author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE GRAY, Defendant-Appellant.
    First District (1st Division)
    No. 82—2045
    Opinion filed February 6, 1984.

      Steven Clark and Patricia Unsinn, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Maureen A. Dahlke, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court;

Lawrence Gray (defendant) was indicted for murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1), concealment of homicidal death (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3.1) and obstructing justice (Ill. Rev. Stat. 1981, ch. 38, par. 31 — 4). The victim was the 21/2-year-old daughter of defendant’s wife. After a bench trial, defendant was convicted of the lesser included offense of involuntary manslaughter (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3), concealment of homicidal death, and obstructing justice.

Defendant was sentenced to concurrent sentences of five years in prison for involuntary manslaughter and three years for obstructing justice. Defendant also received a nine-year extended-term sentence for concealment of homicidal death to run consecutively to the other sentences. Defendant appeals.

The evidence establishes that after defendant’s wife and her child came to live with defendant in September of 1980, the child sustained injuries such as laceration of her right forehead, a large burn on her right forehead, swollen jaws, contusions on her back and bruises on her legs and back.

On February 15, 1981, defendant told police he and his wife had been robbed by two men who had taken the child and fled. Approximately 48 hours later, defendant’s wife told police the robbery and kidnap story was a hoax and that she and defendant had actually placed the child’s body in a garbage bag and discarded it in an abandoned building.

Defendant admitted to police he had struck the child twice, once causing the victim to fall and strike her head against a door so as to cause bleeding.

At trial, defendant denied these admissions. He testified his wife had taken the child into the bathroom of their home, and then told defendant something was wrong with the child. Defendant stated he found the child lying on the floor, unconscious and bleeding from a wound in her head. Defendant also testified he saw his wife twice pick the child up and drop it from shoulder height into the bathtub, causing the child’s head to strike the edge of the bathtub.

Defendant testified he attempted artificial resuscitation without result. Defendant placed, or allowed the child to be placed, on a radiator, and he and his wife went to visit his mother. When they returned, they found the child’s ear and the right side of her face had been burned by the radiator. Defendant and his wife placed the child and her bloody clothes in plastic garbage bags and discarded the bags in abandoned buildings nearby.

The State’s chief medical expert, Dr. Robert Stein, performed the autopsy on the child. He identified the cause of death as severe blunt trauma to the head and face coupled with third degree bums to the side of the face. Dr. Stein testified there was a tremendous, markedly diffused hemorrhage under the scalp. He stated such a subgaleal hemorrhage was consistent with severe blunt trauma to the head and face occurring before death. There was no skull fracture. This would have been expected if the child had been dropped from shoulder height into a bathtub.

Dr. Stein testified the injuries to the face resulted from direct blunt trauma. They were not consistent with a single blow or with being dropped on her head in a bathtub. The child’s lips were bruised and swollen, and there was an incised wound, caused by a sharp object, above the left eye. Both eyes had subconjunctival hemorrhages and were black and blue.

Two of defendant’s expert witnesses testified that, in their opinion, the hemorrhage under the scalp was caused by incisions made during the autopsy and not by blunt trauma. Each expert admitted on cross-examination that such a hemorrhage is consistent with blunt trauma to the head. None of defendant’s experts was present during the autopsy.

Another of defendant’s experts testified the facial swelling and discoloration occurred after death and, in his opinion, resulted from the seepage of blood from the hemorrhage under the scalp. However, another of defendant’s experts conceded that the facial injuries were consistent with direct blunt trauma to the head and face. Another expert, testifying for the State in rebuttal, stated that the facial injuries were inconsistent with seepage from a hemorrhage under the scalp. She concluded the injuries were inflicted while the child was alive and were the result of child abuse.

I

Defendant urges the evidence was insufficient to prove him guilty of involuntary manslaughter beyond a reasonable doubt. In the instant case, there are conflicts in the evidence. Defendant admitted to the police that he struck the child twice so that she fell and struck her head upon a door. At trial defendant denied he struck the child but he testified his wife bathed the child to wash off blood. Defendant testified his wife dropped the child from shoulder height into the bathtub two times. However, the State’s expert testified the injuries disclosed at the autopsy were not consistent with the victim having been dropped into the bathtub because there was no evidence of a skull fracture.

Also, as could be expected, there was a conflict between the testimony of the experts for the People and those for the defense. The only expert who attended the autopsy was Dr. Stein, who actually performed it. It is conceded that no expert called by the defendant attended the autopsy or saw the body of the victim. They based their opinions on photographs. One expert for the defendant admitted that no qualified pathologist would base an opinion solely upon photographs.

In a situation of this type, we are bound by the established principle that this court cannot accept a conflict in the evidence as sufficient to raise a reasonable doubt of guilt. In all situations in which experts are called to testify, their comparative credibility and the weight to be accorded to their testimony “is a matter for the trier of fact to determine.” People v. Platter (1980), 89 Ill. App. 3d 803, 817, 412 N.E.2d 181.

In addition, whether or not expert testimony is involved, this court has consistently held that it is the prerogative of the trial court to ascertain the truth. This court may not substitute its own feeling or judgment for the result reached by the trier of fact where the outcome of the case depends upon the weight of the evidence or the credibility of the witnesses. (People v. Kline (1982), 92 Ill. 2d 490, 505, 442 N.E.2d 154, citing People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) It has been repeatedly held that a “ ‘ “*** finding of guilty will be disturbed only where the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. [Citation.]” ’ ” People v. Kline (1982), 92 Ill. 2d 490, 506, quoting People v. Durley (1972), 51 Ill. 2d 590, 593, 283 N.E.2d 882. See also People v. Powell (1978), 72 Ill. 2d 50, 65, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L. Ed. 2d 455, 99 S. Ct. 1214.

