the prosecutor may comment unfavorably on the defendant and the evil results of crime, he may not attempt to inflame the passion of the jury or arouse the prejudice of the jury against the defendant. (Johnson, 119 Ill. 2d at 139, 518 N.E.2d at 109; People v. Alexander (1984), 127 Ill. App. 3d 1007, 1014, 470 N.E.2d 1071, 1077, cert, denied (1985), 471 U.S. 1019, 85 L. Ed. 2d 308, 105 S. Ct. 2027.) Yet, even where the State has characterized the defendant as an “animal,” such improper remarks have been held to be harmless error unless they constitute a material factor in the conviction or result in substantial prejudice to the accused. Johnson, 119 Ill. 2d at 139-40, 518 N.E.2d at 109-10; Alexander, 127 Ill. App. 3d at 1014, 470 N.E.2d at 1077.

In light of the fact that the trial judge admonished the jury on more than one occasion that comments made by counsel during opening statements and closing arguments were not evidence and that such comments should be disregarded when not based upon evidence adduced during the trial, any prejudice which might have resulted from these remarks was offset by the trial court’s admonishments to the jury. (See Jennings, 142 Ill. App. 3d at 1025, 492 N.E.2d at 606-07; Townsend, 136 Ill. App. 3d at 394-95, 483 N.E.2d at 347.) Thus, we hold that the prosecutor’s comment in the case at bar was not so inflammatory as to constitute a material factor in the conviction or to result in substantial prejudice to the defendant.

Finally, defendant asserts that the cumulative effect of the prosecutor’s comments substantially prejudiced the jury. This argument is unpersuasive. It has been held that the whole can be no greater than the sum of its parts. (Albanese, 102 Ill. 2d at 82-83, 464 N.E.2d at 220.) Thus, where defendant has failed to establish that any individual comments require reversal, a court of review will not order a new trial based upon the “cumulative effect” of alleged errors. Albanese, 102 Ill. 2d at 83, 464 N.E.2d at 220.

Based upon the record before us, we do not believe defendant has established that his conviction should be reversed or that he is entitled to a new trial as a result of improper comment by the prosecutor.

Defendant also contends that the trial court erred in failing to instruct the jury that an attorney has the right to interview witnesses. Defendant asserts that the trial court should have issued defendant’s tendered instruction Illinois Pattern Jury Instructions, Criminal, No. 3.10 (2d ed. 1981) (IPI Criminal 2d No. 3.10), which provides as follows:

“An attorney has the right to interview a witness for the purpose of learning the testimony the witness will give.” (IPI Criminal 2d No. 3.10.)

The Committee Note to instruction 3.10 provides that this instruction should not be given unless there has been examination eliciting prior interviews.

The Committee Note also refers to the corresponding civil instruction which states as follows:

“An attorney has a right to interview a witness for the purpose of learning what testimony the witness will give. The fact that the witness has talked to an attorney and told him what he would testify to does not, by itself, reflect adversely on the truth of the testimony of the witness.” Illinois Pattern Jury Instructions, Civil, No. 2.06 (2d ed. 1971) (IPI Civil 2d No. 2.06).

The Notes on Use for IPI Civil 2d No. 2.06 indicate that this instruction may only be given where the evidence shows that a witness or party has been interviewed by an attorney. This civil instruction has been interpreted to be an attempt to offset the ancient trick in which an attorney questions a witness as to his interview with opposing counsel, often stated in a way to imply to the witness and jurors that this is an impropriety. Dorf v. Egyptian Freightways, Inc. (1962), 39 Ill. App. 2d 2, 4, 188 N.E.2d 103, 104.

The purpose of giving IPI Criminal 2d No. 3.10 is to prevent adverse inferences from a witness speaking with opposing counsel prior to trial. People v. Simmons (1985), 138 Ill. App. 3d 492, 498, 485 N.E.2d 1135, 1140.

In the instant case, defendant claims that this instruction was necessary because during his cross-examination of the defendant, the prosecutor inquired as to whether defendant had previously seen the photographs depicting bloody footprints on the gangway beneath the third-floor window in Conwell’s apartment. When questioned as to the reason the footprints faced the building next door, defendant explained that he had turned around in the air as he fell from the window. Defendant also acknowledged that he had seen these photographs before the trial commenced.

This evidence did not establish that defendant had engaged in prior interviews with counsel. Moreover, the questioning by the prosecutor did not imply that any improper consultation took place or that defendant’s testimony had been altered or fabricated as a result of such a consultation.

The function of jury instructions is to convey the correct principles of law applicable to the evidence submitted to the jury. Jury instructions enable the jury to apply the proper legal principles to the facts and arrive at a correct conclusion according to the law and the evidence. (People v. Jones (1986), 145 Ill. App. 3d 835, 838, 495 N.E.2d 1371, 1373.) A tendered instruction should be refused where there is no evidence to support that proffered instruction. (People v. Mitchell (1985), 136 Ill. App. 3d 205, 208, 482 N.E.2d 1046, 1048.) Instructions should not be given if they do not accurately state the law or if they are misleading or confusing. Jones, 145 Ill. App. 3d at 838, 495 N.E.2d at 1373.

