text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL DIAZ, Defendant-Appellant.
    First District (5th Division)
    No. 83 — 185
    Opinion filed March 30, 1984.

      Melinda Power, of West Town Community Law Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Garritt E. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of resisting arrest (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1), acquitted of two battery charges, and sentenced to a one-year term of work release. On appeal, defendant contends that: (1) the trial court’s refusal to ask a question concerning racial bias during the voir dire of prospective jurors violated his sixth amendment right to an impartial jury; (2) the State injected improper comment which denied him his sixth amendment right to a fair trial; and (3) the State produced insufficient evidence to establish his guilt beyond a reasonable doubt. For reasons stated below, we affirm the judgment of the trial court.

Before trial, defendant submitted a question for voir dire. Although no record was made of voir dire proceedings, defense counsel referred in post-trial argument to “questions on voir dire concerning prejudice against Mr. Diaz because he is Mexican.” The trial court refused the question or questions, but asked “Looking at the defendant, is there anything about his appearance that would cause you to be sympathetic towards him or prejudiced against him?”

The following facts were adduced at trial.

Chicago police officers James Purtell and Anton Wenskus were in uniform and on routine patrol shortly before midnight on July 17, 1982, when they responded to a call and went to 5258 South Hermitage in Chicago, Illinois. According to the officers, they approached a side window at that address and informed the occupants that someone had complained of loud music. The officers then went to the front door and spoke with several of the occupants in broken English and Spanish.

Wenskus testified that defendant repeatedly asked who had complained. When he received an unsatisfactory response, defendant became abusive verbally, then assumed a karate stance and kicked both officers. A struggle ensued, during which the officers together succeeded in putting one handcuff on defendant. Wenskus called for assistance while Purtell continued to struggle with defendant; defendant surrendered when another squadrol arrived. Officer Wenskus stated that he neither struck defendant, nor saw Officer Purtell strike him. Purtell substantially corroborated Wenskus’ testimony: he admitted striking defendant, but denied using his baton.

Defendant, his wife, brother-in-law and sister-in-law all testified for the defense. The testimony of Mrs. Diaz, given through an interpreter, is representative. She stated that the police knocked on the window with their billy clubs and yelled to stop the music and open the door. While the police spoke with her brother, defendant asked why they had to lower the music. According to Mrs. Diaz, one of the officers pushed defendant and told him to “shut up.” Defendant held out his hands and said, “If I’m doing something wrong, then you can arrest me.” The officers began to beat defendant with their billy clubs. One of the officers threw defendant to the ground and struck defendant’s head against the pavement. When the squadrol arrived, the police carried him to it and threw him in.

The State introduced photographs depicting Officer Purtell’s injuries on July 18, 1982, as rebuttal. In closing argument, the assistant State’s Attorney commented that only relatives of defendant testified for the defense, despite the fact that many neighborhood people saw the incident.

Following deliberations, the jury returned a verdict of guilty on the charge of resisting arrest and verdicts of not guilty on two charges of battery. Defendant was sentenced to one year of work release. Defendant appeals.

Opinion

Initially, defendant contends that because racial prejudice was likely, the general question concerning prejudice asked of prospective jurors was inadequate, and the trial court was required to ask the question tendered by defendant. He concedes that his Latino ancestry was apparent to prospective jurors, but argues that a more specific question would have elicited grounds to challenge jurors for cause and enabled him to exercise peremptory challenges more effectively. At the outset we note that there is no record of voir dire proceedings had in this case, and though reference was made post-trial to questions tendered for voir dire, the precise question or questions at issue appear nowhere in the record.

This court has declined to upset the trial court’s judgment where appellant failed to provide a voir dire record adequate to support a claim of prejudiced veniremen. (People v. Robinson (1981), 102 Ill. App. 3d 884, 891, 429 N.E.2d 1356; People v. Bracey (1981), 93 Ill. App. 3d 864, 870, 417 N.E.2d 1029.) We noted in People v. Aldaco (1982), 107 Ill. App. 3d 672, 437 N.E.2d 905, that it is appellant’s responsibility to see that the record enables the reviewing court to resolve the issue, and that failure to do so would constitute a waiver. In Aldaeo, the appellant provided a transcript of voir dire, but the record failed to disclose the crucial questions which were submitted to the trial court and refused. (107 Ill. App. 3d 672, 678, 437 N.E.2d 905.) By comparison, the record before us is woefully inadequate. Not only do we lack any specific question which defendant urges would have shown “feelings toward or experiences with Mexicans” preventing impartiality, we do not know how many or in what manner challenges to veniremen were made or received, or what admonitions were given, so as to enable us to assess possible prejudice. Accordingly, we find that defendant has waived review of this issue.

Yet defendant asks that the issue be decided upon the post-trial record. If we reached the merits, we would hold that the trial court committed no error by refusing the tendered question. Defendant relies upon Ham v. South Carolina (1973), 409 U.S. 524, 35 L. Ed. 2d 46, 93 S. Ct. 848, for the proposition that a trial court commits constitutional error when it refuses to inquire into racial bias in a case where such bias is likely to affect the jury. The State points to two subsequent cases decided by the supreme court, Ristaino v. Ross (1976), 424 U.S. 589, 47 L. Ed. 2d 258, 96 S. Ct. 1017, and Rosales-Lopez v. United States (1981), 451 U.S. 182, 68 L. Ed. 2d 22, 101 S. Ct. 1629, which limited the holding in Ham. Ham involved a well-known black civil rights activist who claimed that he was “framed” on a charge of possessing marijuana. The supreme court concluded on the facts of that case that petitioner was entitled to inquire whether veniremen were prejudiced against blacks. (Ham v. South Carolina (1973), 409 U.S. 525, 527, 35 L. Ed. 2d 46, 50, 93 S. Ct. 848, 850.) The Ristaino court addressed the issue whether Ham required such inquiry whenever a criminal trial involved a confrontation between persons of different races or ethnic origins. The court noted that racial issues were “inextricably bound up” with the trial in Ham, and held that the determination of impartiality was discretionary with the trial court in the usual case. (Ristaino v. Ross (1976), 424 U.S. 589, 594-98, 47 L. Ed. 2d 258, 263-65, 96 S. Ct. 1017, 1020-22.) Rosales-Lopez reiterated this distinction between Ham and Ristaino by holding that the Constitution requires specific inquiry only where substantial indications of prejudice appear. Rosales-Lopez v. United States (1981), 451 U.S. 182, 189-90, 68 L. Ed. 2d 22, 29, 101 S. Ct. 1629, 1634-35.

We do not believe that this case presents substantial indications of racial or ethnic prejudice which were inextricably bound up with the conduct of the trial. Apparently, neither officer knew defendant before the incident. The officers responded to a complaint about loud music, and the incident escalated. The only issue of race or ethnic origin was in the confrontation between white police officers and the defendant who is Mexican, and in our opinion, this incident does not give rise to a constitutional claim.

Defendant next contends that the assistant State’s Attorney’s comment on defendant’s failure to call additional witnesses diluted his presumption of innocence. Arguments which diminish the presumption of innocence are forbidden. (People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432.) However, comments must be considered in context (People v. Toth (1982), 106 Ill. App. 3d 27, 435 N.E.2d 748), and where defense counsel’s argument invites or provokes a response, the prosecutor’s reply may be deemed proper. (People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816.) Even comments which might be improper will not warrant reversal unless they are a material factor in defendant’s conviction. People v. Dowd (1981), 101 Ill. App. 3d 830, 848-49, 428 N.E.2d 894.

When considered in context, the prosecutor’s remarks did not so prejudice the jury as to warrant reversal. The assistant State’s Attorney argued that defendant’s version of events was incredible in that both sides agreed that many neighborhood people gathered to observe the incident, but not a single person complained of police brutality. Defense counsel responded by arguing that it is the responsibility of the police, not the citizens, to complain about such misconduct. Defense counsel noted that no police made any complaints about defendant’s condition, but that the defense witnesses were citizens, and they had come forward. In rebuttal, the assistant State’s Attorney argued that all of the defense witnesses were related to defendant, and none of the neighbors testified for the defendant. No objection was made to this remark. Defendant objected when the assistant State’s Attorney said, “If in fact they were on the ground beating him the entire time, where is anybody besides ***.” This summary demonstrates that the remarks were understood as pertaining to the bias of the witnesses and the credibility of their story. So understood, the remarks were proper. The implication that defendant’s failure to call these people as witnesses could be used by the jury as proof of guilt is simply too remote to constitute reversible error.

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt. He states that his inability to speak English indicates that the officers lied and that he could not have known that he was being arrested. Further, defendant argues that the jury returned inconsistent verdicts, indicating their disbelief of the officers’ testimony.

The fact that defendant was acquitted of battery suggests nothing more than an exercise of leniency by the jury. (See People v. Dawson (1975), 60 Ill. 2d 278, 280-81, 326 N.E.2d 755, cert. denied (1975), 423 U.S. 835, 46 L. Ed. 2d 54, 96 S. Ct. 61.) To convict defendant of resisting arrest, the jury need only have believed that defendant knew that James Purtell and Anton Wenskus were peace officers and that defendant knew that he was obstructing them in their official capacity. (See Ill. Rev. Stat. 1981, ch. 38, par. 31 — 1.) The evidence indicated that the officers were in uniform and that there was a physical struggle; this evidence alone was sufficient. The jury’s assessment of the credibility of witnesses and weight to be given their testimony will not be disturbed. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) There was evidence that defendant understood English, but the jury’s determination on this point was incidental. We therefore reject defendant’s contention that the State failed to prove his guilt beyond a reasonable doubt.