We conclude that the finding of guilty is necessarily affirmed by this court.

II

Able counsel for defendant urges that the trial court erred when it imposed a consecutive sentence for the offense of concealment of homicidal death and also increased that sentence by imposing an extended term thereon. We agree with this contention.

In our opinion, this type of sentence constitutes an improper augmentation of the sentence. Concealment of a homicidal death is a Class 3 felony. The penalty for this offense is imprisonment with a minimum of two years and a maximum of five years. However, this sentence is doubly augmented by the extended term and also by being made consecutive to the other sentences. This result is completely unfair and excessive. In effect, it is closely analogous to double augmentation of a charge of battery by use of a weapon to result in aggravated battery and then by addition of the charge of armed violence. See People v. Van Winkle (1981), 88 Ill. 2d 220, 222, 430 N.E.2d 987, citing People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627.

Furthermore, the sentence as pronounced would impose a term of 14 years contrary to the express limitation provisions of the pertinent statute. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(c)(2).) We we will therefore separately consider the propriety of an extended-term sentence and also requiring the sentence to be consecutive.

The Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(2)) provides for an extended term:

“When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”

It has been held “that the extended-term provision, since it is a penal statute, should be strictly construed.” (People v. Robinson (1982), 89 Ill. 2d 469, 475, 433 N.E.2d 674.) In People v. Schlemm (1980), 82 Ill. App. 3d 639, 402 N.E.2d 810, cert. denied (1981), 449 U.S. 1127, 67 L. Ed. 2d 115, 101 S. Ct. 948, this court dealt with this provision as it pertained to the crime of concealment of a homicidal death. The court held that imposition of enhanced sentences for concealing the bodies was error and reduced two sentences to the maximum term of five years. The court pointed out that exceptional brutal or heinous behavior in that situation “would occur if, for instance, the corpse was intentionally dismembered.” 82 Ill. App. 3d 639, 651. See also People v. Fieberg (1982), 108 Ill. App. 3d 665, 668-71, 439 N.E.2d 543.

In People v. Evans (1981), 87 Ill. 2d 77, 88, 429 N.E.2d 520, the supreme court rejected an extended term for “actions committed under a subjective belief, albeit unreasonable, that the actions were in self-defense.” The court then added (87 Ill. 2d 77, 88-89, citing People v. Schlemm (1980), 82 Ill. App. 3d 639, 651):

“As the appellate court noted, section 5 — 8—2 of the Unified Code of Corrections was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.”

We have therefore concluded that imposition of the extended term for this offense was improper. The sentence for concealment of a homicidal death is accordingly modified by being reduced to the maximum term of five years.

The next issue is whether it was proper to make the sentence for this same felony consecutive to the other terms imposed. The Unified Code of Corrections provides (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b)):

.“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.”

This court has not hesitated to modify sentences from consecutive to concurrent where the circumstances so require and when we find that protection of the public is not served by the consecutive sentence. (See People v. Griffin (1982), 113 Ill. App. 3d 184, 193-94, 446 N.E.2d 1175.) In addition, it has been held that consecutive sentences should be sparingly imposed. People v. Foster (1975), 32 Ill. App. 3d 1009, 1013, 337 N.E.2d 90.

We are constrained to state that the crime, or series of crimes, here committed against a defenseless child are an affront to civilized behavior and a sad commentary upon human nature. However, repulsive and tragic as the situation here may be, we are obliged to follow the dictates of the statute and to impose consecutive sentences only when we are convinced that consecutive terms of punishment are “required to protect the public from further criminal conduct by the defendant ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-4(b).) In the case at bar, a good part of the alleged conduct of the defendant appears from statements allegedly made to the police by his wife. It must be remembered that she was a willing participant in the situation here until her conscience was goaded by fear of police action. Also, it must be remembered that defendant is a young man in his early twenties. This is the first criminal conduct with which he has ever been associated. It must be conceded that he has an excellent past record.

We are not dealing here with punishment for involuntary manslaughter but with augmentation of the punishment for concealment of a homicidal death. It seems to us that the trial court properly expressed his anger and disgust at the manner with which the child was treated. However, when the entire situation is carefully and impartially reviewed we must necessarily come to the conclusion that the mistreatment and death of the child are far more reprehensible than the manner in which the body was treated. In addition, it is too late to protect the innocent child from the miserable consequences of cruelty, but it is our duty to consider not our emotional outrage but compliance with the statute pertaining to a consecutive sentence. Particularly in view of the lack of criminal record of this defendant, we are impelled to conclude that there is not a sufficient showing here that a consecutive sentence is necessary for the protection of the public.

In this regard, we will cite People v. Soloman (1983), 116 Ill. App. 3d 481, 488, 451 N.E.2d 953, as reflecting the type of defendant with a lengthy criminal record who was properly sentenced to consecutive terms. Also, in our recent decision in Griffin we cited a number of pertinent authorities to the effect that a consecutive sentence should be “imposed sparingly” and is “rarely appropriate.” (People v. Griffin (1982), 113 Ill. App. 3d 184, 193.) In that opinion, we also cited other cases to the effect that there must be a sufficient showing that the conduct of the defendant was such that a consecutive term was necessary for protection of the public. We conclude that the sentences imposed upon defendant should be made concurrent rather than consecutive.

