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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith MIDDLETON, Defendant-Appellant.
    No. 1-15-2040
    Appellate Court of Illinois, First District, Third Division.
    Opinion filed June 6, 2018
    Stephen L. Richards, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Phyllis Warren, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Keith Middleton was found guilty of first degree murder while personally discharging a firearm and sentenced to 53 years in prison. Defendant appeals, arguing that he was not proved guilty beyond a reasonable doubt because he was identified by a single occurrence witness, whose description of defendant was severely impeached. Namely, there was conflicting evidence as to whether defendant wore a full or half-ski mask and whether the single occurrence witness could see defendant's face. Defendant also contends the State improperly introduced a demonstrative exhibit during closing arguments depicting defendant with a half-ski mask superimposed over his arrest photograph, but the State neglected to introduce this exhibit at trial. In addition, defendant contends the State elicited improper hearsay statements at trial, the court erred in overruling certain objections, the court erred in admitting video evidence, his trial counsel was ineffective, the State offered improper closing argument, and the court erred in sustaining objections to defense counsel's arguments. While we hold the evidence was sufficient to prove defendant guilty beyond a reasonable doubt, we conclude the State's first-time presentation of the altered arrest photograph during closing rebuttal argument resulted in prejudicial error requiring a new trial.

¶ 2 BACKGROUND

¶ 3 Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend's brother Ricky Brown, then age 30, on March 21, 2012, on the sidewalk outside Brown's home. At trial, the victim's neighbor Toryion Conner testified that he was standing on his front porch around 8:30 a.m. on March 21 at 739 West 61st Street, between South Halsted Street and South Union Avenue, when he saw defendant near the sidewalk across the street and several houses east from where 13-year-old Conner stood. Conner testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants, and a gray hoodie bearing black writing and the hood was hanging down. Defendant wore a ski mask that covered only the lower half of his face, which Conner described as going up "right here to the nose." Conner saw defendant look in his direction as he drew a silver revolver from his hoodie. Conner said he saw defendant as he "rammed up on" Brown, who was standing on the sidewalk. Conner knew the victim lived nearby at 720 West 61st Street. Conner heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but "came back like he wasn't * * * finished with him," and shot the victim again in his upper body. Conner then saw defendant get into a white car and drive off toward Halsted Street. Conner moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. Conner could see defendant's whole upper body and from his nose "all the way up." The prosecutor clarified for the record that Conner "was moving his hand upward towards his forehead and the top of his head." The State, however, did not present the ski mask at trial or ask Conner to identify any image of defendant wearing a ski mask.

¶ 4 Conner testified that he later went to school, where he told his teacher he had witnessed a murder, but denied giving the teacher any additional details. The police were ushered in to interview him, but he denied telling officers that the shooter wore a hoodie or a full ski mask with Velcro. Less than three months later, on May 2, 2012, Conner identified defendant as the shooter from a photo array. On June 7, 2012, Conner identified defendant from a lineup. The State did not ask Conner to identify defendant's mug shot taken on arrest.

¶ 5 Chicago Police Detective Gregory Buie interviewed Conner in his mother's presence at his school the day of the shooting. Detective Buie testified that Conner described the shooter as a black male with long dreadlocks, wearing a gray hoodie with black pants, and a black, half-ski mask. To demonstrate what the ski mask looked like, as Conner described it, Detective Buie held both of his hands right at his nose. In a supplemental report prepared by a different police officer, however, Conner was said to have described the offender as simply wearing a gray hoodie with black trim, a black ski mask, and black jogging pants.

¶ 6 Additionally, Chicago Police Detective Arthur Davis prepared a report the day of the shooting wherein the offender was described as a black male with long dreadlocks and a partial ponytail who was wearing a full, black ski mask with Velcro straps, along with a gray hoodie with black trim and black lettering on the front. Detective Davis also noted that defendant was listed in a police report as being 6 foot 3 inches tall and weighing 225 pounds, facts which Conner never related to any officer.

¶ 7 The State's theory, as explained in greater detail below, was that the shooting related to a personal vendetta against Brown and that defendant drove off in the victim's car after killing him. Brown's girlfriend, Marquea Ambrose, testified that she knew defendant, who went by Thomas, to be dating the victim's sister. On the day in question, she was with the victim at his house when he left for his job at the post office after having parked his white Chevy in front, although he typically parked his car two blocks away presumably due to "concerns." After he left, Ambrose heard two gunshots, then a brief pause before more gunshots were fired. She looked out the window and observed her boyfriend's white Chevy driving toward Halsted Street, although she was unable to see the driver. She then saw Brown dead on the ground.

¶ 8 Pursuant to the State's pretrial motion "regarding prior bad acts," Damien Parker, the victim's childhood friend, testified that days before the shooting, defendant had threatened the two of them with a handgun. Parker also knew defendant by the name of Thomas and knew him to be the boyfriend of the victim's sister, Rachel Brown. On March 9, 2012, Parker and the victim were just leaving Parker's home (78th Street and Ada Street) when they saw Rachel's van pull up behind, notably near where the victim had parked his white Chevy. According to Parker, the victim became "panicky [and] nervous," and the two decided to follow the van to determine whether defendant was inside. The van slowed down as it drove past Ambrose's home, which made the victim "really agitated," but then drove off at a high speed. Parker eventually pulled up next to the van and saw defendant was the driver. The victim tried to hide from view by leaning back. Defendant made eye contact with Parker, nodded and then turned. Parker stopped following defendant. On cross, Parker acknowledged they had followed defendant without any prompting, and defendant at that point had made no threats.

¶ 9 Some 20 minutes after leaving home, Parker and the victim again encountered defendant's van behind Parker's house. Defendant exited the van and told the two to "get the fuck out of the car." Parker eased his car toward defendant, who was about 15 feet away, but then he saw defendant retrieve a chrome handgun from the van, which he placed in his pocket while again ordering them to get out. Defendant eventually took the gun from his pocket, waving it at the two men while exclaiming, "I got your ass. Get your ass out of the car." While Parker wanted to hit defendant with his car, the victim instead urged him to back up because defendant "might start shooting." Parker did as his friend suggested, prompting defendant to repeat "I got your ass," before returning to his own vehicle. Parker and the victim then flagged a police officer and reported the incident with defendant's name and the license plate, although they did not fill out a formal police report. On the day in question, Parker saw the victim lying dead on the sidewalk and shortly thereafter spoke with police. In June, Parker also identified defendant from a lineup as the person he had seen on March 9.

¶ 10 No fired cartridge cases or bullets were recovered from the crime scene, and the parties stipulated that a revolver does not automatically eject any cartridge cases. Police did find Brown's car a short distance away, where they found the keys in the ignition along with his wallet and several cell phones. The State theorized that on the day of the shooting, defendant drove the victim's car around the corner, where he then hopped into Rachel's van. The victim's car was swabbed biological evidence. None of the DNA swabs taken from the victim's car, including the driver's door latch and handle, steering wheel, and gear shift, matched defendant, and in fact, defendant was excluded from some of the human DNA profiles identified. Similarly, a latent fingerprint taken from the exterior driver's side door did not match defendant. Additionally, the State's medical examiner testified that the victim was shot in the chest and buttocks.

¶ 11 The same day of the shooting, the police were looking for defendant, with Detective Davis making active efforts to locate him. The day after, on March 22, defendant appeared at the police station, although there was no warrant for his arrest or investigative alert at that time. Defendant signed a consent form for police to take his DNA by buccal swab, but he was not then arrested and ultimately left the police station.

¶ 12 Months later, in June 2012, following Conner's identification of defendant and other investigation, police appeared at defendant's workplace where they identified themselves. Defendant fled, jumping onto a dumpster outside the loading docks and then over a 10-foot fence, where he fell to the ground. He was then handcuffed and taken into custody. Detective Davis identified defendant's arrest photograph, which the State entered into evidence, noting that was how defendant accurately appeared when brought into police custody.

¶ 13 The State rested, and defendant presented evidence on his own behalf. Defendant called Tonya Woods, who testified that around 8:30 a.m. on March 21, 2012, she was driving west on 61st Street towards Halsted Street when she saw a young man emerge from a vacant lot on her left wearing black gloves, a black hoodie with the hood on his head, and a full, black ski mask. Woods stated he also had dreads. She saw a gun in the man's hand and thought he would carjack her. He was so close to her car that "if he wanted to stick his hand in the window and snatch me out, he could." Woods passed the man, and as he proceeded behind her car, she saw a second man to her right on the sidewalk. When the man with the gun went across the street, she heard a "pop." When she looked in the rearview mirror, she saw the second man with a white shirt fall to the ground and the first man then walked over and "emptied" his gun in the second man. The shooter then ran towards Union and entered a car. She proceeded to Halsted Street without that car passing her and then called 911. Eventually, a private investigator for the defense contacted her.

¶ 14 On cross, Woods acknowledged that she also spoke with the State's Attorney's investigator in February 2014. She denied telling the State's Attorney that the shooting took place on March 23, although the parties later stipulated on rebuttal that is what the investigator would have testified to. Woods admitted omitting from her 911 call that the shooter wore black gloves, and the State's Attorney investigator would testify that she also omitted that detail in their interview. Woods also stated that when she saw the gun, she was not focusing on the shooter's face because she believed she would be carjacked and "so looking at his face is something that I just blacked out."

¶ 15 Conner's teacher Betty Strong testified collectively on direct and cross-examination that on the morning of the shooting, Conner entered class holding his chest, reporting his heart was pounding, then told her he had just seen someone get shot. He stated the shooter was wearing a mask and a black hoodie, but that he did not see the shooter's face. Strong spoke with police outside Conner's presence, but she did not relay the information about the mask and Conner's inability to see the shooter's face.

