author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TRACY SANTANA, Defendant-Appellee.
    Second District
    No. 82—1017
    Opinion filed January 27, 1984.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara Preiner, Assistant State’s Attorney, of counsel), for the People.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Eugene A. Wojcik, Jr., Assistant Public Defender, of counsel), for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County granting a motion by defendant, Tracy Santana, to quash his arrest and suppress all evidence of his conduct after the warrantless entry of defendant’s apartment by police officers.

Defendant was arrested on June 26, 1982, and charged with the offenses of resisting a peace officer (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1) and battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3). He filed a motion to quash his arrest and suppress “all statements and reports of gestures and responses by defendant during the detention which followed the arrest” together with all other “knowledge and the fruit thereof which is the direct or indirect product of the arrest.” After a hearing, the trial court granted defendant’s motion and the State appeals, pursuant to Supreme Court Rule 604(a)(1) (87 Ill. 2d R. 604(a)(1)), after filing its certificate of impairment.

Officers William Andrewski and Edward Krause and Sergeant Carl Schnibben of the village of Woodridge police department testified that at 2:50 a.m. on June 26, 1982, they received a radio dispatch advising there was a domestic disturbance with a woman hurt and a possible weapon involved at 8111 Route 53, apartment 24. The officers, who were in uniform, went to the third floor of the building at that address and learned there was no apartment 24. They then called the dispatcher by radio for confirmation, subsequently learning the correct apartment number was 21 and that the call had come from that apartment. While waiting for the dispatcher’s call, the' officers heard sounds of a dish breaking, a baby crying and an argument coming from apartment 21. Officer Andrewski approached the door of the apartment and noticed damage to its frame, as though a locked door had been kicked in. Sergeant Schnibben testified he observed a footprint on the door. The officers then knocked on the door and twice announced they were police officers.

Defendant opened the door of his apartment and Sergeant Schnibben inquired whether there was a problem. The officers described defendant as looking wild-eyed and extremely agitated and they noticed blood on his hand and on the face and blouse of a woman behind him who appeared to have been crying; defendant then slammed the door shut. Sergeant Schnibben thereupon kicked the door open and the officers entered the apartment. Defendant shouted obscenities at Sergeant Schnibben and spit in his face. A scuffle ensued between defendant and the sergeant and, with the assistance of another officer, defendant was handcuffed and placed under arrest for battery and resisting a peace officer.

Officers Krause and Andrewski testified further that on entering the apartment they observed an altercation between defendant and Sergeant Schnibben; they announced the police were there to check out a domestic disturbance and wanted to make sure the woman was alright. A woman with blood on her face and blouse stated there was no problem. The officers also observed a man sitting on the couch and a small child.

Defendant testified at the suppression hearing that he and his wife, Debbie Santana, were having a family discussion before the officers arrived which he said was loud, but should not have bothered anyone. He responded to a knock on the door and saw police officers who requested admission to the apartment. Defendant testified both he and his wife, who was standing behind him, told the officers “no” and he closed the door. As he was leaving the door, it was kicked open and officers threw him into the hallway and handcuffed him. Defendant also testified he had cut his hand at work and it had reopened that night.

Debbie Santana testified that she and her husband were having an argument during which there had been loud talking, but no yelling or screaming. She was behind her husband when he answered the door and both told the officers they could not enter. When the officers did enter, she told them there was no problem and asked them to leave. Mrs. Santana also stated a plate had dropped out of the refrigerator and broke upon the floor shortly before the officers entered.

Paula Dirks, a neighbor called as a witness by defendant, testified she watched the officers in the hall through a peep hole in her door. She heard a glass break in defendant’s apartment, the officer knock and announce they were police and the slam of a door. One of the officers then kicked in the door and she heard the police yelling and Mrs. Santana repeating “leave us alone” and “get out of here.”

It was undisputed that at the time they entered defendant’s apartment the officers had neither an arrest or search warrant and that no one had consented to the entry. The trial court determined defendant’s arrest was illegal, as the officers lacked probable cause, and suppressed all evidence relating to defendant’s conduct after the officers entered the apartment.

We cannot determine from the ruling of the trial court whether it found the officers lacked probable cause prior to their entry of defendant’s apartment or whether that finding was directed to the circumstances existing after they had forced open the door and entered. In either event, we conclude the trial court erred and that its judgment must be reversed.

Section 107 — 2(c) of the Code of Criminal Procedure provides:

“A peace officer may arrest a person when *** [h]e has reasonable grounds to believe that the person is committing or has committed an offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 107— 2(c).)

(People v. Phillips (1964), 30 Ill. 2d 158, 160, 195 N.E.2d 717.) Section 107 — 5(d) of the Code provides:

“All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.” (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 5(d).)

Entry into a private dwelling to make an arrest without a warrant, however, is justified only in exigent circumstances. (Payton v. New York (1980), 445 U.S. 573, 583, 63 L. Ed. 2d 639, 648-49, 100 S. Ct. 1371, 1378; People v. Abney (1980), 81 Ill. 2d 159, 168, 407 N.E.2d 543; People v. Olson (1983), 112 Ill. App. 3d 20, 23, 444 N.E.2d 1147.) Factors which suggest exigent circumstances include (1) the need for prompt action; (2) the absence of deliberate or unjustified delay by officers during which a warrant could have been obtained; and (3) a belief the suspect was armed and exhibited signs of a violent character. Other factors which suggest the officers acted reasonably include (1) existence of a clear showing of probable cause based upon reasonably trustworthy information; (2) the defendant was clearly identified; (3) a strong reason to believe the defendant was on the premises; and (4) the entry was peaceful. (People v. Abney (1980), 81 Ill. 2d 159, 169-73, 407 N.E.2d 543.) A further factor constituting an exigent circumstance justifying warrantless entry of a dwelling to effect an arrest is present where officers reasonably believe a felony is being committed in their presence. People v. Eichelberger (1982), 91 Ill. 2d 359, 369, 438 N.E.2d 140.

Reasonable grounds, or probable cause, to arrest exists when the facts and circumstances known to the arresting officer at the time the arrest is made are sufficient to warrant a man of reasonable caution to believe an offense has been committed, or is being committed, and that the person arrested committed it. (People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564.) In People v. Clay (1973), 55 Ill. 2d 501, 504-05, 304 N.E.2d 280, the court stated,

“Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of every day life on which reasonable men, not legal technicians, act.”

The officers in this case responded to a late-night call to the police department reporting that a domestic quarrel was occurring in an apartment in which a woman had been injured and that a weapon may be involved. When they arrived at the scene the officers learned there was an error in the apartment number and sought verification from the police dispatcher. When they heard the sounds of argument and a dish breaking in defendant’s apartment, the officers approached the door and noticed it had been damaged as though by forcible entry. The officers knocked on the door and, when defendant opened it, inquired whether there was a problem; they saw that defendant was agitated and had blood on his hand and the woman behind him had blood on her face and blouse. Defendant then slammed the door shut. Defendant does not controvert these facts, but states that as he and his wife had told the officers they could not enter, the entry was unlawful.

We conclude from these facts the officers had reasonable grounds to believe a crime had been committed, or was being committed, in defendant’s apartment and that he was involved in doing so. For the same reasons, we find exigent circumstances existed authorizing the officers to enter the apartment for purposes of arrest. The officers could reasonably believe a serious offense was in progress; they had been advised a woman had been injured with a weapon possibly involved and prompt action was clearly demanded of them. Defendant’s brief appearance before slamming the door suggested a violent character, particularly in view of the blood on both defendant and the woman. We find that each of earlier noted factors indicative of exigent circumstances was present together with all of the factors tending to show the officers acted reasonably, except that the entry was not peaceful.

Nor would the circumstances confronting the officers be changed in the event the trial court considered creditable the testimony of defendant and his wife they had responded “no” to the inquiry whether there was a problem. The officers could not know who they were or whether they were lawfully present in the apartment. Defendant did not identify himself or make any effort to reassure the officers their protective services were not needed by someone in the apartment. While Justice Clark did not agree with the majority opinion in People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140, in his dissent he noted, “A police officer is not required under the fourth amendment to delay action where there is a danger to the officer’s or another’s safety.” (91 111. 2d 359, 374). We consider that comment to be appropriate to the circumstances with which the officers were confronted in this case. Compare People v. Olson (1983), 112 Ill. App. 3d 20, 24, 444 N.E.2d 1147; People v. Klimek (1981), 101 Ill. App. 3d 1, 5-6, 427 N.E.2d 598.