We do not find that with these modifications the sentence of this defendant is disparate from the sentence given his wife. She has been found guilty in an Anders proceeding and sentenced to concurrent terms of five years for concealment of the homicidal death and three years for obstructing justice. See People v. Kline (1982), 92 Ill. 2d 490, 507.

Accordingly the sentences herein are modified by eliminating the extended term for concealment of the homicidal death and further modifying the sentences for all offenses to be concurrent rather than consecutive. In all other respects the judgment appealed from is affirmed. The cause is remanded to the trial court for the issuance of a corrected mittimus.

Affirmed in part; sentences modified and cause remanded with directions.

McGLOON and CAMPBELL, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES HAMMOCK, JR., Defendant-Appellant.
    First District (3rd Division)
    No. 80—1597
    Opinion filed February 8, 1984.

      Chester L. Blair, Chartered, of Chicago (Chester L. Blair, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Lawrence R. Stasica, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

In a jury trial, defendant, James Hammock, Jr., was convicted of murder, and he was sentenced to 28 years in prison. We reverse the conviction and remand the case for a new trial because the State violated defendant’s fifth amendment right to have counsel present during custodial interrogation, and because the second of two videotape reenactments of the homicide was admitted into evidence after the State failed to produce the first videotape.

Defendant admits shooting and killing Anthony Taylor while Taylor was in the back seat of an automobile. According to defendant, at the time of the shooting, he was leaning into the automobile and struggling with Taylor. Defendant claims that during the struggle Taylor threatened to kill him and that Taylor drew a gun and aimed it at him. Defendant also claims that, in fear for his life, he drew his own gun and killed Taylor. After the shooting, defendant fled the scene.

The homicide occurred in Brookfield, Illinois, at about 7 p.m. on Friday, June 23, 1978. Later that evening, defendant was arrested in Chicago on a speeding charge for traveling 60 miles per hour in a 55-mile-per-hour zone. He was asked to take a breathalyzer test, and he refused on the basis that he wanted to see his attorney first. He was then taken, without further interrogation, to a police station in Chicago where he remained locked up for about 12 hours. On Saturday afternoon, he was taken to the county jail, where he remained until Sunday afternoon. At about 5 p.m., three Brookfield police officers appeared at the county jail. One of them advised defendant that he was wanted in connection with the homicide that occurred in Brook-field. The officer gave defendant Miranda warnings, and defendant’s response, as reflected by his uncontradicted testimony, was as follows:

“A. I told them that my people will have a lawyer out there. Probably Monday because today is Sunday and I don’t think I can reach my lawyer on a Sunday.
Q. At that point. They simply told you the rights, you answered saying that you didn’t know if you could get your lawyer because it was on a weekend or Sunday?
A. Sunday afternoon, right.
Q. And but that your family would be producing a lawyer over at the police station, is that correct?
A. Right.
Q. Was anything else said at that point ***?
A. No.”

The Brookfield police officers then took defendant to the Brook-field police station, where they arrived at about 7 p.m. At the police station, defendant was taken into a conference room and given Miranda warnings again. According to his uncontradicted testimony, defendant responded: “I would really not say anything until I have my lawyer.” Thus, within a few hours at most, defendant had been given Miranda warnings at least twice, and on each occasion he asserted his constitutional right to counsel.

At that stage, an assistant State’s Attorney, the supervisor in charge of felony review, arrived at the police station. According to his testimony, he ascertained that defendant “had been advised of his rights by the' police officers per the Miranda Decision.” Then, for no stated reason, he readvised defendant of “the same rights,” and he resumed the interrogation of defendant.

The record indisputably manifests that the resumption of defendant’s interrogation was not in any way initiated by defendant. It was plainly not at defendant’s suggestion or request. According to the testimony of the assistant State’s Attorney at the suppression hearing, here is what happened:

“Q. After giving the defendant his Miranda Rights and determining that he had been given those rights by the police officers what was the next conversation you had with the defendant?
A. I asked him if he wanted to make a statement at this time to me. ***”

The assistant State’s Attorney testified that defendant then stated that he would tell him what happened because he had been treated like a man. The assistant State’s Attorney asked defendant if he wanted to see his lawyer first, and defendant replied, “[N]o, I’ll tell you what happened now.” Defendant then gave the assistant State’s Attorney a statement and he reenacted the homicide. At the assistant State’s Attorney’s request, defendant reenacted the homicide again on videotape. The assistant State’s Attorney told defendant that the videotape did not come out, and defendant agreed to videotape a reenactment a second time. The assistant State’s Attorney showed defendant that nothing appeared on the screen when the first videotape was replayed. The assistant State’s Attorney and defendant testified that the second taping was about the same as the first. However, the assistant State’s Attorney also testified that the reenactment for the first videotaping “was the best.” He testified that defendant was “more graphic and vivid” than he was in the reenactment for the second videotaping.

During pretrial proceedings, the State produced only the second videotape because, it claimed, it did not keep the first videotape. Defendant filed a motion to suppress the second videotape, which was denied. During the trial, the second videotape was admitted into evidence and played before the jury.