For the foregoing reasons, the judgment of the circuit court is affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50 costs in this appeal.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMMY BRANCH, Defendant-Appellant.
    First District (5th Division)
    No. 82 — 2768
    Opinion filed April 6, 1984.
    Frederick F. Cohn and Robert G. Freeman, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney of Chicago (Michael E. Shabat, Jane E. Liechty and Maureen A. Dahlke, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted o.f murder and sentenced to a term of 40 years. On appeal, he contends that (1) his arrest was made without probable cause; (2) the trial court coerced the guilty verdict (a) by making improper remarks, and (b) by giving a prejudicially inaccurate deadlock instruction to the jury; (3) his right to cross-examine a State witness was erroneously restricted; (4) testimony that he was a suspect in an unrelated homicide was improperly admitted; and (5) he did not receive effective assistance of counsel.

At trial, James Boyd, A. L. Myrick and James Myrick related essentially the same version of the events that transpired in this case. Their testimony established that they and several other friends, including Frank Rawls, James Smith and the victim Andre Lofton, were in front of the Myricks’ apartment building in Chicago at about 8 p.m. on November 3, 1981, when defendant approached the group. Rawls accused defendant of having robbed him, whereupon a fight ensued between the two men which ended when some shots were fired nearby by an unknown person, causing everyone to run from the scene. About 45 minutes later, the group (except for Rawls) had reassembled in front of the building when A. L. Myrick saw defendant running toward him carrying a shotgun. The streetlights were on, and he was able to see defendant’s face clearly as he passed within two feet. James Myrick then hollered, “There’s some guy with a gun,” and all of the group ran into a nearby building. Boyd and James Myrick heard four or five shotgun blasts, and upon looking back they saw Lofton lying facedown on the stairs of the building. A. L. Myrick also heard several shotgun blasts. When the police arrived, Boyd told them that defendant was the man who had chased them with the shotgun, and the next day Boyd identified defendant from a group of police photographs. On February 13, 1982, Boyd and A. L. Myrick separately viewed a lineup and identified defendant as the gunman.

Officer Collins testified that during the early evening of November 4, 1981, he interviewed Boyd at the police station, and later that night he and his partner went to the crime scene where Boyd identified a picture of defendant as the person carrying the shotgun. He then returned to the police station, where a warrant for defendant’s arrest on a charge of murder was issued.

Officer Altman, of the Elmhurst police department, then testified that on February 11, 1982, as he passed a Convenient Food Mart on York Road at about 3:15 a.m., he noticed a white-over-blue 1973 Mercury which he knew did not belong to the owner of the store, parked in a stall facing the building. Ten minutes later, it was still there but had been turned around to face the street, and when he drove into the lot to investigate, he saw three men inside. A check on the license plates disclosed that they belonged to a 1974 Chevrolet which had been reported stolen in Chicago. He then radioed for a backup unit, and when it arrived the car was stopped and the occupants were asked for identification. Defendant, who was sitting in the right front seat, produced a Colorado driver’s license bearing the name “Ray Green,” but a computer check thereof indicated no such license on file in that State. The officer also visually compared the license to that of a sample in a book containing pictures of all State driver’s licenses, and determined therefrom that it was not a valid Colorado license. He and his partner remained on the street for about 15 minutes, attempting to establish defendant’s true identity, and because he was uncooperative, they transported him to the police station where they subsequently learned through a fingerprint check that his real name was Theo Branch and that there was an active warrant for his arrest for a murder in Chicago.

Chicago Detective Sanford testified that he and his partner transported defendant from Elmhurst to a police station in Chicago, where his Miranda rights were read to him, and he was told that he had been identified as the gunman in the November 3 murder of Andre Lofton in Chicago. Defendant then admitted that he was there with three other persons; that he had a .38-caliber weapon in his hand; and that, during a shootout which was provoked by a previous robbery and subsequent fight between one of his friends and a man named “Frankie J.,” Loften was killed.

Beverly Chapman, the sole defense witness, testified that she was defendant’s common law wife and, in mid-October 1981, she and their daughter were living at the Salvation Army Emergency Lodge at 800 West Lawrence Avenue in Chicago. At about 11:30 a.m. on November 3, 1981, defendant, who was unemployed at the time, came there in a cab and took her to a dental appointment after which they shopped, looked at some apartments, and then spent a few hours with defendant’s friends at a lounge a few blocks from the scene of the shooting. Defendant took her back to the lodge at about 8 p.m., went inside with her for a few minutes, and then left in the waiting cab. She identified a copy of the log sheet — which residents of the lodge were required to sign each time they left or returned thereto — indicating that on the day in question, she signed out at 11:45 a.m. and returned at 8:05 p.m.

Opinion

We first consider defendant’s contention that his arrest lacked probable cause. Specifically, defendant maintains that his arrest was based upon the unfounded suspicions of the arresting officer, arising solely because he was a passenger in a car bearing improper license plates rather than on a reasonable belief that he was, or had been, engaged in criminal activity. He argues that even if the initial stop of the vehicle was valid, the investigating officers had no reason to presume that he was aware of or in any way responsible for the license plate violation, and thus their questioning should have been confined to the driver of the automobile. His corollary argument is that the information obtained from the officers’ demands that he produce identification should have been suppressed as the fruit of this illegal arrest.

Initially, we note that defendant filed no pretrial motions to quash his arrest or suppress evidence obtained therefrom, nor did he raise this issue in his post-trial motion. Failure of the accused to challenge the legality of his arrest in the trial court generally constitutes a waiver thereof for purposes of review. (People v. Calderon (1981), 101 Ill. App. 3d 469, 428 N.E.2d 571; United States ex rel. Johnson v. Illinois (7th Cir. 1972), 469 F.2d 1297.) Defendant urges, however, that the waiver rule is inapplicable here because the absence of these motions was due to the incompetency of his counsel, which he cites as an additional ground for reversal. The cases have held, however, that it is not incompetence for counsel to refrain from raising issues which, in his considered judgment, are devoid of merit unless his appraisal of the merits is patently incorrect. People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25; People v. Stanley (1978), 62 Ill. App. 3d 638, 378 N.E.2d 1351.

In this regard, we note that section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107 — 14) provides that a police officer ‘ ‘may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed” a violation of a penal statute, and may demand the person’s name and address as well as an explanation of his actions. To be reasonable, the officer’s decision to stop must be based upon specific and articulable facts combined with any reasonable, inferences therefrom. People v. Scarpelli (1980), 82 Ill. App. 3d 689, 402 N.E.2d 915.

Here, uncontradicted testimony established that while on a routine patrol, the arresting officer first observed the automobile in which defendant was an occupant parked in the lot of an all-night grocery store at 3 a.m. and became suspicious when, upon passing the store 10 minutes later, he saw the car still there but turned around to face the street. Driving through the lot to get a better view of the vehicle, he observed three men inside, but despite his suspicions of them, he continued on through the lot and out to the street without further investigation. Immediately thereafter, the car exited the lot and followed him until he turned into a gas station. Upon returning to the street when the car had passed, he saw some objects being thrown from the right window, but it was not until a check of the license plates disclosed that they belonged to an automobile which had been reported stolen that the officer made an investigatory stop of the vehicle. Thus, we are not persuaded by defendant’s characterization of this stop as one predicated on mere suspicion or by his corrollary argument that even if the display of “improper” license plates constitutes a violation of the law, knowledge thereof or responsibility therefor cannot be imputed to a passenger of the automobile.

It is our view, however, that defendant and his companions were engaged in conduct which justifiably aroused the suspicions of the investigating officer, and that upon learning that the license plates were stolen, the officer possessed sufficient reasonable grounds to believe that he was confronted with a situation involving a crime, e.g., theft or possession of stolen property (Ill. Rev. Stat. 1981, ch. 38, pars. 16 — 1(a), (d)) and was thereby justified, under section 107 — 14, in stopping the vehicle and requiring each of its occupants to identify himself and explain his actions. (See People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92; People v. Georgev (1967), 38 Ill. 2d 165, 230 N.E.2d 851.) The identification produced by defendant was determined to be false; but, even so, it was only after an additional 15 minutes of persistently refusing to cooperate with the police that defendant was transported to the police station, where a check of his fingerprints disclosed his identity and that there was an active warrant for his arrest. Therefore, it is our judgment that defendant’s presence in a car lawfully stopped for bearing stolen license plates, coupled with his production of false identification and his subsequent refusal to voluntarily give the police the information he was obliged to give, justified their action of transporting him to the police station for further investigation. Under these circumstances, we believe that motions to quash defendant’s arrest and suppress evidence therefrom would have been unavailing, and we find no incompetency in his counsel’s failure to file them.

Defendant next contends that certain remarks by the trial court, followed by the giving of a prejudicially incomplete deadlock instruction, coerced the guilty verdict and deprived him of a fair trial.

It appears that after the jury had deliberated for about 43?2 hours, the foreman sent a note to the court which read:

“We have taken several votes on a decision with the final vote of eleven to one guilty. We have collectively discussed the case thoroughly. The one person who has consistently voted not guilty had indicated to us that they could not vote guilty because they do not want anyone to go to jail. Since the beginning they have felt uncomfortable on the jury. What is our next move? Please advise.”

