text:
    CHICAGO TRANSIT AUTHORITY, Plaintiff-Appellant, v. YELLOW CAB COMPANY et al., Defendants-Appellees.
    First District (4th Division)
    No. 83 — 1164
    Opinion filed March 22, 1984.
    Rehearing denied May 24, 1984.

      John O. DeMaret, of Chicago (William G. Clark, Jr., and llene Davidson Johnson, of counsel), for appellant.
    Jesmer and Harris, of Chicago (Lawrence P. Seiwert and Charles E. Tannen, of counsel), for appellee Yellow Cab Co.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff Chicago Transit Authority (CTA) appeals from an order of the trial court dismissing plaintiff’s suit to recover workers’ compensation benefits paid to one of its employees as the result of injuries the employee sustained in a collision between a CTA bus driven by the employee and a Yellow Cab driven by co-defendant Yaacov Yaisch. Defendants had filed a motion to dismiss the complaint, alleging as an affirmative defense a release previously executed by the CTA. The trial court initially denied the motion but then granted a motion for reconsideration and dismissed the suit. On appeal the CTA contends (1) the scope of the release was limited to the claim for property damage resulting from the repair of the CTA’s vehicle; (2) the release should be set aside due to a mutual mistake of the parties concerning its scope; (3) plaintiff’s affidavits raised a material issue of fact concerning the intentions of the parties and therefore defendants’ motion to dismiss should not have been granted.

We reverse and remand for further proceedings.

On December 6, 1979, a CTA bus driven by CTA employee Alexander Sparks was involved in a collision with a taxicab owned by defendant Yellow Cab and operated by co-defendant Yaacov Yaisch. The bus was subsequently repaired for $239.12. Two reports of employee injury from the CTA’s files dated December 6, 1979, and December 7, 1979, indicate that the driver of the bus complained of a head injury. A workers’ compensation claims file for Sparks was opened in December 1979 and medical reports were sent to the CTA’s workers’ compensation insurer on December 26, 1979, and January 28, 1980. Copies of all of these documents relating to the CTA employee’s injuries were attached to an affidavit filed by Yellow Cab in support of defendants’ motion to dismiss. The affidavit stated that the documents were correct copies of records received from the CTA during pretrial discovery.

On February 21, 1980, the CTA executed the following release: “FULL RELEASE AND SETTLEMENT

I, Chicago Transit Authority residing at_for and in consideration of the sum of Two Hundred Thirty-Nine and 12/ 100 ($239,12). Dollars, lawful money of the United States to me, in hand paid by YELLOW CAB COMPANY receipt whereof is hereby acknowledged, and by these presents do for myself, heirs, executors, administrators, remise, release and forever discharge the said party above named, its officers, agents, employees, successors and assigns of and from all, and all manner of action, and actions, cause and causes of actions, suits, contracts, agreements, promises, damages, claims and demands whatsoever in law or equity, which against the said party above named I ever had, now have, or hereafter may have or which my heirs, executors or administrators, hereafter can, shall or may have, for upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of these Presents.
This release is made with an understanding of the nature of the injuries and of the possibility of injuries existing which may or may not be known to either party at this time and of any injuries or ailments that hereafter may develop; and contains the entire agreement and no verbal representations or promises have been made.”

The document was signed by Marge Conway, a CTA claims adjuster. At the bottom of the document is the typewritten notation “S. Bowie # 7912 Y 0054.” In one of the hearings below defendants’ counsel stipulated to the court that Bowie was the name of the claims adjuster who negotiated the settlement with the CTA, “7912” referred to the year and month of the accident, “Y” referred to Yellow, and the four-digit figure “0054” indicated that it was a property damage matter. A personal injury matter would have been represented by a three-digit code.

The parties stipulated to the following facts. In consideration for the CTA’s execution of the release defendant Yellow Cab gave the CTA a check for $239.12, stating on its face “For all claims against Yellow Cab Company and its agents” and “7912 Y 0054.” Attached to the check was a rider stating “Pd losses paid” and “7912 Y 0054.” The total amount of property damage claimed by the CTA in the accident of December 6, 1979, was $239.12 and prior to the execution of the release this represented the only claim presented to Yellow Cab for injury arising out of that accident. “7912 Y 0054” was the designation of the Yellow Cab claim file for the accident occurring on December 6,1979, involving a vehicle owned and operated by the CTA.

In opposition to the defendants’ motion to dismiss, the CTA filed the affidavits of two of its employees involved in the negotiation and execution of the release. In her affidavit Marge Conway stated that she was the CTA claims adjuster responsible for handling the property damage adjustment for the CTA resulting from the accident. At the time she executed the release she contemplated releasing only the property damage claim of the CTA, which was for the $239.12 expended to repair the bus, and no other claims or actions stemming from that accident. In the second affidavit James M. Hickey stated that he was the CTA claims adjuster who negotiated the CTA property damage claims arising out of collisions between CTA vehicles and Yellow Cab vehicles. He had customarily, regularly, and without exception negotiated these property damage claims with Yellow Cab claims adjuster Sylvester Bowie. In over 100 claims negotiated with Bowie only property damage claims were discussed, Hickey had never agreed to give up any rights or claims for injuries or damages other than property damage, and neither Bowie nor any other Yellow Cab agent had ever informed him that any release executed pursuant to their negotiations was applicable to any claim other than property damage claims. Hickey also stated that he had negotiated the property damage claim at issue with Bowie. Pursuant to regular practice the release and other documents were then executed by Marge Conway.

The CTA filed this complaint on December 1, 1981, seeking recovery of payments made to its employee, Alexander Sparks, in the amount of $7,794.95. That amount, paid as compensation under the provisions of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), allegedly included compensation for 45 days of temporary total disability from December 6, 1979, to January 20, 1980. Defendants’ motion to dismiss was ultimately granted by the trial court on May 3,1983, and plaintiff brought this appeal.

I

We find that plaintiffs first contention, that the scope of the release was limited to any claims for property damage arising out of the accident, is dispositive of this appeal. It is well settled under Illinois law that when an instrument contains recitals of or other references to specific claims and also contains words of general release, the words of general release are to be limited to the particular claim to which specific reference has been made. (Todd v. Mitchell (1897), 168 Ill. 199, 48 N.E. 35; Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 366 N.E.2d 430; Whitehead v. Fleet Towing Co. (1982), 110 Ill. App. 3d 759, 442 N.E .2d 1362.) In Gladinus plaintiff had suffered personal injuries and damage to her vehicle in an automobile collision with the defendant. Defendant’s insurance company had issued to the plaintiff a check in an amount representing the amount of damage to plaintiff’s vehicle. On the back of a check was a general release reciting that by endorsing the check plaintiff agreed to release and discharge all claims against the insurance company and its insured. Plaintiff’s subsequent suit for personal injuries against the defendant was dismissed by the trial court on the basis of this release. In reversing that order the appellate court noted that the face of the check bore a coded reference which testimony had established referred only to property damage and not to personal injury. A different code would have been used for personal injury. The court held that the reference to property damage on the face of the check limited the general release on the back to claims for property damage arising out of the accident in question.

In this cause the release in question also contains language which purports to establish a general release. Indeed as defendants note on appeal in Chicago Transit Authority v. Yellow Cab Co. (1982), 110 Ill. App. 3d 379, 442 N.E.2d 546, this court construed virtually identical language in a release as having been intended to settle all claims arising from an accident. But the critical distinction between that case and this cause is that here we are presented with additional, limiting language on the face of the release. It is undisputed that the four-digit code contained in this additional notation referred to a property damage claim; a three-digit code would have been used to refer to a personal injury claim. Accordingly, we find that the words of general release contained in the document at issue were limited by the specific reference to a property damage claim. Thus, the release pertained only to any subsequent property damage claims arising out of the accident and did not bar plaintiff’s cause of action.

II, III

As independent bases for reversal plaintiff has also contended that the affidavits it filed in the trial court either established that the parties were mutually mistaken as to the scope of the release or at least raised a material issue of fact as to that issue. But an examination of those affidavits, which we have summarized, establishes that they related only to the plaintiff’s intentions with respect to the scope of the release. In essence James Hickey and Marge Conway averred only that they had never contemplated that the release would relate to any claim other than a property damage claim. But the fact of a unilateral mistake is insufficient to invalidate a release which is clear on its face. (Rakowski v. Lucente (1983), 120 Ill. App. 3d 715; Meyer v. Murray (1979), 70 Ill. App. 3d 106, 387 N.E.2d 878.) Thus, in Rakowski this court held that a general release was valid despite the sworn affidavit of one of the parties that he had never contemplated releasing the other party from liability for a contribution action. In this cause, because plaintiff’s affidavits at best established only a unilateral mistake as to the scope of the release, we find that those affidavits do not establish an independent basis for reversal of the trial court’s order.

The order of the trial court is reversed and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

Reversed and remanded.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SULLIVAN

license: Public Domain

text:
    RAHILL CORPORATION, Plaintiff and Counterdefendant-Appellant, v. MICHAEL L. URBANSKI et al., Defendants-Appellees (Urbanski Van Service, Inc., Defendant and Counterclaimant and Counterdefendant and Third-Party Plaintiff-Appellee; Michael J. Moran, Third-Party Defendant and Counterplaintiff; Michael L. Urbanski, Third-Party Defendant).
    First District (5th Division)
    No. 83 — 1659
    Opinion filed April 13, 1984.

      Richard W. Huszagh, of Chicago, for appellant.
    Hall Triplett, of Chicago, for appellees.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a partial summary judgment for defendant Urbanski Van Service, Inc. (Van Service), allowing recovery of an amount allegedly due it under an equipment lease. The sole issue before us is the propriety of the trial court’s denial of plaintiff’s motion for modification or vacation of that judgment.