We conclude that the trial court erred in denying defendant’s motion to suppress and in admitting the videotape into evidence. Since defendant had plainly invoked his right to counsel, the resumption of the custodial interrogation solely at the initiative of the assistant State’s Attorney without defendant’s counsel being present was a per se violation of the fifth amendment to the Constitution. Therefore, all subsequent confessions, inculpatory statements and inculpatory videotape reenactments of the homicide which occurred before defendant had access to counsel were nullified and should not have been used as evidence against defendant. (See Edwards v. Arizona (1981), 451 U.S. 477, 484-86, 68 L. Ed. 2d 378, 386-87, 101 S. Ct. 1880, 1884-85; White v. Finkbeiner (7th Cir. 1982), 687 F.2d 885; see also Stumes v. Solem (8th Cir. 1982), 671 F.2d 1150, cert. granted (1983), 463 U.S__, 77 L. Ed. 2d 1409, 103 S. Ct. 3568.) In Edwards the court stated:

“Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, ‘the interrogation must cease until an attorney is present.’ 384 U.S., at 474. *** In Fare v. Michael C., supra, at 719, the Court referred to Miranda’s ‘rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.’ And just last Term, in a case where a suspect in custody had invoked his Miranda right to counsel, the Court again referred to the ‘undisputed right’ under Miranda to remain silent and to be free of interrogation ‘until he had consulted with a lawyer.’ Rhode Island v. Innis, 446 U.S. 291, 298 (1980). We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” (Emphasis added.) 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386-87, 101 S. Ct. 1880, 1885.

In the present case, had defendant himself initiated his meeting and conversation with the assistant State’s Attorney, nothing in the fifth amendment would have prohibited the assistant State’s Attorney from merely listening to or recording defendant’s voluntary, volunteered statement or reenactments of the homicide and using them against him at trial. (Edwards v. Arizona (1981), 451 U.S. 477, 485, 68 L. Ed. 2d 378, 387, 101 S. Ct. 1880, 1885.) But that is not what the facts in this case show. Rather, this case is squarely on all fours with Edwards, where the court stated:

“Here, the officers conducting the interrogation on the evening of January 19 ceased interrogation when Edwards requested counsel as he had been advised he had the right to do. The Arizona Supreme Court was of the opinion that this was a sufficient invocation of his Miranda rights, and we are in accord. It is also clear that without making counsel available to Edwards, the police returned to him the next day. This was not at his suggestion or request. Indeed, Edwards informed the detention officer that he did not want to talk to anyone. At the meeting, the detectives told Edwards that they wanted to talk to him and again advised him of his Miranda rights. Edwards stated that he would talk, but what prompted this action does not appear. He listened at his own request to part of the taped statement made by one of his alleged accomplices and then made an incriminating statement, which was used against him at his trial. We think it is clear that Edwards was subjected to custodial interrogation on January 20 within the meaning of Rhode Island v. Innis, supra, and that this occurred at the instance of the authorities. His statement, made without having had access to counsel, did not amount to a valid waiver and hence was inadmissible.” (Emphasis added.) 451 U.S. 477, 486-87, 68 L. Ed. 2d 378, 387-88, 101 S. Ct. 1880, 1886.

In the present case, not only are the principles established in Edwards applicable, but the present case also plainly demonstrates why such principles are necessary and must be judicially enforced. Here, although the assistant State’s Attorney knew that defendant had been given Miranda warnings and that he had been repeatedly asserting his constitutional right to counsel before being interrogated, the assistant State’s Attorney again advised defendant of his constitutional rights and then asked defendant if he wanted to give him a statement.

No reason is given why it was necessary within a matter of two hours to readvise defendant of his right to remain silent and his right to counsel. The only apparent reason that the assistant State’s Attorney readvised defendant of his rights was to euchre a waiver of defendant’s constitutional right to counsel. (See Edwards v. Arizona (1981), 451 U.S. 477, 487, 68 L. Ed. 2d 378, 387-88, 101 S. Ct. 1880, 1886; Brewer v. Williams (1977), 430 U.S. 387, 399, 51 L. Ed. 2d 424, 436-37, 97 S. Ct. 1232, 1240.) Plainly, one’s constitutional right to counsel during custodial interrogation cannot be so tenuous that it can be circumvented by the ploy of having an array of personalities repeatedly give Miranda warnings to a suspect who has asserted his right to counsel until the suspect has a different reaction to a particular, perhaps more sophisticated, interrogator and gives a different response. Rather, we believe that one’s constitutional right to counsel during custodial interrogation is so substantial that once a suspect asserts his right to counsel, the State cannot on its own initiative read-vise him of his rights to remain silent or to counsel unless it has some demonstrable and valid reason for doing so, and if it has none, then any subsequent inculpatory statement or recording by the suspect before he has access to counsel would be unconstitutionally obtained. (See Edwards v. Arizona (1981), 451 U.S. 477, 484-87, 68 L. Ed. 2d 378, 386-88, 101 S. Ct. 1880, 1884-86; Oregon v. Bradshaw (1983), 462 U.S. 1039, 1044, 77 L. Ed. 2d 405, 411, 103 S. Ct. 2830, 2834.) We also believe that once a person requests counsel during custodial interrogation, he may not be reinterrogated at the initiative of the State as to any related or unrelated offense until an attorney is present. (State v. Routhier (1983), 137 Ariz. 90,_, 669 P.2d 68, 74-76; Offutt v. State (1983), _Md. App. _, _, 467 A.2d 194, 195.) Constitutional rights should not be the subject of gamesmanship. Nor should they be the subject of an endurance test.

