author: Mr. JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERNON JACKSON, Defendant-Appellant.
    First District (1st Division)
    No. 80-2104
    Opinion filed September 21,1981.
    Ralph Ruebner and Phillip J. Zisook, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir Bartnik, and John D. Cecilian, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, Vernon Jackson (defendant) was found guilty of armed robbery and armed violence. He was sentenced to eight years. He appeals.

In this court defendant contends closing argument by the prosecutor was unduly prejudicial; defendant did not receive effective assistance of counsel during trial; the trial judge failed to appoint other counsel for defendant at the sentencing hearing and the trial court should have conducted a hearing on incompetence of defense counsel.

Defendant raises no issue on the sufficiency of the evidence to sustain his conviction beyond reasonable doubt. However, we will summarize the facts.

John Harris, the complainant, 63 years old and a retired janitor, entered the vestibule of his apartment building about 8:45 p.m. on December 29, 1979. He was returning from a neighborhood liquor store where he had purchased a 6-pack of Budweiser beer in 16 ounce cans and a pint of Old Taylor whiskey. He was carrying these items in a paper bag. The ceiling light in the vestibule was on. As he was about to open the inner door, a man (later identified as Henry Lockhart, not a party to this appeal) pushed him up against the mail boxes and put a knife to his throat. Harris later described this man to the police as 5 feet 9 inches tall, stout, weight about 180 pounds, 30 to 35 years old, wearing a green knitted cap, dark trousers and coat.

A second man approached, searched Harris and took his wallet with three or four single dollar bills and a cigarette lighter. This second man, identified in court by Harris as the defendant, was described as 5 feet 9 inches tall, about 38 years old, weight 130 pounds. Harris had these men in view for three or four minutes. The men seized the bag he had been carrying and ran out to a parked car.

Harris followed. Outside he saw a neighbor named Mark. They watched the car drive south to 48th Street and then west. Harris and Mark ran through the alley and saw the automobile again. They noted the license number. Harris ran home and called the police. They arrived in four or five minutes. Harris gave them the license number. He entered the police car, and they drove about for a short time.

They noticed the other car parked in an A & P lot. The police took the occupants of this car into custody. Harris identified the two men. There was also a woman in the car whom he did not know. A police officer identified the defendants in court. The license number of this car was DS 5490, the number previously supplied to the police. In the car the police found six cans of Budweiser beer, each 16 ounces, of which four were intact and two were open and empty. A knife found between the two front seats of the car was identified in court by Harris as the knife held against his throat. Defendant was found in possession of three $1 bills which were inventoried by the police.

In our opinion, this uncontradicted evidence is sufficient to prove the defendant guilty as charged beyond any reasonable doubt. We will consider the contentions of the defendant in order.

I

In final argument the prosecutor told the jury, “Now we know what happened to the whiskey. * * * They had been drinking the beer. The whiskey was gone. The wallet was ditched, we know that. There’s no money in there. We don’t keep a man’s identification.”

The prosecutor also said to the jury that the woman found in the car at the time of the arrest, “was in the car waiting while her two friends went in and did this armed robbery.” The prosecutor also said the defendant “had the same dollar bills.”

We find no reversible error in any or all of these statements. Defendant’s counsel in effect invited these arguments by the prosecution. Defense counsel brought out on cross-examination and in his final argument that the whiskey and the wallet were described as missing but they were not in the defendant’s possession when he was arrested. Defense counsel also mentioned the woman in his closing argument. This had the tendency of raising the inference that the defendants were not the people who committed the robbery but were simply innocent persons sitting in a car together. In situations where defense counsel has invited statements by the prosecutor, the defense cannot rely upon these very statements as error. People v. Vriner (1978), 74 Ill. 2d 329, 344, 385 N.E.2d 671, cert, denied (1979), 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858.

In People v. Olejniczak (1979), 73 Ill. App. 3d 112, 121-22, 390 N.E.2d 1339, this court held:

“In view of the overwhelming evidence against defendant, these remarks, even if improper, constituted harmless error beyond a reasonable doubt. In addition, the court instructed the jury to consider only the evidence presented and that closing arguments are not evidence, so that any statements made in argument not based on the evidence should be disregarded. (Illinois Pattern Jury Instructions, Criminal, No. 1.01 and No. 1.03 (1968) * ° *.) Such instructions have been held to cure any possible prejudice from a prosecutor’s improper remarks in closing argument. [Citation.]”

We see no error in prosecution comment upon a subject, “if that subject is proved either by direct evidence or is fairly inferable from facts and circumstances proved. An argument based upon the facts appearing in proof or on the legitimate inferences deducible therefrom is proper.” (People v. Garza (1981), 92 Ill. App. 3d 723, 730, 415 N.E.2d 1328.) In the case before us, the uncontradicted testimony of the complainant and of the police officer, the identification of defendant all strongly corroborated by the license number and location of the automobile and the type and nature of its contents made these inferences by the prosecutor reasonable inferences. The fact that the dollar bills were “the same” is similarly a permissible inference. In effect, all dollar bills are “the same.”

In addition, combining all of these defense arguments, we cannot say that they have sufficient substance to be considered plain error. No objection to these remarks was made by counsel for the defendant. (See People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) None of these alleged or all combined errors are so substantial as to be considered plain error. Of even greater importance, we cannot say that the verdict herein would “have been otherwise had the improper remarks not been made.” (People v. Jackson (1981), 84 Ill. 2d 350, 360, 418 N.E.2d 739.) Also we cannot say that these remarks resulted “in substantial prejudice to the accused.” See People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.

II

On the issue of competence of trial counsel, defendant raises an often rejected argument that the courts of Illinois should abandon their established test of competency of counsel and should instead adopt a “minimum standard of professional representation” in accordance with the decision in United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, 641. This frequently-made suggestion has been rejected by our supreme court not only in People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677, but also in subsequent cases such as People v. Haywood (1980), 82 Ill. 2d 540, 543, 413 N.E.2d 410, and People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203. In Haywood, the supreme court held (82 Ill. 2d 540, 543-44):

“In order to establish that an appointed counsel was so ineffective and incompetent as to deprive the defendant of his right to counsel, it must be established that counsel was actually incompetent in the performance of his duties and that substantial prejudice resulted from such incompetency, without which the results of the trial would have been different. [Citations.] However, if the alleged incompetency is a matter of trial tactics or strategy, which are purely matters of professional judgment, such allegations cannot support a claim of ineffective representation. [Citations.]”

We will apply the Illinois standard in considering this contention. Defendant urges incompetence in that trial counsel permitted the State to lead its witnesses without objection, presented a perfunctory opening statement, did not object to improper closing argument by the prosecutor and emphasized the consistency and strength of the testimony of the complaining witness. However, there is a great deal of difference in conducting a trial before a jury and reading a record of that same trial. It is far more difficult to reach a decision in a split second during the heat of combat than it is to analyze a situation in the unhurried comfort of the lawyer’s office long after the trial is over.

We have carefully read the entire record before us. We have concluded that the points raised by appellate counsel in the instant case are simply matters of trial tactics at best. We agree completely with the statement by the learned trial judge that the services rendered by trial counsel in the case at bar “not only at the trial, at the pretrial stages were clearly performed in a competent manner.”

We cannot forget the important part of the test. To demonstrate incompetence of counsel a defendant must show not only incompetence but also substantial prejudice from the alleged incompetence “without which the result of the trial would probably have been different.” Greer, 79 Ill. 2d 103, 121. See also Carlson, 79 Ill. 2d 564, 584-85.

In the case at bar, defendant’s trial counsel was indeed required to make the proverbial bricks without straw. The evidence here was truly overwhelming. As shown, the testimony by the complaining witness was strongly corroborated by the evidence supplied by the police and by many of the surrounding circumstances. The trial counsel was indeed faced with a dilemma in cross-examining the officer and the defendant. As a matter of trial tactics he may well have felt that refusing to ask any questions was tantamount to a confession of guilt. Therefore, counsel put his best foot forward and asked reasonable questions on cross-examination. Also, defendant’s previous criminal record made it virtually impossible for him to take the stand in his own defense.

In our opinion under the circumstances here, these points and arguments raised by appellate counsel do not show incompetence. At best we have here only “errors in judgment or trial strategy” (Murphy, 72 Ill. 2d 421, 437) or, as a matter of hindsight, possibly “poor judgment” which “does not amount to the incompetence required by our decisions * * *” (People v. Adkisson (1980), 83 Ill. 2d 1, 9, 413 N.E.2d 1238). We reject defendant’s argument regarding alleged incompetence of trial counsel.