Defendant was neither arrested nor charged for any of the possible offenses which caused the officers to enter his apartment. After they entered, however, there was evidence presented that defendant spit in an officer’s face and scuffled with him. That was clearly sufficient to establish probable cause for defendant’s arrest for battery and resisting a peace officer, and the trial court’s finding to the contrary was against the manifest weight of the evidence and must be reversed. See People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.

Even had the officers’ entry to defendant’s apartment been deemed unlawful, the suppression of the evidence of defendant’s conduct in the apartment which forms the basis for the charges of resisting arrest and battery would be erroneous. It is well established that the exclusionary rule will not be extended to cause suppression of evidence of a defendant’s own unlawful conduct in response to police conduct which was in violation of the fourth amendment. People v. Abrams (1971), 48 Ill. 2d 446, 271 N.E.2d 37; People v. Klimek (1981), 101 Ill. App. 3d 1, 7, 427 N.E.2d 598.

Accordingly, the judgment of the circuit court is reversed and this cause remanded for further proceedings consistent with our opinion and before another judge.

Reversed and remanded.

HOPE and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES W. STILES, Defendant-Appellant.
    Second District
    No. 82—472
    Opinion filed January 25, 1984.
    G. Joseph Weller and John R. Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

On December 9, 1981, defendant was charged by information with criminal damage to property in excess of $150, a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 21 — 1(a)). The court accepted defendant’s guilty plea to the charge after being notified, with regard to the factual basis for the plea, that the State’s witness would testify that defendant damaged the entrance doors to three apartments in a building owned by Donald Shimek and James Stancel and after defendant stipulated that the damages were in excess of $150. A judgment of conviction was entered and on May 12, 1982, defendant was sentenced to one year imprisonment in the custody of the Department of Corrections.

After defendant’s conviction but prior to his sentence, the statute in question was amended to provide that criminal damage to property, with an exception not pertinent here, is a Class A misdemeanor unless the damage to property exceeds $300. (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1 (as amended by Pub. Act 82 — 495, sec. 1, eff. January 1, 1982 (1981 Ill. Laws 2514-15).) It was never determined at the trial court level whether the damages were more or less than $300. The defendant was not given an opportunity to elect to be sentenced under the terms of the amended statute. The defendant has appealed and contends that since he was entitled to be sentenced under the amended statute, which required over $300 in damages to support a felony conviction, and since there was neither a stipulation or a finding beyond a reasonable doubt of the amount of damages attributable to his criminal conduct other than that the damages were in excess of $150, a misdemeanor sentence should be imposed.

Although this issue was not raised by the defendant in the trial court, we conclude that fundamental fairness requires that we consider it under the doctrine of plain error. People v. Brown (1977), 47 Ill. App. 3d 920, 933; People v. Morgan (1981), 93 Ill. App. 3d 12, 13-14; People v. Hollins (1972), 51 Ill. 2d 68, 71.

It is also evident that under the recent opinions of this court in People v. Osborn (1983), 111 Ill. App. 3d 1078 and People v. Palmore (1983), 113 Ill. App. 3d 926, defendant should have been given the opportunity to elect to be sentenced under the amended statute if the damages which resulted from his criminal conduct were less than $300. (Contra, People v. Jackson (1983), 112 Ill. App. 3d 908.) If, however, the damages committed by the defendant were in excess of $300, the mitigating provision of the amended statute would not be applicable and there would be no reason to permit defendant to elect between the new and the old act. (See People v. Osborn (1983), 111 Ill. App. 3d 1078, 1085.) The crucial factual issue on this appeal, the amount of damages attributable to the defendant’s conduct, was not conclusively adjudicated at the trial court level. Resolution of this factual issue is necessary in order to determine the applicability of the mitigating provisions of the amended act.

We therefore conclude that justice requires the sentence imposed be vacated and that the cause be remanded to the trial court with directions that a hearing shall be had on the limited issue of the amount of damages attributable to the criminal conduct of the defendant as charged. If the evidence establishes beyond a reasonable doubt that the defendant’s criminal conduct caused damages in excess of $300 to the entrance doors of the apartments in question, the trial court shall reimpose its sentence of one year incarceration in the custody of the Department of Corrections. If the evidence does not so show, the trial court shall hold a new sentencing hearing and sentence the defendant for a Class A misdemeanor.

Sentence vacated and the cause remanded with instructions.

LINDBERG and HOPE, JJ., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELVIN HAMPTON, Defendant-Appellant.
    First District (5th Division)
    No. 81—2219
    Opinion filed December 30, 1983.
    Rehearing denied February 16, 1984.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Adam A. Dabek, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

On August 19, 1981, following a bench trial, defendant was found not guilty by reason of insanity (Ill. Rev. Stat. 1975, ch. 38, par. 115— 3) for the murder of Ruth Thieben and the attempted murder of Myrtle Miller (Ill. Rev. Stat. 1975, ch. 38, pars. 9 — 1(a)(2), 8 — 4) on June 17, 1976.

Immediately following the acquittal, the trial court, upon hearing evidence on the issue of commitment (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4), found the murder and attempted murder to be separate and distinct offenses committed at a different time and place for which consecutive sentence would be appropriate. The court further found the defendant subject to the involuntary admission of the Department of Mental Health and Developmental Disabilities (hereinafter Department) for a period of commitment “not to exceed 22 years 6 months from the [defendant’s] arrest date of June 17th, 1976.”

At issue on appeal is whether the trial court’s commitment order of a period “not to exceed a maximum of 22 years and 6 months” was a proper application of section 5 — 2—4(a) of the Unified Code of Corrections. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).

Opinion

A defendant found not guilty by reason of insanity is subject to involuntary commitment pursuant to section 5 — 2—4(b) of the Unified Code of Corrections. Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).

That portion of section 5 — 2—4(b) in effect at the time of defendant’s acquittal (People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187) provided in pertinent part:

“*** that the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time; provided, however, that such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for parole had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity.” (Emphasis added.)

Defendant contends that the trial court erred in its determination of his maximum period of commitment (22 years 6 months). Defendant further contends that this period of commitment actually represents the trial court’s effort to impose two consecutive 11-year 3-month periods of maximum commitment for both murder and attempted murder, since the court had previously found these offenses to be separate and distinct acts.

Defendant asserts that the finding of separate and distinct offenses was the trial court’s initial error in the present case. He argues that his actions constituted a single psychotic episode, not subject to consecutive sentences or consecutive commitments, when he, while under the influence of alcohol and mental illness, strangled his apartment-mate Ruth Thieben, and tried minutes later to choke Myrtle Miller.

The State conversely contends that these offenses, although related in time, involved separate elements and separate victims, and therefore the imposition of consecutive sentences would have been proper had the defendant been found guilty of the offenses of murder and attempted murder. (People v. Davis (1974), 20 Ill. App. 3d 948, 956, 314 N.E.2d 723.) The State further contends that since these separate offenses would be subject to consecutive sentences, they should also be subject to separate periods of commitment. Thus, the maximum period of commitment, as imposed by the trial court, is proper.

Although we agree that the defendant’s actions constituted two separate and distinct offenses, we disagree that section 5 — 2—4(b) authorizes the imposition of consecutive periods of commitment for these offenses.

It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. In so doing, courts look first to the terms of the statute. People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139, 361 N.E.2d 585.

The terms of section 5 — 2—4(b) provide a maximum commitment formula “for the most serious crime for which he [defendant] has been acquitted by reason of insanity.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(b).) Since there is no rule of construction which empowers the court to declare that the legislature did not mean what the plain language of the statute imports (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Zuber (1978), 57 Ill. App. 3d 899, 373 N.E.2d 786), the language of this statute shall be given its plain meaning.

“The most serious crime” is singular, contemplating that there could be more than one offense committed for which a defendant could be acquitted, as did occur in the present case. In the event that the legislature had intended to provide for consecutive periods of commitment, it could have clarified this statute via express language to that effect. Absent any express intent to the contrary, we must read section 5 — 2—4(b) to be in accord with the ordinary use and meaning of its terms. Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708.

As stated, the prime consideration in construing statutory enactment is to give effect to the intent of the legislature. (People v. Scott (1974), 57 Ill. 2d 353, 358, 312 N.E. 596.) In ascertaining this intent, the entire statute must be considered (People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 93, 316 N.E.2d 769) as well as “the evil to be remedied and the object to be attained.” People ex rel. Simpson v. Funkhouser (1944), 385 Ill. 396, 403, 52 N.E.2d 1014.

The State maintains that the object to be attained by this statute is the continued protection of the public from a potentially dangerous situation and the simultaneous protection of the acquittee from a situation that he is, as yet, mentally incapable of dealing with. Furthermore, the State contends that the evil the statute was designed to remedy was the potentiality of the introduction into society of an individual who is still a danger to that society, and perhaps to himself as well.