Moreover, we, as judges, must be most circumspect when it appears that a dissimulation has been employed to deprive a person of his right to counsel, for those affected are invariably the poorest, the weakest and the least educated, who are not sophisticated enough to realize the protection afforded by the great rights and guarantees of our constitution. If our constitutional rights and guarantees are to be in fact enjoyed equally by all our citizens, we, as judges, must ensure that those suspected of crimes do not relinquish their constitutional rights and guarantees solely because they become matched up against a more sophisticated but uncaring law enforcement officer, or an overzealous assistant State’s Attorney who may be bent on obtaining a conviction without regard to the suspect’s constitutional rights and guarantees. In this regard, we should bear in mind that “ '*** the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of “persuasion.” ’ ” Brewer v. Williams (1977), 430 U.S. 387, 408, 51 L. Ed. 2d 424, 442, 97 S. Ct. 1232, 1244 (Marshall, J., concurring), quoting Blackburn v. Alabama (1960), 361 U.S. 199, 206, 4 L. Ed. 2d 242, 247-48, 80 S. Ct. 274, 279.

Here, defendant was a 41-year-old black high school dropout who had repeatedly asserted his constitutional right to counsel during custodial interrogation. By resuming the custodial interrogation and making defendant feel “like a man,” the assistant State’s Attorney was able to get defendant to reenact the homicide on three separate occasions, and he videotaped two of the reenactments for subsequent use against defendant at trial. All this took place on a Sunday evening without defendant’s counsel being present after defendant had told police that “my people will have a lawyer out there. Probably Monday because today is Sunday and I don’t think I can reach my lawyer on a Sunday.”

We can neither affirm nor condone what was done by the assistant State’s Attorney in this case because we believe that he violated defendant’s fifth amendment right to have counsel present during custodial interrogation, and that he took advantage of the constitutional violation by expeditiously conducting videotaped reenactments of the homicide before defendant had access to counsel. What occurred contravenes the constitutional rights of the accused as set forth in Edwards, and it is inimical to the basic dictates of a fair criminal justice system. As for the State’s claim that defendant waived his constitutional right to counsel, that claim is untenable. The statements relied upon by the State, which appear earlier in this opinion, were made by defendant in conjunction with a resumed custodial interrogation initiated solely by the assistant State’s Attorney without defendant having had access to counsel after he had clearly and repeatedly asserted his right to counsel. (See Edwards v. Arizona (1981), 451 U.S. 477, 484-87, 68 L. Ed. 2d 378, 386-88, 101 S. Ct. 1880, 1884-86.) Waiver is simply not involved in this case. See Oregon v. Bradshaw (1983), 462 U.S. 1039, 1044, 77 L. Ed. 2d 405, 412, 103 S. Ct. 2830, 2834-35.

Accordingly, we conclude that defendant’s conviction must be reversed and defendant granted a new trial in which the State is precluded from taking advantage of all matters that occurred in the absence of defendant’s counsel from the first time that defendant exercised his constitutional right to counsel before the police officers.

In addition, we conclude that defendant’s conviction must be reversed and the case remanded for a new trial because of the admission of the second videotape into evidence after the State failed to produce the first videotape, which was requested by defendant’s counsel. On this point, we should bear in mind that defendant admits committing the homicide. The question is whether the homicide was murder, voluntary manslaughter or self-defense.

In this regard, a seasoned attorney would know that an expression of fear, excitement or calmness, or an inadvertent or thoughtless, casual leaning or placement of one’s body in a certain way during the reenactment of a homicide could be the crucial difference between a finding of murder, voluntary manslaughter or self-defense. Therefore, we find it significant that the only attorney who was present during the two videotapings of the reenactments of the homicide was the assistant State’s Attorney, and he did not keep the first tape because, he claims, it did not come out. His action, of course, meant that the first videotape would not be available later for examination by defendant’s counsel.

We believe that the assistant State’s Attorney, who was in charge of felony review, should have been aware of the potential importance of the first tape. The State’s explanation for the unavailability of the missing tape is simply too convenient an excuse in a case where one’s liberty is at stake. Moreover, we do not feel that the significance of the missing tape is diminished by statements that defendant was shown the tape that Sunday evening or by the testimony that the two tapings were about the same, since the record establishes that defendant did not know anything about cameras or videotapes. Indeed, the fact that defendant did not have any knowledge of cameras or videotapes demonstrates one of the reasons why it was so important that defendant have had access to counsel prior to the tapings. Ours is an adversary criminal justice system, and we should not pretend that it is otherwise. The stark realities of our adversary criminal justice system are such that what occurs within the confines of a police station during custodial interrogation when the suspect does not have an attorney present is not always what the unsophisticated would expect. See Miranda v. Arizona (1966), 384 U.S. 436, 448-58, 16 L. Ed. 2d 694, 708-14, 86 S. Ct. 1602, 1614-19; Brewer v. Williams (1977), 430 U.S. 387, 399, 51 L. Ed. 2d 424, 436-37, 97 S. Ct. 1232, 1240.