Because the evidence before the jury did not establish that defendant had engaged in pretrial interviews with counsel or that such interviews were improper, the trial court acted properly in refusing the tendered instruction.

Defendant also argues that he was not proven guilty of murder beyond a reasonable doubt because he acted in self-defense after being attacked by Conwell.

Section 7 — 1 of the Criminal Code of 1961 provides as follows:

“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. 1987, ch. 38, par. 7 — 1.

Killing in self-defense is justified where the following elements are present: (1) force has been threatened against a person; (2) the threatened person is not an aggressor; (3) the danger of harm is imminent; (4) the force threatened is unlawful; and (5) the defendant must reasonably believe that danger exists, that the use of force is necessary to avert the danger and that the kind and amount of force which he uses is necessary. People v. Parker (1990), 194 Ill. App. 3d 1048, 1055, 551 N.E.2d 1012, 1017; People v. Kyles (1980), 91 Ill. App. 3d 1019, 1021-22, 415 N.E.2d 499, 501.

Self-defense is an affirmative defense. (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 14.) Where the defendant presents some evidence tending to prove this affirmative defense, the burden then rests upon the prosecution to prove guilt beyond a reasonable doubt as to the issue of self-defense and all of the elements of the offense charged. Ill. Rev. Stat. 1987, ch. 38, par. 3 — 2(b); Parker, 194 Ill. App. 3d at 1055, 551 N.E.2d at 1017.

Although one does not have to retreat from a place where he has a right to be, the nonaggressor may use force likely to cause death or serious bodily harm only if he reasonably believes that the imminently threatened force had placed him in danger of death or great bodily harm. (People v. Moore (1976), 43 Ill. App. 3d 521, 526, 357 N.E.2d 566, 570.) Whether the facts and circumstances would induce a reasonable apprehension of serious bodily harm is a question of fact to be determined in light of the defendant’s perception of the situation at the time he employed force against his aggressor. (People v. Sawyer (1986), 115 Ill. 2d 184, 193, 503 N.E.2d 331, 335, cert, denied (1987), 482 U.S. 930, 96 L. Ed. 2d 702, 107 S. Ct. 3216.) That determination will not be disturbed by a reviewing court unless the evidence was so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt as to the defendant’s guilt. People v. Balfour (1986), 148 Ill. App. 3d 215, 222, 498 N.E.2d 547, 553.

Defendant argues, in the alternative, that even if he held an unreasonable belief in the need for self-defense, then the appropriate charge would have been second-degree murder. In support of this argument, defendant asserts that the only evidence as to the events in Conwell’s apartment was that presented through the testimony of the defendant himself. Defendant contends further that the jury’s verdict was erroneous because his testimony was uncontradicted.

Careful review of the record reveals, however, that there was ample evidence for the jury to conclude that defendant knowingly and intentionally inflicted 28 stab wounds, causing Conwell’s death as a result of excessive bleeding, and that defendant did not have a reasonable or unreasonable belief that such conduct was necessary in order to prevent death or great bodily harm to himself or another.

Ware testified that he heard Conwell yell repeatedly for help and that he heard another male voice say, in an aggressive tone, “okay, motherfucker, okay motherfucker.” Conwell’s body was found lying backward over a stereo cabinet, with a telephone in one hand and a gas bill in the other hand. Conwell’s death was caused by the 28 stab wounds inflicted by defendant. Yet, defendant testified that he sustained no cuts, stab wounds, or other injuries inflicted by Conwell. In addition, defendant waited almost 36 hours before seeking treatment for the fractures in his legs. When he did finally seek treatment, defendant stated that his last name was “Baffield” and lied to the hospital personnel as to the cause of his injuries. Defendant never told any of his family members or any hospital personnel what transpired in Conwell’s apartment during the early morning hours of September 27, 1987. Moreover, no handprints were found on the window ledge in Conwell’s apartment despite the fact that defendant contended that he had hung from the ledge to lower himself out of the window before falling to the gangway below.

It is the function of the trier of fact to determine the credibility of the witnesses. (Parker, 194 Ill. App. 3d at 1056, 551 N.E.2d at 1018.) The jury had the opportunity to view the demeanor of the defendant and to weigh his testimony. Upon consideration of all of the evidence presented, the jury determined that defendant’s testimony was not credible, and we must agree. Many of Conwell’s wounds were-on his back and on the back of his head and neck. We find it difficult to believe that these injuries could have been inflicted by Conwell himself as defendant testified. In addition, there is no dispute that defendant fled from Conwell’s apartment by jumping from a third-floor window. Defendant did not seek out the police and explain how he had been the victim of an attack by Conwell. After defendant was discharged from the hospital, he travelled to Mariana, Arkansas, where he was ultimately arrested. Based upon this evidence, we cannot say that the evidence was so improbable, unreasonable, or palpably erroneous so as to leave a reasonable doubt that defendant was guilty of murder.