Van Service, an Illinois corporation, holds a certificate of public convenience and necessity from the Illinois Commerce Commission (the ICC certificate) which authorizes it to operate as a common carrier. On March 18, 1980, defendant Michael L. Urbanski (Urbanski), sole owner of the outstanding shares of Van Service, entered into two agreements with plaintiff Rahill Corporation (Rahill). In the first, Urbanski agreed to sell Rahill 49% of his shares of Van Service (the purchase agreement), with the purchase price to be paid in several monthly installments. The shares were to be held in escrow pending receipt of all payments due from Rahill. Under the second agreement, Rahill was granted an option to purchase the remaining 51% of the outstanding shares at any time prior to December 31, 1982 (the option agreement), the consideration therefor to be paid by Rahill in 14 monthly installments. It was further agreed that Urbanski would cooperate with Rahill, as its agent in managing Van Service, by entering into necessary contracts and agreements, including equipment leases, pending completion of the two agreements.

For reasons not pertinent hereto, Urbanski notified Rahill on January 28, 1981, that it was in default on the installment payments due under the purchase agreement, and that he was terminating that agreement, as well as the option agreement, pursuant to the terms thereof. Rahill denied that any breach had occurred and continued to tender the payments required under the agreements and to engage in business as a common carrier using the name of Urbanski Van Service, Inc., or some variant thereof, and purporting to operate pursuant to the authority granted by Van Service’s ICC certificate. The only business conducted which is pertinent to the instant appeal involved the leasing of equipment. Rahill asserted that it purchased seven leases entered into between Van Service and G.T.S., Inc., on November 9, 1979, under which Van Service leased for a period of three years several vehicles owned by G.T.S. (the G.T.S. leases). Ra-hill’s allegations are unclear, but it is assumed that Rahill purchased the equipment described in the leases, rather than merely the leases themselves, and was therefore G.T.S.’s successor in interest under those leases. Each lease is entitled “Illinois Commerce Commission Equipment Lease” and contains a description of the equipment to be leased and provides that it will be operated pursuant to the authority granted by Van Service’s ICC certificate. Under the terms of the leases, the lessor (G.T.S.) is to receive “80%” as compensation for the use of the equipment; however, the leases do not further explain the compensation and, although each lease bears the notation “Instructions on Reverse Side,” the reverse side of the copies which appear in the record are blank.

In addition to these seven G.T.S. leases, Rahill allegedly entered into four similar leases with Van Service on February 4, 1981; each of those leases lists Rahill as the owner of the equipment and Van Service as the lessee (the Rahill leases). The forms used again appear to be preprinted forms obtained from the Illinois Commerce Commission (ICC), and also provide that compensation shall be “80%.” As with the G.T.S. leases, the term "80%” is unexplained and, although the forms state that the agreement between the parties “includes the provisions set forth herein and on the reverse side hereof along with such provisions as are made part of an addendum attached thereto,” the copies of the leases contained in the record are blank on the reverse side and no addenda are attached thereto. These four Rahill leases are signed by Michael Moran (Moran) as authorized agent or employee of Van Service. It appears from the pleadings that Moran is president of Rahill.

On June 4, 1981, Van Service notified Moran that he was not authorized to act on its behalf, and demanded that he and Rahill cease doing business as Urbanski Van Service, Inc. He was further notified that Van Service would take immediate action to have the ICC cancel the above leases. Rahill thereafter brought an action for specific performance of the purchase and option agreements and for damages allegedly caused by cancellation of the G.T.S. and Rahill leases. In a counterclaim, Van Service alleged that Rahill and Moran, without its authorization, were doing business as Urbanski Van Service, Inc., and purporting to act pursuant to its ICC certificate. Van Service asked the trial court to enjoin use of its name and certificate by Rahill and Moran and sought an accounting of all funds received by those parties as a result of their unauthorized use of its name and certificate.

On June 15, 1982, the trial court granted Rahill’s request for a preliminary injunction and prohibited Urbanski and Van Service from selling Van Service’s stock or entering into any ICC equipment leases pending a final resolution on the merits. The court further ordered Van Service to reinstate the G.T.S. and Rahill leases with the ICC, ruling that “pending the final resolution of all factual and legal issues herein, the eleven (11) Illinois Commerce Commission equipment leases cited in and attached to plaintiff’s Amended Complaint * * * are legally binding and effective between Rahill Corporation and Urbanski Van Service, Inc.”

No appeal was taken from the preliminary injunction, and it appears that the merits of Rahill’s complaint and Van Service’s counter-complaint, as well as several third-party complaints, are still pending before the trial court. However, Van Service moved for partial summary judgment on its counterclaim for compensation allegedly due it for the unauthorized use of its name and certificate. It asserted therein that the trial court had declared the leases legally effective and binding; that the compensation in all of the leases was stated at “80%”; that by policy of the ICC and by trade usage, the 80% compensation term meant that the owner of the equipment, here Rahill, was to receive 80% of the gross receipts and that the lessee thereof, here Van Service, was to receive the remaining 20%; that Rahill, by its own admission, had never transmitted any of the gross receipts to Van Service or otherwise accounted therefor; and that, as a matter of law, it was entitled to judgment against Rahill in an amount equal to 20% of the gross receipts generated by the equipment leases.

In response, Rahill asserted that there was a genuine issue of material fact regarding whether it was required to pay any portion of the gross receipts to Van Service, alleging that during negotiation of the purchase and option agreements, the parties did not discuss the payment of compensation to Van Service under the equipment leases. Rahill further maintained that it was the parties’ understanding that all funds generated by the leases and otherwise payable to Van Service were to be used to pay the cost of developing Van Service’s business, and that this agreement was necessary to fulfill the main purpose of the leases; i.e., “to establish a course of business conduct, for the time period covered by [the agreement], in order to evidence to the Illinois Commerce Commission that [Van Service] is a vibrant and expanding business, and that [its] ‘authority’ had been actively used during the 24 month period prior to the parties’ intended application to transfer the stock of [Van Service] from [Urbanski] to [Rahill], which proofs are prerequisite to Commission approval of such application.”

The trial court granted Van Service’s motion on October 8, 1982, and entered judgment in its favor “for twenty percent of all trucking revenues which were generated by services performed under Illinois Commerce Commission equipment leases in which Urbanski Van Service, Inc. was the lessee, from March 18, 1980 to the present, and which were reinstated by Court Order of June 15, 1982.” The trial court’s reasoning is not set forth in the order, and no transcript has been provided. However, it appears that the agreement alleged by Ra-hill concerning disposition of Van Service’s 20% of revenues is not contained in the equipment leases which the court ordered enforced pending a final disposition on the merits. Moreover, the enforceability of the alleged agreement as to Van Service’s or Urbanski’s duty to develop its business is a question to be resolved during a final hearing on the merits, and has no bearing on whether Van Service should receive the compensation provided in leases which the court has ordered it to perform. If it is ultimately found that Rahill breached the purchase and option agreements, as Urbanski contends, then Rahill’s use of Van Service’s name and certificate was wrongful, and Urbanski would have no duty to employ the revenues generated by that wrongful usage in any fashion. Conversely, if Rahill prevails on the merits and it is found that Urbanski breached the agreements, then Rahill may be entitled to damages, including damages for the failure to use the 20% of gross receipts to develop Van Service’s business, if the existence of such an agreement is proved. In any event, Rahill raises no arguments on appeal concerning the alleged agreement regarding use of Van Service’s revenues.

In the October 8 order, Rahill was directed to make its books and records available for inspection and to provide Van Service with a copy of an audit then in progress. Thereafter, a hearing was held to prove up the amount due under the October 8 order (no transcript of this hearing appears in the record), and on March 29, 1983, the court rendered judgment for Van Service in the amount of $250,684.36, which it found to be 20% of the gross trucking revenues received by Rahill under the equipment leases from March 18, 1980, through March 28, 1983. Rahill then moved, pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203) for vacation or modification of the partial summary judgment, asserting that the trial court’s order would jeopardize the contemplated transfer of the ICC certifícate from Van Service to Rahill should the trial court ultimately order specific performance of the purchase and option agreements. It reasoned that, in order to obtain necessary ICC approval of the transfer, it must show that Van Service’s operations have never been abandoned, suspended, discontinued, or dormant (Ill. Rev. Stat. 1981, ch. 95V2, par. 18 — 309(3)); that one of the factors considered by the ICC in making that determination is whether the transferor, here Van Service, has assumed the financial risk of its operations; and that, by failing to reduce the judgment by the amount of any operating expenses, the court had made it appear that Van Service was not financially responsible for operations under its certificate. Therefore, it posited, “the only way [the trial court] can insure that the application for transfer to the Commission will not be prima facie defective is to allocate the proper portion of operating expenses to [Van Service], in accordance with the custom and usage of the industry.” Rahill asked that further hearings be held, and the trial court, taking its motion under advisement, allowed Rahill to supplement that motion with proof of what expenses, if any, Van Service was required to bear “under Illinois Commerce Commission General Order No. 24.”

Thereafter, in support of the motion, Rahill filed the affidavit of its president, Moran, wherein he asserted that he had contacted a technical advisor of the ICC to obtain guidance as to the responsibilities of certificate holders for payment of expenses relating to equipment leases under ICC General Order No. 24. Based on the advisor’s response, he calculated expenses allocable to Van Service, Inc., and determined that those expenses exceeded 20% of the gross revenues by $474,473.43. Attached to the affidavit were computer printouts of the revenues and expenses purportedly allocable to Van Service for the years 1980-82, which Moran averred were compiled by an accountant in preparing the combined balance sheets of Van Service and Ra-hill from information and documents supplied by Rahill. Each of the computer pages bears the notation “unaudited — see accountants’ compilation report,” but no such report is included. Also attached is a letter to Moran bearing the insignia of the ICC and signed by Clarence E Hutches, Technical Advisor (the Hutches letter), which states in part: “This is in response to your inquiry concerning the nature of expenses which can fairly be attributable as between lessor and lessee. *** [I]t is my informal opinion that the following items would appear to be chargeable as expenses to the parties ***.” The Hutches letter then enumerates the expenses purportedly allocable to the carrier and those related to the lessor’s operations, but no basis is stated for the opinion. The trial court struck the affidavit and attached documents, denied Rahill’s motion for modification or vacation of the partial summary judgment, and found that there was no just reason to delay enforcement or appeal. This appeal followed.