Without showing the note to counsel or apprising them of its substance, the trial judge summoned the jury into the courtroom and said:

“Ladies and gentlemen of the jury, I have your note and it seems from the note that you are faced with a dilemma. The person on your jury indicated in this note evidently should not have received jury service.”

The court then gave them a deadlock instruction and concluded by saying:

“[N]ow, we will give the jury all the time that it needs. In about an hour we will arrange overnight accommodations and perhaps tomorrow. We won’t cut this jury short because of the dilemma it seems to indicate or the impasse that has been caused.”

When the jurors retired for further deliberations, defense counsel requested to see the note or to at least be informed of its contents. After first denying the request, the trial judge then read the note aloud, whereupon defense counsel moved for a mistrial on the ground that the trial court’s remark regarding the juror who was the subject thereof would serve only to coerce the juror into changing his vote to guilty. In denying the motion, the trial court stated:

“[T]he court’s remarks were for the reason that the juror has evidently not concerned himself or herself with the issue that is before it [sic], whether or not the evidence establishes the guilt of the defendant *** and is concerning himself or herself with the punishment that might be imposed if a guilty verdict is returned, which, of course, is beyond what the jury is properly to consider.”

Defendant first asserts that the court’s comment singling out the one juror who had expressed unwillingness to vote guilty and declaring that the juror should not have received jury service was so prejudicial as to constitute reversible error. We agree.

Although our research discloses that the particular facts of this case are somewhat unique, issues concerning the propriety of supplemental instructions and other forms of communications between the trial judge and jurors who have been unable to reach a unanimous verdict have been raised in our courts on numerous occasions, and it appears well settled that the trial court has a responsibility to proffer some type of guidance to a jury which has expressed its inability to achieve unanimity in its deliberations and has sought direction from the trial court thereon. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.) As with any instruction not found among Illinois Pattern Jury Instructions for Criminal Cases (IPI Criminal), the court’s response to the jury must be simple, brief, impartial, and free from argument (87 Ill. 2d R 451(a)) and may not be an effort by the court, under the guise of guidance, to coerce even a single juror into changing his position merely to secure a verdict (People v. Anthony (1975), 30 Ill. App. 3d 464, 334 N.E.2d 208). In reviewing the propriety thereof, the test is whether, upon examination of the totality of circumstances, the language used actually coerced or interfered with the deliberations of the jury to the prejudice of the defendant. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601; People v. Iverson (1973), 9 Ill. App. 3d 706, 292 N.E.2d 908.) However, since coercion is a highly subjective concept which does not lend itself to precise definition or testing (United States v. Brown (7th Cir. 1969), 411 F.2d 930), the decision of a reviewing court often turns on the difficult task of ascertaining whether the challenged comments imposed such pressure on the minority jurors to cause them to defer to the conclusions of the majority for the purpose of expediting a verdict. People v. Robertson (1981), 92 Ill. App. 3d 806, 416 N.E.2d 323.

Applying these guidelines to the case before us, we first note that although the trial court explained to counsel in a discussion held after the jury had retired to deliberate further that its remarks were prompted by the juror’s improper consideration of the punishment defendant might receive if convicted and were intended to redirect his attention to the issue of guilt, there is nothing indicating whether the juror was even aware of the impropriety of his digression, and we are unable to discern how the court’s statement that he “should not have received jury service” can be said to have adequately apprised him thereof, or how the juror could have extracted therefrom the directive allegedly intended, but not expressed, by the trial court.

Considering the context in which this statement was made, it seems more likely that the court’s remarks had the effect of intimidating the juror into changing his vote by implying that his refusal to defer to the majority position somehow should have disqualified him from jury service. We are also of the opinion that the court’s concluding remarks concerning the “impasse that has been caused” and the possibility of overnight sequestration only reinforced that pressure by insinuating that the juror had already created a problem, and that if he failed to alter his position within one hour he would be responsible for further inconvenience to himself and his fellow jurors. We are not unmindful of the peculiar situation with which the trial judge was faced, and we do not question the integrity of his motives, but “[a] verdict hastened by the action of the judge, however worthy the motive, cannot be the result of that deliberation which the law guarantees” (People v. Golub (1929), 333 Ill. 554, 561, 165 N.E. 196, 199), and although the length of subsequent deliberations, standing alone, is not conclusive in determining whether the court’s remarks were the primary factor in the procurement thereof (see People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731), notably brief deliberations do invite such an inference (see People v. Richards (1968), 95 Ill. App. 2d 430, 237 N.E.2d 848; compare People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359; People v. Green (1980), 91 Ill. App. 3d 1085, 415 N.E.2d 595; People v. Allen (1977), 47 Ill. App. 3d 900, 365 N.E.2d 460). Here, the fact that the jury deliberated for 41/2 hours before hearing the challenged remarks, but for only 10 minutes thereafter, belies the State’s assertion that they did not impose any pressure on the minority juror to heed the majority and thus to change his vote for the sole purpose of rendering a verdict.

Defendant also asserts that the instruction given following these offensive prefatory remarks was an inappropriate and prejudicially incomplete version of the deadlock instruction prescribed in People v. Prim (1972), 53 Ill. 2d 62, 289 N.E .2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731. In Prim, our supreme court rejected the much-criticized “Allen charge” approved by the United States Supreme Court in United States v. Allen (1896), 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154, because it contained language which had the effect of urging dissenting minority jurors to “heed the majority.” Although the Prim court did not find the instruction before it, which was a variation of the traditional “Allen charge,” to have coerced the guilty verdict returned, it did take the occasion to formulate a model instruction designed to avoid coercion of future deadlocked juries specifically incorporating therein the five points recommended by the American Bar Association Minimum Standards Relating to Jury Trials. The court stated, “We are of the belief that the adoption of [these] standards *** will resolve the many questions created by the uncertainty attendant upon instructing a jury that is in disagreement,” and then held, “we direct that hereafter the trial courts of this State when faced with deadlocked juries comply [therewith].” People v. Prim (1972), 53 Ill. 2d 62, 76.

In the instant case, the trial court recited verbatim the first portion of the Prim instruction, which provides:

“The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous.” (People v. Prim (1972), 53 Ill. 2d 62, 75-76.)

However, the court failed to include the remainder of the instruction, which reads as follows:

“But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.” People v. Prim (1972), 53 Ill. 2d 62, 76.

Defendant argues that the deleted language was necessary to balance the “heed the majority” theme of the preceding sentences, and that its omission intensified the coercion created by the court’s aforementioned prefatory remarks. In response, the State asserts that a verbatim recitation of the entire Prim instruction is not required as long as the language used comports with the guidelines thereof, and that the inclusion here of the words “deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself’ (emphasis added) (People v. Prim (1972), 53 Ill. 2d 62, 75-76) adequately urged the juror not to heed the majority but, rather, to make an independent decision. The State analogizes the instant instruction to that given in People v. Green (1980), 91 Ill. App. 3d 1085, 415 N.E.2d 595, wherein the court found that the omission of the italicized language above was not reversible error. We note, however, that in so ruling, the Green court found that the inclusion of the language omitted in our case specifically cautioned the jurors against heeding the majority and noted that the additional 4V2 hours for which the jurors deliberated after being instructed indicated that they felt no coercion from the court’s action.

Here, not only did the court exclude the more specific balancing language used in Green, but also concluded its charge with the words “[b]ut do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous.” In the light of the brevity of the subsequent deliberations and considering the pressure already imposed by the court’s preliminary comments, we believe that the remaining three sentences of the Prim instruction should have been given.

Moreover, where the decision to give a deadlock instruction is within the discretion of the trial court (People v. Thompson (1981), 93 Ill. App. 3d 995, 418 N.E.2d 112), it is questionable here whether, in the light of the juror’s preoccupation with the issue of punishment, rather than with the evidence as it related to guilt or innocence, this situation was in fact a true deadlock, warranting an instruction thereon, or whether some other instruction — such as IPI Criminal No. 1.01(4) — which specifies: “You are not to concern yourself with possible punishment or sentence for the offense charged during your deliberation ***” might have been more appropriate. The State argues that this instruction would have been improper because the Committee Note thereafter indicates that it should not be used unless the issue of punishment is raised in closing arguments. However, as noted in People v. Parker (1983), 113 Ill. App. 3d 321, 447 N.E.2d 457, the purpose of that caveat is to avoid injecting extraneous matters which the jurors might not have considered had they not been brought to their attention. Here, the issue of punishment had obviously been raised by the jurors, and it is our view that IPI Criminal No. 1.01(4), or an appropriate variation thereof, was warranted.

In view of our holdings as set forth above, we need not address the remaining issues raised by defendant. We point out, however, that defendant does not contend that the evidence does not support his conviction and, from our review of the record, we find that his guilt was proved beyond a reasonable doubt.

Accordingly, and for the reasons stated, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

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

      Section 3 — 703 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 3 — 703) provides that it is a Class C misdemeanor for any person to display upon a vehicle registration plates not issued therefor.


text:
    GARY L. SOLOMON, d/b/a Gary Solomon and Company, Plaintiff-Appellant, v. PAUL BARON, Defendant-Appellee.
    First District (5th Division)
    No. 83 — 1916
    Opinion filed March 30, 1984.