Under the circumstances, we believe that the State was charged with the safekeeping of the first tape, and that it was not for the assistant State’s Attorney on that Sunday evening in the police station to determine whether there was anything on the first tape which would have been beneficial to defendant. Since the State was charged with the safekeeping of both tapes and it did not fulfill its obligation, the State, rather than defendant, should suffer the consequences of its negligent or wilful destruction of the missing tape. Accordingly, we conclude that the State should have been precluded from putting the second tape into evidence. It is unrealistic to believe that any lesser restraint upon the State would have any meaningful effect.

For the reasons stated, we reverse the conviction and remand the case for a new trial. We do not reach the other issues raised by the defendant except the issue of whether the evidence admitted at trial was sufficient for a jury to conclude that defendant was guilty beyond a reasonable doubt. We have reviewed all of the evidence, and we conclude that the evidence admitted at trial was sufficient for a jury to conclude that defendant was guilty beyond a reasonable doubt. This does not mean that we are making a finding as to defendant’s guilt or innocence which will be binding on retrial, but rather, our consideration of the sufficiency of the evidence admitted at trial will protect defendant’s constitutional right against double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375.

Accordingly, the judgment is reversed, and this case is remanded for a new trial.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.

      The custodial interrogation occurred before defendant was indicted or adversary criminal proceedings were otherwise begun. Thus, defendant’s sixth amendment right to counsel had not yet arisen. (Edwards v. Arizona (1981), 451 U.S. 477, 480 n.7, 68 L. Ed. 2d 378, 383 n.7, 101 S. Ct. 1880, 1883 n.7.) However, his fifth amendment right to counsel as identified in Miranda existed during the custodial interrogation. (Edwards v. Arizona (1981), 451 U.S. 477, 481-82, 68 L. Ed. 2d 378, 384, 101 S. Ct. 1880, 1883; see People v. White (1975), 61 Ill. 2d 288, 294-95, 335 N.E.2d 457, 461-62.) For a discussion of the distinction between one’s fifth amendment and sixth amendment rights to counsel, see Wyrick v. Fields (1982), 459 U.S. 42, 52-55 74 L. Ed. 2d 214, 222-23, 103 S. Ct. 394, 399-400 (Marshall, J., dissenting).

      There is a significant distinction between the safeguards triggered by a request to remain silent and the assertion of one’s right to counsel. There is no per se proscription of any subsequent further attempt to interrogate if the person being questioned has merely indicated a desire to remain silent. However, the interrogation must cease and cannot be subsequently resumed at the initiative of the State until an attorney is present if the person clearly asserted his right to counsel. Compare Edwards v. Arizona (1981), 451 U.S. 477, 484-86, 68 L. Ed. 2d 378, 386-87, 101 S. Ct. 1880, 1884-85, with Michigan v. Mosley (1975), 423 U.S. 96, 101-04, 46 L. Ed. 2d 313, 320-21, 96 S. Ct. 321, 325-26.

      In a custodial setting, the use of ploys and other techniques of persuasion, no less than express questioning, amounts to interrogation. Rhode Island v. Innis (1980), 446 U.S. 291, 299, 64 L. Ed. 2d 297, 306-07, 100 S. Ct. 1682, 1688-89; see Stumes v. Solem (8th Cir. 1982), 671 F.2d 1150, cert. granted (1983),_U.S_, 77 L. Ed. 2d 1409,103 S. Ct. 3568.

      The notice given to the police is imputed to the assistant State’s Attorney. See People v. White (1975), 61 Ill. 2d 288, 294, 335 N.E.2d 457, 461.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL THOMAS, Defendant-Appellant.
    First District (5th Division)
    No. 82—2947
    Opinion filed February 10, 1984.

      Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of aggravated battery and sentenced to a term of four years. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) his sixth amendment right to cross-examine State witnesses was erroneously restricted; and (3) he was denied a fair trial by improper prosecutorial comments.

At trial, complainant testified that she was the office broker at 135 South LaSalle Street and, at about 2:45 p.xn., she went to Suite 1230 to prepare it for a prospective tenant. Although it was daylight, as was her habit when showing an office she turned on all the lights, including one directly in front of the storeroom. When she reached in to turn on the storeroom light, someone from within grabbed her right wrist and tried to pull her inside. When she resisted, her assailant pulled a carpet knife about six or seven inches long from his belt and slashed at her head. She pulled back into the hallway, but the man held onto her wrist and slashed at her repeatedly. In the straggle, she fell on top of him, causing his grip to release, and she fled to the suite next door. The attack lasted at least two minutes, throughout which she maintained face-to-face contact with the attacker, whom she described as a well-groomed male Negro, about 5 feet 11 inches tall, with a moustache and beard, high cheekbones, almond-shaped eyes, wearing a blue shirt and a utility belt. When the police arrived, she gave them a description of the offender and was then transported to the hospital, where she was treated for multiple lacerations. Later that day, she identified defendant as her assailant from a police lineup in which five men were seated behind an upturned table so that only their heads were visible. She also identified defendant in court.

Officer Weaver testified that he and another officer responded to a call concerning a stabbing at 135 South LaSalle Street, and as they exited the elevator on the 12th floor, he observed defendant walking toward them. When defendant saw them, he abruptly turned down another hallway. They continued to Suite 1230 where complainant, who was very bloody, described her attacker as a “black guy with a beard, a blue shirt and a work-belt.” They immediately returned to the hall in pursuit of defendant, who matched that description, and saw him running toward a stairway door. They ordered him to stop, but he ran down the stairwell where they subsequently arrested and handcuffed him. Their search revealed that one of the two pouches on his work belt contained a pen, but the other was empty with an open snap. On cross-examination, Weaver stated that defendant did not run away when he and the other officer left the elevator, and that he did not see any blood on defendant or on his clothing. He denied recovering a small pocket knife from defendant, but acknowledged that the empty pouch on defendant’s belt would not snap closed when a knife identified by complainant as having been used by defendant in the attack was inserted in it.