Finally defendant contends that the homicide statute under which he was convicted is violative of the Illinois and United States constitutions. Specifically, defendant asserts that the homicide statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1 et seq.) is contrary to his constitutional rights to due process and equal protection and of the guarantee of separation of powers.

This court has recently considered and rejected the arguments raised by defendant here. See People v. Gore (1991), 212 Ill. App. 3d 984, 993-97, 571 N.E.2d 1041, 1046-49.

In Gore, the court relied upon Patterson v. New York, (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, and concluded that a defendant’s right to due process is not prejudiced where the statute requires the prosecution to prove all of the elements of the crime charged. Thus, although the burden of proof is shifted to the defendant to establish an affirmative defense, the statutory scheme is not violative of the due process clause. Gore, 212 Ill. App. 3d at 993, 571 N.E.2d at 1047. See also People v. Jerome (1990), 206 Ill. App. 3d 428, 564 N.E.2d 221; People v. Buckner (1990), 203 Ill. App. 3d 525, 561 N.E.2d 335.

The court in Gore also held that the homicide statute did not violate the right to equal protection. The court relied upon Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, and upon People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11, in concluding that the defendant had not established that the statutory scheme under which he was convicted should be subject to a strict scrutiny analysis. (Gore, 212 Ill. App. 3d at 994-95, 571 N.E.2d at 1047-48.) Rather, the court found that the homicide statute actually affords a criminal defendant charged with murder the opportunity to establish a defense which lessens his punishment and that this opportunity is not provided other criminal defendants. (Gore, 212 Ill. App. 3d at 995, 571 N.E.2d at 1048.) The court concluded that the homicide statute is rationally designed to meet a legitimate State purpose and, therefore, is not violative of the equal protection clause. Gore, 212 Ill. App. 3d at 995-96, 571 N.E.2d at 1048. See also People v. Clark (1991), 207 Ill. App. 3d 439, 565 N.E.2d 1373.

Finally, the decision in Gore determined that the homicide statute was not violative of the separation of powers provision of the Illinois Constitution. (Ill. Const. 1970, art. II, §1.) The court held that the statute does not preclude the State’s Attorney from charging a defendant with second-degree murder. (Gore, 212 Ill. App. 3d at 996, 571 N.E.2d at 1048-49.) The court noted that the State may charge second-degree murder where there is proof of the elements of first-degree murder but there is also present a mitigating factor as specified in section 9 — 2 of the homicide statute (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2). Under such circumstances, the defendant would not bear the burden of establishing the mitigating factors, and the jury would be so instructed in the appropriate case. (Gore, 212 Ill. App. 3d at 996, 571 N.E.2d at 1049; People v. Burks (1989), 189 Ill. App. 3d 782, 545 N.E.2d 782.) The Gore court concluded that because a defendant is required to prove a mitigating factor only where he has been charged with first-degree murder, the homicide statute does not violate the guarantee of the separation of powers. Gore, 212 Ill. App. 3d at 996-97, 571 N.E.2d at 1049.

Consequently, defendant has not established that "the statutory scheme under which he was convicted is violative of the separation of powers provision or of his constitutional rights to due process and equal protection.

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

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    DON R. SAMPEN, Plaintiff-Appellant, v. STEFFAN DABROWSKI (BEDNAR) et al., Defendants (Allstate Appraisal, Inc., Defendant-Appellee).
    First District (6th Division)
    No. 1—90—2647
    Opinion filed December 13,1991.
    Don R. Sampen, pro se, of Martin, Craig, Chester & Sonnenschein, and Ralph Hardesty, of Hardesty & Wolf, both of Chicago, for appellant.

      Elliot R. Schiff and Loretta M. Griffin, both of O’Connor, Schiff & Myers, of Chicago, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Don R. Sampen, hired the defendant, Allstate Appraisal, Inc. (Allstate), to appraise a multi-unit apartment building the plaintiff anticipated buying. The defendant submitted an appraisal figure of $785,000. The plaintiff bought the building for $782,000. The property was worth between $500,000 and $550,000.

The plaintiff filed a complaint against Allstate and the sellers of the property. Counts XV through XVII concerned only the defendant. Count XV alleged appraiser malpractice; count XVI alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (the Act) (Ill. Rev. Stat. 1989, ch. 121 par. 261 et seq.); and count XVII alleged a breach of contract. The heart of all three counts is the allegation that the appraisal figure submitted by the defendant was “about one-third more than the actual fair market-value” of the building. Count XV was dismissed with leave to amend; and counts XVI and XVII were dismissed with prejudice. The sole issue in this appeal is whether counts XVI and XVII pleaded a cause of action. The facts we are about to recite are based on the allegations of the complaint which must be accepted as true. Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 503 N.E.2d 760.

Stefan Dabrowski and Karen Lieberman owned a 38-unit apartment building located at 6150 North Winthrop in Chicago. In the spring of 1986, the plaintiff began negotiating with Lieberman and Dabrowski to purchase the building. In June of 1986, the plaintiff hired the defendant to perform an appraisal of the property for a fee of $1,300. The plaintiff advised the defendant that he was a prospective purchaser of the property and that he would rely on the appraisal in determining whether to proceed with the purchase.