      Monte B. Viner, of Chicago (Linda S. Kagan, of counsel), for appellant.
    Michael Resis, Dennis A. Marks, and Victor J. Piekarski, all of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiff appeals from summary judgment for defendant in an action to recover a commission allegedly due under a real estate broker’s listing agreement. He contends that (1) material questions of fact existed which precluded entry of summary judgment; and (2) the trial court erred in ruling that defendant had no legal duty to respond to offers to purchase.

In his verified complaint, plaintiff alleged in pertinent part that he and defendant entered into a contract on October 20, 1980, under which he was engaged as defendant’s exclusive agent to sell a parcel of real estate located at 523 South Plymouth Court in Chicago; that two offers to purchase at the stated price were tendered to defendant, who failed to respond to the first offer and rejected the second offer; and that, because he had obtained a ready, willing, and able purchaser, he was entitled to the 5% commission stated in the listing agreement. Three documents were attached to the complaint. The first was an exclusive listing agreement signed by both parties which stated that plaintiff was to receive a 5% commission when he secured a purchaser who would buy the property for $650,000 and subject to the following terms: a $100,000 down payment, the balance to be seller-financed at 9% per annum amortized over 25 years, the balance to be due after 10 years. The second document was an offer to purchase for $650,000, dated February 18, 1981, terms to be $100,000 down and a purchase money note and mortgage for the remainder “at 9% per annum with monthly payments including principal and interest of $4,461.00 with a final payment due March 1991.” That offer further recited that defendant was to pay plaintiff a 6% commission. The third document was an offer from the same party dated April 14, 1981, to purchase for $650,000 cash, but contingent upon the purchaser obtaining a $450,000 first mortgage “at an interest rate not to exceed 15% to be amortized over a minimum term of 20 years with loan charge not to exceed 3%.” The offer further provided that defendant was to pay plaintiff a 5% commission.

In his verified answer, defendant denied agreeing to the terms set forth in the exclusive listing agreement, denied that the offers made were in compliance with the terms of the agreement, and denied that he failed to respond to the first offer.

Both parties moved for summary judgment, and in support of their arguments submitted the parties’ depositions. In his deposition, defendant admitted signing the October 20 listing agreement but asserted that the financing terms recited therein were added after he signed the agreement. He acknowledged that he told plaintiff he was not interested in a cash sale, and that they talked about the possibility of an installment plan, but he insisted that they never reached any agreement on what the precise terms thereof would be. Defendant also stated that he did not respond to plaintiff’s telephone calls or letters regarding the February 18 offer.

Plaintiff stated in his deposition that defendant told him when they first began negotiations that he did not want a cash sale, preferring to minimize his capital gains by financing the sale over a 10-year period. At a meeting on October 20, 1980, they agreed to all the terms recited in the listing agreement, and those terms were filled in before either party signed the agreement. On February 18, 1981, an offer to purchase for $650,000 was transmitted to defendant. Plaintiff acknowledged that the $4,461 monthly payments provided therein were based on amortization over 29 to 30 years, and stated that he knew at the time the offer was drafted that this differed from the 25-year amortization period set forth in the terms of the listing agreement; the change was made to make the terms easier for the purchaser during the initial 10-year period. Plaintiff further admitted that the provision therein was for a 6% rather than a 5% commission, but asserted that this was an oversight and, had defendant pointed it out, it would have been changed; however, he never submitted a corrected offer to defendant or discussed the error with him. When the February 18 offer was submitted to defendant, he said that he would consider it; he did not accept or reject it at that time nor indicate that the terms were unacceptable. Plaintiff also stated that defendant never responded to this offer, but later said that two or three weeks after receiving it, defendant told him that he would not accept the terms. Later, defendant’s attorney called to ask when the financing terms were added to the agreement, and stated that his client had never agreed to those terms. Although neither defendant nor his attorney said that defendant preferred a cash sale, he (plaintiff) interpreted these conversations to mean that such an offer would be acceptable, and the April 14 offer thereof was submitted. Defendant refused to accept that offer, and on April 28, 1981, cancelled the exclusive listing agreement.

The trial court noted that neither offer was in compliance with the terms set forth in the listing agreement. Under the first, defendant was to receive $18,000 less during the initial 10-year period by virtue of the amortization of the purchase money mortgage over 29 to 30 years rather than the 25-year period specified in the listing agreement, and that the offer further provided for a 6% rather than a 5% commission. The second offer was similarly nonconforming, since it was a contingency contract for purchase on a cash basis when defendant had specifically informed plaintiff that, for tax purposes, he preferred to finance the sale. The trial court granted summary judgment for defendant, ruling that under those circumstances plaintiff was not entitled to a commission, and defendant was under no obligation to respond to the first offer or explain his reasons for rejecting it.

Opinion

Plaintiff first contends that several material issues of fact were raised by the pleadings and depositions, and summary judgment was therefore improperly granted, asserting that there was substantial disagreement between the parties as to whether defendant had agreed to the financing terms set forth in the listing agreement; whether defendant had responded to two earlier offers not in issue here; and whether defendant responded to the February 18 offer. He correctly notes that, on a motion for summary judgment, the trial court must determine whether there is a genuine issue as to any material fact that requires a trial (Bezin v. Ginsburg (1978), 59 Ill. App. 3d 429, 375 N.E.2d 468) and whether the movant is entitled to judgment as a matter of law (Marquette National Bank v. Heritage Pullman Bank & Trust Co. (1982), 109 Ill. App. 3d 532, 440 N.E.2d 1033), and that, while summary judgment should be granted where the pleadings, exhibits, depositions and affidavits of record establish these elements (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005), it is a drastic measure to be employed only when the evidence, when construed most strongly against the movant, establishes clearly and without a doubt his right thereto (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958). We must determine, then, whether this standard has been met.

The general rule governing a broker’s right to receive a commission is well settled:

“Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority who is ready, willing and able to purchase the property upon the terms proposed by the seller he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness and ability of the purchaser to take the property on the terms proposed.” (Fox v. Ryan (1909), 240 Ill. 391, 396, 88 N.E. 974, 976. See also Kenilworth Realty Co. v. Sandquist (1977), 56 Ill. App. 3d 78, 371 N.E.2d 936; Webster v. Hochberg (1969), 105 Ill. App. 2d 466, 245 N.E.2d 529.)

Ordinarily, whether a broker has procured a purchaser ready, willing, and able to purchase the property upon the specified terms and conditions is a question of fact (Kenroy, Inc. v. Berthold (1973), 11 Ill. App. 3d 1039, 298 N.E.2d 387); however, this court has not hesitated to affirm dismissal of a cause of action where, from the complaint and exhibits attached thereto, it appeared that the terms of the offer made by the prospective purchaser differed from the terms set forth in the listing agreement (see, e.g., Gallina v. Dollens (1979), 75 Ill. App. 3d 174, 394 N.E .2d 36; Sharkey v. Snow (1973), 13 Ill. App. 3d 448, 300 N.E.2d 279; Spilky v. McDonald (1968), 94 Ill. App. 2d 411, 236 N.E.2d 907), reasoning that, under those circumstances, even if every allegation of the complaint were proved, the plaintiff would not be entitled to judgment as a matter of law. Similarly, we have affirmed entry of summary judgment where the pleadings, exhibits, depositions, and affidavits established that the terms of the alleged offers did not comply with the terms of the listing agreement (see, e.g., Century 21 Allen Realty, Inc. v. Bodinus (1983), 112 Ill. App. 3d 46, 444 N.E.2d 1135; Nardi, Pain & Podolsky, Inc. v. Vignola Furniture Co. (1967), 80 Ill. App. 2d 220, 224 N.E.2d 649), and have even reversed summary judgment for the broker and entered summary judgment for the seller upon such a showing (see Katz v. Brooks (1965), 65 Ill. App. 2d 155, 212 N.E.2d 508).

In the instant case, accepting as true plaintiffs allegation in his complaint that the listing agreement included the financing terms set forth therein, it is apparent that the two offers upon which he relies in seeking recovery did not conform to those terms. The first offer provided for amortization over a 29- to 30-year period rather than a 25-year period, and required payment of a 6% rather than a 5% commission, and plaintiff does not deny that acceptance of these terms would have resulted in defendant receiving approximately $25,000 less over the 10-year duration of the contract. In his deposition, plaintiff asserted that the provision for a 6% commission was an oversight which would have been corrected had defendant pointed it out. However, he readily admitted that he knew when the offer was submitted to defendant that it did not conform to the terms of the listing agreement and that it would have benefited the purchaser to defendant’s detriment. Similarly, plaintiff acknowledged that the second offer of a contingency contract, with the price to be paid on a cash basis, was totally at odds with the terms of the listing agreement calling for seller-financing upon specified terms.

Nevertheless, plaintiff points to a number of factual disputes raised in the pleadings and depositions as precluding summary judgment. First, he maintains that there was conflicting evidence concerning defendant’s acceptance of the financing terms recited in the listing agreement. However, we note that for purposes of his motion for summary judgment, defendant conceded that factual point and admitted that the financing terms stated were as agreed. Thus, there was no material issue of fact concerning the terms of the listing agreement, since defendant accepted plaintiff’s allegation as true in his argument.