Laurie McConaughy testified that she was working that afternoon at her desk when she saw defendant, who was wearing running shorts and a blue vest, walk past her office from the direction of Suite 1230. He stopped, looked in, and then turned down the hallway toward the elevators.

Nancy Martin, an assistant State’s Attorney, testified that on the evening of the offense she was present at a lineup in which five black men were seated behind a table which had been turned on its side. She further stated, without objection, that when the lights were turned on, but before the actual lineup began, complainant, who was viewing the lineup through a one-way mirror in an adjoining room, said, “It is number four [defendant]. I would never forget that face. I would never forget those eyes.”

Officer Roberts testified that after he and his partner went to Northwestern Hospital and obtained a description of the offender from complainant, he arranged a lineup in which defendant and four other men with similar features were seated behind a table so as to obstruct any view of their clothing. He then heard a knock, indicating that he should begin the lineup, but before he could instruct the men to turn their heads to provide a profile view, his partner — who had been in the adjoining room with complainant — informed him that an identification had been made.

The parties stipulated that complainant had been treated for 22 superficial lacerations and that no fingerprints suitable for comparison were obtained at the scene or on the knife found there.

Ira Block testified for the defense that he was the dispatcher for Fast Messenger Service, where defendant had been employed as a messenger for about four months preceding the day of the offense, and during that period defendant had a reputation for peacefulness and lack of violence. He further stated that although his company had no regular customers at 135 South LaSalle Street, defendant had been sent there to deliver packages twice on the day of the occurrence-first at 11:42 a.m. and again at 2:13 p.m., and that the second package was not delivered but was picked up from the police lockup later that evening.

Defendant testified that shortly after 2 p.m. on the day in question, he called his office and received three messenger assignments, and at about 3 p.m., after making two other deliveries, he arrived at 135 South LaSalle Street, where he consulted the building directory, which indicated that Investment Dealers Digest (I.D.D.), the company to which he was delivering the package, was located on the 12th floor. He did not recall looking on the directory for a specific room number nor did the package indicate such a number. Once on the 12th floor, he walked up and down the corridors looking for I.D.D. and passed Room 1225 where a person inside looked up at him. As he approached Room 1230, he realized it was not his destination and turned back up the hallway, when two police officers “came charging from the elevator” and ran past him in the direction from which he had just come. He turned another corner and “walking at a brisk pace” continued to look for I.D.D. When he reached the end of that corridor, the police came running toward him and ordered him to stop, which he did. Officer Weaver then knocked the package out from under his arm, pushed him up against the wall, frisked him, and removed a small pocket knife from the pouch on his belt. As the police led him down the crowded hallway toward the elevators, a stretcher was wheeled up alongside of him and, when it stopped, Officer Weaver grabbed him and lowered him slightly toward the victim. Someone then asked, “Is this the guy?” and although she looked up, she did not respond. He also stated that he did not attack the complainant.

The parties then stipulated that a letter addressed to I.D.D. was returned to Fast Messenger Service by the Chicago Police Department on the evening of the offense; that Suite 1230 remained vacant for at least one week thereafter; that a microanalysis of sweat pants taken from defendant revealed no recent damage or blood; and that the police dispatch records indicated that the call concerning the incident was received at 2:53 p.m.

On rebuttal, William Bowden, former manager of I.D.D., testified that the firm had been located in Room 1216 for about 10 years and was so designated on the building directory under both “I.D.D.” and “Investment Dealers Digest”; and that both those names, as well as the room number, were also printed on the office door.

Beatrice Wilson then testified that on the day in question, she worked as the building nurse and that she accompanied complainant from the 12th floor to the ambulance. She never saw defendant or any other male Negro being placed in view of the stretcher, anywhere in the hallway, or in the vicinity of the ambulance. She said that she had not seen defendant in the hallway or near the elevators, although there was a “normal amount” of people in the lobby. She also stated that complainant was covered with blood but was conscious and able to carry on a conversation.

Opinion

Defendant first contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt. He initially argues that the omission in complainant’s original description of her assailant of any reference to his gym shorts, a distinctive item of clothing in a Loop office building and one which she could not have failed to notice during the struggle, undermines the certainty of her subsequent identification of him.

While it is true that the failure of the identifying witness to include a notable physical feature or some distinctive attire in her initial description of the offender may affect the credibility of that description (People v. King (1973), 10 Ill. App. 3d 652, 295 N.E.2d 258), precise accuracy therein is not necessary (People v. Ramsey (1979), 77 Ill. App. 3d 294, 395 N.E.2d 973); rather, the central concern is “the ability of the witness to make a positive identification after having had an adequate opportunity to view the offender at the time of the crime” (People v. Mays (1976), 38 Ill. App. 3d 182, 184, 347 N.E.2d 235, 237), and where such an identification is made, discrepancies between the appearance of the assailant and the original description of him do not destroy its validity (People v. Watkins (1981), 98 Ill. App. 3d 889, 424 N.E.2d 701) or raise a reasonable doubt of defendant’s guilt where the witness had sufficient opportunity to observe the assailant (People v. Jackson (1979), 72 Ill. App. 3d 231, 390 N.E.2d 47), but go only to the weight of the identification testimony which is to be evaluated by the trier of fact (People v. Sepinosa (1980), 82 Ill. App. 3d 763, 403 N.E.2d 99).