The defendant prepared a 33-page appraisal of the fair market value of the property. A copy of the appraisal report is attached to the complaint. The report estimated the fair market value of the property as of June 19, 1986, to be approximately $785,000.

The plaintiff executed a contract to purchase the property from Dabrowski and Lieberman for a price of $782,000. The fair market value of the premises as of the appraisal date was $500,000 to $550,000.

The Consumer Fraud Act (Count XVI)

Section 2 of the Act provides as follows:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act’, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” Ill. Rev. Stat. 1989, ch. 121½, par. 262.

The defendant contends that the Act is not applicable for two reasons: The appraisal it provided to the plaintiff was an expression of opinion and not an actionable misrepresentation; and a real estate appraiser does not engage in “trade or commerce,” as that term is used in the Act. The trial judge held that the Act did apply to a real estate appraiser, but that the appraisal was an expression of an opinion and not an actionable misrepresentation. We agree with the trial judge’s conclusions. In our view, a real estate appraiser does engage in “trade or commerce,” as that term is used in the Act. It has been held that the Act applies to a real estate broker. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464; Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267.) In Duhl, it was held that a broker’s representations of value might be actionable. There is no reason why representations of value by an appraiser might not also be actionable. The case relied upon by the defendant, Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 447 N.E.2d 1007, is not in point; that case simply held that the Act did not cover legal services.

We do, however, agree with the defendant’s contention that the appraisal report constituted an expression of an opinion, and not an actionable misrepresentation. The principal case relied upon by the plaintiff is Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267. In that case the plaintiff homeowners contacted the defendant real estate broker to assist them in the purchase of a new home. They informed the defendant that the price they could pay could be no greater than the price they received for the sale of their home. The defendant said that she had the professional skill and competence to determine the market value of their present home, the price for which it could be sold and the speed with which it could be sold. The plaintiffs asked the defendant for her professional judgment, informing her that they had no knowledge of real estate values and were relying on her expertise. After inspecting the home the defendant told them that in her professional judgment, their home should be listed for $168,000 and that it would be sold very quickly for between $162,000 and $163,000. The defendant said that she had performed a great number of such appraisals over many years, that she had always been within 5% of the actual selling price and her representations as to the market value and speed of sale were correct. As further confirmation she had the president of her company appraise the home. She told the plaintiffs that the president was a “professional appraiser and had the skill and expertise to form a professional opinion as to the precise price at which the home would sell.” (Emphasis added.) 102 Ill. App. 3d at 486.

Later she told the plaintiffs that the president had appraised the home and that his professional judgment was that the home had a minimum market value of $158,000 and would sell for at least that amount. He had also said that the home would be sold very quickly. She gave the plaintiffs a brochure entitled “Seven Reasons You Should Consult a Realtor.” That brochure stated in part:

“2. A REALTOR knows market value. When your property is priced right for the market, you can expect fast action— and full value. A REALTOR knows market value because he stays abreast of all real estate sales transactions as well as economic and social factors which affect property value.” 102 Ill. App. 3d at 486.

In reliance on the representations made by the defendant, the plaintiffs purchased a new home. They engaged the defendant’s company as the exclusive real estate broker to sell their home. The home was listed for $167,500. The selling price was reduced from time to time to $137,000 and the plaintiffs had still not received any offers. They obtained independent appraisals of the value of the home which, without exception, indicated that the home had been “grossly overpriced, and that the market value and price at which the home could be sold was at least $20,000 less than it had been represented to be by” the defendants. 102 Ill. App. 3d at 487.

The appellate court reversed an order dismissing the complaint charging a violation of the Act. The court recognized that generally a mere expression of opinion will not support an action for fraud and that statements as to the value of property are often treated as mere expressions of opinion and, if so intended and understood, fraud may not be predicated thereon. The court added: “However, where the representation as to value is not a mere expression of opinion but is made as a statement of fact for the listener to rely upon, the representation is treated as a statement of fact and the speaker is bound thereby.” (102 Ill. App. 3d at 489.) The court concluded that a fact finder could infer that the defendant intended that her representations be understood by the plaintiffs to be statements of fact rather than mere expressions of opinions.

The appellate court relied on four cases which we will discuss in order. The first was Buttitta v. Lawrence (1931), 346 Ill. 164, 178 N.E. 390. In that case the defendant was alleged to have entered a conspiracy with a broker to induce the plaintiff to exchange his property for property owned by the defendant and the broker; the plaintiff was also to receive some promissory notes. The defendant represented that the notes were good and that he would endorse them so that he would be liable on them. Some of the notes were barred by the statute of limitations; others were uncollectible; and the defendant endorsed the notes without recourse.