Plaintiff also asserts that there was a factual dispute regarding whether defendant responded to two offers which preceded the February 18 offer, both of which were for less than the $650,000 asking price, and whether defendant responded to the February 18 offer. In their depositions, plaintiff stated that defendant did respond to the first two offers, rejecting them as too low, while defendant said that he never responded to either offer. Similarly, in his verified complaint, plaintiff alleged that defendant failed to respond to the February 18 offer, but defendant denied this in his verified answer. We note that the parties suddenly reversed their positions in their sworn depositions, with plaintiff stating that defendant told him two or three weeks after receiving the offer that he did not sign it because he would not accept the terms, while defendant asserted that he never responded. It is plaintiff’s position that these discrepancies raise a material issue of fact, but it is our view that no matter how sharply controverted, the question whether defendant did or did not respond to various offers is totally irrelevant to the question whether plaintiff procured a purchaser who was ready, willing, and able to buy under the terms of the listing agreement. Disputed issues of fact are not material and do not warrant denial of summary judgment if they are unrelated to the essential elements of the cause of action. Leon v. Max E. Miller & Son, Inc. (1974), 23 Ill. App. 3d 694, 320 N.E.2d 256.

Plaintiff next contends that the trial court erred in ruling that defendant had no duty to respond to the February 18 offer. He posits that such a ruling allows a seller to frustrate a broker in the exercise of his duties through such bad-faith conduct as failing to respond to telephone calls and letters. We disagree, for the simple reason that the seller’s response or lack thereof is immaterial to the broker’s ability to recover on contracts such as the one before us, where recovery of the commission is not contingent upon sale of the property. Where, as here, the offers submitted do not conform to the terms of the listing agreement, the broker cannot recover regardless of whether the seller responded or not, because he cannot prove an essential element of his cause of action; that is, that he procured a buyer ready and able to purchase on the seller’s terms. Conversely, if the broker has procured such a purchaser, he would be entitled to recover his commission, since it is immaterial for purposes of the cause of action whether the seller ever accepts or performs the proffered contract.

Moreover, we find this to be a rather abstract question under the facts of this case, since plaintiff acknowledged in his deposition that defendant in fact did respond, telling him that he did not sign the February 18 offer because he was not going to accept those terms. Thus, plaintiff’s complaint appears to be, not that defendant failed to respond, but that he failed to give as his reason for rejecting the offer that it did not comply with the exact terms stated in the listing agreement. We have considered this question, although not specifically raised by plaintiff, and find Nardi, Pain & Podolsky, Inc. v. Vignola Furniture Co. (1967), 80 Ill. App. 2d 220, 224 N.E.2d 649, dispositive of the issue. There, summary judgment was granted for the defendant-seller when it appeared that the allegedly conforming offer did not in fact conform to all of the terms set forth in the listing agreement. One of the arguments raised on appeal was that, because noncompliance with the stated terms was not given as a reason for rejecting the offer, the defendant was estopped from raising it as a defense. In rejecting this contention, we stated:

“Under the circumstances of the present case the defendant was under no obligation to state its reason for not signing the proffered contract or to reopen negotiations. * * * Despite this prior awareness [of the acceptable terms], the contract, prepared a few days later by the purchaser, ignored the condition. The defendant had a right to regard this as a repudiation of the condition and as a tender of a new proposal. The evidence does not support the position of the plaintiff that it produced a purchaser ready or willing to accept the terms offered by the defendant. Since the plaintiff did not, the defendant was free either to accept the new proposal or to decline to do so without giving either the plaintiff or the purchaser its reason.” (80 Ill. App. 2d 220, 225-26, 224 N.E.2d 649, 653.)

We further held that “[t]he determinative question [in granting summary judgment for the defendant] is whether the contract submitted by the prospective purchaser conformed to the terms listed in the offer of the defendant and not whether the defendant based its refusal on this reason.” (80 Ill. App. 2d 220, 228, 224 N.E.2d 649, 654.) Similarly, here, both plaintiff and the prospective purchaser were aware that the February 18 offer did not comply with the terms of the listing agreement, and it is immaterial, for purposes of plaintiff’s recovery of a commission pursuant to that agreement, whether defendant stated any reason for refusing to accept the proffered contract. It is clear that under the facts established, plaintiff did not procure a buyer ready and willing to purchase on the terms stated.

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

Affirmed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE STOUDER

text:
    ERNEST WILLIAMS, Plaintiff-Appellee, v. BOARD OF REVIEW, DEPARTMENT OF LABOR, Defendant-Appellant (United States Steel Corporation, Defendant).
    Third District
    No. 3-83-0377
    Opinion filed April 10, 1984.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This matter comes before us on administrative review. The plaintiff-appellee, Ernest Williams, filed a claim for Trade Readjustment Allowance benefits under the Trade Act of 1974 (19 U.S.C. secs. 2272 through 2322 (1976).) The Illinois Department of Labor (IDOL) denied the claim. The circuit court of Will County found the IDOL’s decision to be contrary to the manifest weight of the evidence and ordered that benefits be paid the plaintiff. The IDOL appeals the decision of the circuit court. We reverse.

We note initially that the plaintiff filed no brief in this cause. Nevertheless, we decide the case on its merits. It is well established that, where justice so requires, the record is simple and the claimed errors are such that the court can decide them without the aid of an appellee’s brief, a court of review may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The Trade Act of 1974 provides, inter alia, for adjustment assistance for workers who lose work as a result of increased imports. The Act provides that payment of a trade readjustment allowance shall be made to certain adversely affected workers covered by a certification of eligibility to apply for assistance. (19 U.S.C. secs. 2271, 2273, 2291 (1976).) The States may cooperate in administering the Federal Act. (19 U.S.C. sec. 2311 et seq. (1976).) The grant of a certification of eligibility is based on statutory criteria. (19 U.S.C. secs. 2272, 2273 (1976).) The grant is akin to a preliminary entitlement step. Only those in the eligibility group may apply for assistance. (19 U.S.C. secs. 2273(a), 2291 (1976); Lloyd v. United States Department of Labor (9th Cir., 1980), 637 F.2d 1267.) In Illinois, a worker applies to the IDOL to make a claim under a trade readjustment certification.

In January of 1978 the USDOL received, on behalf of all workers employed with the production of carbon steel rods and merchant wire at the Joliet-Waukegan United States Steel Corporation plant, petition TA-W-3205, a petition for certification. The petition sought the Department’s certification of eligibility enabling those workers to apply for readjustment assistance. (19 U.S.C. sec. 2271 (1976).) In a letter of July 20, 1978, the USDOL granted certification that some of the plant’s workers were eligible to apply for adjustment assistance. (19 U.S.C. sec. 2272 (1976).) In a second clarifying memorandum concerning TA-W-3205, the USDOL specified that the “certification was designed to cover workers in the no. 2 rod mill and billet storage area only.” (Emphasis added.)

Prior to October of 1979, when he was laid off, the plaintiff worked as a nail machine operator at the Joliet-Waukegan plant. After he was laid off, the plaintiff filed his claim for a trade readjustment allowance under the certification on petition TA-W-3205. The IDOL claims adjudicator determined that the plaintiff was not entitled to a trade readjustment allowance. An IDOL referee affirmed that determination, finding that the TA-W-3205 certification covered only workers in the No. 2 rod mill and billet storage areas. The referee found further that the plaintiff did not work in one of those specified areas. The referee therefore concluded that the plaintiff was ineligible for benefits since he had not lost work from one of the areas certified in TA-W-3205 as adversely affected. (19 U.S.C. sec. 2291 (1976).) The IDOL Board of Review adopted the referee’s finding and decision.

The plaintiff sought administrative review of the IDOL’s decision. (19 U.S.C. sec. 2311 (d) (1976); Ill. Rev. Stat. 1983, ch. 110, pars. 3-

101 through 3 — 112.) On review the circuit court reversed the IDOL’S decision. The court reasoned that it was contrary to the manifest weight of the evidence to deny the plaintiff benefits because he did not work in the No. 2 rod mill when the plaintiff’s layoff was caused by the closing of the No. 2 rod mill. The record includes neither a transcript of the hearing nor evidence of arguments the plaintiff presented.

Under the Administrative Review Act (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), an administrative agency’s findings and conclusions on questions of fact are prima facie true and correct. The circuit court is authorized to set aside an agency finding only if it is against the manifest weight of the evidence. (Petraitis v. Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 864, 335 N.E.2d 126.) An agency decision may be adjudged against the manifest weight of the evidence only if it appears from the record that an opposite conclusion is clearly evident. Ernzen v. Board of Trustees (1981), 96 Ill. App. 3d 1143, 421 N.E.2d 1065.

An examination of the record reveals that the IDOL’s decision that the plaintiff was not covered by certification TA-W-3205 and therefore was not eligible for assistance on his application was not against the manifest weight of the evidence. The Trade Act of 1974 provides that “*** a trade readjustment allowance shall be made to an adversely affected worker covered by a certification ***.” (19 U.S.C. sec. 2291 (1976).) USDOL letters regarding TA-W-3205 certification support the IDOL finding that the plaintiff was not covered by the certification under which he applied for benefits. There is no evidence in the record that the plaintiff may have been covered by a certification other than TA-W-3205.

Accordingly, the judgment of the circuit court of Will County is reversed. The decision of the Board of Review of the Illinois Department of Labor is reinstated.

Judgment reversed.