Recently, this issue was addressed by the United States Supreme Court in United States v. Jones (1983), 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043, which held that the purpose of commitment, following an insanity acquittal, is the treatment of the committed acquit-tee’s mental illness (the object to be attained), as well as the protection of both acquittee and society from the acquittee’s potential dangerousness (the evil to be remedied). 463 U.S. 354, 368, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3051.

In Jones, the Supreme Court explained the difference between a criminal sentence in which incarceration resulted versus the commitment of an insanity acquittee. Initially, the court found that the factors of retribution, deterrence and rehabilitation play an important role in the choice of a particular sentence of incarceration. (463 U.S. 354, 368-69, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3052.) “The State may punish a person convicted of a crime even if satisfied that he is unlikely to commit further crimes.” 463 U.S. 354, 369, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3052.

In direct contrast to the above criminal factors, different considerations are involved when a defendant is committed following a verdict of not guilty by reason of insanity. Most importantly, an acquittee has not been convicted and should not be punished. 463 U.S. 354, 369, 77 L. Ed. 2d 694, 708,103 S. Ct. 3043, 3052.

Since the purpose of this type of commitment is the treatment of the individual’s mental illness, the Jones court found no correlation between the length of time necessary for the acquittee’s recovery and the severity of the acquittee’s hypothetical criminal sentence. (463 U.S. 354, 369, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3052.) In addition, the court further stated that “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” 463 U.S. 354, 368, 77 L. Ed. 2d 694, 708, 103 S. Ct. 3043, 3051.

Reviewing section 5 — 2—4(b) in light of United States v. Jones, we find, given the plain language of the statute, that it was the intent of the legislature to provide for a period of involuntary commitment which concentrated on the treatment of the mentally disturbed acquit-tee. This interpretation is bolstered by the “indefinite” character of this period of involuntary commitment which has been provided for in section 5 — 2—4(b). Upon operation of this statute, the committed acquittee is entitled to be released when he has recovered his sanity and is no longer dangerous to society, even if this is prior to the maximum term of involuntary commitment set by the trial court. In conjunction with the above, if the acquittee has not recovered from his mental illness by the time he has reached his maximum term of commitment, he shall be subject to a “civil” commitment hearing (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4(i)) since an acquittee’s hypothetical maximum sentence, as calculated by the trial court, does not provide the constitutional limit of this person’s commitment. United States v. Jones (1983), 463 U.S. 354, 77 L. Ed. 2d 694, 103 S. Ct. 3043.

It is this court’s interpretation that section 5 — 2—4(b) does not permit consecutive involuntary commitments, as this would be contrary to the legislature’s intent to provide an indefinite period of commitment for the treatment of the acquittee’s mental illness. It follows, therefore, that the statute references the maximum period of commitment to the most serious crime, as all offenses result from the same mental illness.

Turning to the trial court’s finding of a maximum commitment period not to exceed 22 years 6 months, we find the court erred in this calculation. Section 5 — 2—4(b) provides that the trial court is under a duty to determine the most punitive sanction that could have been imposed upon conviction for the most serious crime charged less credit for good behavior. While the time of involuntary commitment is indefinite, the maximum period is limited by reference to the relevant sentencing scheme. The maximum term for murder (the most serious crime) at the time of the offense in this case was any term in excess of 14 years (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—1(b)(1)), less good-time credit to be deducted pursuant to administrative regulation of the Department of Corrections.

In this case, that would have resulted in defendant’s parole eligibility in 20 years regardless of the maximum sentence imposed for the offense of murder (Ill. Rev. Stat. 1975, ch. 38, par. 1003 — 3— 3(a)(1)) less time credit for good behavior. In accordance with administrative regulations, a defendant eligible for parole at 20 years would receive an application of statutory good-time credit reducing the time of respondent’s parole eligibility to 11 years 3 months. (Ill. Rev. Stat. 1975, ch. 38, par. 1003 — 6—3(a).) In addition, we find defendant eligible for compensatory good-time credit (In re Commitment of Copper-smith (1982), 108 Ill. App. 3d 161, 164, 438 N.E.2d 1267), in the amount of 90 days (Lane v. Sklodowski (1983), 97 Ill. 2d 311, 320, 454 N.E.2d 322, 326).

Accordingly, for the reasons stated, we vacate that portion of the trial court’s order subjecting defendant to a maximum commitment of 22 years 6 months and he is committed to the Department for an indefinite period not to exceed 11 years from his arrest date. The order of commitment is so modified.

Judgment vacated in part and modified in part.

WILSON, P.J., and MEJDA, J., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN E. BANKS II, Defendant-Appellant.
    First District (2nd Division)
    Nos. 81—2727, 82—2798 cons.
    Opinion filed January 17, 1984.
    Rehearing denied February 15, 1984.
    Steven Clark, of State Appellate Defender’s Office, of Chicago, and Carl P. Clavelli, Sherman C. Magidson, and Mary Rosiek, all of Chicago, pro bono, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Jane E. Liechty, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Loren E. Banks II (defendant) was indicted on two counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1), 9 — 1(a)(2)) and one count of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). Prior to trial, the court approved the State’s motion to nolle prosequi the armed-violence count. On October 7, 1981, following a jury trial, defendant was found guilty of the murder of Peter Mazik, Sr. (Mazik). Defendant’s motion for a new trial was denied by the trial court, and on October 29, 1981, defendant was sentenced to serve 25 years with the Illinois Department of Corrections.

On November 12, 1981, defendant filed a notice of appeal (case No. 81 — 2727) challenging his conviction. On January 25, 1982, some three months after sentence was imposed on defendant, the supervisor of the Markham felony trial division of the Cook County State’s Attorney’s Office forwarded to defendant’s trial counsel a letter containing a memorandum prepared by George Coston, a Cook County sheriff’s officer, detailing the officer’s recollection of a January 11, 1981, telephone conversation he allegedly had with “Mrs. Mazik.” Also enclosed was a memorandum prepared by radio operator Linda Fisher. This information led defendant to contend that his conviction was based, in part, upon the “perjured testimony” of a State’s witness, Linda Mazik, deceased’s wife. Based upon this alleged newly discovered evidence, defendant, on September 14, 1982, filed a “Petition to Vacate Judgment of Conviction” pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.) and section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401).

On November 10, 1982, a hearing on defendant’s petition was held before the same judge who conducted the trial. After Officer Coston testified and argument was presented, the court denied defendant’s petition. On November 17, 1982, defendant filed a second notice of appeal (case No. 82 — 2798), this time from the trial court’s denial of his post-conviction petition. Upon defendant’s motion in this court, his direct appeal from conviction and his appeal from the denial of his post-conviction petition have been consolidated.

On appeal defendant raises a number of issues including (1) whether the trial court erred in excluding certain evidence offered by him at trial; (2) whether the trial court erred in restricting testimony of an expert defense witness; (3) whether the sequestrating of defendant during a lunch break at trial, prior to the completion of his testimony, amounted to a denial of his right to the effective assistance of counsel; (4) whether certain prosecutorial remarks made throughout the trial deprived defendant of a fair trial; (5) whether the State failed to prove defendant guilty beyond a reasonable doubt; and (6) whether the trial court erred in denying defendant’s post-conviction relief. In view of our disposition, for reasons hereinafter set forth, we find it necessary to address only issues 5 and 6.

We reverse the trial court’s denial of defendant’s post-conviction petition and remand this cause for a new trial.

On January 11, 1981, defendant fatally wounded Peter Mazik, Sr. (Mazik), by shooting him twice in the chest with a .22 derringer. At the beginning of his trial on September 29, 1981, defendant admitted shooting Mazik but claimed that he acted in self-defense. Two guns, the derringer and a .357 magnum, were recovered at the scene at the time of the shooting. Defendant admitted ownership of the derringer but claimed that Mazik carried the .357 magnum.

The following events were elicited at trial:

Mazik and Alice Banks (Alice), presently the wife of defendant, were divorced in April 1978 after a 12-year marriage. Three children were born of that marriage: At the time of trial, Brenda was aged 14; Karen, aged 10; and Peter, Jr., aged eight. Pursuant to their divorce decree, Mazik remained in the former marital home in unincorporated Orland Park, Illinois, and retained custody of Peter, Jr. In April 1979 Mazik married Linda. Alice retained custody of Brenda and Karen and resided in Rolling Meadows, Illinois. In May 1980 Alice married defendant. Mazik and Alice were granted reciprocal rights of visitation with their children.