The supreme court rejected the defendant’s argument that his statement that the notes were good and collectible was an expression of opinion and not of fact:

“Wherever a party states a matter which might otherwise be only an opinion but does not state it as the expression of the opinion of his own but as an affirmative fact material to the transaction, so that the other party may reasonably treat it as a fact and rely upon it as such, then the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation. Statements of value are common examples, and where made in pursuance of a scheme on the part of the defendant to induce plaintiff to trade with him such statements constitute fraud and deceit.” (Emphasis added.) 346 Ill. at 173.

The second case was Yeoman v. Sherry (1935), 10 Cal. App. 2d 567, 52 P.2d 555. In Yeoman, the defendant broker had acted on behalf of the plaintiff on two previous occasions. On the second occasion, the plaintiff acquired an equity in a building. Thereafter, the defendant acted as a broker for the exchange of that equity for two promissory notes totalling $15,500 which were secured by trust deeds on 320 acres of land.

The plaintiff testified that she came to the defendant’s office at the defendant’s direction and that the defendant told her that there was a “guarantee” for the trust deeds in the sum of $16,000. When the plaintiff asked if the defendant would take the trust deeds, the defendant said that she wished she had enough money to get them. In response to other questions by the plaintiff, the defendant said that the plaintiff was going to like the deeds and that the property was worth $30,000. The defendant also told her that the trust deeds were as good as $15,500 in cash. An expert witness later testified that $5 an acre would be a “big price” for the property. (10 Cal. App. 2d at 570, 52 P.2d at 557.) Thus, the property the defendant importuned the plaintiff to accept as security was worth approximately one-tenth the amount due on the notes and approximately one-twentieth the amount the defendant said the property was actually worth.

The third case was F.H. Smith Co. v. Low (D.C. App. 1927), 18 F.2d 817. In that case, in addition to an expression of the value of the property involved, the defendant made false representations to the plaintiff of future actions the defendants themselves would take. The defendants also urged the plaintiff to accept the offer at once; otherwise, the plaintiff would have to pay a much higher price later. The district court spoke as follows:

“The misrepresentations alleged in the declaration were actionable. They consisted in part of statements concerning existing facts and conditions. Some of these were statements of value, which generally are understood to be mere expressions of opinion. Such a statement, however, when made ‘made under conditions which show that it was intended’ by one uttering it ‘to be treated as an immediate factor inducing action, and was made with knowledge that it would be accepted as a basis of action, instead of a mere element to be investigated before action, it becomes for all practical purposes a statement of fact.’ [Citations.]” (Emphasis added.) 18 F.2d at 819.

In the last case, Mercer v. Parker (1928), 124 Or. 89, 262 P. 948, the defendant broker was the owner of the property. The plaintiff told the defendant that she had no knowledge of the value of the property and was relying on the defendant’s representation of value. The defendant admitted that he had asked the mortgagee on the property not to tell the plaintiff the price the defendant had paid for the property in a recent sale. He also told the mortgagee that, if the plaintiff called, not to quote any price; but, if the mortgagee felt she had to quote a price, to quote the price of $5,000, which the defendant was asking of the plaintiff. He had paid $3,700. The Oregon Supreme Court held that, under the peculiar circumstances of the case, the representations made by the defendant were actionable as fraud.

The facts of Duhl and the cases cited in Duhl are far removed from the facts of the case before us. The defendant did not own the property or speak of guarantees; it did not make false representations as to its future course of conduct; it did not gain in any way from the fact the plaintiff bought the property; it did not misrepresent its own qualifications or any existing fact; it did not importune the plaintiff to buy property nor goad him into quick action; and it did not make any attempt to have someone else lie to the plaintiff.

The case upon which the defendant relies is People ex rel. Hartigan v. Maclean Hunter Publishing Corp. (1983), 119 Ill. App. 3d 1049, 457 N.E.2d 480, in which the court discussed whether an erroneous valuation may be a violation of the Act. The court examined the contents of a “Red Book,” a publication containing used car valuations which were allegedly inaccurate and unreliable, and concluded that the valuations did not of themselves violate the Act, even though they were inaccurate. The court did determine, however, that the publisher’s advertising of the book as “official” and a recognized authority with complete, impartial, accurate and current prices, without informing subscribers that the valuations reported in the “Red Book” were subjective estimates, could support a finding of a violation of the Act. The court expressly held, however, that “[i]f clearly labeled as an opinion a qualitative evaluation of worth is not a violation of the Act.” (119 Ill. App. 3d at 1059.) For reasons we will explain, we conclude that the defendant’s valuation was clearly labeled an opinion and that the defendant did not fail to inform the plaintiff that its appraisal represented its subjective “estimate.”

Contrary to the plaintiff’s assertion, the defendant’s appraisal report does not purport to be “an elaborate, systematic, objective and accurate analysis of the market value.” Instead, the report is a correlation of data used to formulate a professional opinion of the value of the property. Among the data used were several comparable sales of property and the rental income of the subject property. That data was apparently provided to the defendant by the sellers of the property. During oral argument, the plaintiff’s attorney told us that the rental income was misrepresented. Any misrepresentation came from the seller, not the defendant. Moreover, it appears that the rent figure for each apartment listed was accurate. The problem apparently was in collecting it. There is no claim that the purchase price of the properties listed as comparable sales was inaccurate.