Ill

No issue was raised by defendant regarding the effectiveness and sufficiency of his legal representation until after verdict. On July 11,1980, in open court, defendant filed his pro se motion for acquittal or for a new trial. The motion contains three subdivisions. Points 1 and 2 are based upon the alleged insufficiency of the evidence. Point 3 states the trial court failed to provide defendant “adequate representation of counsel” in accordance with the constitution; defendant’s counsel presented an impromptu defense; counsel failed to investigate and consult with defendant in preparation; and that defendant spoke with his appointed attorney only “five minutes before trial.” In addition, a written motion for new trial was filed by trial counsel.

At the hearing the trial judge denied the motion for new trial filed by counsel. The trial judge then asked defendant if he wished to argue in support of his pro se motion. Defendant told the court that the attorney did not act in his defense but let the witnesses perjure themselves. Defendant stated his trial counsel did not confront the witnesses with lies which appeared from the preliminary hearing. Defendant therefore stated he had received no defense at all.

The trial judge stated from his own observation that the allegation in the pro se motion that defendant had only spoken with trial counsel for five minutes “does not accurately state the facts as observed by this Court.” The trial judge stated he knew from his own knowledge that trial counsel had conferred with the defendant “for considerably greater periods of time than alleged in this Motion.”

Defendant then responded that the attorney had only spoken to him about a plea of guilty. The trial court asked if there was any further argument. Defendant responded that the police report showed the complaining witness had lied about how he got the license number and in stating he was not intoxicated when the police report showed he was intoxicated. The trial judge then denied the pro se motion and proceeded to hearing on the sentence.

It is the theory of defendant’s present counsel that trial counsel should have been replaced and the trial judge should have appointed another attorney to represent defendant at the sentence hearing. Defendant overlooks the fact that his pro se motion was patently insufficient to raise an issue regarding the competency of trial counsel. As shown, the motion states pure conclusions except for one factual statement which was rejected as contrary to the knowledge of the trial judge.

There is no doubt that the hearing on the sentence is a critical stage of the proceeding. A felony defendant in this situation has the right to legal representation by counsel of his own choice. (People v. Payne (1970), 46 Ill. 2d 585, 587, 264 N.E.2d 167.) However, this right is not without reasonable limitation. (People v. Friedman (1980), 79 Ill. 2d 341, 349, 403 N.E.2d 229.) To permit every defendant in every case to change counsel without good cause would result in judicial chaos. Therefore, the rule has necessarily evolved that cases of this type must each be carefully considered with due regard for the facts involved. Then, it is necessary to classify each particular case as either a legitimate exercise of a constitutional right or as an unnecessary exercise in futility. As we would expect, the matter is one which is left to the sound judicial discretion of the trial court. See People v. Langdon (1979), 73 Ill. App. 3d 881, 888-89, 392 N.E.2d 142.

The case before us does not present a per se conflict of interest. It is actually a situation in which a defendant is attempting to experiment with appointed counsel to the detriment of the orderly process of law. (See People v. Finley (1978), 63 Ill. App. 3d 95, 104, 379 N.E.2d 645, and cases there cited.) The defendant here has raised a claim of ineffective counsel which is recognized as patently inadequate by the trial judge and by this court. The situation thus differs vastly from a case in which there is a recognizable per se conflict of interest which is deemed to prevent a fair hearing. See People v. Gustafson (1979), 75 Ill. App. 3d 497, 501-02, 393 N.E.2d 1315.

In the case before us, the hearing on the sentence was fair in all respects. This is best evidenced by the most reasonable result of a sentence of eight years for armed robbery as applied to a defendant whose criminal record can certainly not be described as unblemished. This is particularly true when we consider the overwhelming strength of the evidence of guilt.

Defendant cites four authorities which, in our opinion, have no bearing here:

People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169. Defendant’s pro se petition alleged his trial counsel, an assistant public defender, was incompetent. The court appointed the public defender of Cook County to represent defendant in post-trial proceedings. The supreme court held there was a conflict of interest which should be avoided and the conviction was reversed. However, more recent cases have rejected a per se rule for disqualification as applied in Smith. (See People v. Miller (1980), 79 Ill. 2d 454, 461-62, 404 N.E.2d 199; People v. Robinson (1979), 79 Ill. 2d 147,158-59, 402 N.E.2d 157; People v. Walton (1979), 78 Ill. 2d 197, 200, 399 N.E.2d 588.) These authorities and Smith are commented upon in People v. Neely (1980), 85 Ill. App. 3d 1016, 407 N.E.2d 814. We will add that Smith presents a situation entirely different from the case at bar.

The same comments apply to People v. Freeman (1977), 55 Ill. App. 3d 1000, 371 N.E.2d 863, and People v. Norris (1977), 46 Ill. App. 3d 536, 361 N.E.2d 105, also cited by defendant.

People v. Fields (1980), 88 Ill. App. 3d 821, 410 N.E.2d 1178. The presentence report contained a statement by defendant criticizing his appointed trial attorney for allegedly failing to call certain witnesses as requested by defendant. A pro se request was made on the ground of incompetency of counsel. This court held that the trial judge should have appointed other counsel and his failure so to do had placed upon the trial attorney the duty of attacking his own professional reputation. In the case before us, as shown, the pro se motion for new trial was factually insufficient to raise any viable point. It was denied by the trial judge prior to the commencement of the sentence hearing. We see no prejudice to defendant in this regard.

IV

Defendant’s final contention is that the trial court should have conducted a hearing on the issue of incompetence of defense counsel where the claim of incompetency was based upon matters not apparent from the record. The short answer to this contention lies in the insufficiency of the pro se motion. This motion presents pure conclusions as distinguished from facts except for the single statement regarding “five minutes.” As shown, the trial court was able to pass upon this single factual allegation from his own personal knowledge. Patently any hearing on this motion was unnecessary and would have accomplished nothing.

This situation is far different from People v. Dzielski (1970), 130 Ill. App. 2d 581, 586, 264 N.E.2d 426, cited by defendant. There, the post-trial motion alleged “the guilty plea had been obtained by virtue of an unfulfilled promise of the State to recommend probation for the defendant.” People v. Adams (1979), 74 Ill. App. 3d 727, 393 N.E.2d 658 and People v. Black (1977), 55 Ill. App. 3d 417, 371 N.E.2d 71, also cited by defendant, both cite and depend upon Norris, 46 Ill. App. 3d 536, and Freeman, 55 Ill. App. 3d 1000, above considered and differentiated.

Defendant urges a hearing would have demonstrated the availability of impeaching evidence in the police reports and the transcript of the preliminary hearing. The preliminary hearing transcript was available to trial counsel and was used by him in cross-examination. The police report, which is before us as a supplemental record, was known to trial counsel. This report does not show the complaining witness was intoxicated. On the contrary, there is no space on the report for an indication of intoxication. There are two small boxes concerning sobriety of the victim. The box designated “Sober” is untouched. There is an “X” mark in the other box designated “had been drinking” (H.B.D.). This information would seem to have no materiality to the case before us. Impeachment on immaterial matters is improper. See Marut v. Costello (1966), 34 Ill. 2d 125, 128, 214 N.E.2d 768.

We find no merit to the contentions of defendant and the judgment appealed from is accordingly affirmed.

Judgment affirmed. ■

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE NASH

license: Public Domain

text:
    THE CHERRY BOWL, INC., Plaintiff-Appellant, v. ILLINOIS PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees.
    Second District
    No. 81-101
    Opinion filed September 18,1981.

      Robert J. Oliver, of Connolly, Oliver, Goddard, Coplan and Close, of Rockford, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Karen L. Boyaris, Daniel D. Doyle, and Thomas J. Olle, Assistant Attorneys General, of counsel), for appellees.
   Mr. JUSTICE NASH

delivered the opinion of the court:

Plaintiff, The Cherry Bowl, Inc., appeals from a judgment of the circuit court of Winnebago County which, on administrative review, confirmed a decision of the Property Tax Appeal Board (PTAB) that plaintiff’s automatic pinsetter machines and bowling lanes installed in plaintiff’s building constituted real property for purposes of taxation. Plaintiff raises three issues: (1) whether the PTAB’s decision that automatic pinsetters and bowling lanes are real property for purposes of taxation was against the manifest weight of the evidence; (2) whether the PTAB erroneously refused to consider evidence of the assessment practices of assessors in other counties; and (3) whether PTAB’s decision violates the State constitutional (art. IX, §5(c)) and statutory (Ill. Rev. Stat. 1979, ch. 120, par. 499.1) proscriptions against reclassification of personal property as real property for assessment purposes.