Opinion

Initially we note that, in this appeal, Rahill no longer asserts, as it did before judgment was entered, that the parties had an agreement concerning the manner in which Van Service’s compensation under the equipment leases was to be used, nor does it argue, as it did in its motion to vacate or modify, that failure to allocate expenses to Van Service might jeopardize transfer of the ICC certificate should Rahill prevail in its action for specific performance. Instead, it now maintains that ICC General Order No. 24 (Order 24),which purportedly prescribes the form for equipment leases, requires that certain expenses of operation be borne by Van Service as lessee. In effect, its position on appeal is that the trial court erred in ruling that the requirements of Order 24 are not incorporated in the equipment leases. This point was not raised in Rahill’s response to Van Service’s motion for summary judgment or included in its motion to vacate or modify that judgment, and ordinarily we will not consider issues which are raised for the first time on appeal (Snow v. Dixon (1977), 66 Ill. 2d 443, 362 N.E.2d 1052, cert. denied sub now,. Smith v. Snow (1977), 434 U.S. 939, 54 L. Ed. 2d 298, 98 S. Ct. 429); however, Van Service apparently concedes that reference to allocation of expenses “in accordance with the custom and usage of the industry” in Rahill’s motion to vacate or modify was sufficient to raise the issue. Furthermore, it appears that Order 24 was raised at some point before the trial court, since its order allowing Rahill to supplement its motion makes referencé thereto. For these reasons, we will assume for purposes of this appeal that the argument was raised in connection with Rahill’s post-judgment motion.

Despite its apparent concession that the issue was raised in the motion to modify or vacate, Van Service nevertheless argues that the issue cannot be considered on appeal, maintaining that questions raised for the first time in a post-judgment motion are deemed waived. We disagree. While it is true that affirmative defenses, which must be raised at or before the time for answering, will not be considered on appeal when they are first raised in a post-trial motion (see Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 404 N.E.2d 964), not all issues so raised are waived. To hold otherwise would render meaningless section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203), which specifically allows such motions. Furthermore, it is evident from the numerous cases which have considered the trial court denials of such motions that the issue is reviewable. Here, the argument made by Rahill was not raised by way of affirmative defense; that is, it did not argue that Order 24 prevented judgment for Van Service in the amount of 20% of gross revenues. Rather, it maintains that Order 24 requires Van Service to pay certain operating expenses; that Rahill had paid those expenses; and that the trial court therefore erred in refusing to set off those expenses against the gross receipts and reduce the judgment for Van Service accordingly.

This is not to say that the standard of review is the same whether the issue is raised prior to judgment or for the first time in a post-judgment motion. Had this argument been made and the supporting evidence presented prior to judgment, the question on appeal would have been whether the trial court erred as a matter of law in interpreting the equipment leases. However, when an argument is first brought to the trial court’s attention by way of a post-judgment motion, the issue on appeal is whether the trial court has abused its discretion in denying that motion. (Abbey Plumbing & Heating, Inc. v. Brown (1977), 47 Ill. App. 3d 719, 365 N.E.2d 115.) Moreover, when the motion is supported by evidence not presented prior to judgment, it is properly denied where it appears that the evidence was in the movant’s possession and could have been presented before judgment was rendered (In re Estate of Zingraf (1977), 51 Ill. App. 3d 145, 366 N.E.2d 464), or could have been discovered through the exercise of due diligence (Stampley v. Collins (1967), 90 Ill. App. 2d 11, 234 N.E.2d 356), or where the evidence is not so conclusive or decisive as to render it probable that a rehearing would result in a different judgment (In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 396 N.E.2d 1192).

In the instant case, Rahill failed to assert that the terms of the equipment leases were supplemented by the requirements of Order 24, and there is nothing within the leases themselves which would have alerted the trial court to the possibility that Rahill was entitled to a setoff against the 20% of revenues due to Van Service. Furthermore, there was no evidence presented regarding the alleged additional terms, the expenses Van Service was required to pay, or the amount thereof. We have no reason to believe that this evidence was unknown to Rahill, either at the time judgment was rendered on October 8, 1982, or later when the judgment was reduced to a set amount on March 29, 1983. During that time, and for at least the two previous years, Rahill was bound by those leases and could be expected to know their terms. However, even if it was not in possession of this evidence, Rahill nowhere alleges that this evidence could not have been discovered through the exercise of due diligence. In fact, Rahill has not even attempted to explain, either before the trial court or on appeal, why this issue and the supporting evidence were not presented prior to judgment. For this reason alone, we believe that the trial court did not abuse its discretion in denying Rahill’s motion (see Stampley v. Collins (1967), 90 Ill. App. 2d 11, 234 N.E.2d 356); as we noted long ago, it was never intended that post-judgment motions be used to present a case in piecemeal fashion (Gliwa v. Washington Polish Loan & Building Association (1941), 310 Ill. App. 465, 34 N.E.2d 735).

Moreover, we believe that denial of the motion was further justified by the nature of the evidence sought to be presented; it is not so conclusive or decisive that a different judgment would have resulted had the request for additional hearings been granted. Order 24 requires merely that leases specify the names of the parties, the duration of the leasing period, the compensation to be paid, and exclusive possession in the lessee. The only requirements with regard to expenses is that the lease shall set forth the terms of any agreement between the parties concerning them. Order 24 does not specify which expenses are to be borne by the lessor and which by the lessee. Here, the parties failed to set forth any agreement in the lease, and Rahill does not allege that any unwritten agreement existed. It could have argued that the leases were defective in that they did not comply with section e of Order 24, which states:

“The lease shall clearly specify the responsibility of each party with respect to the cost of fuel, fuel taxes, empty mileage, permits of all types, tolls, ferries, detention and accessorial services, base plates and licenses, and any unused portions of such items.”

Nevertheless, Rahill elected to treat the leases as valid and binding, despite their failure to comply with Order 24, and succeeded in having them enforced pending a final determination on the merits. It could not now argue that they were valid for purposes of allowing it to remain in business thereunder, but invalid for purposes of allowing Van Service compensation. Additionally, we note that the apparent noncompliance with the above section did not prevent the ICC from approving the leases; it seems, then, that the ICC does not require the parties to reach any kind of agreement with regard to expenses.

Rahill further asserts that the Hutches letter, when considered in conjunction with Order 24, establishes the expenses which Van Service is required to pay. However, we do not believe that the letter offers any aid in determining what is or is not required by Order 24. In the first place, we note that the letter makes no mention of Order 24; it is not a sworn statement, and sets forth no basis for the “informal opinion” expressed therein with regard to what expenses “can fairly be attributable as between a lessor and a lessee.” Moreover, it appears that the letter as well as the affidavit to which it was attached were properly stricken by the trial court. Supreme Court Rule 191 provides that “[ajffidavits in support of and in opposition to a motion for summary judgment * * * shall be made on the personal knowledge of the affiants *** shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; *** and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” (87 Ill. 2d R. 191(a).) Since Rahill would have been required to meet these standards in opposing the motion for summary judgment had it timely presented this evidence, we see no valid reason to require less when it seeks to present the evidence through a motion to vacate or modify the order granting summary judgment. The Hutches letter, of course, does not even purport to be an affidavit; it was offered as a supporting document to Moran’s affidavit, and lacked the required certification of authenticity. Moreover, the affiant, Moran, does not state that the facts contained in the Hutches letter are within his personal knowledge. To the contrary, he expressly states that he relied on that letter in reaching his conclusion that the setoff for expenses exceeded 20% of the gross receipts. Thus, it appears from the face of the affidavit that Moran could not competently testify to the facts asserted.

We conclude, then, that the trial court did not abuse its discretion in denying the motion to vacate or modify the partial summary judgment. Rahill chose to ignore this standard in its brief on appeal, arguing instead that, disregarding its failure to present the evidence prior to judgment, the trial court was required to allow it a setoff for expenses, alleging that it (1) “[h]ad no jurisdiction to refuse to apply” Order 24; and (2) was required to take judicial notice of that order and of the Hutches letter which interpreted it. We have considered each of these assertions and find them to be without merit.

In the first argument, Rahill equates Van Service’s motion for partial summary judgment with an action seeking invalidation of Order 24. Such actions, it posits, must be maintained before the ICC pursuant to sections 65 and 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. lll2/s, pars. 69, 72), which prescribe the manner in which parties affected may seek vacation of ICC rules and regulations. Therefore, it reasons, since the trial court lacked jurisdiction to declare Order 24 invalid, it lacked jurisdiction to refuse to apply it. Besides finding this reasoning somewhat convoluted, we note that Van Service has never challenged the validity of Order 24. Its position throughout has been that Rahill was untimely in presenting evidence thereof and that, in any event, Order 24 contains no requirements concerning allocation of expenses. There is no jurisdictional question here, since no one is arguing that Order 24 is invalid; the contention is that it is simply inapplicable. Moreover, as we have stated, Order 24 contains no requirements which the court could enforce. The Hutches letter, upon which Rahill relies to establish the requirements of Order 24, does not rise to the level of a rule or regulation which must be invalidated through application to the ICC. It is the informal and, from all appearances, personal opinion of an ICC employee, which is not even entitled to a “presumption of validity,” as Rahill asserts.