The transmittal letter accompanying the report begins with the following sentence: “In accordance with your instructions, we have inspected the above captioned property for the purpose of estimating its current Fair Market Value.” The appraisal certificate states that the “estimated Fair Market Value of the subject property” is $785,000. The report’s stated purpose was “to estimate the current Fair Market Value of the property.” Even the definition of “fair market value” is stated as “[t]he price at which a property would most probably sell, if exposed to the market for a reasonable period of time in an 'as is’ condition, where payment is made in cash or its equivalent.” The report uses three approaches to estimate the market value of the property: the cost approach, the income approach and the market data approach. Under each of those three methods, the report lists the “estimated fair market value” using that approach “in round amount.” The analysis and conclusion of the report states that “[ajfter adjusting the above data on the subject, we estimate the present value of the subject to be in the amount of $785,000.” (All foregoing emphasis has been added.)

The words used in a contract are to be given their ordinary, natural and commonly accepted meanings unless it clearly appears that the parties intended to ascribe to them a peculiar or unusual meaning. (First National Bank v. Mid-States Engineering & Sales, Inc. (1981), 103 Ill. App. 3d 572, 431 N.E.2d 1052.) In repeated cases the word “estimate” has been held to be synonymous with “opinion.” (See, e.g., Clark Sanitation, Inc. v. Sun Valley Disposal Co. (1971), 87 Nev. 338, 487 P.2d 337; Klein v. Puritan Fashions, Inc. (Mo. App. 1969), 439 S.W.2d 229; Indiana Gas & Water Co. v. Williams (1961), 132 Ind. App. 8, 175 N.E.2d 31.) In this case, it does not appear that the parties intended to ascribe a peculiar or unusual meaning to the word “estimate.” For these reasons, we conclude that the appraisal report clearly informed the plaintiff that the valuation was a subjective estimate and thus an expression of an opinion; it was not an actionable misrepresentation.

Although not necessary to our opinion and not raised by the parties, we believe it appropriate to note that in 1982 the Act was amended. It is not now applicable to:

“The communication of any false, misleading or deceptive information, provided by the seller of real estate located in Illinois, by a real estate salesman or broker licensed under ‘The Real Estate Brokers License Act’, unless the salesman or broker knows of the false, misleading or deceptive character of such information.” Ill. Rev. Stat. 1983, ch. 121½, par. 270b(4).

One text writer opined that the Act was amended “[presumably in response to the real estate professionals’ concern over Beard and Duhl.” Peterson, Tort Claims By Real Estate Purchasers Against Sellers & Brokers: Current Illinois Common Law & Statutory Strategies, 1983 S. Ill. U. L.J. 161, 179. See also Warren v. LeMay, 142 Ill. App. 3d at 572, 491 N.E.2d at 477.

We had previously held that there was no reason to distinguish between real estate brokers and real estate appraisers insofar as the “trade or commerce” language of the Act was concerned. In like manner, we see no reason to conclude that public policy, as expressed by the legislature, should restrict liability for real estate salesmen or brokers to misrepresentations of value knowingly made but may impose liability upon a real estate appraiser for making a good-faith misrepresentation of value. The plaintiff makes no claim here that the defendant made any misrepresentation which was not in good faith.

The order dismissing count XVI is affirmed.

Breach Of Contract (Count XVII)

Stated briefly, count XVII alleged that the defendant breached his contract with the plaintiff by submitting an erroneous appraisal. The trial judge dismissed count XVII on the ground that the plaintiff’s remedy lay in tort. He relied on Duhl, which the defendant cites in this court.

In Duhl, the plaintiff sued for fraud, negligence, breach of contract and for a violation of the Act. As noted, the appellate court upheld the complaint under the Act. The court also upheld the complaint’s causes of action for fraud and negligence, but it refused to uphold an action for breach of contract with this observation:

“The plaintiffs have cited no cases for their contention that false representations can constitute a breach of such a contract and we have found none. According to the complaint, the defendants agreed to value the property and did indeed value the property. If they erred in the value, the remedy properly lies in tort.” Duhl, 102 Ill. App. 3d at 488.

The plaintiff does not maintain that Duhl was decided incorrectly; he does maintain that Duhl is distinguishable. We do not believe that it is. Consequently, we affirm the order of the trial judge dismissing count XVII.

The judgment of the circuit court is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.

      In Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448, the court held that the Act was applicable to real estate sales transactions and that real estate purchasers might sue for violations of the statute even though they did not technically fall within the statutory definition of consumer. The court also held that the state of mind was immaterial under the statute; hence, good-faith misrepresentations involving merely a failure to exercise due care could be the basis of liability.