The Rockford township real estate assessor placed a value of $525,900 on plaintiff’s land and building, including therein the pinsetters and lanes as part of it. Plaintiff filed a complaint with the Board of Review of Winnebago County which reduced the assessment to $413,127 because of an error in computation, but included the pinsetters and lanes as a part of the real estate. The PTAB thereafter denied plaintiff’s claim that the value of the pinsetters and lanes should be omitted to reduce the assessed value to $283,363 and on review the circuit court confirmed that decision.

At the hearing before the PTAB evidence was presented that The Cherry Bowl, Inc., was a new corporate entity and its bowling establishment was first assessed for taxes in 1978, the assessment year at issue in this case. The building in which the bowling alley is located was constructed by plaintiff and completed in late December 1977 or early January 1978 and contains 32 automatic pinsetters and bowling lanes.

The evidence discloses that in constructing the lanes in plaintiff’s building, a wooden substructure consisting of 2" x 10"s standing on edge and braced by 2" x 4"s was attached to the concrete floor by three stringers in each lane. Leveling strips were laid across this crib foundation and each lane was attached to the strips by 4" wide wooden screws every 20 inches. The bowling lanes could be removed by backing out the screws and cutting the lanes into three sections. It would take six men approximately six hours to remove one lane and no damage to the building would result. Further evidence was presented that bowling lanes are, in fact, sometimes removed from installations, as when a seller repossesses them upon default of the buyer, and that there is a ready market in the bowling industry for used lanes.

Each pinsetter machine is a steel A-frame with a box mounted on it, together with a pin and ball elevator. The pinsetter rests on a kickback, against which the balls and pins bounce, and is attached to it by six bolts. A pinsetter may be removed without damage to the building by removing these six bolts and two other bolts which attach it to the elevator. As is true with lanes, pinsetters are sometimes repossessed by conditional sellers and there is a ready market in the industry for used pinsetters.

The lanes and pinsetters in question had been previously installed in a bowling establishment in Japan prior to their purchase by plaintiff. If the pinsetters and lanes were removed, the wooden crib foundation could be dismantled and no damage would be caused to the building, which could then be used for other purposes.

The evidence also discloses that plaintiff did not file a personal property tax return for the year 1978 due to an oversight on the part of its accountant. The township personal property assessor thereupon prepared a return in which he listed the bowling lanes as personal property. Plaintiff paid the assessed tax, apparently under protest, and that matter was still unresolved at the time of the hearing before the PTAB.

The findings of the PTAB on questions of fact are considered prima facie true and correct (La Grange Bank v. Du Page County Board of Review (1979), 79 Ill. App. 3d 474, 398 N.E.2d 992), and will not be set aside by the courts on administrative review where they are supported by competent evidence and are not against the manifest weight of the evidence. (Lake County Board of Review v. Property Tax Appeal Board (1980), 91 Ill. App. 3d 117, 414 N.E.2d 173; Robinson v. Property Tax Appeal Board (1979), 72 Ill. App. 3d 155, 390 N.E.2d 942.) We review the law and evidence presented in this light.

All property in Illinois is subject to taxation unless specifically exempted. (Lake County Board of Review v. Property Tax Appeal Board (1980), 91 Ill. App. 3d 117, 414 N.E.2d 173.) The Revenue Act provides that all real property which is not exempt shall be assessed and taxed (Ill. Rev. Stat. 1979, ch. 120, par. 499), and such property is defined by the Act as including

“[n]ot only the land itself, whether laid out in town or city lots, or otherwise, with all things contained therein, but also all buildings, structures and improvements, and other permanent fixtures, of whatsoever kind, thereon, and all rights and privileges belonging or in anywise pertaining thereto, except where the same may be otherwise denominated by this Act. * e (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 482(13).)

If, as the PTAB found, the lanes and pinsetters are correctly classified as improvements or fixtures, their value would properly be included in the assessment of plaintiff’s real estate.

In reaching its decision, the PTAB relied upon Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41,310 N.E.2d 667, one of the few Illinois cases discussing the circumstances under which personal property may become an integral part of land or buildings so as to be considered as real property for purposes of taxation. There, the taxpayer contended that heavy coal processing equipment in a building complex covering several hundred feet should be considered as personal property. The equipment had been purchased by the taxpayer under a conditional sales contract which provided that it would not be considered as a fixture by the parties and that the seller might separate any part of the equipment from the real estate in order to repossess it should the purchaser default. Although the equipment had been assessed as personal property for the preceding five years, the court held it to be part of the real estate for purposes of real property tax assessment, stating:

“Where property is adapted to the use to which the realty is devoted the use thereof in such manner furnishes such strong evidence of intent to make it a part of the freehold as not to be overcome by bookkeeping practices.” 19 Ill. App. 3d 41, 46, 310 N.E.2d 667, 671.

Ayrshire Coal Co. was later followed in In re Tax Objections of Hutchens (1976), 34 Ill. App. 3d 1039, 341 N.E.2d 169. In holding that a cabin which was transported to and installed on leased premises by the lessee under provisions which gave him the right to remove it at the end of the term should be assessed as part of the real estate, the court reasoned:

“Valid business and economic reasons exist for recognizing ‘bookkeeping practices’ and agreements between landlord and tenant and seller and purchasers concerning whether buildings and machinery shall be considered personal property and whether the same may be removed as far as the rights of the parties * * * are concerned. We agree with the ruling in Ayrshire Coal Co., however, that such practices and agreements are no longer controlling as far as property taxes are concerned.” (34 Ill. App. 3d 1039, 1041-42, 341 N.E.2d 169, 171.)

See also United States v. 19.86 Acres of Land (7th Cir. 1944), 141 F.2d 344.

In considering Ayrshire Coal Co. and Hutchens, plaintiff’s arguments that the pinsetters and lanes may not be considered as improvements or permanent fixtures to land for tax purposes because of their previous assessment as personal property, and because those items are considered as personal property in the industry, appear to be of little merit. Although plaintiff concedes that Ayrshire Coal Co. does not support its position, it contends that case should be limited to the factual context presented to that court. In this light, plaintiff argues it is not surprising that the coal preparation equipment was held to be part of the real estate under what the court termed the “integrated industrial plant” doctrine. Plaintiff asserts that if the rule in every case was that property “adapted to the use to which the realty is devoted” is real property, then every billiard table in a pool hall, or desk in a lawyer’s office should also be considered to be real estate. As this court recently stated in a similar context, however, “it is the intent to permanently improve the real estate, not simply the intent to use the equipment in the business carried on in it e * *” which is relevant in determining whether an item of personal property has become a fixture. B. Kreisman & Co. v. First Arlington National Bank (1980), 91 Ill. App. 3d 847, 852, 415 N.E.2d 1070, 1074.

Plaintiff also contends that the rules applied in landlord and tenant cases as to the nature of fixtures should be applied in taxation eases. As the Ayrshire Coal Co. court noted, however, in matters relating to taxation the standards used to determine what are considered to be fixtures as between grantor and grantee, vendor and vendee, or mortgagor and mortgagee should apply, rather than the standards applied in landlord-tenant situations. The major difference between these doctrines is that annexations by a tenant are presumed to be for his benefit and not to enrich the freehold (Empire Building Corp. v. Orput & Associates, Inc. (1975), 32 Ill. App. 3d 839, 336 N.E.2d 82), while annexations made by an owner, as in the present case, are presumed to be made with the intent to permanently improve the premises. Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 310 N.E.2d 667.

Other jurisdictions have applied the same factors in determining whether bowling alleys are fixtures in nontaxation contexts and have drawn varied conclusions. In each case, the court did not feel bound by the parties’ characterization of the items as personal property (Essex Bowling Co. v. Argyle Realty Corp. (1948), 322 Mass. 398, 77 N.E.2d 643; Brunswick-Balke-Collender Co. v. Franzke-Schiffman Realty Co. (1933), 211 Wis. 659, 248 N.W. 178; but see Nadien v. Bazata (1939), 303 Mass. 496, 22 N.E.2d 1 (landlord estopped from claiming lanes were fixtures where he encouraged tenant to buy the business in the belief that tenant would acquire title to lanes)), or by the fact that bowling equipment is regularly sold as used equipment in the industry. (Brunswick-Balke-Collender Co.) The Essex Bowling Co. court held the alleys were personal property, while the Brunswick court considered them to be fixtures. The key differences were that in the former, the building was designed for many uses and in the latter, the building could only be used as a bowling alley and there was a failure to comply with Wisconsin’s conditional sales statute.

While the question is not free from difficulty, we conclude the trial court correctly determined that the decision of the PTAB was not contrary to the manifest weight of the evidence before it. We particularly note that the pinsetters and lanes were installed by plaintiff in its building which was constructed primarily for that purpose. These lanes and machinery were said to have a useful life of 20 to 50 years, and plaintiff intended to use them while it owned and operated the bowling establishment. Under these circumstances the property in question must be considered as permanent fixtures and improvements to the land and as real property for purposes of taxation.