¶ 16 The defense rested. During closing argument, defense counsel honed in on the key question of whether Conner was actually capable of identifying defendant as the shooter. During its rebuttal argument, the State asserted that Conner's identification was sound notwithstanding the half-ski mask. The State argued Conner "could see the defendant's hair, the defendant's eyes, the defendant's forehead, defendant's legs, his chest, his shoulders." To emphasize this point, the State presented the jury with two, side-by-each photographs. One was defendant's mug shot taken the day of his arrest. The other photo showed the same mug shot, but in the nature of a crude "photoshop" edit, it blacked out the bottom portion of his face, in an obvious effort to show what defendant might look like if wearing a "half-ski mask." Infra ¶ 43. At the conclusion of the rebuttal argument, defense counsel objected and moved for a mistrial outside the jury's presence, arguing the photograph with the superimposed mask had not been produced by the State, was not introduced into evidence during trial, and lacked any proper foundation. Defense counsel argued that the State's use of the previously undisclosed exhibit during rebuttal was "extraordinarily prejudicial" in such a way that no instruction could cure. Defense counsel added that therefore she was unable to effectively rebut the matter, which injected "a degree of absolutely egregious unfairness" into the proceeding. The trial court responded that during Conner's testimony, the witness held his hand up to his nose, which would offer evidentiary support for the exhibit, and the State also noted the unaltered arrest photo was in evidence. Defense counsel retorted that they should then be allowed to show a photograph with a full ski mask, given that it, too, was in evidence.

¶ 17 The court stated the objection was noted for the record but essentially an admonishment to the jury was sufficient to cure any alleged error. Before the jury, the court reiterated that attorney arguments were not evidence and further instructed the jury that the altered photo in question was merely demonstrative and not an actual photograph taken. The court stated, "if you don't believe that demonstration is supported by the evidence, you are free to disregard that line of argument in that demonstration," and the court then proceeded to instruct the jury. Notably, the court did not strike the exhibit or the related argument, and it denied the motion for mistrial.

¶ 18 As stated, the jury found defendant guilty of the first degree murder. The defense filed a motion for a new trial or judgment of acquittal and presented supporting testimony. The trial court denied the motion, and defendant filed this appeal.

¶ 19 ANALYSIS

¶ 20 Defendant first challenges the sufficiency of the evidence to sustain his conviction, arguing Conner's identification was so vague or doubtful that there exists a reasonable doubt of defendant's guilt. Where a defendant challenges on appeal the sufficiency of the evidence, we ask whether, after viewing all the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. People v. Beauchamp , 241 Ill. 2d 1, 8, 348 Ill.Dec. 366, 944 N.E.2d 319 (2011). As such, in a case like the present, the prosecution has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime. People v. Slim , 127 Ill. 2d 302, 307, 130 Ill.Dec. 250, 537 N.E.2d 317 (1989). A positive identification by a single witness who had a sufficient opportunity to observe the defendant is enough to support a conviction while a doubtful or vague identification is not. Id. ; People v. Johnson , 114 Ill. 2d 170, 189, 102 Ill.Dec. 342, 499 N.E.2d 1355 (1986). We may not substitute our judgment for that of the trier of fact on questions involving the weight of the evidence, the credibility of the witnesses, or the resolution of conflicting testimony. People v. Campbell , 146 Ill. 2d 363, 375, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992). And, the judgment will not be set aside unless the proof is so unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to the defendant's guilt. Slim , 127 Ill. 2d at 307, 130 Ill.Dec. 250, 537 N.E.2d 317.

¶ 21 Defendant argues the judgment must be set aside because the only proof that he committed the crime was Conner's testimony. He asserts that Conner could not have made a positive identification where he could only see the upper part of defendant's face, Conner only briefly viewed defendant, and Conner's degree of attention was insufficient as belied by the lack of detail regarding defendant's physical description. Defendant also claims Conner was severely impeached by the defense witnesses who testified that Conner did not see the shooter's face and that the shooter wore a full, rather than half, ski mask.

¶ 22 As defendant notes, Illinois courts consider five factors, commonly known as the Biggers factors, when determining whether a witness's identification is reliable. People v. Piatkowski , 225 Ill. 2d 551, 567, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007) ; Neil v. Biggers , 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). These include (1) the witness's opportunity to view the offender at the time of the offense, (2) the witness's degree of attention at the time of the offense, (3) the accuracy of the witness's earlier description of the offender, (4) the level of certainty shown by the witness when confronting the alleged offender, and (5) the length of time between the offense and the identification confrontation. Biggers , 409 U.S. at 199-200, 93 S.Ct. 375 ; Slim , 127 Ill. 2d at 307-08, 130 Ill.Dec. 250, 537 N.E.2d 317. In addition to these specific factors, courts also consider the totality of the circumstances when reviewing the reliability of an identification. People v. Smith , 299 Ill. App. 3d 1056, 1062, 234 Ill.Dec. 52, 702 N.E.2d 218 (1998). Identifications are usually based on overall impressions rather than on specific features. Slim , 127 Ill. 2d at 309, 130 Ill.Dec. 250, 537 N.E.2d 317.

¶ 23 While the evidence in this case was certainly not overwhelming, examining it in a light most favorable to the prosecution, as we must, we conclude that a rational fact finder could have found beyond a reasonable doubt that it was defendant who shot Brown dead. See People v. Wheeler , 226 Ill. 2d 92, 116, 313 Ill.Dec. 1, 871 N.E.2d 728 (2007) (a reviewing court must give the State the benefit of all reasonable inferences). As to identification, the evidence shows that Conner had ample opportunity to view defendant because Conner was standing only several houses down and across the street from where defendant stood, as reflected in the State's photo exhibits. Defendant was facing Conner when he pulled out a revolver. Conner then saw Brown beg for his life before defendant shot him in the chest. Defendant walked toward a car, only to return again and shoot Brown in the upper body. Conner had yet another unobstructed view of defendant as he drove past Conner's house. Conner could see defendant's upper body and the upper half of his face, including his eyes, forehead, and hair. Conner's description of the shooting was consistent with the medical examiner's evidence and also the forensic evidence showing no cartridge cases were ejected, which was consistent with his observation that the weapon was a revolver. Conner's degree of attention was high, as he rather immediately saw that defendant was carrying a revolver.

¶ 24 While Conner did not previously know defendant, he described defendant in detail as an African-American male with long dreads, half pinned back, and who was wearing black jogging pants, and a gray hoodie bearing black writing with the hood hanging down. Defendant was wearing a half-ski mask. The physical description of defendant's hair and outfit was even largely consistent with the defense witness, Woods, and also defendant's arrest photographs showing him to have long dreads. Conner testified competently and consistently when identifying defendant as the shooter from the photo array, lineup, and also in court. Defendant concedes the length of time between the identification and crime was about three months, which arguably sways in the prosecution's favor.

¶ 25 The State also presented circumstantial evidence supportive of Conner's identification. Defendant's girlfriend testified that he was shot around the same time on March 21, 2012, and she likewise heard two gunshots, a pause for a minute, and then more gunshots. She also saw Brown's car driving towards Halsted Street after the shooting. Parker testified that some 10 days before the shooting, defendant located Brown at Parker's house, then drove past Brown's girlfriend's house, and later threatened Brown with a gun.

¶ 26 Although Woods, the defense witness, testified that the shooter wore a hood and full ski mask, she also testified that she believed she would be carjacked and "so looking at his face is something that I just blacked out." Likewise, although Conner's teacher stated he did not see the shooter's face, Conner testified that he did. The jury apparently chose to believe Conner over the defense witnesses and resolved any inherent contradictions when weighing the evidence, and we are not at liberty to disturb its determination. See People v. Siguenza-Brito , 235 Ill. 2d 213, 228, 336 Ill.Dec. 223, 920 N.E.2d 233 (2009) (defendant's conviction will not be reversed simply because the evidence is contradictory or because defendant claims a witness was not credible); People v. Berberena , 265 Ill. App. 3d 1033, 1048, 203 Ill.Dec. 279, 639 N.E.2d 599 (1994) (where the evidence is conflicting, it's the jury's role to determine the credibility of witnesses).

¶ 27 We thus reject defendant's contention that Conner's description was too vague or uncertain simply because Conner failed to identify defendant's height, age, or weight. This is because the "credibility of an identification does not rest upon the type of facial description or other physical features which the complaining witness is able to relate," but rather, it depends on "whether the witness had a full and adequate opportunity to observe the defendant." (Internal quotation marks omitted.) People v. Robinson , 206 Ill. App. 3d 1046, 1051, 151 Ill.Dec. 935, 565 N.E.2d 206 (1990). As set forth above, Conner had just that. See Slim , 127 Ill. 2d at 308, 130 Ill.Dec. 250, 537 N.E.2d 317 (a witness is not expected or required to distinguish individual and separate features of a suspect in making an identification). Defendant's sufficiency of the evidence claim therefore must fail.

¶ 28 Defendant next contends the State improperly introduced the "demonstrative" exhibit depicting defendant wearing a "half-ski mask" during its rebuttal argument without having introduced this exhibit at trial. In fact, as discussed, the State's exhibit showed a black half-circle superimposed over the lower portion of defendant's face in his arrest mug shot and cannot be described as a graphic representation of a mask. Defendant contends the trial court's denial of defense counsel's motion for a mistrial on the basis of introducing this exhibit during rebuttal closing argument constitutes reversible error.