Finally we find no merit in the argument of Rahill that the trial court was required to take judicial notice of Order 24 and of the Hutches letter, pursuant to section 8 — 1001 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 1001.) Initially, we note that there is nothing in that section requiring that ICC rules be judicially noted, and while the trial court and this court may take judicial notice of the orders of administrative agencies (see Nordine v. Illinois Power Co. (1965), 32 Ill. 2d 421, 206 N.E.2d 709; Department of Public Welfare v. Bohleber (1961), 21 Ill. 2d 587, 173 N.E.2d 457), we find here that had the trial court judicially noted Order 24, it would not have advanced Rahill’s cause, since it contains no requirements concerning the allocation of expenses. The only evidence of expenses purportedly allocable to Van Service was the Hutches letter, and, for the reasons already discussed at length in this opinion, it was not even competent evidence, let alone the type of evidence of which a court must take judicial notice.

For the foregoing reasons, the order of the trial court denying the motion to vacate or modify the partial summary judgment is affirmed.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES ROGERS, Defendant-Appellee.
    Second District
    No. 82 — 847
    Opinion filed April 30, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    Dalton P. Grief, of Ford & Grief, of Wheaton, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant was charged in a nine-count indictment with various violations of the Illinois Vehicle Code, including false application of title, unlawful possession of a motor vehicle component part, and unlawful possession of a motor vehicle. The defendant was acquitted of counts I through III on May 4, 1982. The remaining counts proceeded to trial on September 27, 1982. The State moved to nolle prosse counts VI through IX after the jury was impanelled, and the trial commenced on counts IV and V.

After the trial had begun, the State moved to supplement discovery by filing a supplemental answer to discovery with two additional documents. These two documents, a city of West Chicago Department of Police tow truck inspection sheet dated April 2, 1981, and a towing application signed by defendant dated June 17, 1981, had been offered as State’s exhibits in the defendant’s trial on counts I through III. One of the documents had been offered as an exhibit at the prior trial, but upon such offer the defendant had objected and the court sustained that objection. The State had filed answers to discovery on three prior dates before the first trial but had never formally revealed the documents in question. The State argued that while the documents had not been formally disclosed in discovery prior to the motion to supplement discovery, the defendant was in fact aware of them and could not claim surprise. The defendant argued that he had no knowledge of the documents or the State’s intention to use them until the State announced such intention after the second trial had begun. The court sustained the defendant’s objection to the supplemental discovery stating that the motion was untimely.

The State then moved for a certification of impairment in order to appeal the trial court’s ruling on the evidentiary matter. The court stated that it had not suppressed any evidence but had denied the motion to file additional discovery. Upon that statement, the State withdrew their stated certification of impairment and proceeded with trial. At trial, the State called their first witness, Officer Jerome Dolan, who was an employee of the West Chicago police department. The State sought, inter alia, to question Officer Dolan regarding the related documents. The State admits that neither of the two documents had been prepared by Dolan nor would they be used to refresh his recollection. The defendant objected because of the court’s denial of the State’s motion to supplement discovery regarding those same documents. The court overruled the defendant’s objection and allowed the State to show one document to the witness. The witness looked at the document and stated that he had seen it before. The witness was then asked whether he had any conversation with the defendant on June 17, 1981. Defense again objected to questioning the witness about any conversations had with the defendant because of the failure to disclose such information in discovery. The State subsequently renewed its motion to amend discovery to include People’s exhibits Nos. 1 and 2 for identification and the motion was again denied.

The State then sought a mistrial and the certification of the issue for an interlocutory appeal. The court granted certification and declared a mistrial. The notice of interlocutory appeal was timely filed by the State.

The State’s basic argument on appeal is that the trial court’s order excluding evidence because of a discovery violation amounted to an unauthorized midtrial suppression order. The State first contends, however, that an interlocutory appeal could be properly taken by the State from such an order. Under Supreme Court Rule 604(a)(1), the State can appeal from orders of the trial court “the substantive effect of which results in *** suppressing evidence.” (87 Ill. 2d R. 604(a)(1).) The State urges that the documents it sought to introduce were in fact suppressed by the trial court’s denial of its motion to supplement discovery. It contends that this harsh discovery sanction of exclusion falls within the scope of Rule 604(a)(1) and, upon the necessary prosecutor’s certification that such suppression substantially impairs the State’s ability to prosecute its case, the State may appeal from such an adverse discovery ruling. See People v. Flatt (1980), 82 Ill. 2d 250; People v. Johnson (1983), 113 Ill. App. 3d 367.

Since, according to the State, the interlocutory order in question is appealable, the general rule of review is that when the State appeals from a midtrial order having the effect of suppressing evidence, and that order was not based upon the illegality of the means of obtaining the particular evidence in question, the only issue to be considered by a reviewing court is whether the lower tribunal had authority to entertain that midtrial motion. (People v. Flatt (1980), 82 Ill. 2d 250, 263-64; People v. Johnson (1983), 113 Ill. App. 3d 367, 371; see Ill. Rev. Stat. 1981, ch. 38, pars. 114 — 11(g), 114 — 12(c).) The merits of the trial court’s ruling will not be considered. (People v. Tomasello (1981), 98 Ill. App. 3d 588, 598.) The State contends that midtrial suppression motions involving issues other than the illegality of the means used in obtaining the suppressed evidence are collateral to the main question of defendant’s guilt or innocence and are not to be considered by the trial court after trial has commenced. (People v. Flatt (1980), 82 Ill. 2d 250, 266; see People v. Johnson (1983), 113 Ill. App. 3d 367.) Because the suppression order in the instant case did not involve the illegality of the means in obtaining the two documents, the State concludes that the trial court lacked authority for considering a suppression of evidence at midtrial. By entertaining the defendant’s objection to the State’s questioning of its witness regarding the two documents and denying the State’s motion to supplement discovery, the trial court, in effect, wrongfully suppressed the State’s competent evidence.

While at first blush the State’s analysis may appear to have some merit, it is clear from the advocated result that the argument cannot be sound. In essence, the State advances a rule which would bar the trial court’s discovery sanction of evidentiary exclusion at any time after trial had begun. Such a rule would invite the State to submit additional discovery at any time, in complete disregard of the critical considerations embodied in criminal discovery procedures. (See 87 Ill. 2d Rules 412 through 415.) To permit the State to withhold vital information until it intends to use it at trial is obviously in conflict with the spirit of our rules of practice.

Although the State’s conclusion is unsound, the State is nonetheless correct in asserting that the trial court’s order was appealable under Supreme Court Rule 604(a)(1). As this court expressly observed in People v. Johnson (1982), 113 Ill. App. 3d 367:

“[A] mid-trial order ‘suppressing evidence,’ as that term is used in Supreme Court Rule 604(a)(1), is one in which the evidence is suppressed and denied admittance because it was illegally obtained in violation of a constitutional or statutory right, or even though lawfully obtained, its admittance is to be denied because of a statutory prohibition or the violation of a court rule or some other grounds besides the recognized rules concerning the admission of evidence. To hold otherwise and to consider any objection to the admission of evidence on the grounds of relevancy or materiality or hearsay or other such evidentiary basis as a motion to suppress under Supreme Court Rule 604 would, under the mandate of People v. Flatt (1980), 82 Ill. 2d 250, prohibit the trial court from even considering the merits of any objection to the admission of evidence during the course of the trial except where there is also a contention that the evidence was illegally obtained.” 113 Ill. App. 3d 367, 373-74; see also People v. Phipps (1980), 83 Ill. 2d 87, 90-91.

In People v. Flatt, the State answered the trial court's discovery order and represented that it intended to introduce certain physical evidence of defendant’s fingerprints at trial and that such evidence was available to the defendant at the State’s Attorney’s office. On the date of trial, defense counsel presented a motion to produce the physical evidence since the materials had not actually been made available. The trial court granted the defendant’s motion. The State informed the court as to the possible unavailability of the evidence at trial, and the court indicated that such failure to produce the tangible evidence would result in its suppression. In a subsequent proceeding held after the jury had been sworn, the court decreed that since the physical evidence was not in fact going to be made available to defendant, the failure to produce said evidence would result in a deprivation of defendant’s due process right to confront evidence presented against him and suppression was mandated. Defendant thereafter filed a motion in limine to suppress the evidence and that motion was granted by the trial court.

In its resolution of the Flatt dispute, the supreme court first established that what constitutes an appealable trial court order of suppression is a matter for the judiciary’s determination under the authority granted to it by the 1970 Constitution (Ill. Const. 1970, art. VI, sec. 6), and it is not to be confined by any legislative provisions. Thus, while sections 114 — 11 and 114 — 12 of the Code of Criminal Procedure of 1963 appear to limit the scope of appealable suppression orders, those sections should not be construed as a valid restraint upon judicial constitutional authority. (People v. Flatt (1980), 82 Ill. 2d 250, 259.) Consequently, a midtrial suppression order could potentially be appealed under Supreme Court Rule 604(a)(1) without regard to any purported restraints contained in the aforementioned legislative provisions. (82 Ill. 2d 250, 259-60.) Nonetheless, under the circumstances evidenced in Flatt, the supreme court proceeded to adopt the particular restrictions of section 114 — 12(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(c)) as an appropriate guideline for limiting the State’s interlocutory appeal of motions to suppress illegally obtained evidence.