Plaintiff next contends the PTAB erroneously excluded evidence of the assessment practices in certain other counties relating to bowling establishments. A witness called by plaintiff sought to testify to telephone conversations he had with various assessors and to introduce in evidence letters received from some of the assessors referring to that subject. Objections were made by defendants on the grounds an improper foundation had been laid for introduction of this evidence and, also, that it could only be received through the testimony of the respective assessors. The PTAB sustained the objections finding that such evidence was not relevant to the issue before it and was also hearsay.

The objections were properly sustained. The interpretation given to the scope of section 1(13) of the Revenue Act (Ill. Rev. Stat. 1977, ch. 120, par. 482(13)) by a few of the many assessors applying it to bowling establishments throughout the State was not relevant to whether the Rockford township assessor had correctly done so in the present case. Nor would evidence of the varied approaches taken by them assist the PTAB in its resolution of the question before it. The offered testimony and documents were clearly hearsay, in any event, and on objection the PTAB properly declined to consider them. See Baehr v. Health & Hospital Governing Com. (1980), 86 Ill. App. 3d 43, 46, 407 N.E.2d 817, 820.

Plaintiff also contends on appeal that the decision of the PTAB violated constitutional and statutory proscriptions against reclassifying personal property as real property. Plaintiff’s argument is based upon the constitutionally mandated abolition of the personal property tax for the years subsequent to 1978 and its proscription of an ad valorem tax on real estate as a replacement tax (Ill. Const. 1970, art. IX, §5(c)). Pursuant to this directive, the legislature provided that “[n]o property lawfully assessed and taxed as personal property under this Act prior to January 1, 1979, shall be classified as real property subject to assessment and taxation under this Act after January 1 1979.” (Ill. Rev. Stat. 1979, ch. 120, par. 499.1.) Plaintiff contends these provisions were violated since the pinsetters and lanes had been also assessed as personal property.

As the PTAB correctly noted, however, the prohibitions against reclassifying property only apply to assessments subsequent to 1978 and, since the assessment at issue here was for 1978, plaintiff has not presented a justiciable controversy. Moreover, as plaintiff has raised this constitutional argument for the first time on appeal we need not consider it. Skach v. Heakin (1975), 28 Ill. App. 3d 346, 353, 328 N.E.2d 59, 64.

Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


author: Miss JUSTICE McGILLICUDDY

text:
    BEULAH S. HILLER, Plaintiff-Appellee, v. F. W. HARSH, JR., et al., Defendants-Appellants.
    First District (3rd Division)
    No. 79-2284
    Opinion filed September 9,1981.

      Berman and Trachtman, of Chicago (Michael H. Berman, of counsel), for appellants.
    Barry Weiss, of Topper and Weiss, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Beulah S. Hiller, filed this action to recover for personal injuries she claimed to have sustained when she fell on the rear stairs of the building managed by defendant, F. W. Harsh, Jr., and owned by defendant, Jane Dent Homes, Inc. At the close of the plaintiff’s case, the trial judge granted the defendants’ motion for a directed verdict on the plaintiff’s count for wilful and wanton negligence but denied the motion for a directed verdict on the plaintiff’s count for ordinary negligence. The jury returned a verdict in plaintiff’s favor in the amount of $40,000 on the latter count and found by way of special interrogatory that the plaintiff was not guilty of contributory negligence. Judgment was entered on the verdict, and the defendants’ post-trial motion was denied. The defendants have appealed.

The defendants present the following issues for review: (1) whether the jury verdict was against the manifest weight of the evidence, (2) whether the trial court erred in denying the defendants’ motion for a directed verdict on the ordinary negligence count, (3) whether the trial court erred in giving and denying certain jury instructions, and (4) whether the court erred in refusing to tender the defendants’ special interrogatory.

Beulah Hiller testified that on the morning of August 30, 1975, she slowly ascended the rear stairway of the defendants’ building to visit the defendants’ tenants, Parnell and Ewing Hannah. The plaintiff lived two houses away and had employed the Hannahs as her janitors. Hiller testified that she went to the Hannahs’ residence to pay them for work they had done for her, to ask them to clean her yard and to request permission for a Mr. Freeman to go to the roof of the building to view her roof for damage. The plaintiff’s two-story building and the building where the Hannahs lived, which was a three-story building, each shared a common wall with a two-story building in between them.

After Freeman came down from the roof, the plaintiff slowly descended the rear stairway opposite the side she had ascended, holding on to the bannister and taking one step at a time. When she noticed a raised step, near the bottom of the stairway, she moved to the middle of that step to avoid the irregularity. The step gave way and the plaintiff fell, sustaining injury. The plaintiff stated that she had used the stairs on a prior occasion without problem and that when she ascended the stairs on the day of her injury, she looked at them, saw nothing wrong and had no difficulty in walking on them.

Parnell Hannah testified that on the day the plaintiff was injured, she came to see him to ask him to clean her yard and to pay him for past services. She also brought a Mr. Freeman to go upon the roof of the building where the Hannahs lived. Mr. Hannah stated that prior to the date of the plaintiff’s fall, the wooden steps between the ground and his first floor apartment were rotten and that the two bottom steps had been broken for quite some time. He said that this condition was noticeable and that he had brought it to the defendants’ attention two or three times prior to the day the plaintiff fell. Hannah also testified that on several previous occasions, the plaintiff delivered his pay to him.

Ewing Hannah testified that the bottom two steps of the stairway leading to her apartment were rotten, loose, slanted and that the foundation underneath had given way. The second step from the bottom would give way when stepped upon and the bannisters would shake. That step had slid off the foundation. She also testified that she first noticed the condition of the stairs a year before the plaintiff fell and said the condition was visible on the day of that occurrence. Mrs. Hannah stated that she informed the defendants of this condition more than once, the most recent time being three months before the plaintiff was injured. She also stated that the plaintiff had come to her apartment on occasions prior to her fall, the most recent time being a month prior to that day.

The defendants initially contend on appeal that the above-elicited and uncontroverted testimony shows that the dangerous condition of the rear stairs was easily visible and obvious and had existed for some time. They argue that the plaintiff was guilty of contributory negligence and that the jury’s verdict and answer to the special interrogatory on contributory negligence were against the manifest weight of the evidence. The defendants rely on Killeen v. R. W. Dunteman Co. (1979), 78 Ill. App. 3d 473, 397 N.E.2d 436, wherein the court found that the plaintiff was guilty of contributory negligence as a matter of law because the plaintiff testified that she was aware of the defective condition of the parking lot surface, looked at the ground as she walked and without distractions stepped into a depression and fell.

A party is guilty of contributory negligence if he fails to exercise ordinary care for his own safety and if his negligence is the proximate cause of his injury. (Old Second National Bank v. Baumann (1980), 86 Ill. App. 3d 547, 408 N.E.2d 224.) What constitutes contributory negligence cannot be defined in exact terms, and each case must be determined on its own facts and circumstances. (Newton v. Meissner (1979), 76 Ill. App. 3d 479, 394 N.E.2d 1241.) The question of contributory negligence is ordinarily a question of fact for the jury to decide (e.g., Kuhn v. General Parking Corp. (1981), 98 Ill. App. 3d 570, 424 N.E.2d 941; Bitner v. Central Illinois Light Co. (1979), 75 Ill. App. 3d 715, 394 N.E.2d 492), and the reviewing court will not set aside a jury’s verdict on the ground that it is contrary to the manifest weight of the evidence unless it is obvious that the jury arrived at the wrong conclusion (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 413 N.E.2d 1345).

We have reviewed the evidence presented at the trial in the case at bar and believe that an evidentiary basis existed for the jury’s conclusion that the plaintiff was not guilty of contributory negligence. The Hannahs testified that the steps were rotten and that their loosened condition was noticeable and had existed for some time. We note, however, that the plaintiff testified that she had had no difficulty when she had used the steps on occasions prior to the day she fell. The plaintiff further said that on the day of her injury, she had had no difficulty ascending the stairs. It was only when she slowly descended the stairs, while holding on to the bannister, that she noticed an irregular step. At that point, she tried to avoid the defect by moving to the side of the stair. It was at this time that the step gave way and the plaintiff fell. We believe that the plaintiff’s testimony supports a conclusion that the plaintiff exercised ordinary care for her own safety by slowly descending the stairway and changing her course of descent when she discovered a defect in the stair. Thus, the jury’s verdict and answer to the special interrogatory were not against the manifest weight of the evidence.

The defendants’ second argument on appeal is that the trial court erred in denying their motion for a directed verdict on the ordinary negligence count. The defendants’ motion argued that the plaintiff’s status on the defendants’ premises was that of a licensee rather than an invitee, so that the defendants did not'owe to the plaintiff a duty to exercise ordinary care to see that the stairs in their building were reasonably safe.