Because of the custody and visitation arrangements, Mazik and Alice remained in frequent contact. From August 1979, when Alice first met defendant, to the date of Mazik’s death on January 11, 1981, occasional confrontations erupted between Mazik, Alice and defendant. These disputes were generally caused by disagreement over the custody and treatment of Brenda and Karen, the two daughters of Mazik and Alice. During one such dispute on September 16, 1979, a physical struggle between Mazik (6 feet tall, 185 pounds) and defendant (6 feet tall, 115-120 pounds) occurred. Following this altercation Mazik halted Peter, Jr.’s visits to his mother and began legal proceedings seeking permanent custody of his two daughters.

On June 30, 1980, the Rolling Meadows police were called to defendant’s home to break up another dispute between Mazik and defendant. Between 1979 and the day Mazik was fatally wounded, Mazik allegedly made several threatening telephone calls to Alice and defendant.

The record indicates that on January 5, 1981, six days before his death, Mazik’s custody petition was dismissed by the circuit court.

On January 11, 1981, the night Mazik was killed, Peter, Jr., had been visiting Alice, who at that time was eight months pregnant. Together with Alice’s two daughters and defendant, they attended a family gathering at the home of Alice’s mother. At the conclusion of the evening, Alice’s uncle was expected to accompany Alice to Mazik’s home when she returned Peter, Jr. However, Alice’s uncle was unavailable for this purpose, and defendant accompanied Alice on the drive to Mazik’s home. Defendant admitted to drinking IV2 cans of beer during the drive to Mazik’s home.

The testimony regarding the events that transpired upon their arrival at Mazik’s home is unclear and conflicting. Peter, Jr., testified to the following:

Upon arriving at the Mazik house, Alice exited the car, leaving the motor running. Peter, Jr., exited the back seat and began removing his Christmas presents. Defendant remained seated in the front passenger seat. Linda Mazik, the victim’s wife, had been walking her dog. She approached the car to help carry Peter, Jr.’s presents into the house. Peter, Jr., noticed his father standing on the “deck” of the house. Peter, Jr., then saw Mazik walking towards the car. He could see Mazik’s hands as Mazik approached but observed nothing in them. When Mazik reached the front passenger side of the car where defendant sat, Mazik opened the door “halfway.” Looking through the front driver’s side window, Peter, Jr., could see only Mazik’s head and the back and arms of defendant. Peter, Jr., denied seeing Mazik reach into the car and grab defendant by his clothing.

Peter, Jr., stated that after Mazik opened the car door, “Loren [defendant] shot him.” Although unable to see Mazik, Peter, Jr., testified that Mazik was on the ground and “was starting to get up and then [defendant] shot him again.” After the second shot, defendant ran around the side of the car and “told us to go *** call an ambulance.” As he came around the car defendant was holding a gun in his left hand (later identified as a .357 magnum). After the shooting, Peter, Jr., went into the house with Linda Mazik.

Linda Mazik, the victim’s wife, testified to the following:

On the night of January 11, 1981, she was walking her dog when defendant, Alice and Peter, Jr., drove into her driveway. She approached the driver’s side of the car to help carry Peter, Jr.’s Christmas presents into the house. As she was helping with the presents, she heard the storm door of the house “slam” and, “out of the comer of her eye,” she saw Mazik come out of the house “pretty fast.” Although it was “very dark,” the area was illuminated by a driveway spotlight and the headlights of Alice’s car. Linda could see Mazik across the top of the car on the passenger side but stated that she “wasn’t really paying a lot of attention.” Linda next heard a gunshot. She looked over the car but could not see Mazik; she looked through the driver’s side front window and saw defendant “getting out of the car and [she] heard another shot.” Defendant then came around the car and said: “Somebody call the police.” Linda stated that defendant also said “you might as well get an ambulance.” Linda and Peter, Jr., went into the house and she telephoned the police.

During cross-examination, Linda was asked to describe the guns normally found in her house. These included a .41 pistol, a silver derringer, a deer rifle and three shotguns. Linda, however, denied that her husband owned a .357 magnum pistol or that such a gun or ammunition for such a gun were ever in her home. She also stated that Mazik had been drinking beer during the day of January 11, 1981, but that she did not know in what amount.

Cook County sheriff’s officer Alan Kulovitz, an evidence technician, testified that he recovered a black holster from the floor of the front passenger side of Alice’s car. The holster was free of moisture although there was snow on the ground near the car. Officer Kulovitz opined that the .357 magnum pistol found at the scene fit the holster. He did not know how the holster came to be on the floor of the car and he could not say whether others handled the holster or the .357 magnum between the time of the shooting and his arrival on the scene. Officer Kulvitz acknowledged that he made no effort to determine the ownership of the .357 magnum or to obtain fingerprints from that gun.

Following this testimony and the placing in evidence of the gun and holster, the State rested. Defendant’s motion for directed verdict was denied.

Alice Banks testified that she had warned defendant of Mazik’s reputation for violence and that Mazik owned “quite a few guns” and “always carried a gun on his person.” She stated that during her marriage to Mazik he purchased a .357 magnum and kept it under the mattress of their bed. Alice stated further that at no time during the drive to the Mazik house did she see a .357 magnum in the Banks’ automobile.

In his own defense, defendant testified to the following:

He shot Mazik in self-defense after Mazik “reached for a gun” which defendant saw under Mazik’s coat. Defendant identified People’s exhibit No. 1, a .357 magnum, as the gun Mazik carried under his coat at the time of the shooting. Defendant denied ownership of the .357 magnum or that he had brought the gun with him to Mazik’s home.

When defendant, Alice and Peter, Jr., arrived at Mazik’s house on January 11, 1981, defendant remained in the car. He saw Mazik “running” toward the car and he “figured he [Mazik] was coming to kill” him. As Mazik approached, defendant placed his derringer “underneath his right leg.” Mazik then opened the car door and grabbed defendant’s collar with both hands. Mazik started to pull defendant out of the car but defendant struck his head on the interior of the car roof, knocking him back into the seat. At that time defendant saw that in Mazik’s right hand, “in the area of his belt was the butt end of a revolver.” “Believing” that Mazik intended to kill him, defendant shot Mazik with his derringer and both he and Mazik fell to the ground. They struggled. Defendant “felt he was losing” the struggle. He saw Mazik’s gun aimed at him and he heard the hammer of the gun “click back.” Defendant shot Mazik again with his derringer.

Following the second shot, defendant stood up holding the .357 magnum in his left hand and told Linda to call for an ambulance and police. He then followed Alice to a neighbor’s house where Alice called an attorney. Defendant waited for police to arrive and was immediately arrested.

Following this testimony, closing arguments were presented, the jury was instructed and retired to deliberate. Defendant asserts that the jury deliberated more than nine hours. Twice during that time the jury notified the court that it was unable to reach a verdict. However, the jury continued to deliberate and finally returned a verdict finding defendant guilty of murder. On October 21, 1981, defendant moved for a new trial which the trial court denied on October 29, 1981. Defendant was sentenced to serve 25 years with the Illinois Department of Corrections.

Almost three months after defendant filed his notice of appeal on November 12, 1981, his trial attorney received the January 25, 1982, letter from the State’s Attorney’s office enclosing a memorandum that had been prepared by Officer George Coston at the request of the internal affairs department of the office of the Cook County sheriff. The memorandum summarized Officer Coston’s recollection of a January 11, 1981, telephone conversation which he allegedly had with “Mrs. Mazik.” A second memo prepared by radio officer Fisher corroborated Coston’s receipt of the telephone call and the fact that Cos-ton mentioned a .357. A copy of the State’s Attorney’s letter was not forwarded by trial counsel to defendant’s appellate counsel until July 14, 1982.

On September 14, 1982, defendant filed a “Petition to Vacate Judgment of Conviction.” At a November 10, 1982, hearing on defendant’s petition, Officer Coston testified to the following:

On November 12, 1981, after he had read a newspaper account of defendant’s conviction and sentence, he prepared a “memorandum report” addressed to Major Lowthorp summarizing his recollection of a telephone conversation he had on January 11, 1981, while he was at work in the communications room of the Cook County sheriff’s office in Maywood.

At 9:18 p.m. that evening he received a telephone call from a woman who identified herself as “Mrs. Mazik.”

“Mrs. Mazik told me that her husband was outside. She believed he had been shot, and he — I asked her exactly what happened and she stated that, what I believed at the time to be . her ex-husband and her present husband, that they had some sort of argument out there, and what I believe to be the ex-husband shot her present husband at least twice.
I immediately dispatched a squad car to the scene and also transmitted on the ISPEEN directly to the Orland Park unit in the area close to Orland Park Town.”