The aforegoing review of the Flatt case reveals the crucial misconception in the State’s analysis of the instant controversy. In Flatt, the suppression order was deemed appealable under Rule 604(a)(1) but found to be improperly issued by the trial court because, as a suppression order within section 114 — 12(c) of the Code of Criminal Procedure of 1963, the defendant’s motion to suppress was untimely. (People v. Flatt (1980), 82 Ill. 2d 250, 265.) However, in the present case, while the trial court’s order did have the effect of suppressing evidence and was therefore appealable under Supreme Court Rule 604(a)(1), no actual motion to suppress was ever filed by the defendant. Thus, the limiting provisions of section 114 — 12(c) were irrelevant. The supreme court in Flatt employed the guidelines of section 114 — 12(c) because the defendant had made a motion in limine to suppress evidence; indeed, the court noted that “[i]t is well settled that the precedential scope of a decision is limited to the facts before the court.” (People v. Flatt (1980), 82 Ill. 2d 250, 261.) In the present case, there was no motion to suppress but only a discovery-related objection and an objection to deny supplemental discovery. The authority of the trial court to entertain defendant’s objections was therefore, unlike the situation in Flatt, unrelated to the motion to suppress guidelines of section 114 — 12(c). Because the judiciary draws its appellate jurisdiction from the State constitution and not legislative enactment, there is no inherent incongruity in finding that the trial court’s instant order was within the broad ambit of Rule 604(a)(1) but not restricted by the Code of Criminal Procedure’s “motion to suppress” provisions. (See People v. Flatt (1980), 82 Ill. 2d 250, 260. But see People v. Davidson (1983), 116 Ill. App. 3d 164.) The only relevant inquiry for review by this court is whether the lower tribunal acted within the authority granted to it by the judicial rules of discovery when it refused to allow the State either to supplement discovery or to question its witness regarding such supplemental material.

Supreme Court Rule 415(g)(1) expressly provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may *** exclude such evidence, or enter such other order as it deems just under the circumstances.” (87 Ill. 2d R. 415(g)(i).)

Prior to trial, defense counsel had filed its motion for discovery and the State had filed compliance with that motion. Although the two documents in question were in the possession of the State’s Attorney at the time of that motion, they were not disclosed to the defendant. Supreme Court Rule 412 provides in pertinent part:

“[T]he State shall *** disclose to defense counsel *** names and *** addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements.” (87 Ill. 2d R. 412(a)(i); see also 87 Ill. 2d Rules 412(a)(ii), 412(c).)

Based upon the aforegoing authority, the trial court had authority to address defendant’s objection and to issue its discovery ruling.

Because the lower court had authority for its action, the merits of its ruling are properly before this court. Broad discretion is accorded by Supreme Court Rule 415 to the trial court in imposing sanctions for failure to comply with the required discovery, and absent an abuse of discretion those sanctions will not be disturbed. (See People v. Brown (1982), 106 Ill. App. 3d 1087; People v. Pitts (1982), 104 Ill. App. 3d 451.) The trial court in the present case was in the best position to determine the effect that the late disclosure of the State’s documents would have upon the defendant and his ability to properly try his cause. Likewise, the trial court was in an advantageous position to determine whether the defendant had any knowledge of the existence or substance of these documents, or of the State’s intent to use them until the State announced such intent after the second trial had begun. The trial court did not abuse its discretion in imposing discovery sanctions in this matter.

The only remaining issue in this appeal is whether the defendant can be further prosecuted on the instant charges without violating his constitutional right against double jeopardy. (U.S. Const., amends. V, IV; Ill. Const. 1970, art. I, sec. 10.) In a case such as the present one, where the jury has already been impanelled and evidence taken, jeopardy had clearly attached by the time the mistrial was granted. (People v. Johnson (1983), 113 Ill. App. 3d 367, 374; People ex rel. Mosley v. Carey (1979), 74 Ill. 2d 527, 534, cert. denied (1979), 444 U.S. 940, 62 L. Ed. 2d 306, 100 S. Ct. 292.) However, it has also been stated that a second trial, after remand from an appeal of an interlocutory order, is not necessarily precluded by double jeopardy; that determination depends upon the particular facts of the specific case. (People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 507-08; see People v. Johnson (1983), 113 Ill. App. 3d 367.) Where a mistrial has been declared on defendant’s motion or is attributable in some manner to the defendant, reprosecution is not barred and the defendant cannot, by his or her own act, avoid the original jeopardy and then assert it as a bar to subsequent proceedings. (People v. Johnson (1983), 113 Ill. App. 3d 367, 375.) If defendant has either initiated or consented to the declaration of a mistrial, even where the alleged error necessitating the mistrial was the prosecutor’s or the judge’s, reprosecution may be permissible absent prosecutorial or judicial overreaching or bad faith. People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 509-10.

Nonetheless, no precedent has yet suggested that where defendant merely makes a proper discovery-related trial objection, the defendant has deliberately elected to forego his right to have his guilt or innocence determined by the first trier of fact. (See People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 509.) Indeed, in the present case, defense counsel voiced his disagreement with the court’s declaration of a mistrial and expressed his desire to proceed immediately to trial. In taking an appeal from the instant interlocutory order, the State apparently concluded that the order was critical to its case, and the appeal thus constituted an election by the State to pursue the propriety of the suppression ruling even at the potential cost of defendant’s subsequent acquittal because of double jeopardy. See People v. Johnson (1983), 113 Ill. App. 3d 367, 376.

If the order was indeed critical, and the State could not prove its case absent the admission of discovery material in question, then the State took the proper course in appealing because, in a sense, it had nothing to lose by such action. The doctrine of double jeopardy does apply in this matter, and the defendant is entitled to be discharged and have the charges pending against him dismissed.

The order of the trial court sustaining defendant’s objection and denying the State’s midtrial motion to supplement discovery is affirmed, and the cause is remanded to the trial court with directions to dismiss the charges and discharge the defendant.

Interlocutory order affirmed; cause remanded with directions.

LINDBERG and UNVERZAGT, JJ., concur.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY L. AUSTIN et al., Defendants-Appellants.
    Second District
    Nos. 82 — 660, 82 — 663 cons.
    Opinion filed April 24, 1984.
    Rehearing denied May 31, 1984.

      John S. Biallas, of St. Charles, and Randy Johnson, of Elgin, for appellants.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant, Larry Austin, was convicted of murder, two counts of felony murder, burglary and home invasion following a jury trial in the circuit court of Kane County. In a separate jury trial in the circuit court of Kane County, defendant, Phillip Gillespie, was convicted of home invasion and three counts of aggravated battery arising out of the same events. We agreed to consolidate the defendants’ separate appeals pursuant to a stipulation of the parties. On appeal, defendants contend: (1) that they were not proved guilty of home invasion beyond a reasonable doubt; and, (2) that the trial court erred in granting the State’s motion in limine precluding inquiry as to the citizenship of certain of the State’s witnesses. Additionally, defendant Austin contends that the admission of certain statements made by him after his arrest was in violation of Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)).

On the evening of December 23, 1981, a number of Hispanic men were gathered in an apartment at 321 Center Street, Elgin, Illinois. This apartment was the dwelling of Marcial Escobar. The men had been drinking, playing cards, and gambling. During the course of the evening, a woman was at the apartment, apparently for purposes of prostitution. She left and returned, accompanied by another woman and a man. These three people, who were not identified, left after a brief time. Approximately one hour later, two other men, identified in their respective trials as defendants, came to the apartment and entered by kicking the door open. Austin was carrying a .22-caliber rifle, and Gillespie a shotgun. Upon entering the apartment, the two men yelled something and fired the guns. Defendant Austin allegedly shot first, wounding Eustorgio Calixto, who later died of his wounds. Gillespie then fired his weapon, hitting Jose Covarubias. Several other men also were shot, including Marcial Escobar and Margarito Aguirre, but it is not clear which defendant fired these shots. Covarubias, Aguirre, and another man grabbed Gillespie, taking the shotgun, and held him until police arrived. Austin fled the scene, continuing to fire his weapon from outside the apartment.

On January 13, 1982, Austin was placed under arrest and was advised of his Miranda rights. Later that day, at the request of Austin, a conversation was held between Austin and Captain Smith of the Elgin police department. Officer David Jensen was also present. Austin asked Smith if he could get the death penalty for his crime and Smith replied that the death penalty did apply but that that was the State’s Attorney’s decision to make. Defendant stated he did not want to get the death penalty, and Captain Smith advised that before any decision could be made, Austin would have to go through his rights again and talk to his attorney. Defendant indicated he wanted to think about whether to talk with the assistant State’s Attorney.

Captain Smith on his own initiative contacted the assistant State’s Attorney, indicating that Austin might make a statement. The next morning, on January 14, 1982, defendant was introduced to Mr. Van Der Snick, the assistant State’s Attorney. In the conversation which followed, Austin stated that he wanted to make sure that the two girls did not get charged with murder, and that he did not want to get the death penalty. The Miranda warnings were repeated, both orally and in writing, and Austin indicated that he understood each of his rights. He then repeated his inquiries to the State’s Attorney regarding the death penalty and the fate of the two women. Mr. Van Der Snick advised Austin that he would not seek the death penalty and that he could not discuss the fate of the two women until further investigation was made. Austin then gave a taped statement which was later transcribed and signed.

The juries respectively found defendant Austin guilty of murder, two counts of felony murder, burglary, and home invasion, and defendant Gillespie guilty of home invasion and the aggravated batteries of Escobar, Covarubias, and Aguirre. Austin’s convictions for felony murder were subsequently vacated, and judgment was entered on the remaining verdicts in both cases. Defendant’s post-trial motions were denied. Austin was sentenced to concurrent terms of 20 years’ imprisonment in the Department of Corrections for murder, 20 years for home invasion and seven years for burglary. Gillespie was sentenced to concurrent terms of 20 years’ imprisonment for home invasion and five years’ imprisonment for each aggravated battery conviction.

We first address defendant Austin’s contention that his inculpatory statements to the police made after his arrest on January 13, 1982, were admitted into evidence in violation of Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)). That rule provides that any plea discussion not resulting in a guilty plea is inadmissible against the defendant. Defendant argues that his statements to the police and the assistant State’s Attorney were in the nature of plea negotiations and were therefore inadmissible.