      The defendant also argues that count XVII was properly dismissed on the ground that the appraisal report is dated July 17, 1986, and that the plaintiff bound himself to purchase the property before receiving the appraisal report. The pleadings, which must be construed liberally in favor of the plaintiff, may be construed to mean that the plaintiff was bound contractually after receiving the appraisal report. The trial judge did not rely on this ground. We find it has no merit.


author: PRESIDING JUSTICE RAKOWSKI

text:
    WASILEVICH CONSTRUCTION COMPANY, Plaintiff-Appellee, v. LA SALLE NATIONAL BANK, as Trustee, et al., Defendants-Appellees (Lyons Electric Company, Counterplaintiff-Appellant; Wasilevich Construction Company et al., Counterdefendants-Appellees).
    First District (6th Division)
    No. 1—91—1233
    Opinion filed December 13,1991.

      Lawrence, Kamin, Saunders & Uhlenhop, of Chicago (David E. Muschler, of counsel), for appellant.
    Stanley M. Cahn and Susan E. Woods, both of Chicago, for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Counterplaintiff-appellant Lyons Construction Company (Lyons) filed a petition to intervene and a counterclaim in a mechanics’ lien foreclosure action. The trial court denied the petition as untimely under the provisions of the Illinois Mechanics’ Lien Act (Ill. Rev. Stat. 1989, ch. 82, par. 1 et seq.), which order Lyons appeals.

Lyons was a subcontractor to Wasüevich Construction Company (Wasüevich), the general contractor, for electrical work performed for defendant-appellee Zonta International Foundation (Zonta) in Chicago, Illinois. Disputes arose between Wasilevich and Zonta regarding payment, and on December 28, 1988, Wasilevich filed a complaint for foreclosure of mechanics’ lien and other relief.

Because jurisdiction is at issue, a brief chronology of events becomes necessary. Though Lyons had filed a claim for lien against the project on December 12, 1988, Lyons was not made a party-defendant to the Wasilevich action. Lyons’ claim for lien was in the amount of $17,396 and stated that the completion date for Lyons’ work was October 4, 1988. On October 3, 1990, Lyons filed its appearance and petition to intervene in the Wasilevich action. Attached to the petition was a counterclaim. The hearing on Lyons’ petition was noticed for October 25, 1990. After Lyons and Zonta briefed the matter, the trial court denied Lyons’ petition to intervene. The date of the trial court’s judgment order was December 28, 1990. The Wasilevich action was dismissed via agreed order on March 11, 1991. Lyons filed its notice of appeal from the December 1990 order on April 5,1991.

The first issue we address is whether we have jurisdiction to hear this appeal. Counterdefendants-appellants Zonta and Citicorp filed a motion to dismiss appeal on June 19, 1991. Appellants dispute our jurisdiction due to the failure of Lyons to file its notice of appeal within 30 days of the trial court’s entry of judgment denying Lyons leave to intervene. There is no dispute that Lyons appealed the denial of its petition to intervene within thirty days of the termination of the litigation.

There appears to be a split of authority on whether the denial of a petition to intervene is a final and appealable order under Supreme Court Rule 301 (134 Ill. 2d R. 301) or rather that such denial falls within the ambit of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) so as to require an express Rule 304(a) finding in order to give an appellate court jurisdiction. It appears that the majority of authority concludes that an express Rule 304(a) finding is required in order to give the appellate court jurisdiction. See Velde Ford Sales, Inc. v. John Bearce Ford, Inc. (1990), 194 Ill. App. 3d 951, 551 N.E.2d 808; Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1978), 63 Ill. App. 3d 1012, 380 N.E.2d 835; but see Koester v. Yellow Cab Co. (1974), 18 Ill. App. 3d 56, 309 N.E.2d 269; Crown Transit Lines, Inc. v. Veterans Travel Club of Western Illinois University (1973), 15 Ill. App. 3d 116, 303 N.E.2d 142.

However, we need not address the broad issue of whether the denial of a petition for leave to intervene generally is appealable under Rule 301 or Rule 304(a). This is so due to the unique circumstances of this case, where a statute provides that upon the filing of a petition to intervene, the claimant becomes a party to the action. In Koester, for instance, the court held that Rule 304(a) would not apply due to the fact that the would-be intervenor was not “yet a party to the proceedings.” (Koester, 18 Ill. App. 3d at 61.) Here, as will be discussed, Lyons became a party to the proceedings upon the filing of the petition to intervene, and thus due to the lack of a Rule 304(a) finding on the order denying Lyons leave to intervene, it did not become appealable until the entire action was terminated. Accordingly, we have jurisdiction.

We next address the issue of whether the trial court erred in denying Lyons’ petition to intervene.

Section 9 of the Illinois Mechanics’ Lien Act (the Act) provides in pertinent part:

“If payment shall not be made to the contractor having a lien by virtue of this act of any amount due when the same becomes due, then such contractor may bring suit to enforce his lien in the circuit court in the county where the improvement is located ***. Any two or more persons having liens on the same property may join in bringing such suit, setting forth their respective rights in their complaint; all lien claimants not made parties thereto may upon filing a petition to intervene become defendants and enforce their liens by counterclaim against all the parties to the suit ***. Such suit shall be commenced or counterclaim filed within two years after the completion of the contract, or completion of the extra or additional work, or furnishing of extra or additional material thereunder.” (Ill. Rev. Stat. 1989, ch. 82, par. 9.)