The Supreme Court of Illinois has recently refused to discard the premises doctrine, which defines the type of duty owed by an owner or occupier of land based upon a determination of the status of the injured person upon that land, i.e., invitee, licensee or trespasser. (Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 410 N.E.2d 21.) Generally, an invitee is a visitor who comes upon the premises at the invitation of the owner in connection with the owner’s business or related activity, while a licensee is a person who without invitation and for his own purposes comes upon the owner’s premises. (Tanari v. School Directors (1977), 69 Ill. 2d 630, 373 N.E.2d 5.) Social guests and licensees are not entitled to recover for injuries sutained on the owners’ premises in the absence of a showing of wilful and wanton misconduct. (Pashinian v. Haritonoff; Fountaine v. Hadlock (1971), 132 Ill. App. 2d 343, 270 N.E.2d 222; see Tripp v. Hale (1979), 74 Ill. App. 3d 200, 392 N.E.2d 748.) Invitees may recover when they can show that the owner of the premises has breached his duty of reasonable care in keeping the premises reasonably safe. See Barmore v. Elmore (1980), 83 Ill. App. 3d 1056, 403 N.E.2d 1355; Carroll v. Lily Cache Builders, Inc. (1979), 74 Ill. App. 3d 264, 392 N.E.2d 986.

The scope of the duty of a landowner to persons on his property changes, however, when the landowner leases a part of that property and retains control over common areas such as stairways. It is well settled that under such circumstances the landlord has the duty of exercising reasonable care to keep those areas in a reasonably safe condition and that the landlord is liable for injuries to persons lawfully on those premises due to his failure to perform this duty. (Murphy v. Illinois State Trust Co. (1940), 375 Ill. 310, 31 N.E.2d 305; Manns v. Stein (1968), 99 Ill. App. 2d 398, 241 N.E.2d 691. See generally 49 Am. Jur. 2d Landlord & Tenant §810 (1970); 52 C.J.S. Landlord & Tenant §417(7) (1968); Restatement (Second) of Torts §360 (1965).) The status of the injured person on such premises is important only to the extent that that person is lawfully on the premises since the duty of reasonable care has been imposed upon the landlord whether the injured person was a tenant (Mangan v. F. C. Pilgrim & Co. (1975), 32 Ill. App. 3d 563, 336 N.E.2d 374; Campbell v. Harrison (1973), 16 Ill. App. 3d 570, 306 N.E.2d 643; Gula v. Gawel (1966), 71 Ill. App. 2d 174, 218 N.E.2d 42), an employee of a tenant (Drewick v. Interstate Terminals, Inc. (1969), 42 Ill. 2d 345, 247 N.E.2d 877), a business invitee of a tenant (Murphy v. Illinois State Trust Co.), or a social guest of a tenant (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 299 N.E.2d 108; Kohler v. Marchi (1940), 307 Ill. App. 23, 29 N.E.2d 854). Cf. Moss v. Hunding (i960), 27 Ill. App. 2d 189, 169 N.E.2d 396, and Shiroma v. Itano (1956), 10 Ill. App. 2d 428, 135 N.E.2d 123 (guest of tenant classified as invitee). „

The term “lawfully on the premises” was first construed in Shiroma v. Itano. In Shiroma the court looked to the legal status of the injured person in relation to the tenant and held that the term “lawfully” unquestionably extended the landlord’s duty of reasonable care to business invitees, social invitees and licensees of the tenant. The duty to refrain from wilful and wanton misconduct was found applicable only to trespassers injured upon areas of the leased premises that the landlord retained control over. The rationale for such a construction has been stated as follows:

“A lessor may be liable to an invitee or even to a licensee of the lessee, although neither he nor the lessee would be liable under the same circumstances to their own invitees or licensees. The privilege of the visitor is not based, as is that of the lessor’s own invitee or licensee, upon the consent given upon the occasion of the particular visit, but upon the fact that he is entitled to enter by the right of the lessee, who is entitled under his lease to use the part of the land within the control of the lessor not only for himself, but also for the purpose of receiving any persons whom he chooses to admit.” Restatement (Second) of Torts §360, Comment c (1965).

The defendants contend in the case at bar that the plaintiff was a licensee of the Hannahs because she came upon the premises of the defendants’ building for her own benefit, namely, to seek permission for Mr. Freeman to go upon the defendants’ roof so that her own roof could be inspected for damage. We note, though, that the plaintiff testified that she went to the Hannahs’ apartment to pay them for their past janitorial services and to ask them to do additional work for her as well as to request permission for Mr. Freeman to go to the roof of the building. In view of the principles discussed above, however, the reasons for the plaintiff’s presence on the defendants’ property are irrelevant. As it is undeniable that the plaintiff was lawfully on the common area of the defendants’ premises, her legal status as an invitee or social guest or licensee of the Hannahs is unimportant since the same duty of reasonable care is imposed upon the defendants to keep the common areas reasonably safe. For these reasons, the trial court did not err iq denying the defendants’ motion for a directed verdict on the ordinary negligence count.

We also reject the defendants’ argument that the trial court committed error in giving plaintiff’s instruction which stated that the defendants’ duty to the plaintiff was to exercise.reasonable care. Similarly, it was not erroneous to refuse to instruct the jury regarding the difference between a licensee and an invitee and to refuse to give'defendants’ special interrogatory asking the jury to state whéther the plaintiff was a licensee. Furthermore, the defendants* instruction stating that the plaintiff was a licensee and that the defendants did not owe her the duty of reasonable care was properly denied.

As stated above, when property is leased, the liability of the owner for injuries occurring on the common areas is not dependent upon the injured person’s status except to the extent that the person is lawfully on the premises. Since in the instant case the plaintiff was lawfully on the premises, the defendants owed her a duty of reasonable care regardless of whether she was an invitee or a licensee of the tenants.

Finally, we reject the defendants’ argument that error was committed when the trial judge gave a jury instruction that was not supported by the evidence. Specifically, the defendants object to the use of the word “staircase” when the evidence presented at trial concerned one stair. We reject this argument. Courts are reluctant to reverse judgments for technical errors in instructions unless the jury has been misled or a party has been prejudiced. (Duffy v. Cortesi (1954), 2 Ill. 2d 511, 119 N.E.2d 241.) Assuming, arguendo, that the instruction was overly broad and unsubstantiated by the evidence, no prejudice has been shown to have occurred.

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

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: Mr. JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR DI MASO et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 80-782, 80-783 cons.
    Opinion filed September 9,1981.

      Victor F. Ciardelli, of Chicago, and Victor D. Quilici, of Bensenville (Patrick M. Cummings, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Lester M. Joseph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendants, Victor Di Maso and James Sticka, were charged with aggravated battery and armed violence. A jury found them guilty of aggravated battery and the trial court sentenced both defendants to terms of 3 years. On appeal defendants contend that they were denied effective cross-examination in violation of their sixth-amendment right to confrontation, and that the prosecutor’s misconduct during the examination of witnesses and in closing argument deprived defendants of a fair trial. Because of our view of the matter, only a few facts need be recited.

The State’s case hinged on the credibility of Harry Verner, the victim and only eyewitness to the battery. Defendants presented an alibi defense. The primary issue was one of identification.

During pretrial investigation, defense counsel learned that 10 days prior to the March 1,1979, occurrence, Verner had been found in a snow bank and treated at a hospital. The treating physician recommended that Verner receive further treatment at Madden Mental Health Center, where Verner had been receiving treatment prior to that date. Defense counsel subpoenaed the records from Madden. Madden refused production of the documents, invoking the Mental Health and Developmental Disabilities Confidentiality Act (111. Rev. Stat. 1979, ch. 91/2, par. 801 et seq.). Defense counsel argued to the trial court that the records were essential to defendant’s effective impeachment of Verner. Counsel stated that the records would show that Verner suffered blackouts and was disoriented due to problems with alcoholism and drug addiction. The trial court stated that it was interested only in Verner’s competency for trial on March 1,1979. After an in camera inspection of the records, the trial court ruled that the Act precluded production of these documents to defense counsel. The trial court also granted the State’s motion in limine barring the defense from questioning Verner as to his treatment at Madden. The trial court did state, however, that the treatment could be discussed if defense counsel presented the treating therapist.

During cross-examination, Verner stated that he went to Madden on March 1,1979, to visit a friend named Gale Grossman. He denied that she was a counselor or that he was seeing her for drinking or drug abuse problems. Verner denied ever using a narcotic drug. He admitted that he had suffered blackouts near February 20,1979, and was admitted to West Suburban Hospital because of a spell. During March he only had a beer two or three times a week. On March 1, 1979, after leaving Madden, he stopped off for a beer. Within one hour he drank three beers and left. Thereafter the battery occurred.