The purpose of Supreme Court Rule 402(f) is to encourage the negotiated disposition of criminal cases through elimination of the risk that the accused enter plea discussions at his peril. (People v. Hill (1980), 78 Ill. 2d 465, 472, 401 N.E.2d 517; People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) However, not all statements made with the hope of some concession are necessarily plea discussions. (People v. Victory (1981), 94 Ill. App. 3d 719, 722, 419 N.E.2d 73.) In People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, the court recognized that there is a distinction between a statement made in the furtherance of a plea discussion and an otherwise independent admission which is not excluded by the rule. (79 Ill. 2d 341, 353, 403 N.E.2d 229; see also People v. Victory (1981), 94 Ill. App. 3d 719, 419 N.E.2d 73.) The Friedman court established a two-prong test for determining whether a defendant’s unsolicited statement was plea-related and therefore inadmissible. First, the court must consider whether the accused exhibited a subjective expectation to negotiate a plea, and, second, it must determine whether this expectation was reasonable under the totality of the objective circumstances. (People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229.) Where the defendant’s subjective expectations are not explicit, the objective circumstances surrounding defendant’s statement take precedence in evaluating defendant’s subsequent claim that the statement was plea related. (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.) The Friedman court noted that “[bjefore a discussion can be characterized as plea related, it must contain the rudiments of the negotiation process, i.e., a willingness by defendant to enter a plea of guilty in return for concessions by the State.” 79 Ill. 2d 341, 353, 403 N.E.2d 229.

In the present case, any subjective expectation to negotiate a plea was not explicit. Defendant never requested of either the police or the assistant State’s Attorney to “make a deal” (cf. People v. Hill (1980), 78 Ill. 2d 465, 401 N.E.2d 517; People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229), nor did he ever convey to them any offer to plea bargain (see People v. Victory (1981), 94 Ill. App. 3d 719, 723, 419 N.E.2d 73). Defendant did not ask Captain Smith to contact the State’s Attorney for him, and he did not testify as to what his expectations were. (94 Ill. App. 3d 719, 723, 419 N.E.2d 73.) Under these circumstances, the objective facts surrounding defendant’s statements take precedence in evaluating defendant’s claim that his statements were plea related. People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.

Two of defendant Austin’s statements apparently are in question here. Defendant’s initial statement to Captain Smith inquiring as to whether the death penalty applied in his case was, in our opinion, merely a statement indicating defendant’s concern over his fate and was designed to elicit Smith’s opinion on that rather than to initiate plea negotiations. (See People v. Victory (1981), 94 Ill. App. 3d 719, 419 N.E.2d 73, wherein defendant asked an officer whether the State’s Attorney would be willing to plea bargain because defendant could not “afford to take an armed robbery charge.”) We consider defendant’s statement here as more in the nature of an admission of guilty knowledge rather than a subjective expectation or attempt to enter into plea discussions. 94 Ill. App. 3d 719, 724, 419 N.E.2d 73.

Similarly, defendant’s statement to the assistant State’s Attorney regarding the fate of the two women and the applicability of the death penalty cannot be characterized as “plea-related” under Supreme Court Rule 402(f) (87 Ill. 2d R. 402(f)). That statement was given after he had already received assurances from the State’s Attorney that the death penalty would not be sought. The State’s Attorney also advised defendant prior to his statement that the fate of the two women could not be discussed at that time. Thus, with respect to this second statement, it cannot be said that the “rudiments of the negotiation process” were present. (People v. Friedman (1980), 79 Ill. 2d 341, 353, 403 N.E.2d 229.) Defendant at no time indicated a willingness to enter a plea of guilty in return for concessions by the State. The State’s assurances were received prior to, and independent of, defendant’s subsequent incriminating statement. There was no testimony supporting defendant’s position that leniency would be granted only upon the condition that defendant confess to the crime. There were no offers made by either defendant or the State’s Attorney in relation to an entry of a plea of guilty. In fact, there was no real negotiating process at all. Under these circumstances, we believe the trial court’s admission of the statements was not error.

Next we consider the defendants’ contention that they were not proved guilty of home invasion beyond a reasonable doubt. A person who is not a peace officer acting in the line of duty commits home invasion when, without authority, he or she knowingly enters the dwelling place of another at a time when he or she knows or has reason to know that one or more persons are present inside and (1) while armed with a dangerous weapon uses or threatens force against any person within the dwelling or (2) intentionally causes injury to any person within the dwelling. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11.) The records establish that defendants entered the apartment, in which Marcial Escobar lived, without authority. They were not police officers executing their duties. They were armed with a shotgun and a rifle, each of which was fired, and each defendant hit at least one of the persons inside the apartment. Several of the other occupants also were injured, although it is not clear which of the assailants fired the shots which caused these injuries. However, defendants claim they were not proved guilty beyond a reasonable doubt as there was insufficient evidence to show that they knew or had reason to know that there were people inside the apartment.

Under section 4 — 5 of the Criminal Code of 1961, knowledge of a material fact includes “awareness of the substantial probability that such fact exists.” (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 5.) Because of its very nature, knowledge is ordinarily proven by circumstantial evidence, rather than by direct proof. (People v. Farrokhi (1980), 91 Ill. App. 3d 421, 427, 414 N.E.2d 921.) However, the State must present sufficient evidence from which an inference of knowledge can be made, as the inference must be based on established facts and not pyramided on an intervening inference. People v. Davis (1977), 50 Ill. App. 3d 163, 168, 365 N.E.2d 1135.

In the instant case, there is sufficient circumstantial evidence that defendants knew or had reason to know that one or more persons were present when they entered the apartment. They entered the apartment between midnight and 1:30 a.m., a time when it is likely that the occupants of a residence would be at home. (See People v. Davis (1982), 106 Ill. App. 3d 260, 267, 435 N.E.2d 838.) At that time 13 or more men were in the apartment, drinking, playing cards, and gambling. Under these circumstances, the jury could have inferred that lights were on and that noise was emanating from the apartment, thus putting defendants on notice of the presence of persons inside. (See People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838; People v. Pavic (1982), 104 Ill. App. 3d 436, 432 N.E.2d 1074.) Additionally, defendants’ own behavior indicated that they knew that people were in the apartment. (See People v. Davis (1982), 106 Ill. App. 3d 260, 267, 435 N.E.2d 838.) Defendants were both carrying firearms. They kicked open the door and stood at the entryway pointing their guns. Apparently, the two men began shooting immediately and fired between 10 and 20 shots. Gillespie, who had a loaded shotgun, also had a buck knife and live ammunition in his pockets. These actions strongly suggest that defendants were anticipating that the apartment was occupied and that the occupants might give them some resistance. Therefore, the proof of defendants’ mental state was sufficient even though they apparently had not been in the apartment previously that evening and there was nothing to connect defendants to the three other persons who had been in the apartment an hour prior to the attack, other than their common racial background.

Defendants note that, contrary to the allegations of the indictments, there was no evidence that they knew specifically of the presence of Marcial Escobar. The prosecution must prove the essential elements of a charging instrument (People v. Rothermel (1982), 88 Ill. 2d 541, 544, 431 N.E.2d 378), as alleged and without variance. (People v. Mosby (1962), 25 Ill. 2d 400, 403, 185 N.E.2d 152.) However, a variance or lack of proof of facts alleged is not fatal if the facts in question are not essential elements of the crime charged. (People v. Alexander (1982), 93 Ill. 2d 73, 77, 442 N.E.2d 887; People v. Rothermel (1982), 88 Ill. 2d 541, 341 N.E.2d 378; People v. Davis (1980), 82 Ill. 2d 534, 539, 413 N.E.2d 413.) Defendants, citing People v. Mosby (1962), 25 Ill. 2d 400, 185 N.E.2d 152, assert that the identity of the persons in the apartment was an essential allegation which had to be proved without variance. In Mosby, the court held that ownership or possession of a burglarized dwelling was an essential element of a burglary indictment and that the State’s failure to prove ownership as alleged was a fatal defect. (25 Ill. 2d 400, 403, 185 N.E.2d 152.) However, this is no longer an accurate statement of the law, and failure to allege ownership or to prove ownership as alleged in a burglary charge does not defeat the charge unless the defendant was harmed in preparing a defense. (People v. Rothermel (1982), 88 Ill. 2d 541, 545, 431 N.E.2d 378.) We think this same rationale applies to a home-invasion charge, where the gravamen of the offense is entering a dwelling without authority knowing that someone is present inside. As such, the allegation naming a specific person was merely surplusage, which generally does not affect the validity of a conviction. (See People v. Davis (1980), 82 Ill. 2d 534, 539, 413 N.E.2d 413.) As defendants have not claimed they were prejudiced in the preparation of their defenses, and since the indictments as drawn contain sufficient information to prevent further jeopardy (see People v. Clark (1979), 71 Ill. App. 3d 381, 419, 389 N.E.2d 911), the failure to prove that defendants specifically knew of Escobar’s presence does not vitiate the convictions.

Finally, defendants contend that their right to cross-examination was improperly restricted when the trial court granted the State’s motions in limine asking the court to prohibit defense counsel from eliciting any evidence during trial of the citizenship status of the State’s Hispanic witnesses. In support of the motion in defendant Gillespie’s trial, the prosecutor stated that he and defense counsel “are both aware of where [the Hispanic "witnesses] will be going.” Ten days later, during defendant Austin’s trial, the same prosecutor stated that it was his “understanding that they are illegals and that they are attempting to gain residency.” After a reference to the witness-victims’ right to plead the fifth amendment on that issue and the State’s desire to .avoid a mistrial, the court granted the motion and the cause proceeded to trial. Defendants claim that they should have been permitted to inquire as to whether these witnesses were illegal aliens, as this status might have given the witnesses a motive to testify favorably for the State. We agree, but find the error to be harmless under the facts presented here.