ALLOY, P.J., and HEIPLE, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY BRYANT, Defendant-Appellant.
    First District (5th Division)
    No. 82 — 1338
    Opinion filed March 30, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Robert B. Morton, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago, for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of two counts of attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 9 — 1) and two counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a)), and sentenced to 12 years’ imprisonment. On appeal, defendant contends that: (1) the State produced insufficient evidence to establish his guilt beyond a reasonable doubt; (2) the trial court erroneously instructed the jury concerning the elements of attempted murder; (3) the State injected improper testimony and improper comment violative of his right to a fair trial; (4) the trial court erroneously entered judgment on the lesser-included offense of aggravated battery; and (5) the sentence was excessive. For the reasons stated below, we affirm in part and vacate in part.

The following facts were adduced at trial. At 8:30 p.m. on Sunday, May 17, 1981, a group of young men were playing dice on the sidewalk outside a tavern located on the northeast corner of Huron and Avers streets in Chicago, Illinois, when gunfire from an automobile struck two of the young men. Rodney Harper suffered a bullet wound to the head, and awoke from a months-long coma unable to walk or talk; 16-year-old Kenneth Martin suffered multiple bullet wounds to his arm and chest, and" at the time of trial, a bullet remained lodged in his body. The victims testified that they did not see who shot them.

Marion Carney was an area resident and army reservist in May of 1981; he was a private on active duty at the time of trial. Sunday evening, May 17, 1981, Carney spoke with friends inside the tavern for 10 or 15 minutes, bought a quart of beer, and left. Outside the tavern, he observed a four-door automobile with four occupants stopped in the street near the dice game. Carney testified that he recognized the rear passenger side occupant, whom he had seen several times before, and identified that occupant as the defendant. Defendant asked where he could buy some “reefer,” and when no one responded, asked again. One of the group on the corner then responded, and defendant asked twice for more specific directions. Carney testified that after this exchange, defendant conversed with other occupants of the car for 10 or 15 seconds, called out to the group on the sidewalk, made a sign representing the Vice Lords street gang, and opened fire with a handgun. Joined by the front seat passenger, they fired about nine shots and drove away.

Carney called the police, and immediately named and described defendant. He also described the front seat passenger as a 23- or 24-year-old male, dark complected, with a moustache and beard. Although he saw the faces of all four occupants, he recognized only defendant. Carney identified defendant in a photographic array that night, and picked defendant out of a lineup at 4:15 a.m. the morning of May 19, 1981. On cross-examination, Carney denied membership in any gang.

Chicago police detective James Dwyer testified that Marion Carney identified defendant in a lineup. Officer John Patton stated that he arrived at the scene of the shooting one minute after a radio call, and that the scene was illuminated by three lighted tavern signs and by a street lamp located on the northwest corner of Huron and Avers streets.

Detective James Cornelison testified that he went to the corner of Huron and Avers on May 17, 1981, and that when he arrived it was night. He characterized the lighting as “good,” and stated that the corner was lit by a street lamp and a sign. Cornelison stated that he spoke with Marion Carney and “another witness who didn’t wish to give his name.” The trial court overruled defendant’s objection, but warned that it would sustain objection to any statement made by the unnamed person. Cornelison indicated that he, Marion Carney, and the unnamed witness went to 620 North Kedzie, then to the 500 block of North Kedzie, where Cornelison noted the license and registration numbers of an automobile in an empty lot. He then left the unnamed witness near the scene, took Marion Carney to police headquarters, and presented Carney with the photographic array.

On cross-examination, Cornelison stated that the automobile in the vacant lot did not fit the description of the car involved in the shooting. Defendant asked four questions about the “unidentified individual,” inquiring whether the detective habitually had unidentified people in his car. On redirect, the trial court overruled defendant’s objection and permitted Cornelison to testify that the unidentified person was afraid to give his name.

The defendant’s case consisted of four witnesses. Defendant called Chicago police detective James Dwyer, who testified that defendant had given him an alibi, but that he had been unable to confirm it. Mary Bryant, defendant’s mother, stated that defendant had said that he would be at Denise’s house on Sunday, May 17, 1981. She indicated that after defendant’s arrest, she tried to find Denise’s house at 1014 North Cleveland, but finally discovered at at 1410 North Cleveland.

Jessie Holliman testified that her daughter, Denise, was defendant’s girlfriend, and that defendant spent Sunday, May 17, 1981, between 5:00 and 10:30 p.m. with her family at 1410 North Cleveland. Henry Holliman, Denise’s father, corroborated this alibi testimony. On cross-examination, the Hollimans admitted that they had been unable to recall the date of defendant’s visit when interviewed earlier in the week by the assistant State’s Attorney. Although the Hollimans knew soon after defendant’s arrest that he was charged with a serious crime committed on May 17, 1981, they made- no effort to contact the police or State’s Attorney’s office.

In closing arguments, the prosecution and defense agreed that the case turned on Marion Carney’s identification. The prosecutor stated:

“You saw Marion Carney testify. The way he testified was straightforward. He was polite. He was an honest young man. That guy could not make up a story, come in and tell it straight a year later if his life depended on it.”

Defendant’s objection was overruled, and the prosecutor then reiterated his argument and concluded by attacking the credibility of the alibi witnesses. Defense counsel argued that the unidentified man in the police car was fabricated in order to bolster Marion Carney’s identification and that the police helped Carney to identify defendant. During rebuttal, the prosecutor said:

“Mr. Burke also suggested to you that Detective Cornelison *** somehow fabricated this unidentified person who he was driving around *** [B]ut this is the west side of the City of Chicago. And when people go like this, people get afraid. People are afraid to come into court and testify.”

The trial court overruled defendant’s objection. Later, the prosecutor argued that Kenneth Martin was afraid to look at defendant, and repeated that people are afraid to get involved. The prosecutor also commented on the defendant’s failure to produce additional alibi •witnesses.

The trial court gave the jury three instructions concerning attempted murder. First, the definition of attempt:

“A person commits the offense of attempt when he, with intent to commit the offense of murder, does any act which constitutes a substantial step toward commission of the offense of murder.
The offense attempted need not have been committed.”

Second, the definition of murder:

“A person commits the offense of murder when he kills an individual if, in performing the acts which cause the death; he intends to kill that individual or another; or he knows that such acts will cause death to that individual or another.”

Third, the “issue” or directive attempted murder instruction:

“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed an act which constituted a substantial step toward the commission of the offense of murder; and
Second: That the defendant, or one for whose conduct he is legally responsible, did so with intent to commit the offense of murder.
If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.”

Following deliberations, the jury returned verdicts of guilty on two counts of attempted murder and two counts of aggravated battery. Judgment was entered on all the verdicts, and the trial court sentenced defendant to 12 years’ imprisonment on each count of attempted murder, to be served concurrently. The court expressly imposed “no sentence on the aggravated battery conviction inasmuch as that was a single act encompassed by the conviction and sentence on the greater offense.”

Opinion

Initially, we address defendant’s contention that the State produced insufficient evidence to establish his guilt beyond a reasonable doubt. The parties concur and the record confirms that the jury’s verdict turned upon Marion Carney’s identification as against the Hollimans’ alibi testimony. Defendant argues that the identification evidence was doubtful and the alibi was unimpeached, giving rise to a grave and substantial doubt as to defendant’s guilt. The State maintains that the identification was not doubtful and that defendant’s alibi was impeached.

A reviewing court will not substitute its judgment for that of the trier of fact in matters of weight, credibility, or conflicting evidence, and will not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Where a positive identification irreconcilably conflicts with alibi evidence, it is the peculiar prerogative of the trier of fact to ascertain the truth. (See People v. Hammond (1970), 45 Ill. 2d 269, 259 N.E.2d 44.) The reliability of an identification is tested by the totality of circumstances, including the witness’ opportunity to view the perpetrator, degree of attention, accuracy of description, certainty and time elapsed between commission of the crime and identification. People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

In the case before us, the totality of circumstances fully supported Marion Carney’s identification of defendant. He had an excellent opportunity to view defendant before and during the crime, focusing his attention from the beginning of the marijuana conversation until he sought cover from gunfire; he immediately named and accurately described defendant as one of the perpetrators, and described the others; and, in addition to the trial identification, he positively identified defendant from a photographic array within six hours of the crime and from a lineup within 32 hours. Further, Marion Carney’s identification was strengthened to the extent of his prior acquaintance with defendant. (See People v. Reynolds (1978), 57 Ill. App. 3d 593, 598, 373 N.E.2d 650.) Here also, the Hollimans’ alibi testimony was undercut by their relation to defendant, their failure to come forward before trial, and their questionable memory for dates. Consequently, defendant’s reliance upon People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232, is misplaced. In that case, the witness’ initial, meager description of the perpetrator was inconsistent with her trial testimony and with defendant’s appearance, while defendant’s alibi was not impeached. By contrast, the jury in this case was justified in resolving the evidence against defendant, and we hold that its verdict was supported by sufficient evidence.

Defendant next contends that the jury was erroneously instructed concerning the specific intent element of attempted murder. He argues that the murder definition permitted the jury to convict him if it found that he had a state of mind less than intent to kill, namely, knowledge that his acts would cause death. The State asserts that there was no error, or that the error was harmless. We agree.