¶ 29 The propriety of declaring a mistrial is within the discretion of the trial court. People v. Nelson , 235 Ill. 2d 386, 435, 337 Ill.Dec. 479, 922 N.E.2d 1056 (2009). Generally, a mistrial should be declared only when some trial occurrence is of such a character and magnitude that it deprives the party seeking mistrial of a fair trial. People v. Redd , 135 Ill. 2d 252, 323, 142 Ill.Dec. 802, 553 N.E.2d 316 (1990). Mistrial, for example, is warranted when the jury is apparently so influenced and prejudiced that it could not have been fair and impartial, and the damage could not be cured by admonitions and instructions. People v. Clark , 231 Ill. App. 3d 571, 574-75, 173 Ill.Dec. 18, 596 N.E.2d 642 (1992). Thus, for a reversal following the denial of a motion for a mistrial, the appellant must show prejudice from the introduction of the incompetent evidence at issue and also that the resulting damage could not be remedied by the court's admonitions and instructions. People v. Alvarez , 186 Ill. App. 3d 541, 549, 134 Ill.Dec. 391, 542 N.E.2d 737 (1989) ; People v. Williams , 137 Ill. App. 3d 736, 744, 92 Ill.Dec. 336, 484 N.E.2d 1191 (1985). However, mistrial in a criminal prosecution should only be granted with the greatest caution, under urgent circumstances and for very plain and obvious causes. People v. Dotson , 143 Ill. App. 3d 135, 146, 97 Ill.Dec. 244, 492 N.E.2d 903 (1986). Because defendant properly preserved his claim of error, warranting a harmless-error analysis, the State maintains the burden of persuasion with respect to prejudice. People v. Thurow , 203 Ill. 2d 352, 363, 272 Ill.Dec. 185, 786 N.E.2d 1019 (2003). For the reasons to follow, the State has failed to maintain that burden in this case.

¶ 30 Defendant specifically argues the altered mug shot was inadmissible in the first place as a demonstrative exhibit because it did not depict the "physical facts as they actually existed at the time of the crime" and the display was at the heart of this identification case. Defendant argues that even assuming the altered mug shot was admissible, the State failed to properly tender it to the defense prior to trial or lay a foundation for its introduction during trial, instead springing the surprise exhibit on the jury during rebuttal argument. He argues he was deprived of the opportunity to object to the exhibit, move for its exclusion prior to trial, or prepare a counterdemonstrative exhibit depicting defendant wearing full ski mask. Defendant thus asserts the introduction of the exhibit was prejudicial error which could not be cured with any remedial instruction.

¶ 31 The State responds that the State's conduct was not improper because the altered mug shot accurately reflected Conner's testimony that defendant wore a half-ski mask during the shooting and, moreover, was used as invited comment, in response to defense counsel's closing argument. While the State concedes the altered mug shot was never introduced into evidence at trial, it asserts that the unaltered mug shot was admitted without objection and also argues that the court's instructions were curative of any error.

¶ 32 We note that demonstrative evidence has no probative value in itself but rather serves as a visual aid to the jury in comprehending the verbal testimony of a witness. Cisarik v. Palos Community Hospital , 144 Ill. 2d 339, 341-42, 162 Ill.Dec. 59, 579 N.E.2d 873 (1991). The overriding considerations in admitting demonstrative evidence are relevancy and fairness. People v. Burrows , 148 Ill. 2d 196, 252, 170 Ill.Dec. 317, 592 N.E.2d 997 (1992). Thus, before a demonstrative exhibit like the present one can be introduced, a foundation must be laid, by a knowledgeable witness, that it accurately depicts and portrays what it purports to show. See Cisarik , 144 Ill. 2d at 342, 162 Ill.Dec. 59, 579 N.E.2d 873 ; see also People v. Bryant , 202 Ill. App. 3d 1057, 1064, 148 Ill.Dec. 358, 560 N.E.2d 955 (1990) (an accurate photograph is one which is identified by a witness as a portrayal of certain facts relevant to an issue and is verified by the witness on personal knowledge to be a correct representation of these facts). In addition, the exhibit is only admissible if its probative value is not substantially outweighed by the danger of unfair prejudice. See Cisarik , 144 Ill. 2d at 342, 162 Ill.Dec. 59, 579 N.E.2d 873. As with a motion for a mistrial, the question of admissibility of such exhibits is a matter within the trial court's discretion. Burrows , 148 Ill. 2d at 252, 170 Ill.Dec. 317, 592 N.E.2d 997.

¶ 33 We agree with defendant that it was error for the State to introduce a demonstrative exhibit during its rebuttal argument without having produced the exhibit to the defense and without laying any sort of foundation for its use during the trial. While the State and the court found the exhibit to be consistent with Conner's testimony as to the half-ski mask, we question the wisdom of that conclusion, as it strains credulity that any ski mask could possibly look like a blacked-out half-circle over an individual's face. As set forth above, there is no indication that Conner reviewed any photographic or graphic images of defendant wearing a ski mask in 2012, when he identified defendant as the shooter to police. At trial, the State did not introduce any mask into evidence or ask Conner to testify about the altered mug shot, let alone defendant's unaltered mug shot.

¶ 34 Moreover, we cannot say that Conner would have testified that the altered mug shot, apparently created some two years after the 2012 shooting, reflected how the half-ski mask looked or how defendant looked while wearing the half-ski mask when the crime occurred. Conner testified that defendant had his hair half pulled back and a hoodie on at the time of the shooting. In the arrest photo, by contrast, defendant's dreadlocks are down, and he's wearing a white v-neck T-shirt. See People v. Crowe , 390 Ill. 294, 303-04, 61 N.E.2d 348 (1945) (error to admit photo that merely supports the plaintiff's theory but does not show the physical facts as they actually existed at the time of the crime); cf. People v. Sanchez , 115 Ill. 2d 238, 268, 104 Ill.Dec. 720, 503 N.E.2d 277 (1986) (distinguishing Crowe and finding no prejudice in admitting magnified photos of actual items of physical evidence obtained from the crime scene). It was unfair to present this doctored exhibit because it arguably preconditioned the jury to accept the State's theory, without any foundational support. See French v. City of Springfield , 65 Ill. 2d 74, 82, 2 Ill.Dec. 271, 357 N.E.2d 438 (1976). The State thus deprived the defense of questioning the accuracy of the image, moving to exclude it or forcing the State to create the image to the defense's satisfaction, cross-examining Conner regarding the image, and likewise presenting a counterimage of a full ski mask. Cf. Bryant , 202 Ill. App. 3d at 1065-66, 148 Ill.Dec. 358, 560 N.E.2d 955 (noting photos that were taken at the behest of law enforcement several days after the burglary and which portrayed the victim's house at time of the crime were properly presented to the jury, where the victim testified on direct that they were accurate representations of the crime scene and the defense cross-examined her on the conditions under which the photos were taken).

¶ 35 We find People v. Wolf , 178 Ill. App. 3d 1064, 1067, 128 Ill.Dec. 184, 534 N.E.2d 204 (1989), instructive. There, a key State's witness testified that defendant admitted committing residential burglary by throwing a brick through the victim's window, although defense witnesses testified they had not found any such brick. During rebuttal closing arguments, the prosecutor placed a brick on his counsel table. The trial court denied defense counsel's motion for a mistrial and admonished the jury that the brick was not evidence and should be disregarded. This court noted that the brick was not admitted into evidence and found the displaying of the brick was highly prejudicial given that it was at the heart of the case and presented just before the jury's deliberation. This court determined the trial court's instructions could not cure the prejudice and the error was not harmless beyond a reasonable doubt.

¶ 36 We similarly conclude that that the display and argumentative use of the altered mug shot was prejudicial. The image was central to this prosecution, which revolved almost entirely around the accuracy of Conner's identification of defendant as the shooter. Here, the evidence was closely balanced, as there was no physical evidence linking defendant to the crime, and 13-year-old Conner was the only eyewitness to the shooting. Conner's testimony, while competent, was impeached by the State's own police reports indicating the shooter wore a full ski mask with velcro and the defense's two witnesses. See Piatkowski , 225 Ill. 2d at 570-71, 312 Ill.Dec. 338, 870 N.E.2d 403 (identifying closely balanced cases); People v. Starks , 2014 IL App (1st) 121169, ¶ 66, 382 Ill.Dec. 588, 13 N.E.3d 1 (same). The closely-balanced nature of the evidence made the error especially harmful. In addition, the side-by-side presentation to the jury of the altered mug shot, introduced absent any evidentiary foundation, with the exact same properly admitted mug shot immeasurably enhanced the prejudice. The jury was then forced to compare how defendant appeared wearing the supposed ski mask to how he looked without it, not on the day of the crime but the day of his arrest, thus boosting the credibility of the State's main witness. Furthermore, the judge did not instruct the jury to disregard the altered photo but rather emphasized it was demonstrative, making this case arguably more prejudicial than Wolf , cited above. Putting the trial court's instruction aside, it is difficult to conceive of any instruction that would be curative of this rebuttal sucker punch. Based on the totality of the circumstances, the State failed to maintain its burden of proving the error was harmless beyond a reasonable doubt, and the court abused its discretion in both allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying defense counsel's motion for a mistrial. See Thurow , 203 Ill. 2d at 363, 272 Ill.Dec. 185, 786 N.E.2d 1019 (noting in a harmless error analysis, the State must prove beyond a reasonable doubt that the jury verdict would have been the same absent the error).

¶ 37 In reaching this conclusion, we find the State's argument that the use of the exhibit was "invited" comment on rebuttal is palpably offensive, as this specific argument was surely expected given the defense theory of the case, announced in opening statement, as being all "about identification" and that "no one could have actually seen the face of the person who shot Ricky Brown." Almost all of the evidence related to the identification issue. If such an argument was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the court because they would not have been on notice. Instead, it is clear that the prosecution knew the defense would focus on the eyewitness identification, so they prepared this exhibit ahead of time and displayed it without disclosing it and without ever laying a foundation for it. This patently improper tactic would surely be highly prejudicial to defendant's right to a fair trial. The gravity of the error resulted in a denial of fundamental fairness. See Nelson , 235 Ill. 2d at 435, 337 Ill.Dec. 479, 922 N.E.2d 1056.

¶ 38 While we reverse and remand for a new trial on the basis of the improper admission of the altered arrest photo, because we find the evidence was sufficient to convict defendant beyond a reasonable doubt, there are no double jeopardy concerns in remanding the case for a new trial. See Piatkowski , 225 Ill. 2d at 566-67, 312 Ill.Dec. 338, 870 N.E.2d 403.