Officer Coston stated that he “insisted” that the caller remain on the telephone and he questioned her further about the incident. He asked her if there were any guns involved and “if her husband had a gun.” The woman responded she “believed he did.” In response to his question as to the kind of gun, “she said a revolver. A magnum, I think. I think a .357 is what she said.” Officer Coston then asked “Mrs. Mazik” if she knew where her husband kept “this gun.” He asked her to see if the gun was in place. At the November 10, 1982, hearing the following colloquy took place between defendant’s counsel and Officer Coston:

“Q. Did she then leave the phone for a period of time?
A. No, it sounded to me at the time that she was hanging onto the phone. I heard some background noises, and she came almost immediately back to the phone, back on the line, and told me that the gun was not there. I asked her — Well, if there were any other weapons in the house, any guns. She said there were a number of guns, or something to that effect. That there were more weapons in the house.”

Officer Coston then by radio informed the officers en route to the Mazik house that “both subjects [were] possibly armed.”

Officer Coston acknowledged that he made no report at the time of his conversation with “Mrs. Mazik.” Tape recordings of calls coming into the communications room are preserved for only three months.

On cross-examination, Officer Coston admitted that he could not at the time of the hearing recognize Mrs. Mazik’s voice and that he had never heard her voice before January 11, 1981. He stated that although he may have erred “on some points” in recalling the conversation, he “believe[d] that generally [his] recall is fairly good about it.”

Predicated on Officer Coston’s testimony, defendant contended that because at trial Linda Mazik denied ever having seen a .357 magnum in her house, her testimony was “perjured.” Defendant argued that the State in its closing argument at trial had acknowledged that “the key to the case” was the .357 magnum which the prosecutor asserted was brought to the scene by defendant as a “backup weapon.” Defendant also noted that the trial judge, in denying defendant’s post-trial motion on October 21, 1981, had stated that “the jury discounted that theory [self-defense] *** or they would not have found him guilty of murder.”

Following argument, the trial court on November 10, 1982, denied defendant’s petition to vacate the judgment stating:

“*** with any diligence at all the defense counsel who tried this case initially could have discovered this information and it could have been produced at trial.
* * *
There has been no showing here that the testimony produced at the trial was, in fact, perjured. There hasn’t been anything other than — no other testimony produced at this hearing to justify or to satisfy the requirement of setting this judgment aside.”

On November 17, 1982, defendant filed a notice of appeal from the trial court’s November 10, 1982, order denying his post-conviction relief. The direct appeal of defendant’s conviction and his post-conviction appeal have been consolidated.

I

For the reasons hereinafter set forth, we propose to reverse and to remand this cause for a new trial. To forestall any risk of subjecting defendant to double jeopardy, as suggested by our supreme court in People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366, we address defendant’s contention that the evidence at trial was insufficient to support the jury’s verdict.

The evidence in the case at bar is in our opinion conflicting and not overwhelming. It is well established in Illinois that where testimony is conflicting, the resolution of such conflict is for the jury as the trier of fact. (People v. Smylie (1981), 103 Ill. App. 3d 679, 690, 431 N.E.2d 1130.) The jury may accept all, part or none of the evidence presented at trial, and its determination should not be disturbed upon review unless it is so contrary to the evidence as to raise a reasonable doubt of defendant’s guilt. People v. Seiber (1979), 76 Ill. App. 3d 9, 13, 394 N.E.2d 1044.

In finding defendant guilty of murder, based on the conflicting evidence submitted to it, the jury in this case obviously rejected defendant’s account of the events of January 11, 1981. It is apparent that the jury did not accept defendant’s testimony that Mazik possessed the .357 magnum and that defendant acted in self-defense.

Our review of the record persuades our conclusion that, if believed by the jury, the evidence received by the jury at trial was sufficient to support its verdict.

II

We find more difficult, however, acceptance of the trial court’s rationale in denying defendant’s post-judgment petition predicated, in part, upon section 72. Defendant’s petition contended that the evidence discovered several months after defendant was convicted and sentenced, viz., the memorandum of Officer Coston and his testimony, indicated that defendant’s conviction was possibly based upon the “perjured testimony” at trial offered by Linda Mazik.

It is well established that “[sjection 72 affords a remedy to obtain relief, where warranted, from a judgment based on perjured testimony.” (People v. Hilliard (1978), 65 Ill. App. 3d 642, 645, 382 N.E.2d 441; People v. Berland (1978), 74 Ill. 2d 286, 316, 385 N.E.2d 649.) “A section 72 proceeding is the forum in which ‘to correct all errors of fact occurring in the prosecution of a cause, unknown to the petitioner and court at the time of trial, which, if then known, would have prevented the judgment.’ ” (People v. Berland (1978), 74 Ill. 2d 286, 313-14.) In order for defendant to avail himself of section 72 relief, “he must not only show adequate grounds for relief exist, but also that, through no fault or neglect of his own, the error of fact *** was not made to appear at the trial.” People v. Stewart (1978), 66 Ill. App. 3d 342, 347, 383 N.E.2d 1179.

Thus, defendant’s petition in the instant case raises two questions: whether the information received by defendant from the State’s Attorney’s office provided him with “adequate grounds for relief” and whether such information could have been “made to appear at trial” by defendant.

On October 7, 1981, defendant was found guilty of the murder of Peter Mazik, Sr. On October 29, 1981, he was sentenced to 25 years imprisonment. On October 30, 1981, the article which allegedly stirred Officer Coston’s belated recollection of the January 11, 1981, telephone conversation with “Mrs. Mazik” appeared in the “Daily Southwest Suburban Economist” newspaper. On November 12, 1981, Officer Coston prepared a memorandum for the internal affairs division of the Cook County sheriff’s department detailing his recollection of the January 11,1981, telephone conversation with “Mrs. Mazik.”

On January 25, 1982, the supervisor of the Markham felony trial division of the Cook County State’s Attorney’s office forwarded to defendant’s trial counsel a letter enclosing a copy of Officer Coston’s memorandum. The supervisor’s letter stated that “[t]he information contained in the memo was not known until after the sentencing of Mr. Banks.” Some six months later this information was forwarded by defendant’s trial counsel to his court appointed appellate counsel, and on September 14, 1982, defendant’s section 72 post-conviction hearing petition was filed.

Following Officer Coston’s testimony and counsels’ argument at the November 10, 1982, post-conviction hearing, the trial court denied defendant’s petition. The court concluded that “with any diligence” defendant’s initial trial counsel could have “discovered this information and it could have been produced at trial.”

Our review of this record does not compel agreement with the trial court’s conclusion that defendant’s trial counsel lacked diligence in this matter. In his January 25, 1982, letter to defendant’s counsel, the assistant State’s Attorney acknowledged that “the information contained in the memos was not known until after the sentencing of Mr. Banks.” In view of the fact that defense counsel was not privy to the operation of the internal affairs division of the Cook County sheriff’s department and had no way of knowing that an Officer Coston existed and possessed knowledge pertinent to this case, there is assuredly no reason to believe that even the most diligent defense counsel could have unilaterally uncovered this information prior to trial.

Generally, the determination of a trial judge in post-conviction proceedings will, in the absence of manifest error, be upheld. (People v. Bracey (1972), 51 Ill. 2d 514, 517, 283 N.E.2d 685.) Where, however, such error is suggested by the record, a court of review should not and will not hesitate to set aside the determination of the trial court.

At trial in this case, the ownership of the .357 magnum revolver was key to defendant’s claim of self-defense. This was acknowledged by the prosecution during trial and by the trial court during the post-trial hearing. Defendant testified that Mazik reached under his coat for a gun, identified as the .357, allegedly causing defendant to act in claimed self-defense. Linda Mazik, however, denied that her husband owned such a gun. She testified that she had never seen that gun until the night of Mazik’s death. Defendant’s wife, Alice, the victim’s former wife, testified that while she was married to Mazik he had purchased a .357 and kept it under the mattress of their bed.

Officer Coston’s testimony, if available at trial and heard by the jury could conceivably, if believed by the jury, have supported defendant’s argument and weighed heavily against Linda Mazik’s credibility. Her denial that Mazik owned a .357 magnum, and Peter, Jr.’s testimony that he did not observe anything in Mazik’s hands the night Mazik was killed, is all that controverts defendant’s claim that Mazik had a gun under his coat and Alice’s testimony that Mazik had in fact owned such a gun. Although undoubtedly each party who testified at defendant’s trial had a personal interest in the outcome of the proceedings, it is apparent that Officer Coston would have had no such personal interest. “The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest in testifying falsely that a defendant’s life or liberty may depend.” Napue v. Illinois (1959), 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173,1177.