Defense counsel called Gale Grossman as a witness. After she stated that she was a psychologist at Madden and that she knew Verner, defense counsel was not permitted to question her about Verner’s treatment.

The Mental Health and Developmental Disabilities Confidentiality Act provides in section 10 that:

“Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” (Ill. Rev. Stat. 1979, ch. 91M, par. 810.)

None of the enumerated exceptions are applicable here.

The Act clearly seeks to promote the State interest in confidentiality of psychiatric treatment by protecting confidential communications between a patient and therapist. In Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, however, the Supreme Court held that an accused’s right to discredit a principal State witness by presenting facts showing bias was paramount to any State interest promoted by State statutes which forbade the disclosure of juvenile records. In the trial court, the prosecution had successfully obtained a protective order to prevent the defense from questioning the key State witness about a juvenile record and his resulting probation status. The Alaska Supreme Court affirmed the conviction on the basis that defense counsel’s question adequately exhausted the bias area despite the exclusion of the juvenile record. In reversing the conviction, the supreme court stated:

“On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness ° ° °. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination which ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” [Citation.]’ ” (415 U.S. 308, 318, 39 L. Ed. 2d 347, 354-55, 94 S. Ct. 1105, 1111.)

The court acknowledged the legitimacy of the State’s interest in preserving anonymity of juvenile records, but concluded that defendant’s right to effective confrontation in such a case must prevail over the statutory protections of the juvenile records.

We believe that if the excluded evidence was relevant towards a particular attack on the credibility of a key State witness, then Davis dictates that the defendant’s right to effective cross-examination prevails over any State interest in maintaining the confidentiality of psychiatric treatment. A brief examination of evidentiary principles governing the relevancy and admissibility of impeachment evidence is necessary. Character evidence is a general attack on credibility. Such evidence of the witness’ prior conduct is relevant and admissible in cross-examination insofar as it bears on credibility, but the cross-examiner may not contradict the response elicited by the witness. (See, e.g., People v. Matthews (1959), 17 Ill. 2d 502, 162 N.E.2d 381.) Where the evidence is not introduced solely for purposes of impeaching character, but instead is introduced for purposes of attacking the witness’ perception and memory near the time of the events about which he is testifying, the attack, as in one showing bias, is a particular attack on credibility. Such evidence is not collateral and may be introduced either in cross-examination or in defendant’s case-in-chief. People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433; Miller v. People (1905), 216 Ill. 309, 74 N.E. 743; cf. People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201. See also 3A Wigmore, Evidence §§989, 994,1005 (Chadbourn rev. 1970).

Our courts have repeatedly held that evidence of habitual drug use is a significant factor in evaluating witness credibility not only because it evinces a generally dishonest character, but also because it is particularly probative of the witness’ abilities to perceive and recall accurately. (People v. Strother; People v. Lewis (1962), 25 Ill. 2d 396,185 N.E.2d 168; People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E.2d 649; People v. Boyd (1959), 17 Ill. 2d 321, 161 N.E.2d 311; People v. Lurry (1979), 77 Ill. App. 3d 108, 395 N.E.2d 1234; People v. Perez (1968), 92 Ill. App. 2d 366, 235 N.E.2d 335.) Especially where, as here, the issue is one of identification, defendant is entitled to cross-examine and to present independent evidence of matters regarding the witness’ “powers of discernment and his capacity to form a correct judgment e (People v. Morris.) Our supreme court applied this rationale when it held that defendant is entitled to proceed beyond a witness’ denial of drug addiction to display the scarred arm before the jury. (People v. Strother.) Although the physical demonstration in Strother actually occurred at the cross-examination stage, clearly it was not testimonial, and was independent evidence offered to contradict the denial.

We do not believe that the proffered evidence of Verner’s habitual drug use is so remote from the relevant events about which he testified so as to be rendered irrelevant for impeachment purposes. Verner was allegedly treated for addiction approximately two months prior to the battery. We note, too, that Verner was the only eyewitness against defendants. His testimony was therefore critical. Moreover, Verner’s credibility was a question for an informed jury to determine based upon all the relevant facts. (People v. Strother.) Accordingly, we hold that defendants were entitled to present evidence contained in the medical records as to Verner’s drug addiction and resulting disorientation.

Unlike the inferences which may be drawn from the fact of drug addiction, the fact of alcoholism is not probative of the witness’ perceptual abilities at any given point in time. Where the proffered evidence is only that the witness is an alcoholic, it is doubtful whether it is a relevant matter for cross-examination. (People v. Matthews.) And it is clear that it may not be presented extrinsically to rebut the witness’ denial since it is in the nature of general character impeachment. (3A Wigmore, Evidence §931 (Chadbourn rev. 1970).) Where, however, the proffered evidence is that the condition of alcoholism causes the witness to suffer blackouts when he drinks, and evidence has been presented that the witness was drinking near the time of the events of which he testifies, then the evidence is admissible as probative of the witness’ sensory capacity. (State v. Hawkins (Minn. 1977), 260 N.W.2d 150.) In the present case, Verner admitted that he had been drinking on the day of the occurrence. Evidence was introduced that 10 days before, he had been found in a snowbank and that a doctor recommended he be treated. Evidence that drinking triggered blackouts coupled with the other evidence would have permitted the jury to infer that the drinking on the day in question similarly affected his perceptual capacities. In light of the surrounding circumstances, the jury should have heard the evidence that drinking triggered blackouts in Verner.

We also believe, for the same reasons, that the trial court improperly ruled that Gale Grossman’s privilege prevailed over defendant’s sixth amendment rights. Any privilege which she possessed existed only “in behalf” of the patient, Verner. (Ill. Rev. Stat. 1979, ch. 91%, par. 810.) And we have held that the State’s interest in protecting the patient under these facts must yield to defendants’ right to effective cross-examination.

Since it is unlikely to recur in the retrial, it is unnecessary to consider the issue of improper prosecutorial conduct.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

RIZZI, P. J., and McGILLICUDDY, J., concur.


author: Mr. JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY ANTON, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1898
    Opinion filed September 15,1981.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, George M. Velcich, and Richard fi. Levy, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Following a bench trial, defendant Stanley Anton was convicted of armed robbery, unlawful restraint and armed violence. The trial court “merged” the unlawful restraint and armed violence convictions into the armed robbery conviction and sentenced defendant to a term of 6 years in the Illinois Department of Corrections. Defendant appeals.

On September 28, 1979, Constance Steinhauer was working at Richards Cleaners in Chicago. At about 6:15 p.m., a man, later identified as defendant, entered the store through the front door and asked for his cleaning. He did not have a ticket for the cleaning and gave his name as Thompson. While explaining this to Steinhauer, defendant was across the counter from her, about three feet away. No one else was in the store, which had fluorescent lighting and was also illuminated by daylight coming through the front door. Steinhauer described the man as big and tall and about 32 years old, with a high hairline and sandy brown hair.

After failing to locate the man’s cleaning, Steinhauer turned away from defendant to telephone her father, who lived a block away from the store. While dialing the telephone she noticed defendant coming toward her. He bumped her and grabbed her right arm and told her to hang up the phone and keep looking toward the ground. He then pushed and pulled her by the arms to the rear of the store. Defendant put her in the boiler room, but when she complained it was too hot, put her in the bathroom. When she resisted and threatened to scream, defendant said he would kill her if she did so. Defendant then displayed a “silver and shiny” knife with a blade three to five inches long. Although the lights in the rear of the store were off, Steinhauer could see because the back door was open and let the daylight in.

Defendant left her in the bathroom. Approximately 15 seconds later she heard the cash register in the front of the store open and heard “change.” Very shortly after hearing the cash register open she ran out of the store through the rear door. Shortly thereafter, she returned to the store but was afraid to enter. While standing outside, Steinhauer did not see anyone in the store but noticed that the clothes bags were pushed forward. When her father arrived, about 10 or 15 minutes later after defendant was in the store, she entered the building and checked the cash register, which was empty. There had been at least $60 in the cash register prior to the incident.

Steinhauer identified defendant in photographs, at a police lineup and at trial as the man who entered the cleaners and forced her with a knife into the bathroom at the rear of the store.

At the time of the robbery, James Reichard was working on a house behind the cleaners. He testified that he saw a man, whom he identified as defendant, run out of the cleaners followed, about 2 minutes later, by a girl screaming she had been held up. Reichard chased the defendant over some fences to a nearby parking lot where he saw defendant sitting in a gold Oldsmobile Toronado. Reichard then began beating on the window of the car. As the car left the lot Reichard noted that it had an Illinois license plate, number BW 5640. Defendant owned a brown and cream Oldsmobile Toronado with that Illinois license plate number.