¶ 39 Defendant raises a number of other contentions on appeal, most of which will not likely recur on retrial. We would note, however, in regards to his claim that the State improperly attempted to repeatedly question witnesses in an effort to elicit hearsay statements, the trial court properly sustained objections to these questions, and the State should be mindful not to repeat the pattern upon retrial. See People v. Larry , 218 Ill. App. 3d 658, 663, 161 Ill.Dec. 423, 578 N.E.2d 1069 (1991) (noting it's improper for a prosecutor to persist in repeating the same questions after objections have been sustained). We note likewise that defendant did not challenge on appeal the admission of Parker's testimony that defendant threatened the victim some 10 days before the shooting. To the extent that Parker testified the victim appeared nervous or agitated upon seeing defendant, those were not out-of-court statements or hearsay, contrary to defendant's suggestion, but proper and relevant testimony as to Parker's observations. See People v. Jackson , 250 Ill. App. 3d 192, 198, 189 Ill.Dec. 922, 620 N.E.2d 1239 (1993) (a witness may testify that another person was scared if the fact is relevant); People v. Peter , 220 Ill. App. 3d 626, 630, 163 Ill.Dec. 177, 581 N.E.2d 128 (1991) (a nonexpert witness may summarize sensory perceptions or express an opinion based upon observation).

¶ 40 CONCLUSION

¶ 41 For the reasons stated, we reverse the judgment of the trial court and remand the cause for a new trial.

¶ 42 Reversed and remanded.

Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.

¶ 43 APPENDIX

?

      The State's evidence technician stated on cross-examination that there were 5 houses plus a vacant lot between 739 West 61st Street and the crime scene, which took place on the north side of the street, and on the other side, 3 houses plus a vacant lot.

      Defendant argues that Conner's degree of attention was suspect given that Conner was apparently more focused on the weapon than the offender. Defendant cites "weapons focus" as a problem that some experts believe diminishes the reliability of an identification. Defendant fails to cite any Illinois cases on point to support this argument, and regardless, he failed to develop a record in the trial court to support this specific theory. See People v. Wigman , 2012 IL App (2d) 100736, ¶ 36, 366 Ill.Dec. 1, 979 N.E.2d 583 (stating reviewing courts will not take cognizance of arguments in parties' briefs that are not properly supported by the record before the trial court); People v. Reatherford , 345 Ill. App. 3d 327, 340, 280 Ill.Dec. 415, 802 N.E.2d 340 (2003) (this court is not bound to follow decisions from foreign jurisdictions).

      On appeal, in defendant's "issues presented" section of his brief, he asserts we should apply a de novo standard of review to the matter involving admission of the altered photo during rebuttal argument. In support, defendant cites Wheeler , 226 Ill. 2d at 121, 313 Ill.Dec. 1, 871 N.E.2d 728, where the supreme court noted that whether statements made by a prosecutor at closing argument were so egregious that they warrant a new trial is a legal issue that requires de novo review. Subsequent appellate court cases have noted the apparent conflict, where Wheeler calls for a de novo standard and yet another supreme court case calls for an abuse of discretion. See People v. Hayes , 409 Ill. App. 3d 612, 624, 350 Ill.Dec. 694, 949 N.E.2d 182 (2011). Regardless, we find Wheeler inapplicable. Wheeler addressed inflammatory and prejudicial statements by a prosecutor during closing argument rather than the case we have before us, which involved the State's introduction during rebuttal argument of a photographic exhibit that was not entered into evidence at trial and the defense's subsequent motion for a mistrial based on the improper exhibit. As defendant argues error based on both an improper evidentiary presentation and also based on improper denial of mistrial, we apply the familiar abuse of discretion standard of review. We nonetheless note that under either a de novo or abuse of discretion standard, we would reach the same conclusion based on the prejudice that resulted in this closely balanced case.


source: Caselaw Access Project

license: Public Domain

text:
    REPUBLIC BANCORP COMPANY, Plaintiff-Appellant, v. Constance BEARD, in her Official Capacity as Director of Revenue; Michael W. Frerichs, in his Official Capacity as Treasurer; and The Department of Revenue, Defendants-Appellees.
    No. 2-17-0350
    Appellate Court of Illinois, Second District.
    Opinion filed June 8, 2018
    Michael J. Wynne, Jennifer C. Waryjas, and Douglas A. Wick, of Jones Day, of Chicago, for appellant.
    Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Evan Siegel, Assistant Attorney General, of counsel), for appellees.
   JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 In tax years 2012, 2013, and 2014, plaintiff, Republic Bancorp Company, asserted a tax deduction that, upon auditing, was disallowed by defendant the Department of Revenue (Department). The Department thereafter assessed plaintiff the taxes, penalties, and interest accruing from the disallowed deduction. Plaintiff paid the assessment under protest and filed in the circuit court of Du Page County a declaratory-judgment action against defendants, Constance Beard in her official capacity as Director of the Department, Michael W. Frerichs in his official capacity as Treasurer, and the Department, seeking a declaration that it was entitled to the claimed deduction (count I) or, alternatively, that it had a good-faith basis for claiming the deduction that should serve to abate the assessed penalties (count II), and seeking the issuance of an injunction prohibiting the Department from transferring plaintiff's protest payment to the State's general fund and, ultimately, praying for a return of the protest payment upon plaintiff's success in this action (count III). The parties filed cross-motions for summary judgment. The trial court granted defendants' motion for summary judgment and denied plaintiff's motion for summary judgment, and plaintiff appealed, arguing that the trial court's interpretation of the relevant provisions was incorrect. We affirm.

¶ 2 I. BACKGROUND

¶ 3 We summarize the pertinent facts appearing in the record. Plaintiff is a subchapter S corporation for both federal and state income tax purposes. A subchapter S corporation is treated as a pass-through entity that does not pay tax; instead, the income of a subchapter S corporation is attributed directly to its owners. 26 U.S.C. § 1361 (2012) ; 35 ILCS 5/205(c) (West 2016). It is also a family-operated bank, headquartered in Oak Brook, and serving the Chicago area since 1964. Plaintiff's shareholders consist of seven grantor trusts. A grantor trust is a trust where the grantor has retained certain powers that result in the grantor, and not the trust, being treated as the owner of the assets for tax purposes. 26 U.S.C. §§ 671 - 678 (2012) ; 35 ILCS 5/205(e) (West 2016).

¶ 4 In July 2016, after auditing plaintiff, the Department sent notices of deficiency for the tax years ending in December 2012, 2013, and 2014. According to the Department, plaintiff had claimed an improper subtraction modification pursuant to section 203(b)(2)(S) of the Illinois Income Tax Act (Act) ( 35 ILCS 5/203(b)(2)(S) (West 2016) ) for the amounts that plaintiff had distributed to its shareholders-all of which were grantor trusts. The Department computed the tax deficiency to be $642,294, the penalties to be $128,458.80, and the interest to be $40,667.60, for a total assessed amount of $811,420.40. In September 2016, plaintiff paid to the Treasurer the total amount owing under protest, pursuant to the State Officers and Employees Money Disposition Act (Money Disposition Act) ( 30 ILCS 230/1 et seq. (West 2016) ).

¶ 5 On September 16, 2016, plaintiff filed its complaint against defendants. On September 30, the trial court entered an agreed order granting plaintiff's motion for an injunction to prevent defendants from cashing its protest tax deficiency payment. On January 17, 2017, the parties filed cross-motions for summary judgment.

¶ 6 The record does not contain a transcript of any hearing on the cross-motions for summary judgment, only the motions and related written submissions in support and opposition. On April 19, 2017, the trial court denied plaintiff's motion for summary judgment and granted defendants' motion for summary judgment:

"This matter came before the Court for hearing on Cross Motions for Summary Judgment. It appears to be a case of first impression, involving the relationship between the Personal Property Replacement Income Tax ('Replacement Tax') [ ( 35 ILCS 5/201 et seq. (West 2016) ) ], and grantor trusts.
Prior to the enactment of the 1970 Constitution, local taxing bodies were allowed to impose ad valorem taxes on personal property of corporations, partnerships and other business entities. The 1970 Constitution abolished those taxes. The Replacement Tax was enacted to compensate local districts for the loss of revenue. The Replacement Tax is assessed on specified entities in addition to state income tax at rates set by the legislature. At issue is whether [plaintiff's] shareholders are among those specified entities subject to the Replacement Tax.
[Plaintiff] is a Subchapter S corporation ('Sub S Corp') for the purpose of taxation under the federal Internal Revenue Code ( [ 26 U.S.C. § 1 et seq. (2012) ] ) and the [Act]. The shares of [plaintiff] are held by family members in grantor trusts in which the family member retains powers over the trust corpus to the extent that income to the trust is attributable to the family member and not to the trust itself for tax purposes. For federal and state income tax purposes, the income of [plaintiff] is attributed to the family members themselves, whether they hold their shares individually or as grantors of grantor trusts.
The issue before the Court is essentially whether the grantor trusts are subject to Replacement Taxes in addition to the state income tax paid by the grantors. [Plaintiff] contends that the grantor trusts are subject to the Replacement tax [sic ] because they are excluded from the class of trusts which are relieved of the burden of paying the Replacement Tax. [Defendants] contend that in its returns for 2012, 2013 and 2014 [plaintiff] improperly deducted income distributable to trusts which were [not] subject to (i.e. , required to pay) Replacement Tax because they were relieved of that liability by the terms of [section 205(e) of the Act ( 35 ILCS 5/205(e) (West 2016) ) ].
[Defendants point] out that grantor trusts are not specifically defined in the [Act], necessitating reference to the [Internal Revenue Code] for definition. Under the [Internal Revenue Code], grantor trusts are disregarded for tax purposes, and all income is attributed to the individual grantor. Under [the Department's] regulations, grantor trusts are likewise not treated as a trust for income tax purposes.
If the grantor trusts ARE subject to Replacement tax [sic ], then the grantor trusts are liable for payment of Replacement Tax. However, under both the [Internal Revenue Code] and the [Act], grantor trusts are disregarded entities and are not required to pay taxes. The tax liability flows to the grantor as an individual. However, individuals are excluded from the class of entities required to pay Replacement tax [sic ]. In contrast, if grantor trusts are NOT required to pay Replacement Tax, then [plaintiff] erroneously deducted the Replacement Tax liability.
The issue of grantor tax liability was addressed by the Illinois Supreme Court in Hanley v. Kusper , [61 Ill. 2d 452, 337 N.E.2d 1 (1975) ]. The Supreme Court [sic ] 'again rejected the claim that all personal property held in trust for natural persons is exempt from taxation'. The Court [sic ] then drew a distinction between trusts 'intended to be exempted from taxation * * * in which the natural person who owns the property is prevented by law from dealing with it as a natural person.' It then goes on to say that '[t]hese situations, in our opinion, are distinguishable from voluntary fiduciary relationships created to accomplish results that could not be achieved so long as the property is owned by a natural person.'
However, the Illinois legislature appears to have remedied the situation addressed in the Hanley case. The [Act] in effect in 2011 states * * *:
'(e) Certain Trusts. A common trust fund described in section 584 of the Internal Revenue Code, and any other trust to the extent that the grantor is treated as the owner thereof under sections 671 through 678 of the Internal Revenue Code shall not be subject to the tax imposed by this Act.' [ 35 ILCS 5/205(e) (West 2016).]
While an argument can be made that this section refers only to the imposition of income tax, the Replacement tax [sic ] is also covered in another section of 'this act'. The [Act] must be read as a whole, in a manner that does not render one section meaningless.
As pointed out above, the interpretation urged by [plaintiff] would lead to an absurd result. The trusts would be subject to (i.e. , required to pay) Replacement Tax under one section of the [Act] but would be relieved of that burden by another section which imputes income to the individual grantor, who would not be required to pay the Replacement Tax. The entire [Act] must be read in a manner that would not lead to such a result.
IT IS THEREFORE ORDERED that the Motion for Summary Judgment of [plaintiff] is denied. The Motion for Summary Judgment of [defendants] is granted. The Court finds that Plaintiff is liable for taxes for the years in question on the sums it improperly deducted for Replacement Tax, plus applicable interest and penalties.
This is a final and appealable order, with no just reason to delay appeal or enforcement."

¶ 7 Plaintiff timely appeals.

¶ 8 II. ANALYSIS

¶ 9 On appeal, plaintiff argues that the trial court misread section 205(e) of the Act ( 35 ILCS 5/205(e) (West 2016) ) as exempting grantor trusts from the replacement tax and that it misinterpreted the phrase "subject to" to mean "required to pay," thereby improperly inserting a requirement into section 205(e) not expressly intended by the legislature. Plaintiff also argues that understanding the phrase "subject to" to mean "required to pay" leads to absurd results under the Illinois Constitution. Finally, plaintiff contends that the Department's regulation defining a trust is unconstitutional because it excludes a grantor trust from taxes, contrary to the requirements of the Illinois Constitution. We will consider each argument in turn, but first we will consider the various constitutional and statutory provisions at issue to ascertain the intent of the framers and the legislature.

¶ 10 A. Constitutional and Statutory Framework

¶ 11 We begin by providing an overview of the constitutional and statutory provisions at issue in this appeal. Before 1970, Illinois imposed an ad valorem tax on personal property. With the adoption of the 1970 Illinois Constitution, the ad valorem taxation of personal property was abolished, but the revenue that was lost from the abolition of the ad valorem personal property tax was mandated to be replaced by the imposition of a tax "solely on those classes relieved of the burden of paying ad valorem personal property taxes." Ill. Const. 1970, art. IX, § 5 (c). The legislature fulfilled the constitutional mandate in section 201 of the Act by defining the personal property tax replacement income tax (replacement tax). 35 ILCS 5/201 (West 2016). Subsection (c) provides:

"Personal Property Tax Replacement Income Tax. Beginning on July 1, 1979 and thereafter, in addition to such income tax, there is also hereby imposed the Personal Property Tax Replacement Income Tax measured by net income on every corporation (including Subchapter S corporations), partnership and trust, for each taxable year ending after June 30, 1979. Such taxes are imposed on the privilege of earning or receiving income in or as a resident of this State. The Personal Property Tax Replacement Income Tax shall be in addition to the income tax imposed by subsections (a) and (b) of this Section and in addition to all other occupation or privilege taxes imposed by this State or by any municipal corporation or political subdivision thereof." Id. § 201(c).

Additionally, subsection (d) provides that the replacement tax "in the case of a partnership, trust or a Subchapter S corporation shall be an additional amount equal to 1.5% of such taxpayer's net income for the taxable year." Id. § 201(d).

¶ 12 The parties agree that plaintiff is a subchapter S corporation, which, for tax purposes, is treated as a pass-through entity, meaning that the entity itself is not responsible for taxes, because the income is directly attributed to the owners of the entity. The parties also agree that the owners/shareholders of plaintiff are all "grantor trusts," which are also pass-through entities for tax purposes.

¶ 13 However, subchapter S corporations are allowed to subtract the share of income distributable to shareholders that is subject to the replacement tax. Id. § 203(b)(2)(S). This subtraction avoids the double-taxing of the shareholder's income that would occur if first the replacement tax were imposed on a subchapter S corporation, based on the income passed through to the shareholder, and then all of the income passed through to the shareholder were taxed. By allowing the subtraction, section 203(b)(2)(S) ensures that the income of an owner or shareholder of a subchapter S corporation is taxed but a single time.

¶ 14 In this case, the owners or shareholders of plaintiff were themselves pass-through entities, namely, grantor trusts.

Section 205 of the Act (id. § 205 ) exempts certain entities from either income or replacement taxes, or both. Subsection (c) provides: "A Subchapter S corporation shall not be subject to the tax imposed by subsection 201 (a) and (b) of this Act [ (imposing a tax on income) ] but shall be subject to the replacement tax imposed by subsection 201 (c) and (d) of this Act * * *." Id. § 205(c). Subsection (e) provides:

"A common trust fund described in Section 584 of the Internal Revenue Code [ ( 26 U.S.C. § 584 (2012) ) ], and any other trust to the extent that the grantor is treated as the owner thereof under sections 671 through 678 of the Internal Revenue Code [ ( 26 U.S.C. §§ 671 - 678 (2012) ) ] shall not be subject to the tax imposed by this Act." Id. § 205(e).

¶ 15 B. Interpretation of Section 205(e) of the Act

¶ 16 Plaintiff argues that section 205(e) of the Act cannot be interpreted in the fashion adopted by the trial court. According to plaintiff, the exemption of grantor trusts from the singular "tax" in section 205(e) applies only to income tax and not the replacement tax. Plaintiff then argues that the trial court erred by equating the phrase "subject to" in section 205(e) with "required to pay." We address these contentions in turn.

¶ 17 First, however, we consider our standard of review. This matter is before us following the trial court's resolution of the parties' cross-motions for summary judgment. Summary judgment is appropriate only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Gurba v. Community High School District No. 155 , 2015 IL 118332, ¶ 10, 396 Ill.Dec. 348, 40 N.E.3d 1. By filing cross-motions for summary judgment, the parties represent that there are no genuine issues of material fact and that only a question of law is involved. Id. Our review of the disposition of a motion for summary judgment is de novo ; likewise, we review questions of law de novo . Id.

¶ 18 The interpretation of statutory or constitutional provisions involves questions of law. Id. We approach the interpretation of both types of provisions in the same way. The cardinal interpretive rule is to ascertain and give effect to the intent of the legislature (in the case of a statutory provision) and of the framers who adopted it (in the case of a constitutional provision). Stevens v. Village of Oak Brook , 2013 IL App (2d) 120456, ¶ 14, 371 Ill.Dec. 614, 990 N.E.2d 802. The tools used for construing a provision are the same in both cases. Id. The best indication of intent, of the legislature or the framers as the case may be, is the language of the provision given its plain and ordinary meaning. In re Marriage of Heroy , 2017 IL 120205, ¶ 13, 417 Ill.Dec. 648, 89 N.E.3d 296. Where the language is clear and unambiguous, the provision will be given effect as written, without resort to other aids of construction. Id. If the language is ambiguous, other interpretive aids may be employed. Id.

¶ 19 Plaintiff first contends that the exemption of grantor trusts from the "tax imposed by this Act" refers only to the income tax described in sections 201(a) and (b) and not the replacement tax described in sections 201(c) and (d). Plaintiff bases this contention on the development of the Act.

¶ 20 In 1969, the Act, imposing an income tax, was adopted. At that time, section 2-205(e) provided that grantor trusts "shall not be subject to the tax imposed by this Act." Ill. Rev. Stat. 1971, ch. 120, § 2-205(e). In 1979, the replacement tax was enacted. However, even through to the present day, section 205(e) continued to provide that grantor trusts "shall not be subject to the tax imposed by this Act." 35 ILCS 5/205(e) (West 2016). Plaintiff reasons that, because an additional tax, namely, the replacement tax, was added to section 201, the failure to account for that in the section 205 exemption of grantor trusts means that the legislature intended the exemption to apply only to the income tax and not the replacement tax. We disagree.

¶ 21 Plaintiff appears to advert to the converse of the interpretive principle that amending a statute creates the presumption that the amendment was intended to change the law. Ready v. United/Goedecke Services, Inc. , 232 Ill. 2d 369, 380, 328 Ill.Dec. 836, 905 N.E.2d 725 (2008). Plaintiff argues that, because the exemption of grantor trusts originally referred only to income tax defined in section 2-201(a), the legislature's amendment of the statute to include the replacement tax, without amending section 205(e) to refer to "taxes" instead of "tax," must mean that it intended the exemption to exclude the replacement tax. There are at least two problems with this argument.