A careful review of both the trial record and the post-conviction hearing record leads us to conclude that Officer Coston’s memorandum and the evidence presented at the November 10, 1982, hearing was sufficient to raise reasonable doubt of the veracity and accuracy of Linda Mazik’s trial testimony as contrasted with that of defendant. Because it is not, in our opinion, possible with certainty to speculate on the effect which Officer Coston’s memorandum and testimony could have had on the trial jury’s deliberations in this case, we believe the ends of justice would be better served by remandment of this cause for a new trial.

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

Reversed and remanded.

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

       Generally, a friend or relative would accompany Alice to Mazik’s home which was about an hour’s drive from her home. Defendant seldom accompanied Alice on these drives because he feared a confrontation with Mazik. On one occasion when defendant did accompany Alice a van, similar to one owned by Mazik and allegedly bearing Mazik’s license plate number, appeared to defendant and Alice to be chasing them and attempting to run them off the road.

      The record does not indicate whether the jury was further instructed by the court. The record reflects only that the jury continued deliberations until it reached a verdict.


author: PRESIDING JUSTICE WILSON

text:
    HARRY E. DeBRUYN et al., Plaintiff-Appellant, v. RICHARD J. ELROD et al., Defendant-Appellees and Cross-Appellants.
    First District (5th Division)
    No. 82—82
    Opinion filed October 28, 1983.
    Rehearing denied February 28, 1984.

      Block, Levy & Becker, of Chicago (Alvin R. Becker and Harry A. Young, Jr., of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Joann Tansey, and James F. Henry, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This action is an appeal of attorney fees awarded by the trial court in a class action suit which successfully challenged an Illinois statute which entitled the sheriff of Cook County to a commission on mortgage foreclosure sales. Ill. Rev. Stat. 1977, ch. 53, par. 71.

On February 3, 1981, the Illinois Supreme Court ruled that the statute was unconstitutional. The court also defined the class of plaintiffs as those persons who (1) paid fees on and after December 1, 1971, the effective date of the relevant section of the 1970 Illinois Constitution; (2) paid fees in connection with mortgage foreclosure proceedings on which orders of sale and distribution were approved subsequent to July 10, 1979; (3) have not been reimbursed by redemption; and (4) suffered the burden of the illegal fee. The court further ruled that plaintiffs were entitled to an accounting of the illegal fees involuntarily paid from and after December 1971. DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413.

On May 19, 1981, a joint accounting was submitted by both sides stating that $339,176.75 in fees, redemptions and levies had been paid and that $101,729.75 of this amount held in a protest fund which had been established by a court injunction dated July 10,1979.

On June 2, 1981, a consent order was entered wherein the court approved individual notice and newspaper publication to class members as well as a refund. The court also authorized the filing of fee petitions by the attorneys for the plaintiff class.

Class members filed claims totaling $63,550.35. Alvin R. Becker, one of the attorneys for the class, requested compensation for 522.50 hours at a rate of $125 to $150 per hour, with varying multipliers. At $125 per hour, compensation would be $143,000; at $150 per hour this amount would be $171,000. Plaintiffs’ attorney, Harry A. Young, requested the same hourly rate and multiplier for 100.25 hours of service. The court-appointed trustee also filed an application for fees in the amount of $6,505.25 and costs of $22.75.

Defendants filed objections to the attorney fee applications and argued that a multiplier of three applied to Becker’s minimum fee of $125 per hour for 522.50 hours would exhaust the protest fund. Defendants further argued that because DeBruyn did not intervene until March 23, 1979, any request for fees prior to that date should be denied. Defendants also alleged that Young’s fee request may represent services performed by Becker. Defendants did not object to the trustee’s application for fees.

On December 17, 1981, the court entered a memorandum opinion and found, inter alia, that (1) the illegal fees collected pursuant to the joint accounting was $339,176.76 of which $106,141.97 was sequestered in a protest fund; (2) the class was benefited in the amount of $339,176.76; and (3) the amount of the refund to the class and payment of attorney fees and costs was limited to the amount in the protest fund. The court awarded Becker $52,250 for 522.50 hours of service and Young $10,000 for 100 hours. Becker then filed a motion, which was granted, whereupon the court modified its order to include an award for reimbursement of his costs in the amount of $1,482.57. The trustee was directed to invest the funds in his possession at interest. The court also ordered a pro rata distribution to class members.

On January 11, 1982, DeBruyn, individually and as class representative, Becker and Young filed a notice of appeal. Defendants cross-appealed, alleging that the court’s award of $62,250 in fees was excessive.

Opinion

We' first consider plaintiffs’ contention that the award of fees should not be limited to the proceeds in the protest fund but rather the total amount collected by defendants under the statute should be available for this purpose.

Where an action is against a governmental body for the recovery of public funds, the creation of a fund of money under the control of the court has traditionally been a prerequisite to a fee award. (City of East Peoria v. Tazewell County (1974), 17 Ill. App. 3d 943, 945-46, 308 N.E.2d 824; Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority (1972), 51 Ill. 2d 126, 130, 281 N.E.2d 338.) The “common fund” or “common benefit” doctrine allows a party who has conferred a benefit on another through litigation to recover a share of attorney fees from those who benefit. In order for attorney fees, costs and expenses to be awarded, therefore, a fund must have been brought within the control of the court. (Hamer v. Kirk (1976), 64 Ill. 2d 434, 442, 356 N.E.2d 524; Hoffman v. Lehnhausen (1971), 48 Ill. 2d 323, 329-30, 269 N.E.2d 465.) The amount of fees in such cases and the correct rate at which an attorney is to be compensated rests primarily in the sound discretion of the trial court. Its award will not be disturbed unless a clear abuse of discretion has been demonstrated. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 488, 343 N.E.2d 897; Flynn v. Kucharski (1973), 16 Ill. App. 3d 624, 631-32, 306 N.E.2d 726.) Underlying this rule is recognition that a trial judge is in a vastly superior position than the reviewing court to determine what is just and reasonable and will properly compensate the attorney because he has participated in the original action from which the question of fees arises. (16 Ill. App. 3d 624, 631.) In the absence of a common fund, a plaintiff’s attorney is not entitled to fees merely because he has conferred a benefit upon members of a class. Hamer v. Kirk (1976), 64 Ill. 2d 434, 442, 356 N.E.2d 524.

Courts and attorneys, in calculating fees in class actions, have emphasized that the benefit to the class, whether monetary or non-monetary or both, is of major importance in determining the amount to be awarded. (Lurie v. Canadian Javelin Ltd. (1982), 93 Ill. 2d 231, 238, 443 N.E.2d 592.) Other factors to be considered include the amount of time expended by the attorneys and in what manner the time was expended as well as the magnitude and complexity of the action. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 89-90, 377 N.E.2d 1019.) When the court has determined the number of hours which benefit the class, it must then value the services by fixing a reasonable hourly rate for each attorney. These rates may differ according to the categories of services performed. (72 Ill. 2d 73, 90-91.) The appropriate hourly rates are then multiplied by the hours expended. The product of this multiplication is the lodestar computation, which may be increased by a weighted multiplier commensurate with the value which the court attributes to the contingent nature of the undertaking and the benefits conferred upon the class.

Turning now to the facts of the instant case, Becker initially requested hourly compensation in the amount of $125 to $150 for 522.50 hours, which would result in a figure between $143,000 and $171,000. Young requested compensation for 100 hours’ work. Both requested a weighted multiplier for the proceedings before the circuit, appellate and supreme court. Their request was subsequently changed and on appeal, Becker and Young only challenge the court’s failure to apply a weighted multiplier to the lodestar computation. They do not contest the hourly rate of $100 per hour.

Our review of the record convinces us that the lodestar computation for the services performed as determined by the trial court was correct. As previously stated, attorney fees were properly limited to the amount of money in the protest fund, which totaled $106,141.97. At $100 per hour for both attorneys, Becker’s remuneration of $52,250 came to slightly less than half of this amount. Young was awarded $10,000, for a total of $62,250. The trustee’s services were also valued at $100 an hour for 66.4 hours’ work. He was awarded $6,505.25 plus $22.75 in costs. The court held that the balance in the fund was to be distributed pro rata to the members of the class. Based on the facts of this case, we cannot say that this award was an abuse of discretion. In our judgment, the basic rate of $100 per hour is appropriate and is not so low as to discourage participation in such cases by qualified counsel. Although the basic issue concerned the important question of the constitutionality of a State statute, the case was neither novel nor factually complex. Two prior suits addressing the same issue and seeking substantially similar relief had been filed by three banks. On defendants’ motions, the counts pertaining to the banks were dismissed on the ground that they lacked standing to bring the action; the resulting litigation before the trial court was not particularly complicated. According to the attorneys’ time schedules, the majority of their court appearances were for hearings on various motions and orders. Also, the contingency factor (the probability of success at the time an action is filed (Fiorito v. Jones (1978), 72 Ill. 2d 73, 91, 377 N.E.2d 1019)) was not high. Several suits involving the validity of fees collected by local government officials pursuant to article VII, section 9(a) of the 1970 Illinois Constitution had already been decided. In each case, the constitutionality of a statute involving fee collections was successfully challenged. Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197; Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 357 N.E.2d 1157; City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543; Century Community Unit School District No. 100 v. McClellan (1975), 27 Ill. App. 3d 255, 327 N.E.2d 32.