A criminal defendant has a constitutional right to be confronted with the witnesses against him or her. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8.) This right encompasses the right to effective cross-examination to test the credibility of the witnesses and the truth of their testimony. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) Because the exposure of any bias, interest, or motive to testify falsely on the part of a witness is an important function of cross-examination, cross-examination for these purposes is a matter of right, subject only to the trial court’s broad discretion to preclude repetitive and unduly harassing interrogation. (415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Foley (1982), 109 Ill. App. 3d 1010, 1015, 441 N.E.2d 655.) This right requires that defense counsel be permitted to expose to the jury facts from which it could appropriately draw inferences concerning the reliability of the State’s witnesses. (People v. Betts (1983), 116 Ill. App. 3d 551, 555, 451 N.E.2d 1028.) It is only after this standard has been satisfied that the trial court’s generally broad discretion to restrict the scope of cross-examination (see People v. Pizzi (1981), 94 Ill. App. 3d 415, 418 N.E.2d 1024) comes into play. (People v. Betts (1983), 116 Ill. App. 3d 551, 555, 451 N.E.2d 1028; People v. Rufus (1982), 104 Ill. App. 3d 467, 473, 432 N.E.2d 1089.) However, even then, the defendant has a common law right, based on evidentiary principles, to cross-examine an adverse witness to reveal any possible bias, interest, or motive to testify falsely (People v. Rufus (1982), 104 Ill. App. 3d 467, 474, 432 N.E.2d 1089; People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422), and the defendant should be given the widest latitude in such cross-examination. People v. Betts (1983), 116 Ill. App. 3d 551, 555, 451 N.E.2d 1028; People v. Foley (1982), 109 Ill. App. 3d 1010, 1014, 441 N.E.2d 655.

The State first argues that defendants have waived review of this issue because their objections were not based on the ground now urged on appeal. (People v. Baker (1983), 114 Ill. App. 3d 803, 807, 448 N.E.2d 631.) Rather, they objected on the general ground that they had a right to bring out the background of the witnesses. While it is true that the specific issue of bias was not raised by defendants, we nevertheless consider the issue under the plain-error rule (87 Ill. 2d R. 615(a)), since, for the reasons which follow, we believe it was error not to allow cross-examination on this point.

The fact that a prosecution witness has charges pending against him or her or is on probation indicates a possibility that the witness might attempt to curry favor- with the government by testifying for the State. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Betts (1983), 116 Ill. App. 3d 551, 451 N.E.2d 1028; People v. Foley (1982), 109 Ill. App. 3d 1010, 441 N.E.2d 655; People v. Rufus (1982), 104 Ill. App. 3d 467, 432 N.E.2d 1089; People v. Freeman (1981), 100 Ill. App. 3d 478, 426 N.E.2d 1220.) Generally, the defendant need not make a prior showing that any promises of leniency have been made or that any expectations of special favor actually exist in the witness’ mind. (People v. Betts (1983), 116 Ill. App. 3d 551, 555, 451 N.E.2d 1028; People v. Foley (1982), 109 Ill. App. 3d 1010, 1015, 441 N.E.2d 655; People v. Freeman (1981), 100 Ill. App. 3d 478, 481, 426 N.E.2d 1220.) The key factor is not the existence of actual pressure, but the witness’ state of mind. (People v. Baugh (1981), 96 Ill. App. 3d 946, 951, 422 N.E.2d 166.) Where the witness is in a position to contemplate the possibility of leniency or favor, the defendant should be allowed to question the witness concerning these matters. People v. Baugh (1981), 96 Ill. App. 3d 946, 951, 422 N.E.2d 166.

We think an illegal alien, like a probationer, might be vulnerable to pressure, real or imagined, from the authorities. (See People v. Foley (1982), 109 Ill. App. 3d 1010, 1014, 441 N.E.2d 655.) This may be true even though no deportation proceedings actually have been brought. (See People v. Baugh (1981), 96 Ill. App. 3d 946, 951, 422 N.E.2d 166.) Thus, we believe defendant was entitled to present to the jury the residency status of the State’s -witnesses and argue bias if all or some of these witnesses were in fact illegal aliens. This court cannot speculate as to whether the jury would have accepted such a theory. See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.

Nevertheless, we believe the error was harmless here since the evidence against the defendants was overwhelming. The Hispanic witnesses provided the evidence of defendants’ unlawful entry into the apartment and behavior upon entering. However, police investigating the scene found that the door to the apartment had been forced open. Several men were holding defendant Gillespie down when police arrived. Gillespie was struggling, and a sawed-off shotgun was on the floor next to him. Upon patting Gillespie down, the arresting officer found live ammunition for this weapon in defendant’s pockets. He also had a buck knife. One man was killed as the result of this incident. While Gillespie was acquitted of murder, the use of force against the decedent could be used to support his conviction for home invasion. Additionally, Gillespie admitted to police that he had been in the apartment, identified two other people involved in the offense, and asked one officer whether he could arrange for defendant to get probation instead of imprisonment. Under these circumstances, any error in the limitation of cross-examination was clearly harmless beyond a reasonable doubt as to Gillespie.

Similarly, there was overwhelming evidence against Austin to sustain his conviction for murder. Austin’s own statement admitted that he entered the apartment armed with a .22-caliber rifle and fired several shots into the crowded room. This fact is sufficient in and of itself to establish the requisite intent for murder. (People v. Bartall (1983), 98 Ill. 2d 294, 307, 456 N.E.2d 59.) A search of the area and the Hispanic witnesses by Officer Kelly revealed no weapons that would indicate the shots were fired by them, as Austin suggested at trial. The ballistics testimony indicated that the two shots which killed Calixto were fired from a .22-caliber rifle, as were all the spent casings recovered from the scene. Thus, there was sufficient corroboration of the witnesses by other testimony and the physical evidence in the case to establish any error as harmless beyond a reasonable doubt.

Accordingly, the judgments of the circuit court of Kane County are affirmed.

Affirmed.

NASH and VAN DEUSEN, JJ., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALVIN WILSON, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 2979
    Opinion filed May 1, 1984.

      James J. Doherty, Public Defender, of Chicago (Kathleen M. McGinnis and James H. Reddy, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Patrick J. Foley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant Alvin Wilson appeals from his conviction by a jury in the circuit court of Cook County of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3(a)) and the 11-year sentence of imprisonment imposed.

Defendant contends that (1) prosecutorial misconduct denied him a fair trial; (2) the court erred in giving the jury a modified version of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.06 — 3.07 (2d ed. 1981); and (3) the court erred when, in the State’s redirect examination of a police officer, it permitted the State to read to him the officer’s police report, including a reference to defendant’s alleged admission of another, uncharged, crime.

At trial, the occupant of the burglarized apartment, Dr. Patricia Cooper, testified: her apartment, located at 1423 West North Shore in Chicago was twice burglarized; on May 10 and 20, 1982. (Defendant was here convicted of the May 20 burglary.) Missing from her apartment following the second burglary was her stereo, black medical bag and a jar of pennies. In court she identified the stereo and medical bag as her property.

David R. Beleckis testified: he is a cab driver. On May 20, 1982, he was sent by radio to pick up a male “fare” at 6600 North Clark Street. The man told Beleckis “he was going to pick up a stereo set that he had purchased at the location where we were going.” The man directed Beleckis to drive to 1423 West North Shore. Beleckis identified defendant as the fare.

Upon arriving at the apartment, defendant entered the apartment and returned carrying stereo equipment. After his third entry into the apartment, a man appeared and identified himself as the manager of the building. The manager stated he was going to call the police. Defendant stated he had a receipt for the stereo. When he could not produce a receipt, defendant “walked off rather rapidly” leaving the stereo and a black bag full of pennies in the cab. At the5 manager’s request, Beleckis attempted to follow the defendant. When they were unsuccessful, the driver drove the building manager to a police station.

Arthur Koegel testified: he is the manager of the apartment building located at 1423 West North Shore. On May 20, 1982, he witnessed a stranger carrying stereo equipment from the building to a taxicab. Koegel asked the man to show a receipt for the stereo. The man could not. While they were talking a key fell from the pocket of the stranger, which bore the legend “Chateau Hotel, 3838 Broadway, room 206.” The man then picked up the key and walked away.

On the following day, May 21, Koegel was accompanied by the police to the Chateau Hotel in an effort to identify the man who carried the stereo. Koegel identified defendant in the street near the hotel, and defendant was then arrested.

Officer Gerald Celan of the Chicago police department testified: he investigated the burglary. When Koegel identified defendant, Celan arrested him. A search revealed a 12-inch screwdriver in defendant’s sock. When the officer told defendant he was being arrested for a “burglary up north,” defendant responded with “the one on North Shore?” When defendant was placed in the squad car, the officer asked defendant if he remembered Mr. Koegel from the day before, and defendant “nodded his head that he did.” At the police station defendant admitted to the May 20 burglary, advising officer Celan that defendant had “seen the stereo” when he was at the apartment “about two weeks earlier.”

Defendant testified: he had spent the afternoon of May 20 with acquaintances at the Chateau Hotel, where he lived. He carried the screwdriver found in his possession on May 21 because he was using it to fix a car he had borrowed, and concealed it because he had a prior record for theft. He denied having told the police he committed the burglary. Defendant told the police he did not know Mr. Koegel; he denied being familiar with the north side of Chicago. He also denied ever being at the burglarized apartment.

Defendant was convicted of residential burglary and, after a sentencing hearing, was sentenced to 11 years’ imprisonment.

Defendant first argues that various acts of misconduct by the prosecutor deprived him of a fair trial. Defendant contends that the State’s discussion of “burden of proof” and “reasonable doubt” in its opening statement was error. There the State told the jury that the State’s burden of proof exists “in every criminal case in Cook County” and then drew the following analogy:

“Now, a reasonable doubt is exactly what it says, a doubt that is reasonable. Now, I have a doubt that China exists. I mean I have never seen the country and I have never been there. But is that a reasonable one? Especially in light of the fact that everything I have heard or read about China, is that a reasonable doubt? Not at all.”