¶ 22 First, rules of construction are applied only where the statute is ambiguous. Id. at 379-80, 328 Ill.Dec. 836, 905 N.E.2d 725. Plaintiff appears to imply that the failure to amend "tax imposed by this Act" renders section 205(e) ambiguous. We do not agree, as will be seen below. Second, plaintiff does not cite any authority to support its implication. The failure to cite authority forfeits the contention. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

¶ 23 Forfeiture aside, however, the very terms of the Act rebut plaintiff's argument about the legislature's failure to amend "tax" to "taxes." Section 1501(b)(1)(A) of the Act ( 35 ILCS 5/1501(b)(1)(A) (West 2016) ) provides: "Words importing the singular include and apply to several persons, parties or things * * *." When read in conjunction with this definitional section 1501(b)(1)(A), the section 205(e) reference to "tax" imports the plural "taxes" as necessary. Moreover, the replacement tax is defined to be a "replacement income tax" for the now-abolished ad valorem property tax. Id. § 201(c). To the extent that plaintiff attempts to sever the replacement tax from the income tax purportedly solely covered in section 205(e), this fact frustrates the attempt. Additionally, the tax described by the Act appears to be comprised of several parts, among which are the income tax (id. § 201(a) ) and the replacement tax (id. § 201(c) ). The reference to the singular "tax" in section 205(e) recognizes the tax imposed by the Act, no matter how many constituents make up that tax. Plaintiff's contention, therefore, fails on the merits in any event.

¶ 24 Plaintiff also argues that the trial court's construction of section 205(e) so as to avoid an absurd result was improper, because it equated "subject to" with "required to pay." In rendering its decision, the trial court reasoned that:

"the interpretation urged by [plaintiff] would lead to an absurd result. The [grantor] trusts would be subject to (i.e. , required to pay) Replacement Tax under one section of the [Act] but would be relieved of that burden by another section which imputes income to the individual grantor, who would not be required to pay the Replacement Tax."

The trial court believed this to be an absurd result and rejected plaintiff's argument.

¶ 25 Plaintiff argues that the abolition of the ad valorem tax applied to all trusts and that therefore all trusts must be subject to the replacement tax as mandated by section 5(c) of article IX of the Illinois Constitution. Plaintiff reasons that the implementation of the replacement tax in section 205(e) of the Act required the legislature to forgo extending the exemption to cover both the income tax and the replacement tax.

¶ 26 Our construction of the plain language of section 205(e) forecloses plaintiff's argument. In addition, on review, we review the trial court's judgment, not its reasoning. First Mortgage Co. v. Dina , 2017 IL App (2d) 170043, ¶ 39, 419 Ill.Dec. 37, 92 N.E.3d 448. Thus, the trial court's decision to equate "subject to" with "required to pay"-while it may be considered and adopted if the reasoning is persuasive-is not properly under review.

¶ 27 Finally, we note that plaintiff attempts to draw our attention away from the actual words used in the provision in favor of a phrase that actually contradicts that language. Section 205(e) provides, relevantly: "[grantor trusts] shall not be subject to the tax imposed by this Act." (Emphasis added.) 35 ILCS 5/205(e) (West 2016). By omitting the negation "not," plaintiff masks the actual meaning of section 205(e), which is to exempt grantor trusts from the "tax imposed" by the Act. The precise dictionary definition of "subject to" is unnecessary for our purposes in construing section 205(e), because the phrase "shall not be subject to" the tax imposed by the Act clearly and unambiguously exempts grantor trusts from the income tax and the replacement tax and the other components of "the tax imposed by this Act." Accordingly, we reject plaintiff's arguments about the construction of section 205(e).

¶ 28 Plaintiff argues that defendants' construction of section 205(e) is unconstitutional. Instead, plaintiff proposes that all trusts, including grantor trusts, are "subject to" the replacement tax, but since a grantor trust's income is passed through to the grantor, its income will be zero, resulting in no actual tax liability. We disagree.

¶ 29 True, section 5(c) of article IX does require that a replacement tax be placed on "those classes relieved of the burden of paying ad valorem personal property taxes because of the abolition of such taxes." Ill. Const. 1970, art. IX, § 5 (c). It is also true that certain trusts, including grantor trusts, "shall not be subject to the [replacement] tax imposed" by the Act. 35 ILCS 5/205(e) (West 2016). This exemption does not relieve the general class of "trusts" from the replacement tax. Rather, it exempts only certain types of trusts, such as grantor trusts, from the replacement tax. Accordingly, we perceive no constitutional difficulty accruing to section 205(e).

¶ 30 C. Absurd Results if "Subject to" Means "Required to Pay"

¶ 31 Notwithstanding its argument above that the trial court erroneously equated "subject to" in section 205(e) with "required to pay," plaintiff separately advances "additional reasons why 'subject to' cannot have been intended to mean 'required to pay.' " First, plaintiff contends, implicitly, that section 205(e), as interpreted by defendants, runs afoul of the Illinois Constitution. Plaintiff argues that section 5(c) of article IX of the Illinois Constitution requires "those classes relieved of the burden of paying ad valorem personal property taxes" to be subject to the replacement tax. Ill. Const. 1970, art. IX, § 5 (c). Trusts are among the classes affected by the abolition of the ad valorem tax and therefore subject to the replacement tax. Plaintiff reasons that, if "tax" in section 205(e) includes the replacement tax, then grantor trusts are exempted from the replacement tax and this would contravene the constitution because all trusts are subject to the replacement tax.

¶ 32 In Continental Illinois National Bank & Trust Co. of Chicago v. Zagel , 78 Ill. 2d 387, 36 Ill.Dec. 650, 401 N.E.2d 491 (1979), our supreme court considered a challenge to the constitutionality of the replacement tax. The court held that the replacement tax was constitutional even though the replacement tax revenue exceeded by about 10% the revenue that would have been generated by the ad valorem tax, remarking that the constitution did not "require[ ] a dollar-for-dollar replacement," because the drafters of the constitution intended "to give the General Assembly leeway to arrive at a reasonable replacement solution." Id. at 399-400, 36 Ill.Dec. 650, 401 N.E.2d 491. Our supreme court further emphasized "that section 5(c) of article IX does not require in the replacement tax an exact correlation of persons and property taxed with those formerly subject to [the ad valorem ] personal property tax. Such a result was specifically rejected by the drafters." Id. at 403, 36 Ill.Dec. 650, 401 N.E.2d 491.

¶ 33 In our view, our supreme court recognized the flexibility intended by the drafters and the voters who passed the 1970 constitution to achieve the replacement tax mandate in section 5(c) of article IX. The leeway regarding the revenues replaced by the replacement tax extends to choosing the persons and property taxed. Id. Thus, section 205(e)'s exemption of grantor trusts from the scope of the replacement tax does not run afoul of the constitution. First, because the general class of trusts is still subject to the replacement tax, only the trusts identified as grantor trusts (as relevant here) are exempted. Second, because the clear and unambiguous language of section 205(e) exempts grantor trusts, we must give effect to the statutory language as written where it does not run afoul of any constitutional strictures. Kirchgessner v. County of Tazewell , 162 Ill. App. 3d 510, 513, 114 Ill.Dec. 224, 516 N.E.2d 379 (1987).

¶ 34 Plaintiff attempts to distinguish Zagel , noting that, as is "germane to our case, the Court never stated or even suggested that an Illinois trust could be exempt from the Replacement Tax" (citing Zagel , 78 Ill. 2d at 398-401, 36 Ill.Dec. 650, 401 N.E.2d 491 ). While the portion of Zagel relied upon by plaintiff deals specifically with the issue of whether the replacement tax must be mathematically equal to the ad valorem property tax, the broader point inferable from our supreme court's judgment is that the legislature had both leeway and discretion as to how it would implement the replacement tax. Moreover, our supreme court recognized that section 5(c) of article IX"does not require in the replacement tax an exact correlation of persons and property taxed with those formerly subject to" the ad valorem property tax. Id. at 403, 36 Ill.Dec. 650, 401 N.E.2d 491. This is amplified by our supreme court's recognition, based upon the proceedings of the constitutional convention, that it was "clear that the replacement tax was intended to be imposed broadly on those classes [of previously burdened taxpayers] rather than on those particular persons relieved of paying the personal property tax." (Emphasis in original.) Id. at 403-04, 36 Ill.Dec. 650, 401 N.E.2d 491. Plaintiff's attempt to distinguish Zagel , therefore, fails.

¶ 35 Next, plaintiff argues that the trial court's equating "subject to" with "required to pay" poses difficulties in determining whether a grantor trust or subchapter S corporation would be required to pay taxes in a given tax year. Regarding the grantor trust, plaintiff asserts that understanding "subject to" as "required to pay" would mandate "a continuous analysis of whether a trust is a grantor trust or not," based on the amount of control over the trust the grantor exercises. Likewise, according to plaintiff, a subchapter S corporation "would have to know at the time of preparing its own Illinois Replacement Tax return whether the shareholder trust [was], in that tax year, triggering criteria under the [Internal Revenue Code] which [would] render the grantor rather than the trust liable for federal and state income tax."

¶ 36 How the trial court interpreted the language of section 205(e) is not at issue; rather, the trial court's judgment is under review. Dina , 2017 IL App (2d) 170043, ¶ 39, 419 Ill.Dec. 37, 92 N.E.3d 448. Whether the trial court was justified in reasoning that "subject to" was synonymous with "required to pay" is, in any event, irrelevant where we have determined that section 205(e) is clear and unambiguous and must be applied as written. See Kirchgessner , 162 Ill. App. 3d at 513, 114 Ill.Dec. 224, 516 N.E.2d 379 (clear and unambiguous statutory language accomplishing a constitutional purpose must be applied as written). Thus, the trial court's interpretation of "subject to," to the extent that it relied upon that understanding to reach its result, is unimportant where the trial court's judgment was correct.