It is settled that intent to kill is an essential element of attempted murder. (People v. Harris (1978), 72 Ill. 2d 16, 377 N.E .2d 28.) However, the certainty of this rule suffers from the variety of mental states ascribed to the word “intent,” as a legal term and in common usage. (See La Fave & Scott, Criminal Law secs. 28, 59 (1972).) Historically, the crime of attempted murder roughly corresponded to an incomplete murder, and the intent required for attempted murder was “that wanton and reckless disregard of human life that denotes malice.” (Weaver v. People (1890), 132 Ill. 536, 540, 24 N.E. 571; People v. Shields (1955), 6 Ill. 2d 200, 206, 127 N.E.2d 440.) As a corollary to this theory, it was thought proper to instruct juries as to the elements of attempt and the elements of murder. See People v. Koshiol (1970), 45 Ill. 2d 573, 262 N.E.2d 446, cert. denied (1971), 401 U.S. 978, 28 L. Ed. 2d 329, 91 S. Ct. 1209.

More recently, our supreme court has foreclosed from the jury’s consideration mental states which would be sufficient to sustain the completed crime of murder, but which are insufficient to support the finding of specific intent required to convict of attempted murder. In People v. Viser (1975), 62 Ill. 2d 568, 343 N.E.2d 903, the court held that the felony murder mentum could not support a charge of attempted murder. In People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888, the jury was instructed in both the murder definition and the “issue” or directive instruction that defendant was guilty if he knew that his acts “ ‘created a strong probability of causing death or great bodily harm ***.’ ” (68 Ill. 2d 198, 200, 369 N.E .2d 888.) The Trinkle court held that these instructions permitted the jury to convict without finding specific intent to kill. In People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28, the court reversed defendant’s conviction because the definition of murder included intent to do great bodily harm.

We believe that these cases, and others cited by defendant, are distinguishable. The instruction at issue did not permit the jury to convict based on intent to inflict great bodily injury or knowledge that his acts created a strong probability of death or great bodily harm. Rather, the instructions required the jury to find that defendant intended to commit murder, and narrowly defined murder as acting with intent to kill or with knowledge that he would cause death. The instructions, when considered as a whole, properly stated the law. See People v. Kolep (1963), 29 Ill. 2d 116,193 N.E.2d 753.

Several appellate court cases support our conclusion that the instant instruction was proper. People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816, involved a definitional murder instruction which included knowledge that defendant’s acts would cause death, and knowledge that his acts created a strong probability of death. Reasoning that the instruction properly focused upon the defendant’s state of mind relative to death and not great bodily injury, the court ruled that the instruction properly informed the jury of the intent required to convict for attempted murder. Accord, People v. Olbrot (1982), 106 Ill. App. 3d 367, 435 N.E.2d 1242; see also People v. Hancock (1980), 83 Ill. App. 3d 700, 704 n.l, 404 N.E.2d 914.

In addition, we believe that any error in the attempted murder instruction was harmless. Soon after Harris, the supreme court in People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343, ruled that an erroneous intent instruction does not warrant reversal where intent to kill is evident from the circumstances. In reaching its conclusion, the court noted that the issue in the case was whether defendant was one of the perpetrators, not whether defendant had the requisite intent, and that accurate definitional attempt and directive attempted murder instructions lessened the impact of an erroneous definitional murder instruction. (81 Ill. 2d 1, 9-10, 405 N.E.2d 343.) Courts have also considered the number of shots, range, and general target area in assessing the strength of intent evidence. (See People v. Dallas (1980), 85 Ill. App. 3d 153, 176-77, 405 N.E.2d 1202, cert. denied sub nom. Cooper v. Illinois (1981), 450 U.S. 1000, 68 L. Ed. 2d 202, 101 S. Ct. 1708; People v. McClure (1979), 80 Ill. App. 3d 10, 16-17, 398 N.E.2d 1233.) Defendant and the other perpetrator in this case fired nine shots into a group of youths from a distance of 20 to 25 feet, striking their victims in the head and chest. No issue of intent was raised at trial; instead, the case turned upon identification of defendant as against his alibi. It is clear to us that the deletion of the phrase in question would not have altered the jury’s deliberation, and the error, if any, was harmless.

Defendant claims next that improper testimony and comment entitles him to a new trial. Specifically, defendant directs our attention to testimony and comment concerning the “unidentified witness,” to closing argument comment upon Marion Carney’s credibility, and to comment that defendant should have called additional alibi witnesses. The State argues that error was waived, that testimony and comments were proper, and that any prejudice was cured by the trial court. We address defendant’s contentions individually.

Detective Cornelison testified that he spoke with a “witness” who did not give his name; they then drove to a certain address, observed an automobile in a nearby lot, and Cornelison dropped the “witness” off. Generally, a police officer may testify to personal knowledge of procedures, activities and circumstances of an investigation. (People v. Dunning (1980), 88 Ill. App. 3d 706, 410 N.E.2d 1052; People v. Daliege (1976), 40 Ill. App. 3d 706, 352 N.E.2d 247.) The fact that a witness had a conversation is not hearsay, and the failure to identify other participants is not error; such a conversation is admissible in order to explain the witness’ subsequent conduct. (People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245.) The instant case illustrates the propriety of such testimony: Cornelison testified from personal knowledge as to facts relevant to investigatory procedures and to the time elapsed before Marion Carney identified defendant’s photograph. There was no error.

On redirect examination, Cornelison testified that the reason the person was not identified was that he was afraid. Defendant argues that this was irrelevant hearsay, the prejudice of which was compounded by comment in closing argument. Statements that establish the declarant’s state of mind are excepted from the hearsay rule and admissible provided that the declarant is unavailable and the statement’s truth is reasonably probable. (People v. Lang (1982), 106 Ill. App. 3d 808, 814, 436 N.E.2d 260.) Here, the unidentified person expressed his unwillingness to testify .at trial by refusing to give his name to the police. The gang-related nature of the crime indicates that the statement was probably true. And because defendant attacked the story as unusual on cross-examination, the testimony became relevant to explain an otherwise unusual situation. We hold that the statement was properly admitted, hence comment upon it in closing argument was also proper.

Defendant asserts that the prosecutor vouched for Marion Carney’s credibility. The State rejoins that any error was waived, and that the comments were proper. Defendant failed to raise these remarks in his motion for a new trial and deprived the trial court of an opportunity to consider the issue; error was waived thereby. (See People v. Turk (1981), 101 Ill. App. 3d 522, 532-33, 428 N.E.2d 510.) Moreover, a prosecutor may suggest to the jury that the evidence shows certain testimony to be credible or incredible. (People v. Crossno (1981), 93 Ill. App. 3d 808, 823, 417 N.E.2d 827.) The assistant State’s Attorney argued Marion Carney’s credibility to the jury without injecting his personal or professional reputation, and so defendant’s reliance upon People v. Bitakis (1972), 8 Ill. App. 3d 103, 289 N.E.2d 256, is misplaced. We hold that these remarks were proper, or if improper, were waived.

Defendant’s argument with respect to improper comment closes with his contention that the prosecutor implied that defendant should have called additional alibi witnesses. Our supreme court recently considered a similar contention in People v. Kubat (1983), 94 Ill. 2d 437, 447 N.E.2d 247. Noting that authority conflicted on the point, the court concluded that where a defendant injects alibi witnesses into the case, the prosecutor may comment on the lack of supporting evidence, but may not rely upon such lack of evidence as proof of the charge. (94 Ill. 2d 437, 496-98, 447 N.E.2d 247.) We believe that Kubat is dispositive of defendant’s contention. Defendant elicited testimony to the effect that five other members of the Holliman family, including Denise and in addition to Mr. and Mrs. Holliman, were with defendant at the time of the shooting. The assistant State’s Attorney commented on defendant’s failure to call them, but the State clearly relied upon Marion Carney’s identification as proof of the charge. In sum, we find defendant’s claims of improper testimony and comment to be without merit.

Defendant next contends that the trial court erred when it entered judgment upon guilty verdicts for aggravated battery, because that charge is a lesser-included offense of attempted murder. The State concedes that the mittimus must be modified, but resists defendant’s contention that the case should be remanded for resentencing. People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, is analogous. In that case, the defendant argued that judgment entered upon the lesser-included offense of indecent liberties might prejudice him where he was convicted and sentenced for rape. The court noted that the sentence was expressly limited to the offense of rape, and vacated the judgment for indecent liberties. (56 Ill. 2d 493, 495-96, 309 N.E.2d 1.) Neither judgment nor sentence may be entered for aggravated battery where the same act forms the basis for conviction and sentence for attempted murder. (See People v. Camacho (1979), 71 Ill. App. 3d 943, 956, 389 N.E.2d 1213.) The trial court recognized that no sentence could be imposed for aggravated battery, and imposed sentence for attempted murder. Accordingly, we need only vacate the judgments of conviction entered on the aggravated battery counts.

Finally, defendant contends that his sentence was excessive. He states that he was 19 years old at the time of sentencing, that he was employed, had no prior felony convictions and no juvenile record. The State maintains that concurrent sentences of 12 years’ imprisonment were justified based on the unprovoked, gang-related nature of this violent crime, which inflicted serious harm on two victims and endangered others. The trial court is in a superior position to assess the many factors relevant to sentencing, and a reviewing court may not alter the trial court’s sentence absent abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The record reveals that the trial court considered all of the facts urged here by defendant and the State, and weighed these facts in the context of the seriousness of the offense and defendant’s potential for rehabilitation. (See Ill. Const. 1970, art. I, sec. 11.) We note further that the trial court observed the defendant’s demeanor throughout the trial. We cannot say that the trial court abused its discretion by the sentence imposed in this case.