Additionally, the record reveals that the trial court was well aware of the fact that class members who did not exercise their right to reimbursement nonetheless received a benefit by virtue of their right to share the harvest of the lawsuit. (Boeing Co. v. Van Gemert (1980), 444 U.S. 472, 480, 62 L. Ed. 2d 676, 683, 100 S. Ct. 745, 750.) The court correctly ruled, however, that the fees could only be subtracted from the protest fund and that the benefit to the class was one of many factors, albeit an important one, to consider in calculating this sum. We are cognizant of the fact that in some instances money judgments have been accorded common fund treatment in awarding fees (Union Central Life Insurance Co. v. Hamilton Steel Products, Inc. (7th Cir. 1974), 493 F.2d 76), but in the instant case there was merely a stipulated accounting of the illegal fees paid under the statute. This amount was subsequently held to comprise the monetary benefit to the class. It was not a judgment award.

Based on the interrelationship of the factors discussed herein, we therefore find that the trial court’s lodestar computation and award of fees and costs from the protest fund was proper. For these reasons, it is unnecessary to consider the contentions advanced in defendants’ cross-appeal. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ and MEJDA, JX, concur.


author: JUSTICE WHITE

text:
    MOUNT PROSPECT STATE BANK, Plaintiff-Appellee, v. MARINE MIDLAND BANK, Defendant-Appellant (Magic Automotive Products of Illinois, Inc., Defendant-Appellee).
    First District (3rd Division)
    No. 82—1110
    Opinion filed December 7, 1983.
    Rehearing denied February 28, 1984.

      Paul A. Gold, of Chicago, for appellant.
    Harry D. Lavery and George A. Zelcs, both of Berger, Newmark and Genchel, P.C., of Chicago, for appellee Mount Prospect State Bank.
    E. K. Huszagh, of Miller, Forest, Downing, Rodman and Huszagh, Ltd., of Glenview, for appellee Magic Automotive Products of Illinois.
    Charles M. Biggam, Jr., and William A. Barnett, Jr., both of Biggam, Cowan, Marquardt & Lunding, Chartered, of Chicago, for appellee John Fitzpatrick.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Mount Prospect State Bank (Mount Prospect), brought this declaratory judgment action in the circuit court of Cook County against defendants, Marine Midland Bank (Marine Midland) and Magic Automotive Products of Illinois, Inc. (MAP of Illinois), seeking a declaration of the rights of the parties under a letter of credit issued by Mount Prospect in the amount of $50,000. John C. Fitzpatrick was granted leave to intervene as a party defendant. The circuit court entered summary judgment in favor of Mount Prospect and MAP of Illinois and held that Mount Prospect was not liable to Marine Midland, the purported assignee of the beneficiary of the letter of credit. Marine Midland now appeals from the order granting summary judgment.

The relevant facts follow. On May 15, 1979, Mount Prospect issued an irrevocable documentary letter of credit in the amount of $50,000 at the request of its customer, MAP of Illinois. The beneficiary of the letter of credit was Magic Automotive Products, Inc., located in Buffalo, New York (MAP of New York). The letter of credit expressly provided: that it was “subject to ‘The Uniform Customs and Practice for Documentary Credits’ (1974 Revision), the International Chamber of Commerce Brochure No. 290”; that sight drafts drawn under the letter of credit must be drawn and negotiated not prior to November 15, 1979, nor later than November 30, 1979; and that the sight drafts were to be accompanied by “Invoices [and] Bills of Lading *** from Magic Automotive Products of Illinois, Inc.” On June 14, 1979, the terms of the letter of credit were amended to require that sight drafts drawn under the letter of credit must be accompanied by “Invoices [and] Bills of Lading *** to Magic Automotive Products of Illinois, Inc.”

On or about June 21, 1979, MAP of New York, the beneficiary, purported to assign all of its rights to draw under the letter of credit to Marine Midland. The purported assignment occurred in a letter dated June 21, 1979, from MAP of New York to Mount Prospect. It should be noted that neither the original letter of credit nor the amendment thereto provided that the letter of credit was transferable or assignable.

On June 27, 1979, the letter of credit was further amended to require that sight drafts drawn under the letter of credit must be accompanied by “Invoices [and] Bills of Lading *** to Magic Automotive Products of Illinois, Inc., covering shipments to various Magic Automotive Products of Illinois locations in the United States.” The amendment also stated: “This Amendment will become effective upon receipt of the beneficiary’s written consent.” Despite the aforementioned purported assignment, the beneficiary’s consent to the second amendment was given by Philip DiCarlo, the president of MAP of New York, not by Marine Midland. Thereafter, on July 5, 1979, Mount Prospect wrote a letter to Marine Midland acknowledging receipt of the June 21 letter. On July 9, 1979, Marine Midland sent a letter to MAP of Illinois which stated that the letter of credit had been assigned to Marine Midland. This letter was acknowledged by MAP of Illinois.

On or about November 15, 1979, Marine Midland attempted to draw on the letter of credit in the amount of $49,982.50. In so doing, Marine Midland presented to Mount Prospect two collection letters, two sight drafts, the original letter of credit and the amendments thereto, Mount Prospect’s letter of July 5, 1979, and certain invoices and bills of lading. Copies of the invoices and bills of lading are contained in the record on appeal. There are 38 invoices and 34 bills of lading. Only three of the invoices reflect, on their faces, that they relate to shipments to MAP of Illinois locations in the United States. The remaining 35 invoices concern: (1) shipments made to entities and persons other than MAP of Illinois, such as MAP of Maryland, Sy Norman in Massachusetts, and Dan Huber in Wisconsin; (2) interest; (3) service charges; and (4) shipping charges. The bills of lading are consistent with the invoices in that the vast majority of them concern shipments to entities other than MAP of Illinois.

Mount Prospect refused to honor the drafts drawn under the letter of credit, and on November 30, 1979, Mount Prospect filed its complaint for declaratory relief. The circuit court entered summary judgment in favor of Mount Prospect and MAP of Illinois, holding that Mount Prospect was not liable to Marine Midland under the letter of credit. The court found that the letter of credit was “nontransferable and nonassignable under any circumstances irrespective of any consent on the part of the parties and because said letter is subject to the UCPDC [Uniform Customs and Practice for Documentary Credits].” The court further found that “[t]his was a commercial transaction and not a transmittal of proceeds.”

On appeal, Marine Midland contends that the circuit court’s judgment was erroneous for three reasons. First, it argues that since all the parties to the letter of credit, Mount Prospect, MAP of New York and MAP of Illinois, consented to the transfer and assignment of the letter of credit and the proceeds thereof, the circuit court erred in finding that the letter of credit was nontransferable and nonassignable under provisions of the UCPDC. Secondly, it argues that the circuit court’s rationale was erroneous because the proceeds of the letter of credit were transferable and assignable to Marine Midland under provisions of the UCPDC and article 5 of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 101 et seq.). Lastly, it argues that the circuit court’s finding that the letter of credit was nontransferable and nonassignable was erroneous, because all of the parties to the letter of credit consented to the transfer and assignment, and therefore, were estopped from asserting as a defense that it was nontransferable and nonassignable. We do not address these contentions because we are of the opinion that even if the right to draw under the letter of credit was properly transferred and assigned to Marine Midland, we would have to affirm the circuit court’s entry of summary judgment because the invoices and bills of lading presented to Mount Prospect clearly did not comply with the terms of the letter of credit.

In reaching this conclusion, we agree with the statement contained in the appellate brief of appellee Fitzpatrick that the assignability issue may be “extremely muddied and confused.” Moreover, a reviewing court is not bound by the precise reasons given by the lower court in entering summary judgment, and we may sustain the entry of summary judgment if the decision is justified by any reason appearing in the record. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 146, 407 N.E.2d 1031; Weber v. Woods (1975), 31 Ill. App. 3d 122, 132, 334 N.E.2d 857; see In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 549, 131 N.E.2d 487.) The issue of compliance was raised in the court below, and even though it was not the basis of the order from which this appeal is taken, in our opinion, it is dispositive of this appeal.