¶ 37 Next, plaintiff argues that its corporate structure was incentivized by a 2000 amendment to the Act (see Pub. Act 91-913 (eff. Jan. 1, 2001) (adding 35 ILCS 5/203(b)(2)(S) ) ) expressly allowing a subchapter S corporation to subtract from its income the amount of the replacement tax allocated to its shareholders. Plaintiff argues that the trial court's construction of section 205(e) ultimately misallocates the replacement tax. Plaintiff's argument sounds in the interpretive tool that, where the intent of the legislature is not obvious from the plain words of the provision, the court may consider the purpose of the statute, the problems targeted by the statute, and the goals sought to be achieved by the statute. Moore v. Green , 219 Ill. 2d 470, 479-80, 302 Ill.Dec. 451, 848 N.E.2d 1015 (2006). However, where, as here, the language of the statute is clear and unambiguous, it must be applied as written without resorting to any of the other tools of statutory interpretation. Id. at 479, 302 Ill.Dec. 451, 848 N.E.2d 1015. Plaintiff's argument also invites us to make the type of policy determination that is better left to the legislature. For both of these reasons, we reject plaintiff's contentions.

¶ 38 Plaintiff argues that the trial court's interpretation of "subject to" in section 205(e) does not jibe with the use of "subject to" in sections 205(b) and (c). Once again, the trial court's specific understanding of "subject to" is of no moment. We note that plaintiff does not say that the use of "subject to" in section 205(e) conflicts with a reasonable understanding of its use in the other sections, or even that the express division between the income and replacement tax in sections 205(b) and (c) somehow suggests that the singular "tax" used in section 205(e) must be limited to the income tax and must exclude the replacement tax. If anything, the fact that partnerships are not subject to the income tax but are subject to the replacement tax ( 35 ILCS 5/205(b) (West 2016) ), and subchapter S corporations are not subject to the income tax but are subject to the replacement tax (id. § 205(c) ), suggests that, by not differentiating the two components, "tax" in section 205(e) was intended to encompass both the income tax and the replacement tax, thereby leaving grantor trusts "not subject to" either (id. § 205(e) ). Accordingly, we reject plaintiff's contention on this point.

¶ 39 Last, plaintiff contends that our interpretation of section 205(e) usurps the role of the legislature to choose and define public tax policy. Plaintiff argues that a grantor trust could be made to pay a tax on income allocated to it from a subchapter S corporation as well as the replacement tax, but that this would require a definite legislative action. Plaintiff argues that we may not extend section 205(e) beyond applying to only income tax without infringing upon the legislature's bailiwick. We disagree. Section 205(e) is clear and unambiguous. Rather than infringing the legislature's prerogative, we are discerning and giving effect to its intent as exemplified by the plain and unambiguous language employed in section 205(e). Accordingly, we reject plaintiff's contention.

¶ 40 D. The Unconstitutionality of the Department's Regulation

¶ 41 Plaintiff next contends that the Department's regulation defining a trust does not support defendants' arguments and would, moreover, be unconstitutional if interpreted in the fashion defendants suggest. See 86 Ill. Adm. Code 100.9750(e) (2010) ("a trust whose assets, activities and income are treated as belonging to its grantor for federal income tax purposes under the 'grantor trust' provisions of [the Internal Revenue Code] is not treated as a trust for Illinois income tax purposes"). Even if we were to fully credit plaintiff's argument about the regulation, it would not change the outcome of our decision. If, for the sake of argument, defendants had completely misapprehended the regulation, section 205(e) remains clear and unambiguous and remains consonant with the Illinois Constitution. Thus, if, as plaintiff contends, a "trust" as defined by the regulation is subject only to the income tax defined by the Act, but not the replacement tax, section 205(e) nevertheless indicates that a grantor trust shall not be subject to the replacement tax. 35 ILCS 5/205(e) (West 2016). Likewise, our determination above that section 205(e) comports with section 5(c) of article IX resolves plaintiff's contention that the regulation is unconstitutional, because exempting grantor trusts from the replacement tax does not conflict with section 5(c) of article IX. Finally, the regulation does not narrow the scope of intended taxation, because its removal of grantor trusts from the scope of the replacement tax is coextensive with section 205(e). Accordingly, plaintiff's contentions fail on this point.

¶ 42 III. CONCLUSION

¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

¶ 44 Affirmed.

Justices McLaren and Zenoff concurred in the judgment and opinion.


text:
    Timothy COOLEY, Plaintiff, v. POWER CONSTRUCTION COMPANY, LLC, Defendant and Third-Party Plaintiff-Appellee,
    (Reflection Window Company LLC, d/b/a Reflection Window and Wall, LLC, Third-Party Defendant-Appellant).
    No. 1-17-1292
    Appellate Court of Illinois, First District, FIRST DIVISION.
    June 11, 2018
    Andrew R. Makauskas and Jeffrey F. Clement, of Brady Connolly & Masuda, P.C., of Chicago, for appellant.
    Patricia J. Hogan, John J. Vitanovec, and James F. Maruna, of Cassiday Schade LLP, of Chicago, for appellee.
   JUSTICE GRIFFIN delivered the judgment of the court, with opinion.

¶ 1 The trial court found that third-party defendant Reflection Window Company LLC (Reflection Window) as an employer waived its affirmative defense to limit its liability for an injury sustained by its employee. The trial court also found that Reflection Window waived its statutory workers' compensation lien. We hold that Reflection Window waived its limited liability status but not its lien rights. Accordingly, we affirm in part and reverse in part.

¶ 2 BACKGROUND

¶ 3 Plaintiff Timothy Cooley was working as an employee of third-party defendant Reflection Window on a construction project in Chicago. Plaintiff was injured when he was unloading a 600-pound window that Reflection Window was going to install at the project. He filed a workers' compensation claim and received benefits as a result.

¶ 4 Plaintiff also filed this case against defendant Power Construction Company, LLC (Power Construction), for negligence. Power Construction was the general contractor for the project. Power Construction had retained Elston Window and Wall, LLC (Elston Window), as a subcontractor, and Elston Window retained Reflection Window as a sub-subcontractor.

¶ 5 Power Construction filed a third-party complaint for contribution against Reflection Window. Power Construction asserted that Reflection Window was the negligent party. Appended to the third-party complaint are copies of the master agreement between Power Construction and its subcontractor Elston Window and also the sub-subcontract agreement between Elston Window and Reflection Window.

¶ 6 Reflection Window filed an answer and affirmative defenses to the third-party complaint brought against it by Power Construction. Reflection Window denied any liability, and it also asserted the " Kotecki cap" as an affirmative defense. The Kotecki cap is derived from the Illinois Supreme Court decision Kotecki v. Cyclops Welding Corp. , 146 Ill.2d 155, 166 Ill.Dec. 1, 585 N.E.2d 1023 (1991), in which the court held that an employer's liability for its employee's injury is capped at an amount not greater than the employer's workers' compensation liability to its employee.

¶ 7 Power Construction responded with a motion to strike the Kotecki cap affirmative defense on the basis that Reflection Window had waived that defense under either the master agreement, the subcontract agreement, or both. Both the master agreement and subcontract agreement have indemnification provisions. More relevant here is the subcontract indemnification provision in which Reflection Window agrees to indemnify both Elston Window and Power Construction and which mentions workers' compensation.

"[Reflection Window] agrees to defend and indemnify [Elston Window], [Power Construction] * * * and such other parties as [Elston Window] is required by the Contract Documents to defend and indemnify, from and against any and all claims * * * which are caused by the negligence of [Elston Window], [Power Construction] * * *. [Reflection Window] hereby expressly and specifically agrees that its obligations to indemnify, defend and save harmless shall not in any way be diminished by any statutory or constitutional immunity it enjoys from suits by its own employees or from limitations of liability or recovery under worker's compensation laws."

¶ 8 The trial court granted Power Construction's motion to strike Reflection Window's Kotecki cap affirmative defense under that indemnity provision in the contract. However, and this is the genesis of the issue on appeal, the trial court also included a statement in its order that, under the agreement, Reflection Window "explicitly waived [its] workers' compensation lien." That statement is the only one in the nine-page order that discusses a waiver of the workers' compensation lien . Power Construction did not move to strike the lien, nor did it otherwise address the lien in its motion to strike. Power Construction only moved the court for an order that Reflection Window's cap on the amount of the liability be found to be waived.

¶ 9 Reflection Window filed a motion to reconsider based on its belief that the court's reference to a lien waiver must have been a mistake, as it is not addressed in the rest of the order and no one asked the court for such a ruling. Reflection Window asked that the court modify its order by removing the language regarding a "lien waiver." The court did not order any additional briefing on the motion to reconsider and denied Reflection Window's motion "in its entirety," noting that the court's prior order "stands as written." Reflection Window appeals.

¶ 10 ANALYSIS

¶ 11 On appeal, Reflection Window does not challenge the trial court's ruling on the issue framed by Power Construction's motion to strike-whether the affirmative defense under Kotecki was waived. Instead, the parties agree that the only issue presented on appeal is whether Reflection Window waived its workers' compensation lien as it relates to plaintiff's personal injury lawsuit.

¶ 12 Employees that are injured at work do not have a cause of action against their employer, and their exclusive remedy is to apply for benefits under the Workers' Compensation Act ( 820 ILCS 305/1 et seq. (West 2016)). Moran v. Gust K. Newberg/Dugan & Meyers , 268 Ill.App.3d 999, 1006, 206 Ill.Dec. 484, 645 N.E.2d 489 (1994). However, an injured employee may have a cause of action against a third party to the employment relationship whose negligence allegedly caused or contributed to the employee's injuries, such as a general contractor. Virginia Surety Co. v. Northern Insurance Co. of New York , 224 Ill.2d 550, 557, 310 Ill.Dec. 338, 866 N.E.2d 149 (2007). In such a case, the Workers' Compensation Act does not limit the employee's recovery from that third-party tortfeasor. Id. ; 820 ILCS 305/5(b) (West 2016).