For the foregoing reasons the judgment of the circuit court of Cook County is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

MEJDA, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE RIZZI

text:
    RUTH DOLAN, Adm’r of the Estate of Daniel M. Dolan, Deceased, Plaintiff-Appellant, v. LEO F. WELCH, Adm’r of the Estate of Leo v. Welch, Deceased, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 82 — 2283
    Opinion filed March 30, 1984.

      Bradley, Bradley & Nedderman, of Chicago (Thomas F. Nedderman, of counsel), for appellant.
    Walter M. Ketchum, Ltd., of Chicago (Jonathan K. Gray, of counsel), for appellees.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Ruth Dolan, administrator of the estate of Daniel M. Dolan, sought a declaratory judgment that an insurance policy issued by defendant Farmers Insurance Group to defendant Leo. F. Welch, administrator of the estate of Leo V. Welch, and an insurance policy issued by defendant Mid-Century Insurance Exchange, an affiliate of Farmers, to Leo V. Welch covered a car accident in which Daniel M. Dolan and Leo V. Welch were killed. Following a bench trial, the court found that the policy issued to Leo F. Welch provided no coverage for the accident. Plaintiff appeals. We reverse.

At trial, the evidence showed that on July 5, 1979, Daniel M. Dolan and Leo V. Welch, both 17 years old, were killed in a collision involving a 1964 Corvair driven by Welch in which Dolan was a passenger. The Corvair was purchased on June 30, 1979. Leo V. Welch’s parents, Mr. and Mrs. Leo F. Welch, paid $200 of the $400 price of the Corvair and received a bill of sale which Mrs. Welch signed at the request of the seller. The $200 was a loan to Leo V. which he was supposed to repay. Title was going to be registered in the name of Mr. Welch, but Leo V. was to be responsible for maintaining the car. Mrs. Welch testified that she believed the Corvair was her son’s car. However, Mr. and Mrs. Welch believed that Leo V. could not legally own a car until he was 18 years old. Mr. and Mrs. Welch claimed the Corvair as a casualty loss on their 1979 income tax return.

Prior to the purchase of the Corvair, in early June 1979, Mr. Welch obtained the title to a 1969 Ford Fairlane which he had purchased about a year earlier. Mr. Welch gave the Fairlane to Leo V. as his car to drive and maintain. Leo V. was supposed to pay his parents for the Fairlane. When Leo V. started driving the Fairlane, either Mrs. Welch or Leo V. called Weldon Brown, the agent who handled the family’s insurance, and discussed insurance for the Fairlane. On the insurance application Brown listed Mr. Welch as the registered owner. On the basis of the application, Mid-Century issued a policy dated June 4, 1979, with $10,000 liability coverage, to Leo V.

On June 30, 1979, Brown processed an application for change of insurance on the basis of a phone call from either Mrs. Welch or her son. On this application Brown listed Leo V. as the registered owner. The change consisted of describing the 1964 Corvair as a replacement vehicle for the Fairlane. No member of the Welch family ever signed the application for change, and since the policy was cancelled the same day as the accident, it is possible that a face sheet formally endorsing the change never issued. However, Brown had authority to bind the company, a signature was on the original application and the absence of a formal endorsement would not affect the validity of the application for change.

At the time of the accident, Mr. Welch was the named insured on a Farmer’s policy with $100,000 liability coverage. A 1978 Club-Wagon was the described vehicle in that policy. The policy provided for the payment of damages due to bodily injury and property damage “arising out of the ownership, maintenance or use, including loading or unloading, of an automobile” as defined in the policy. The policy defined a “described automobile” as “the automobile described in the Declarations and includes a substitute automobile and/or newly acquired automobile.” A “newly acquired automobile” was defined as

“an automobile, ownership of which is acquired by the named insured, *** (b) if it is an additional automobile and the Company insures all automobiles owned by the named insured on the day of such acquisition and the named insured notifies the Company within thirty days thereafter; but the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other collectible insurance. The named insured shall pay any additional premium required.”

Plaintiff argues that the Corvair was a newly acquired automobile within the meaning of the Farmers policy. Specifically, plaintiff maintains that the term “ownership” in the newly acquired automobile provision is ambiguous and must therefore be construed in favor of the insured. Plaintiff asserts that when “ownership” is so construed, it is evident that Mr. and Mrs. Welch had an ownership interest in the Corvair requiring coverage under the newly acquired automobile provision for additional automobiles. We agree.

A policy provision is ambiguous if, considering the policy as a whole (see United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 5, 429 N.E.2d 1203, 1205), it is subject to more than one reasonable interpretation (State Farm Fire & Casualty Co. v. Moore (1981), 103 Ill. App. 3d 250, 256, 430 N.E.2d 641, 646). Here, the policy defines a newly acquired automobile as an automobile, “ownership of which is acquired by the named insured” as a replacement or an additional automobile. “Ownership” is not defined in the policy. Though we are unaware of an Illinois reviewing court which has specifically determined that the term “ownership” is ambiguous in the context of an automobile liability policy, courts of other jurisdictions have done so. In American Indemnity Co. v. Davis (5th Cir. 1958), 260 F.2d 440, the court determined that the words “an automobile, ownership of which is acquired by the named insured” comprehend both sole and joint ownership since the term “ownership” is ambiguous. (See also Quaderer v. Integrity Mutual Insurance Co. (1962), 263 Minn. 383, 388, 116 N.W.2d 605, 608.) Further, the clarity or ambiguity of the term “ownership” will depend on the facts of the case and the proposed application of the clause in which the term appears. See Greenholt v. Inland National Insurance Co. (1980), 87 Ill. App. 3d 638, 641, 410 N.E.2d 150, 153.

Under the circumstances here, we believe that there is more than one reasonable interpretation of “ownership” and therefore more than one reasonable interpretation of the newly acquired automobile provision. It is reasonable to interpret “ownership” so as to conclude that Mr. Welch acquired ownership of the Corvair, since Mr. and Mrs. Welch paid part of the purchase price of the Corvair, Mrs. Welch signed the bill of sale, title was going to be registered in the name of Mr. Welch, and Mr. and Mrs. Welch claimed the Corvair as a casualty loss on their 1979 income tax' return. However, it is also reasonable to interpret “ownership” so as to conclude that Leo V. acquired ownership of the Corvair since he was to be responsible for maintaining the car, he paid part of the purchase price and the remainder of the purchase price was a loan from his parents which he was supposed to repay. Further, it is reasonable to interpret “ownership” so as to conclude that ownership of the Corvair was not acquired solely by Mr. Welch or solely by Leo V. Rather, under the circumstances, they might have acquired joint ownership of the Corvair. Thus, we believe that in the Farmers policy the term “ownership” is ambiguous. We must therefore construe the term “ownership” in favor of coverage and against the insurer who drafted the policy. (See United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 4, 429 N.E.2d 1203, 1205.) Given such a construction, it is plain that Mr. Welch acquired ownership of the Corvair within the meaning of the Farmers policy. Defendants do not dispute that Mr. Welch met the other prerequisites to coverage of the Corvair as a newly acquired automobile. Therefore, we conclude that the Corvair was covered under the Farmers policy as a newly acquired automobile.

Defendants argue that if Mr. Welch did own the Corvair, the Corvair ceased to be a newly acquired automobile within the meaning of the Farmers policy when Leo V. purchased his own insurance for the Corvair. We disagree.

With regard to additional automobiles, Mr. Welch’s Farmers policy provides that “the insurance with respect to the newly acquired automobile does not apply to any loss against which the named insured has other collectible insurance.” Plainly, this limitation does not apply under the circumstances here, since it was for Leo V., not for the named insured, Mr. Welch, that the change of insurance was obtained. Thus, any other collectible insurance was that of Leo Y. on the policy which had previously described the Fairlane. We believe that this case is distinguishable from Cook v. Suburban Casualty Co. (1964), 54 Ill. App. 2d 190, 203 N.E.2d 748, the case on which defendants rely. In Cook, the insured acquired a new auto, notified the insurance agent and had the described auto changed on one policy, then sought coverage under a policy with higher limits which he had on a second auto. Furthermore, the Cook court recognized that a newly acquired automobile clause is intended to extend coverage to the insured on a newly acquired automobile for the specified period of time “unless the insured purchases specific insurance to cover the newly acquired automobile.” (Emphasis added.) (54 Ill. App. 2d 190, 195, 203 N.E.2d 748, 751.) Finally, we believe that defendant Farmers is bound by the express terms of the policy with regard to other collectible insurance notwithstanding the Welchs’ intention that Leo V. obtain insurance for the Corvair or that the Corvair not be covered under the Farmers policy. (See Central National Insurance Co. v. LeMars Mutual Insurance Co. (S.D. Iowa 1968), 294 F. Supp. 1396, 1401.) Thus, we conclude that the change of insurance for Leo V. describing the Corvair did not affect the coverage of the Corvair as a newly acquired automobile within the meaning of Mr. Welch’s Farmers policy.

Accordingly, the judgment of the trial court is reversed.

Reversed.

McGILLICUDDY and WHITE, JJ., concur.