At trial defendant failed to object to these statements, nor did he include them in his post-trial motion. Failure to do so has been held to waive their consideration on appellate review. (People v. Childs (1981), 101 Ill. App. 3d 374, 428 N.E.2d 185.) While we therefore find them to have been waived, we repeat the admonishments set forth in People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, that the State’s continued use of arguments intended to minimize its burden of proof is improper and should be discontinued.

Defendant next contends the State improperly vouched for the credibility of its witnesses when, in closing argument, the prosecutor — Mary O’Connor — stated that the victim did not “make up” the burglary and that the State’s witnesses “were not lying.” The State responds that defendant has waived this argument by failing to object at trial or to include it in his post-trial motion. Even if not waived, the State contends, these remarks were a proper reference to the credibility of witnesses and were also invited by defense counsel’s own argument.

We agree that defendant’s failure to object or to include this argument in his post-trial motion constitutes waiver. (People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630.) But even if it had not been waived, we find the remarks were in fact responses to arguments made by defense counsel and, as such, not improper. Defendant cannot complaint of remarks made by the State in rebuttal which were invited by defense counsel’s statements. People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.

Defendant next contends that O’Connor’s rebuttal argument, wherein she stated “and I am insulted at defense counsel’s argument *** [objection overruled] in that he has misstated evidence, lied, appealed to your prejudice and guilt and on every other thing he could do to do his job [objection sustained],” was an improper personal attack on defense counsel.

The State answers that the comments were not improper because (1) they were within the wide latitude afforded in closing argument; (2) they were here true; (3) they were proper attacks on defense counsel’s argument and not on defense counsel personally; and (4) even if improper, the remarks should be considered harmless where, as here, the evidence against defendant is overwhelming and the remarks were not so prejudicial as to materially contribute to defendant’s conviction.

We cannot agree with the State’s suggestion that these comments were directed at counsel’s argument and not at counsel personally. These attacks “far exceeded the bounds of proper conduct.” (People v. Triplett (1981), 99 Ill. App. 3d 1077, 1084, 425 N.E.2d 1236.) However, in light of the compelling evidence against defendant, we cannot say these improper comments substantially prejudiced defendant or contributed to his conviction. People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.

Defendant next urges error with regard to the State’s closing argument wherein O’Connor noted that certain evidence was not brought out because “he [defense counsel] objected. They didn’t want the answers to come out of the questions I asked him. And why was that? Because they don’t want you to know the truth.” After an objection to these statements was sustained and the court ordered the prosecutor to “argue the facts,” she nonetheless persisted and again argued that “the objection to that question was sustained and the officer was not allowed to answer it and I think you ought to consider why.”

While these comments could be arguably interpreted to have been made in response to defense counsel’s argument that the State had “ignored” physical evidence and fingerprints at the crime scene, we nonetheless find that the State’s argument was improper, particularly when repeated after the court’s order to refrain from that line of argument. We do not, however, find that they materially contributed to defendant’s conviction.

Similarly, defendant alleges error in the State’s argument in which the prosecutor attempted to explain to the jury the difficulty in securing fingerprints although no witness had so testified. While we find this contention to have been waived by defendant, it is obvious that the State may not substitute argument for evidence. People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5.

Defendant next complains of the prosecutor’s several comments made in rebuttal argument with regard to defendant’s alleged failure to present evidence on certain issues which defense counsel had emphasized in his closing argument. We find no error in this instance since a prosecutor may legitimately comment on evidence which is within the defendant’s control which would explain or refute evidence presented by the State. (People v. Williams (1968), 40 Ill. 2d 522, 240 N.E.2d 645.) Further, such remarks are proper when, as here, they are made in response to defendant’s argument. People v. Nash (1980), 90 Ill. App. 3d 612, 413 N.E.2d 16.

Defendant’s final argument with regard to the State’s opening and closing statements concerns the prosecutor’s argument to the jury that “But if you want to throw this case out because a police officer didn’t write slight mustache in the report then you let him walk out the door and you should all go home and order burglar systems [sic] [objection overruled]” and “either [the defendant] is going to walk around with his burglary tools up on the north side of Chicago or you are going to walk around going to your jobs and your houses will be safe.”

While we recognize that the State may properly reflect unfavorably on the accused and the evils of crime (People v. Balls (1981), 95 Ill. App. 3d 70, 419 N.E.2d 571), we find these remarks, which are addressed to the juror’s fears and suggest future crimes if the jury fails to convict this defendant, to be inappropriate. People v. Satchell (1981), 94 Ill. App. 3d 422, 418 N.E.2d 1063; People v. Jackson (1980), 84 Ill. App. 3d 172, 405 N.E.2d 448.

Defendant’s next two assertions of error involve his cross-examination by the State. Defendant contends that his constitutional right to post-arrest silence was violated when the State repeatedly asked him whether he had told the police of .his alibi when he was arrested, and was again violated in closing argument when the State argued that defendant “lied” when he testified to being with friends at the time of the burglary.

The State answers that “a prosecutor may comment upon a defendant’s post-arrest statements which are inconsistent with defendant’s direct testimony at trial.”

Because in this case defendant did admit to having some discussions with the police after his arrest, defendant may properly be cross-examined as to his “subsequent failure to tell the police his present contradictory, exculpatory explanation of the incident.” (People v. McFarland (1981), 93 Ill. App. 3d 136, 416 N.E.2d 769.) While calling a defendant a “liar” in closing argument has been condemned (People v. Dowd (1981), 101 Ill. App. 3d 830, 428 N.E.2d 894), it has been held to be not prejudicial when, as here, the comment is based on the evidence and defendant’s testimony is in direct conflict with the State’s witnesses. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154.) We believe, however, that the State should avoid this characterization.

Defendant next contends that the court erred in allowing the State, during cross-examination of defendant, to ask defendant to state his opinion of the credibility of the State’s witnesses. The record demonstrates that O’Connor asked defendant, with regard to each of the State’s witnesses, whether the defendant believed the other witnesses’ testimony was “error” or they had “lied.” And despite the trial court’s sustaining of defense counsel’s objections to this line of questioning, she persisted. The record reveals that on two occasions O’Connor’s conduct during cross-examination moved the court to call a sidebar conference and there condemn the State’s actions. We believe this cross-examination, although improper (People v. Meeks (1973), 11 Ill. App. 3d 973, 297 N.E.2d 705), in light of the overwhelming evidence against defendant in this case, did not prejudice him.

Defendant next contends the court erred when, in giving the jury IPI Criminal No. 3.06-3.07, the court failed to include the material encased in brackets below:

“You have before you evidence that the defendant made statements relating to the offense charged in the information. It is for you to determine [whether the defendant made the statements, and, if so,] what weight should be given to the statements. In determining the weight to be given to a statement, you should consider all of the circumstances under which it was made.” (IPI Criminal No. 3.06-3.07 (2d ed. 1981).)

Because the instruction was neither objected to, nor contained in defendant’s post-trial motion, we find the issue to have been waived. People v. Lewis (1979), 73 Ill. App. 3d 951, 392 N.E.2d 707.

Defendant’s final contention is that the trial court erred in allowing the State, on redirect examination of the arresting officer, to read to him his report and, after each sentence therein, to ask the officer “if he had written that.” Defendant asserts this error was compounded because the report made reference to an alleged admission by defendant to an uncharged crime.

The State responds, without citation to authority, “[s]ince *** defendant had attempted to impeach officer Celano with omissions from the police report, the People decided to rehabilitate officer Celano with the same report” and also that “[w]here a conversation is related by a witness the opposing party has a right to bring out all of the conversation.”

We conclude that the State’s manner of redirect examination was error. Police reports are not generally admissible into evidence; they may, however, be used to refresh the witness’ recollection and to impeach a witness. (People v. Banasik (1981), 93 Ill. App. 3d 612, 417 N.E.2d 790.) Improper material should not be admitted under the guise of rehabilitation. Nor do we believe that defense counsel’s use of the report to impeach the officer “opened the door” so as to allow the State to read the entire report into the record. The principle of allowing an adverse party to complete a conversation does not give the party an automatic right to introduce material which is otherwise inadmissible. (See E. Cleary and M. Graham, Handbook of Illinois Evidence sec. 106.2 (4th ed. 1984).) So also, it was error to read the report’s brief and vague reference to defendant’s alleged admission to another, uncharged crime. However, in reviewing the entire record, we conclude that this error did not give rise to substantial prejudice to defendant. People v. Mays (1979), 74 Ill. App. 3d 145, 392 N.E.2d 106.

Defendant contends, with regard to the prosecutorial misconduct, that even if the errors which occurred do not individually require reversal, the cumulative error caused by the prosecutorial misconduct requires a new trial. After a careful review of this record, we cannot conclude that the misconduct here resulted in substantial prejudice to the defendant, or that in their absence the verdict would have been different. (People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051, cert. denied (1982), 455 U.S. 954, 71 L. Ed. 2d 671, 102 S. Ct. 1462.) The State’s tactics are, nonetheless, to be condemned. “A consistent and intentional course of prosecutorial misconduct is not condoned simply because a reviewing court concludes that that misconduct has failed to achieve its obvious purpose of denying the defendant a fair trial. Perhaps, *** some reports to the Attorney Registration and Disciplinary Commission are the only antidote to the virulent condition created by the continued use of the type of tactics that were employed in this case.” People v. Starks (1983), 116 Ill. App. 3d 384, 396, 451 N.E.2d 1298.

For the reasons herein stated, defendant’s conviction is affirmed.

Affirmed.

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