Prior to trial a suppression hearing was held on defendant’s motion to exclude Steinhauer’s identification testimony. Defendant called two witnesses at the hearing. Before any testimony was taken, defense counsel noted that he had put defendant “some place else for the time being” because of “the identification problem.”

The first witness was Officer Kinnane, a Chicago police investigator. He testified that he and his partner interviewed Constance Steinhauer, the complainant, approximately 1 week after the robbery and received an estimate of the offender’s height and weight. With this information and the police report, Kinnane obtained a series of photographs of white males with medium brown hair. About 2 weeks after the robbery Kinnane and his partner showed Steinhauer the photos. When she came to defendant’s picture, she told the officers that he was the man who robbed her. Defendant was subsequently arrested with a warrant on October 30, 1979. A lineup was held on October 30 or 31 in a Chicago police station. At the suppression hearing, Officer Kinnane explained the manner in which defendant was informed of his rights. Kinnane testified that after giving defendant his Miranda warnings,

“I then further informed him he was going to stand in a lineup. I stated further he had a right, since criminal proceedings had already taken place, to have that [sic] attorney present during such lineup if he so requested at which time he stated he understood the rights I asked him after each and every right I had given him and I asked him if he understood the rights fully and he stated he did. I asked him if he wished to have an attorney present to speak to an attorney and he said he did not.”

Questioning of defendant ceased when defendant told the officers he would not make a statement.

Constance Steinhauer was the second witness called at the suppression hearing. Prior to her being called, however, defense counsel asked the court to allow defendant to stand outside the courtroom so he could hear the testimony while remaining outside the view of the witness. The court allowed counsel to put defendant outside the courtroom for the remainder of the hearing. Steinhauer testified about the robbery and her initial description of the man who robbed the cleaners. She also recalled being interviewed by two officers a few weeks after the incident and again a few weeks after that when they brought her some photographs to look through. Steinhauer said she picked the photo that “looked like” the man who robbed the store. The police then told her that they thought the man she picked out had committed the crime.

Steinhauer later viewed a lineup where she picked out defendant as soon as he entered the room. She was not shown any photos on the day of the lineup and testified at the hearing that she did not identify defendant solely on the basis of the earlier photos. Rather, she remembered him because of his face, hair line and “droopy” eyes. However, she shortly thereafter testified that the photographs given to her by the two police investigators, from which she identified defendant as the robber, did cause her to identify defendant at the lineup.

After hearing the testimony of the suppression hearing, the trial court concluded that the photographs shown Steinhauer were substantially similar and the array was not suggestive. The court further found that the lineup was fair and not suggestive and that defendant had declined the presence of counsel at the lineup. Based on these conclusions, the trial court denied defendant’s motion to suppress complainant’s identification testimony. The identification testimony was admitted at trial. Based in part on this evidence, the trial court concluded that defendant’s alibi was weak and unbelievable and found defendant guilty of all three counts of the information. The court then merged the unlawful restraint and armed violence counts into the armed robbery count and sentenced defendant to 6 years’ imprisonment.

Defendant’s first contention on appeal is that complainant’s pretrial photographic identification of defendant was unnecessarily suggestive, rendering identification testimony inadmissible at trial. In support of his position, defendant points to the actions of Officer Kinnane and his partner who, after complainant identified a photo of defendant as the man who robbed the cleaners, said they thought he was the offender. Defendant asserts that any subsequent identification was tainted by the allegedly improper actions of the police in confirming complainant’s belief.

Defendant had a right to a fair pretrial hearing to determine whether his identification by complainant was based on her observation of him during the commission of the crime or whether it was improperly influenced by the actions of the police investigators. (See People v. Robinson (1970), 46 Ill. 2d 229, 231-32, 263 N.E.2d 57; People v. Seets (1976) , 37 Ill. App. 3d 369, 370, 346 N.E.2d 61.) The trial court held such a hearing and determined that the photographic identification was not suggestive or otherwise improper. The underlying issue here is whether complainant’s in-court identification was based on an out-of-court photographic identification which was so impermissibly suggestive as to create a substantial risk of irreparable misidentification. (See People v. McTush (1980), 81 Ill. 2d 513, 518-19, 410 N.E.2d 861, quoting Simmons v. United States (1968), 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971.) The Simmons court noted the hazards of photographic identification but said those hazards were substantiaUy lessened by defense counsel’s opportunity to cross-examine the eyewitness at trial. Simmons, at 377,384; see McTush, at 513, 519.

The initial burden is on the defendant to establish that the pretrial identification was impermissibly suggestive and created substantial likelihood of irreparable misidentification. (People v. Watkins (1970), 46 Ill. 2d 273, 278, 263 N.E.2d 115; People v. Johnson (1970), 45 Ill. 2d 38, 45-46, 257 N.E.2d 3.) If that burden is met, the State may overcome that obstacle by a clear and convincing showing, based on the totality of the circumstances, that the witness’ identification of the defendant is based solely on his memory of the crime. (McTush, at 513,520; see Manson v. Brathwaite (1977) , 432 U.S. 98, 122, 53 L. Ed. 2d 140, 158-59, 97 S. Ct. 2243, 2257 (Marshall, J., dissenting).) We find, however, that the State’s burden never arose because defendant failed to meet his burden of establishing that the pretrial photo identification was so impermissibly suggestive as to create a substantial risk of irreparable misidentification. See McTush, at 518.

The factors to be considered in evaluating the risk of misidentification include the witness’ opportunity to view the offender at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description, the level of- certainty shown by the witness at the pretrial identification and the length of time between the crime and the pretrial identification. (Neil v. Biggers (1972), 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411-12, 93 S. Ct. 375, 382; McTush, at 521.) A review of the record reveals that the trial court was correct in finding that the photo identification of defendant was not so unnecessarily suggestive as to create a substantial risk of mistaken identification. Steinhauer had approximately 10 minutes to view the offender at the time of the crime. She appeared to be fully attentive during the robbery and her earlier descriptions of the offender consistently fit defendant. Furthermore, the photo identification of defendant took place only a few weeks after the robbery. While we note that Steinhauer’s photo identification of defendant from a group of seven photographs was that it “looked like” the man who robbed the cleaners, this minor equivocation is not significant.

Additionally, no reversible error is shown where it is possible for a reviewing court, based on an informed judgment, to perceive from the record the presence of an independent origin for the in-court identification which was free of any improper suggestions made prior to trial. (Seets, at 371; People v. Nudo (1971), 131 Ill. App. 2d 930, 934, 268 N.E.2d 894.) This is true even where the pretrial motion to suppress was incorrectly denied. (Seets, at 371.) Therefore, even if we found that the trial court erred in denying defendant’s motion to suppress the identification testimony, this court could decide for itself, based on the record, that there was an independent origin of the in-court identification of defendant. The record shows Miss Steinhauer had the opportunity to clearly observe defendant during the robbery and her description of the offender was consistent from the time she was first interviewed by the police until trial. In addition there is the corroborating testimony of Reichard, who identified defendant as the man running out of the rear of the cleaners at the time of the robbery.

Defendant next contends that he was denied his right to counsel at the lineup, rendering inadmissible the lineup identification and the courtroom identification flowing from it. Defendant’s position is that his waiver of the right to counsel at the lineup was ineffective because it dealt solely with whether he wanted “to speak to an attorney” and not with whether he wished to have an attorney present at the lineup. Defendant’s contention is utterly without merit. The undisputed testimony of Officer Kinnane shows that defendant was told that since criminal proceedings had already taken place, he had the right to have an attorney present at the lineup. When asked “if he wished to have an attorney present to speak to an attorney,” defendant said he did not. Defendant further stated that he fully understood his rights and that he would not make a statement. Defendant knowingly and intelligently waived his right to have counsel present during the lineup. See People v. Petty (1977), 54 Ill. App. 3d 1044, 1050, 370 N.E.2d 553; People v. Sandoval (1976), 41 Ill. App. 3d 741, 744-45, 353 N.E.2d 715.

Defendant further contends that he was improperly denied his right to be physically present in the courtroom at the suppression hearing, thereby preventing his participation in his own defense. Defendant cites the fact that his attorney at the hearing removed defendant from the courtroom before the witnesses took the stand because of “the identification problem.” Prior to the testimony of Constance Steinhauer, the second witness at the suppression hearing, defense counsel asked permission “to have defendant either stand at the back of the courtroom door with it open so he may hear her testimony or in the conference room with the door open without being physically present in the courtroom.” The court permitted defense counsel to place defendant outside the courtroom. Defendant now asserts that such actions deprived him of his right to participate in his own defense.