Section 5 — 103(l)(a) of the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 103(l)(a)) defines a letter of credit as “an engagement by a bank or other person made at the request of a customer *** that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit.” Generally, three separate agreements are involved in a letter of credit transaction: the contract between the issuer and its customer whereby the issuer agrees to issue the letter of credit to the beneficiary of the letter of credit; the contract between the customer and the beneficiary which is the agreement underlying the letter of credit; and the letter of credit itself, whereby the bank agrees to pay the beneficiary the amount of the letter of credit, if the beneficiary complies with the terms of the credit. First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 807, 413 N.E.2d 1288; see Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 922-23, 430 N.E.2d 1; Venizelos, S.A. v. Chase Manhattan Bank (2d Cir. 1970), 425 F.2d 461, 464-65.

The issue in the instant case is whether the invoices and bills of lading presented by Marine Midland to Mount Prospect complied with the terms of the letter of credit. Section 5 — 114(1) of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 5 — 114(1)) deals with an issuer’s duty to honor a presentment which complies with the terms of a letter of credit. That section provides:

“An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. ***”

In construing this section our supreme court has stated:

“[S]ection 5 — 114(1) of the Code [citation] makes it clear that the issuer of the credit has no right to refuse to honor a complying draft or demand. The obligation of the credit is without reference to the compliance of the buyer (customer) or the seller (beneficiary) with the underlying contract. The issuer deals only with documents which must comply with the terms of the credit. Once compliance is determined, the issuer is not concerned with the quality of the goods shipped or the accuracy of the documents if they are regular on their face.” (Pastor v. National Republic Bank (1979), 76 Ill. 2d 139, 147-48, 390 N.E.2d 894.)

Thus, a letter of credit is an undertaking independent of any underlying contract, unless the letter of credit provides to the contrary. (76 Ill. 2d 139, 151; Professional Modular Surface, Inc. v. Uniroyal, Inc. (1982), 108 Ill. App. 3d 1046, 1049-50, 440 N.E.2d 177; Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 923; First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 808.) In other words, the issuer deals in documents, not in contract performance. (Pastor v. National Republic Bank (1979), 76 Ill. 2d 139, 152; First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 808.) When the documents presented comply with the conditions specified in the letter of credit, the issuer is authorized and obligated to pay pursuant to the terms of the credit. (Pastor.) In this sense, the issuer’s function in a letter of credit transaction is basically ministerial. See Far Eastern Textile, Ltd. v. City National Bank & Trust Co. (S.D. Ohio 1977), 430 F. Supp. 193, 197.

The UCC, however, does not specify whether strict compliance with the terms of a letter of credit is necessary or whether substantial performance is sufficient. (Far Eastern Textile, Ltd. v. City National Bank & Trust Co. (S.D. Ohio 1977), 430 F. Supp. 193, 196; J. White & R. Summers, Uniform Commercial Code sec. 18 — 6, at 729 (2d ed. 1980); see First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 814; Ill. Rev. Stat. 1979, ch. 26, par. 5-109(2) (concerning the issuer’s obligation to its customer).) The majority rule in the United States appears to hold the beneficiary of a letter of credit to a standard of strict compliance when it is seeking to hold the issuer accountable for failing to honor a draft. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 814-15; Chase Manhattan Bank v. Equibank (3d Cir. 1977), 550 F.2d 882, 884; Courtaulds North America, Inc. v. North Carolina National Bank (4th Cir. 1975), 528 F.2d 802, 805-06; Venizelos, S.A. v. Chase Manhattan Bank (2d Cir. 1970), 425 F.2d 461, 465; Far Eastern Textile, Ltd. v. City National Bank & Trust Co. (S.D. Ohio 1977), 430 F. Supp. 193, 196.) As stated in Courtaulds: “[T]he beneficiary must meet the terms of the credit— and precisely — if it is to exact performance of the issuer. Failing such compliance there can be no recovery from the drawee.” 528 F.2d 802, 805-06.

Moreover, in ascertaining whether documents presented comply with the terms of a letter of credit, the issuer determines whether the documents comply on their face with the requirements of the credit. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 808; Ill. Rev. Stat. 1979, ch. 26, par. 5 — 109(2).) This is especially so in the instant case because the letter of credit involved here specifically stated: “Except as otherwise expressly stated herein, this Letter of Credit is subject to ‘The Uniform Customs and Practice for Documentary Credits [UCPDC]’ (1974 Revision), the International Chamber of Commerce Brochure No. 290.” Article 7 of the UCPDC provides:

“Banks must examine all documents with reasonable care to ascertain that they appear on their face to be in accordance with the terms and conditions of the credit. Documents which appear on their face to be inconsistent with one another will be considered as not appearing on their face to be in accordance with the terms and conditions of the credit.”

Article 8(c) of the UCPDC provides:

“If, upon receipt of the documents, the issuing bank considers that they appear on their face not to be in accordance with the terms and conditions of the credit, that bank must determine, on the basis of the documents alone, whether to claim that payment, acceptance or negotiation was not effected in accordance with the terms and conditions of the credit.”

In this regard, we observe that the issuer of a letter of credit is not “permitted to read into the instrument the contemplation or intention of the seller [beneficiary] and buyer [customer].” Courtaulds North America, Inc. v. North Carolina National Bank (4th Cir. 1975), 528 F.2d 802, 806.

In the instant case, the letter of credit, as amended, required that sight drafts drawn under it must be accompanied by “Invoices [and] Bills of Lading *** to Magic Automotive Products of Illinois, Inc., covering shipments to various Magic Automotive Products of Illinois locations in the United States.” As noted in the statement of facts, only three of the invoices reflect, on their faces, that they relate to shipments to MAP of Illinois locations in the United States. Applying the aforementioned principles, we must conclude that Marine Midland, as assignee of MAP of New York, failed to comply precisely with the terms of the letter of credit. Since the strict compliance standard was not met, we hold that Mount Prospect was not required to honor the drafts upon presentment.

Marine Midland argues, however, that in First Arlington, the appellate court turned away from the traditional standard of strict compliance by holding that reasonable compliance with the terms of a letter of credit entitles a beneficiary to payment. (See Crocker Commercial Services, Inc. v. Countryside Bank (N.D. Ill. 1981), 538 F. Supp. 1360, 1362.) Indeed, the First Arlington opinion contains language supporting such a conclusion. In that case the court held that an issuing bank was not justified in dishonoring the request of the beneficiary of a letter of credit for payment. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 816.) In reaching this conclusion, the court stated that “the accompanying documents submitted by [the beneficiary] reasonably complied with [the terms of the letter of credit].” (90 Ill. App. 3d 802, 814.) The court further stated:

“Although the traditional standard in letter of credit transactions is one of strict compliance with the terms of the credit by the party entitled to draw against the letter [citations], a number of courts have held that insignificant variance between the letter of credit requirements and the documents submitted in compliance therewith is permissible [citations].” (90 Ill. App. 3d 802, 814-15.)

Even assuming that this constitutes a new standard of compliance in Illinois, we are of the opinion that the variance here between the terms of the letter of credit and the documents submitted is not insignificant. Accordingly, regardless of whether the standard of compliance in Illinois is strict compliance or reasonable compliance, we hold that Mount Prospect was not required to honor the drafts presented by Marine Midland.

As to the foregoing, there is no genuine issue of material fact, and Mount Prospect and MAP of Illinois were entitled to judgment as a matter of law. Accordingly, the order granting summary judgment is affirmed.

Affirmed.

McGILLICUDDY and RIZZI, JJ., concur.

      In Far Eastern Textile, the court provided a rationale for a bifurcated standard, which would require strict compliance with the terms of the letter of credit when the issuer is being sued by the beneficiary for refusing to honor drafts on presentment, but would only require substantial compliance when the issuer is being sued by the customer for wrongful payment. 430 F. Supp. 193,196-97.

      Section 5 — 109(2) of the UCC provides: “An issuer must examine documents with care so as to ascertain that on their face they appear to comply with the terms of the credit but unless otherwise agreed assumes no liability or responsibility for the genuineness, falsification or effect of any document which appears on such examination to be regular on its face.” Ill. Rev. Stat. 1979, ch. 26, par. 5 — 109(2).

      All of the parties to this appeal agree that the letter of credit, as amended on June 27,1979, is the relevant version of the letter of credit.