¶ 13 In turn, although the employee himself is barred from bringing suit directly against his employer, the third-party nonemployer may file suit against the employer for contribution. Virginia Surety Co. , 224 Ill.2d at 557, 310 Ill.Dec. 338, 866 N.E.2d 149. The concept of contribution contemplates that each party whose fault contributed to an injury should pay its pro rata share of the common liability. McMackin v. Weberpal Roofing, Inc. , 2011 IL App (2d) 100461, ¶ 24, 355 Ill.Dec. 158, 959 N.E.2d 186. The Illinois Supreme Court has held, however, that an employer's contribution liability for its employee's injury is capped at an amount not greater than the employer's workers' compensation liability to its employee. Kotecki , 146 Ill.2d at 166, 166 Ill.Dec. 1, 585 N.E.2d 1023. So if a subcontractor's employee sues a general contractor for his injuries, the " Kotecki cap" can be used as an affirmative defense to the general contractor's contribution claim against a subcontractor. American Family Mutual Insurance Co. v. Fisher Development, Inc. , 391 Ill.App.3d 521, 529, 330 Ill.Dec. 561, 909 N.E.2d 274 (2009).

¶ 14 The Kotecki cap can be waived by the employer. Estate of Willis v. Kiferbaum Construction Corp. , 357 Ill.App.3d 1002, 1006, 294 Ill.Dec. 224, 830 N.E.2d 636 (2005). A subcontractor's agreement to indemnify the general contractor and hold it harmless for claims resulting from the performance of the subcontractor's work waives the affirmative defense that the subcontractor might have otherwise had for limited liability under the Workers' Compensation Act. Virginia Surety Co. , 224 Ill.2d at 567, 310 Ill.Dec. 338, 866 N.E.2d 149. Thus, such an agreement makes the subcontractor liable for unlimited contribution, undiminished by the Kotecki cap. Id. ; see also American Family , 391 Ill.App.3d at 529, 330 Ill.Dec. 561, 909 N.E.2d 274.

¶ 15 An employer is entitled to a workers' compensation lien on any recovery that its injured employee might get from a third party that caused or contributed to the injury. See 820 ILCS 305/5(b) (West 2016). A workers' compensation lien is statutorily imposed by section 5(b) of the Workers' Compensation Act. Corley v. James McHugh Construction Co. , 266 Ill.App.3d 618, 619, 203 Ill.Dec. 555, 639 N.E.2d 1374 (1994). A workers' compensation lien serves the important purpose of allowing both the employer and the injured employee an opportunity to reach the true offender while preventing the employee from obtaining a double recovery. Gallagher v. Lenart , 226 Ill.2d 208, 238-39, 314 Ill.Dec. 133, 874 N.E.2d 43 (2007).

¶ 16 In this case, Reflection Window does not argue that the trial court erred when it struck its Kotecki affirmative defense. Reflection Window does, however, argue that the trial court erred when it held that its workers' compensation lien had been waived. It is unclear if the trial court simply considered the waiver of the Kotecki limitation on liability to also constitute a waiver of the workers' compensation lien or whether the court found some other basis for holding that the lien is waived. Accordingly, we will analyze both potential bases for the ruling.

¶ 17 The lien and the limited liability under Kotecki are separate concepts. "[A]n employer's negligence has nothing to do with its statutory right to recover workers' compensation payments under section 5(b) * * *." Silva v. Electrical Systems Inc. , 183 Ill.2d 356, 366, 233 Ill.Dec. 656, 701 N.E.2d 506 (1998). There is a distinction between a cap on liability and the right to recompense granted to employers in the Workers' Compensation Act. Reflection Window can have both agreed to be subject to potential unlimited liability while at the same time not given up its right to collect monies it paid for workers' compensation for Power Construction causing an injury to its employee.

¶ 18 We are yet to discover the identity of the "true offender." See Gallagher , 226 Ill.2d at 238, 314 Ill.Dec. 133, 874 N.E.2d 43. This case is only at the pleading stage. Power Construction could be found to be wholly responsible for plaintiff's injury while Reflection Window could be found to be without fault. If that were the case, there would be no basis for preventing Reflection Window from recovering its workers' compensation payments as the Act intends. In fact, such an outcome would be antagonistic to the Act's lien provision in that it would require Reflection Window to pay compensation when it was blameless and at the same time it would give plaintiff the windfall of both a judgment against Power Construction and the workers' compensation payments made by Reflection Window.

¶ 19 The existence of the lien does not mean that Power Construction cannot get contribution. The lien is not a mechanism to apportion fault between Power Construction and Reflection Window. The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. 740 ILCS 100/2(b) (West 2016); Claudy v. Commonwealth Edison Co. , 169 Ill.2d 39, 42, 214 Ill.Dec. 188, 660 N.E.2d 895 (1995). Depending how the case develops, Reflection Window could be entitled to some or all of the damage award entered in favor of plaintiff and against Power Construction for Power Construction's own pro rata share of liability as recompense for its workers' compensation expenditure. If Power Construction is found to be liable, Reflection Window will have a lien in the amount awarded to plaintiff from Power Construction up to the amount of its workers' compensation payment. Smith v. Louis Joliet Shoppingtown L.P. , 377 Ill.App.3d 5, 7, 315 Ill.Dec. 729, 877 N.E.2d 789 (2007). The Kotecki waiver by Reflection Window only means that it cannot limit its liability should it be found to be liable itself. But just because there is a waiver of the Kotecki cap defense, it does not follow that there must have been a waiver of the workers' compensation lien.

¶ 20 The second possible basis for the trial court's ruling, and the one that Power Construction advances on appeal, is that the language of the subcontractor agreement itself constitutes a waiver of the workers' compensation lien. Although not addressed anywhere else in its nine-page order, the trial court did state that "[t]he agreement at issue in this case between a subcontractor and a sub-subcontractor-employer explicitly waived the latter's workers' compensation lien." We find that there is nothing in the agreement between Reflection Window and its subcontractor to demonstrate that Reflection Window waived its lien.

¶ 21 Waiver results from the intentional relinquishment of a known right. Crum & Forster Managers Corp. v. Resolution Trust Corp. , 156 Ill.2d 384, 396, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993). "[T]he waiver of a workers' compensation lien must be explicitly stated." Gallagher , 226 Ill.2d at 238, 314 Ill.Dec. 133, 874 N.E.2d 43. Because of how crucial the workers' compensation lien is to the whole system of workers' compensation, the lien "will not be considered waived absent unmistakable settlement language to that effect." Id. at 239, 314 Ill.Dec. 133, 874 N.E.2d 43. A specific reference to the lien in a waiver provision is required before the lien can be deemed waived. Id. ; see also Burgess v. Brooks , 376 Ill.App.3d 842, 846, 315 Ill.Dec. 880, 877 N.E.2d 1209 (2007).

¶ 22 In this case, the indemnification provision lacks any specific reference to the lien or an unmistakable reference to any intention that the lien be waived. Power Construction argues that there is an express waiver because the indemnification provision "mentions both the workers' compensation statute and the rights Reflection Window enjoys under that statute." Power Construction points to the portion of the indemnification provision in which Reflection Window "agrees that its [indemnification] obligations shall not be in anyway diminished by any statutory or constitutional immunity it enjoyed from suits by its employees or from limitations of liability or recovery under worker's compensation laws." But the existence of the workers' compensation lien does not diminish any obligation Reflection Window has, nor is it a limitation on ultimate liability. The indemnification provision at issue cannot be read to express Reflection Window intentionally relinquishing its lien rights, as the lien is not mentioned and there is no reference to any waiver of the right.

¶ 23 Power Construction's significant reliance on the fact that the subcontractor agreement "mentions the Workers' Compensation Act" is misplaced. Our supreme court has held that more explicitness is required. Even general language purporting to release or waive a workers' compensation lien is not enough. Gallagher , 226 Ill.2d at 238, 314 Ill.Dec. 133, 874 N.E.2d 43. The indemnification provision does not mention the lien, nor does it mention any intention to waive it, far short of an unmistakable waiver.

¶ 24 Power Construction also argues that Reflection Window waived its workers' compensation lien because it agreed not to use the Workers' Compensation Act to shield itself from liabilities. The Kotecki cap is a limitation on liability-the workers' compensation lien is not. Power Construction argues that "a workers' compensation lien is both a statutory right to reimbursement and also a statutory limitation of liability." The former assertion is accurate, but the latter is not. A workers' compensation lien is intended to reimburse the employer for the compensation benefits paid to the employee. Gonzalez v. Evanston Fuel & Material Co. , 265 Ill.App.3d 520, 522-23, 202 Ill.Dec. 152, 637 N.E.2d 691 (1994). A workers' compensation lien itself is not a limitation on liability; that is why the Kotecki decision was necessary. If the lien itself limited an employer's liability to the lien amount, we would not have needed the ruling in Kotecki to effectuate limited liability. See Kotecki , 146 Ill.2d at 165-66, 166 Ill.Dec. 1, 585 N.E.2d 1023. There is no basis for finding that Reflection Window waived its workers' compensation lien. Should plaintiff recover from Power Construction, Reflection Window is entitled to enforce its lien rights for an amount up to what it has already paid to plaintiff in workers' compensation benefits.

¶ 25 CONCLUSION

¶ 26 Accordingly, we affirm in part and reverse in part. The case is remanded for further proceedings.

¶ 27 Affirmed in part and reversed in part.

¶ 28 Remanded.

Presiding Justice Pierce and Justice Harris concurred in the judgment and opinion.