A defendant has the right to be present in the courtroom at every stage of the trial. (People v. Pierce (1974), 56 Ill. 2d 361, 365, 308 N.E.2d 577.) It is equally clear that a defendant has the right to appear and defend in person and through counsel at all stages of the proceedings against him where substantial rights might be affected. (See People v. Woods (1963), 27 Ill. 2d 393, 395, 189 N.E.2d 293; People v. Huston (1977), 46 Ill. App. 3d 170, 172, 360 N.E.2d 986.) However, “this right is not absolute; where defendant’s substantial rights are not involved or where his presence would be useless, he need not be present.” People v. Saltz (1979), 75 Ill. App. 3d 477, 479-80, 393 N.E.2d 1292 (defendant’s presence not required during presentation of counsel’s argument on a motion for mistrial or during examination of jurors as to whether they read a particular newspaper); see Pierce, at 365 (no prejudicial error where defendant was not present during consideration of jury’s request to review certain testimony); People v. Ellis (1980), 81 Ill. App. 3d 351, 353, 401 N.E.2d 282 (defendant has no absolute right to be present at a hearing on a motion to vacate a guilty plea); People v. Breitweiser (1976), 38 Ill. App. 3d 1066, 1068, 349 N.E.2d 454 (defendant’s presence not required during court’s preliminary hearing to determine the competency of a seven-year-old complainant).

In the present case, defense counsel, in the interest of defendant, asked that defendant not be present during the testimony of the suppression hearing witnesses because of the “identification problem.” Prior to the testimony of the complainant, the trial court permitted defense counsel to place defendant outside the courtroom. There is nothing in the record to indicate that defendant objected in any way to his attorney’s trial tactic. Additionally, defendant has failed to demonstrate that he was in any way prejudiced by the trial court’s action in allowing him to stand out of the presence of the witnesses during the hearing. Absent such a showing, this court is not obligated to declare a mistrial and grant defendant a new trial. (See Huston, at 172; People v. Longstreet (1971), 2 Ill. App. 3d 556, 557-58, 276 N.E.2d 825.) The record in this case reveals that defendant’s physical presence in the courtroom at the suppression hearing would have added nothing to his defense. His able counsel was present and it appears that defendant was in fact listening to the testimony of the witnesses. The decision of counsel to keep him from the view of the witnesses seems to have been in the best interests of defendant. We will not permit such a tactic to be used by defendant to gain a new trial.

Defendant’s next contention is that the State failed to prove it was he who took the money from the cash register, and therefore he was not convicted of armed robbery beyond a reasonable doubt. In substance, defendant asserts that the testimony of Constance Steinhauer (that defendant forced her into the bathroom and she shortly thereafter heard the cash register open and the sound of “change”) did not prove beyond a reasonable doubt that he took the money. The implication is that the money could have been taken by someone else while the store was empty after Steinhauer ran out of the store and before she returned 10 or 15 minutes later. Defendant claims that the State failed to show to “a reasonable and moral certainty that [he] and no one else committed the crime.” (People v. Widmayer (1948), 402 Ill. 143, 147, 83 N.E.2d 285), which is required when circumstantial evidence is used to convict an accused. Widmayer, at 146-47.

A conviction may be sustained on circumstantial as well as direct evidence. (People v. Bernette (1964), 30 Ill. 2d 359, 367, 197 N.E.2d 436.) The only requirement is that the proof of circumstances be of a conclusive nature and tend to lead, on the whole, to a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Williams (1977), 66 Ill. 2d 478, 484-85, 363 N.E.2d 801; People v. Magnafichi (1956), 9 Ill. 2d 169, 173, 137 N.E.2d 256; People v. Pappas (1978), 66 Ill. App. 3d 360, 371-72, 383 N.E.2d 1190, cert, denied (1979), 444 U.S. 843, 62 L. Ed. 2d 55, 100 S. Ct. 85.) Phrased another way, if the case is based on circumstantial evidence, the guilt of the defendant must be established so as to exclude any reasonable hypothesis of defendant’s innocence. (People v. Garrett (1975), 62 Ill. 2d 151, 163, 339 N.E.2d 753; People v. LaGardo (1978), 59 Ill. App. 3d 780, 783, 376 N.E.2d 62.) However, it is not required that the trier of fact be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt. It is sufficient if the evidence, on the whole, convinces the trier of fact beyond a reasonable doubt of the guilt of the accused. (See Bernette, at 367.) It is clear that proof of guilt beyond a reasonable doubt does not require proof beyond any possibility of doubt. Williams, at 485; People v. Branion (1970), 47 Ill. 2d 70, 77, 265 N.E.2d 1, cert, denied (1971), 403 U.S. 907, 29 L. Ed. 2d 683, 91 S. Ct. 2213.

We note that the evidence used to convict defendant was only partially circumstantial. He was positively identified by two eyewitnesses: the complainant and Reichard, who saw him run from the back of the cleaners to his getaway car. The only aspect of armed robbery proved by circumstantial evidence was the physical taking of the money from the cash register. An examination of the record as a whole reveals that there clearly was an abundance of evidence to show beyond a reasonable doubt that defendant was the party who, with a knife, forced Steinhauer into the bathroom of the cleaners and took the money from the cash register. The record shows this to a reasonable and moral certainty through evidence that excludes any reasonable hypothesis of defendant’s innocence.

Defendant’s final contention on appeal is that errors by the trial judge in questioning defendant and in recalling the evidence denied defendant a fair trial. Specifically, defendant asserts that the questioning of defendant by the trial judge opened the door to further cross-examination by the State. The testimony elicited from these examinations was used by the State in its closing argument to show the infirmities in defendant’s alibi. Regarding the trial court’s incorrectly recalling the evidence, defendant cites the trial judge’s explanation in entering its findings, at which time he said there were two witnesses that defendant entered the cleaners, forced Connie Steinhauer into a rear bathroom with a knife and shortly thereafter she heard the cash register open. The judge went on to say that “two witnesses, Miss Steinhauer and Mr. Reichard, positively identified defendant Anton as being the man involved.”

Taking the second of these alleged trial court errors first, it is not readily apparent that the trial judge misstated the evidence. The explanation of the trial court can easily be read in a manner completely consistent with the facts introduced at trial. There were, in fact, two witnesses who identified defendant as the man who was at the cleaners at the time in question. Miss Steinhauer identified defendant as the man who forced her at knifepoint into a rear bathroom of the cleaning store and Mr. Reichard identified defendant as the man he saw running out of the cleaners and whom he chased over fences. It cannot be said that the trial court misunderstood or disregarded material evidence (see Loudon v. Mullins (1891), 52 Ill. App. 410, 413) or that it based its findings on facts not introduced in evidence. (See McGurn v. Brotman (1960), 25 Ill. App. 2d 294, 298, 167 N.E.2d 12.) In a bench trial of a criminal case, the trial judge is generally presumed to have considered only competent evidence in making his findings. (People v. Robinson (1964), 30 Ill. 2d 437, 439, 197 N.E.2d 45; People v. McGovern (1970), 126 Ill. App. 2d 393, 400, 261 N.E.2d 689.) The trial judge’s imprecise verbalization of the evidence is insufficient to overcome this presumption.

Defendant endeavors to show that by questioning him after defense counsel and the State had ceased their questioning, the trial judge subjected defendant to further cross-examination which was prejudicial and denied him a fair trial. The trial court, in the proper exercise of his discretion, may question a witness for the purpose of clarifying any ambiguities that may exist and to help elicit the truth. (People v. Santucci (1962), 24 Ill. 2d 93, 98, 180 N.E.2d 491; People v. Rogers (1974), 18 Ill. App. 3d 940, 943, 310 N.E.2d 854.) However, it is an abuse of discretion for the court to assume the role of the prosecutor. (See People v. Trefonas (1956), 9 Ill. 2d 92, 100, 136 N.E.2d 817; Rogers, at 943; People v. McGrath (1967), 80 Ill. App. 2d 229, 236, 224 N.E.2d 660.) The record discloses that the trial judge did not abuse his discretion in questioning defendant. The court simply asked defendant a few questions regarding his alibi of being at the Glenview Naval Air Station at the time of the robbery. Each of the attorneys then asked further questions pertaining to the alibi. The trial judge did not act as a prosecutor. Additionally, defense counsel made use of the opportunity to continue questioning defendant subsequent to the court’s and the State’s questioning. We also note that this was a bench trial. Thus, the danger of conveying the court’s impressions to the jury did not exist. (See Santucci, at 98.) The fairness of defendant’s trial was unaffected by the trial judge’s participation in questioning defendant.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

HARTMAN, P. J., and DOWNING, J., concur.