The Act “shall be liberally construed as a remedial act.” Ill. Rev. Stat. 1989, ch. 82, par. 39.

The object and purpose of the lien laws “is to protect those who in good faith furnish materials for the construction of buildings, and such persons ought not by a strict construction [of the lien laws be] deprived of this remedy.” (Granite City Lime & Cement Co. v. Board of Education of School District No. 126 (1916), 203 Ill. App. 134, 140.) The Act contemplates one cause of action arising out of property disputes for the benefit of owners. See Granquist v. Western Tube Co. (1909), 240 Ill. 132; Bingaman v. Dahm (1940), 307 Ill. App. 432.

Section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408) provides in part: “(a) upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene.” Section 2 — 408 further provides that “[a] person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 408(e).) Section 12 of the Act provides that “the rules of practice and proceedings in such cases shall be the same as in other civil cases, except as otherwise provided in this act.” Ill. Rev. Stat. 1989, ch. 82, par. 12.

In this case, it is not controverted either that Lyons is a lien claimant to whom the Act applies or that the filing of the counterclaim took place within two years of the completion date of the work, which the Act requires. What is disputed is whether Lyons must have been granted leave to intervene within the two-year period the Act requires. In arguing that Lyons was not entitled to proceed due to untimeliness, respondents argue that Lyons’ mere filing of its petition to intervene did not constitute actual intervention, and section 9 of the Act requires actual intervention to take place prior to expiration of the two-year period. Respondents rely on the language of section 9 and on general law applying to intervention and cite no case law or other authority on point in support of their arguments.

While respondents argue that a timely and effective commencement of suit and intervention should be required of defendant, they rely on authority which does not involve a specific time period named in a statute and point to no particular defect in Lyons’ petition or counterclaim. Respondents acknowledged at oral argument that the purpose of this black-letter law is to avoid inconvenience to the court. Yet respondents also admitted that the trial court made no finding of inconvenience to the court, and respondents have not advanced the argument that such inconvenience was present in the court below. The case of Well Done Heating & Sheet Metal Co. v. Ralph Schwartz & Associates (1983), 112 Ill. App. 3d 438, 445 N.E.2d 451, cited by respondents for the proposition that the Act should be strictly construed “as to what a lien claimant must do to perfect his right to a mechanics lien,” is distinguishable in that Well Done Heating involved the filing of a counterclaim outside of the two-year period. Here, the timeliness of the counterclaim is unchallenged.

Neither the construction the appellees apply to section 9 of the Act nor the general intervention statute supports the denial of intervention. Section 9 provides that nonparty lien claimants “may upon filing a petition to intervene become defendants and enforce their liens by counterclaim.” (Ill. Rev. Stat. 1989, ch. 82, par. 9.) While section 9 provides that a lien claimant “may” file a petition to intervene, this appears to apply as to how the lien claim shall be effectuated (e.g., by the filing of separate suit or by petition to intervene and filing of counterclaim). Appellees argue that section 2 — 408(e), which should be read in conjunction with section 9 of the Act, speaks of pleadings the intervener “proposes” to file. Thus, according to appellees, the granting of a petition to intervene is always an unsure result. Section 2 — 408(e)’s reference to the intervenor presenting the initial pleading or motion the intervenor “proposes” to file, however, adds little to the question of whether Lyons’ actions were timely under section 9 of the Act. Here we do not have at stake a typical petition for intervention, but rather a petition premised upon a specific statute which provides that upon the filing of the petition to intervene, the claimant becomes a party. As indicated, section 12 of the Act provides that the rules of practice and proceedings are the same in the lien action except as otherwise provided by the Act.

We note that were we to accept respondents’ interpretation of section 9, there is no way to determine exactly when the petition must be filed. While here Lyons filed at the last opportunity, had Lyons filed a month or two previously, it is still not unlikely that, due to the often busy calendars of the trial courts, the petition may not have been ruled on within the two-year period provided for the filing of the counterclaim.

Section 9 of the Act states that lien claimants not made a party to the foreclosure action “may upon filing a petition to intervene become defendants and enforce their liens.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 82, par. 9.) Section 9 further provides that the counterclaim must be filed within two years of, inter alia, the completion of the work. Here, Lyons’ action of filing the petition to intervene and filing the counterclaim fits within the plain language of the Act. Lyons became a defendant pursuant to the statute and timely filed its counterclaim. Given that the Act is to be liberally construed, that the law contemplates one action only in a lien foreclosure proceeding as a benefit to owners, and given that the statute says nothing about the petition being granted within two years in order for the would-be intervenor to have a right to enforce its lien, we hold that the trial court’s denial of Lyons’ petition on the grounds stated was error.

Accordingly, the order of the trial court denying Lyons’ petition is reversed and the cause is remanded.

Reversed.

McNAMARA and LaPORTA, JJ., concur.