Here, complainant testified that the window blinds were open, the sun was shining, and in addition, she turned on the lights — all of which caused the lighting condition in the suite to be very bright; that when she had resisted being pulled in the storeroom, she was able to draw her assailant into the lighted hallway; and that throughout the attack, which lasted at least two minutes, her eyes were on his face. Thus, it is our view that the circumstances and duration of the attack provided complainant with ample opportunity to view her attacker during the crime, and her failure to include in her description to the police that he was wearing gym shorts is accounted for by the fact that she was looking at his face during most of the attack. Furthermore, we cannot determine from the record whether she observed that her attacker was wearing shorts, since she was asked no questions in that regard.

Defendant also urges, however, that complainant’s lineup and in-court identifications of him were unreliable because they may have been the product of a suggestive, on-the-scene confrontation where, according to defendant, as complainant was being transported to the elevators the police stopped the stretcher, placed him in her view, and asked her, “Is this the guy?” We disagree. The burden of proving an impermissible suggestive pretrial confrontation is on the defendant, who must also demonstrate that, a substantial likelihood of misidentification resulted therefrom. (People v. Rosa (1981), 93 Ill. App. 3d 1010, 418 N.E.2d 124, cert. denied (1982), 455 U.S. 952, 71 L. Ed. 2d 668, 102 S. Ct. 1457.) Here, defendant’s testimony regarding the occurrence of this confrontation was contradicted by complainant and Wilson, each of whom stated that no such confrontation occurred, and by Officer Weaver, who denied conducting such a showup, and it is our view that the jury, whose function it is to resolve conflicts in testimony (People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199) was justified in believing there was no such confrontation.

Furthermore, reliability of identification testimony is dependent upon the totality of circumstances (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied 1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513), which include: the opportunity of the witness to view the criminal at the time of the crime, her degree of attention, the accuracy of her prior description, the level of certainty demonstrated at the identification, and the amount of time between the crime and the identification confrontation (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243). As noted above, the circumstances and duration of the crime permitted complainant sufficient opportunity to observe her assailant, on whose face she focused her attention at close range and under good lighting conditions throughout the attack, and her original description — while not as detailed as that which she gave at trial — was in no part inaccurate. Additionally, her identification of defendant in the lineup, which was conducted within a few hours of the offense and at which precautions were taken to obstruct her view of any distinguishing clothing, was, according to Assistant State’s Attorney Martin, positive and swift, having been made even before Officer Roberts initiated routine lineup procedures. Thus, even assuming arguendo, that an on-the-scene showup had occurred, complainant’s identifications of defendant, both at the lineup and at trial, had sufficient independent origin to overcome any possible suggestivity from an earlier confrontation and were, therefore, reliable.

Defendant, nevertheless, argues that the lineup and in-court identifications were insufficient because they were uncorroborated by other State evidence. Specifically, he emphasizes the absence of any suitable fingerprints at the scene or of any blood on him or on his clothing as facts which raise doubts of his guilt. It is well settled, however, that where the identity of a defendant is at issue, positive identification by a single, credible witness is sufficient to convict (People v. Sepinosa (1980), 82 Ill. App. 3d 763, 403 N.E.2d 99) provided the witness “ ‘ “*** viewed the accused under such circumstances as would permit a positive identification to be made ***” ’ ” (People v. Yarbrough (1977), 67 Ill. 2d 222, 226, 367 N.E.2d 666, 668), and having concluded above that such circumstances existed here, we reject defendant’s argument that corroboration was required.

Similarly, we are unpersuaded by defendant’s argument that the time between which the crime was reported to the police and their arrival significantly weakens the State’s case, particularly since at once he postulates that the interval was both long enough to allow the real perpetrator to escape and too brief to permit him to clean himself of any blood from the attack. However, the jury was adequately apprised of all relevant time factors in this case, and we cannot fault their apparent refusal to accept either of defendant’s hypotheses.

Defendant’s final assertion with regard to the issue of reasonable doubt concerns conflicts in testimony as to the circumstances of his arrest. He maintains, as he did at trial, that contrary to the testimony of Officer Weaver, he did not attempt to escape down the stairwell when the police ordered him to stop nor was he apprehended, handcuffed, or searched therein, and that his testimony was corroborated by Officer Pennengton, who stated that he saw Officer Weaver handcuffing defendant in the 12th floor hallway. Initially, we note that the testimony of Officer Pennengton conflicts with that of Officer Weaver only as to where defendant was handcuffed; otherwise, it neither contradicts Weaver’s statement that defendant fled nor corroborates defendant’s claim that he obeyed the police order to stop. Moreover, conflicts in the testimony of prosecution witnesses affect only the credibility thereof (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029), and in assessing the plausibility of the testimony presented, the jury is not required to believe defendant’s version of events (People v. Crespo (1983), 118 Ill. App. 3d 815, 455 N.E.2d 854), particularly where the discrepancies are slight (People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290) or where the conflicting testimony was not relied upon by the State for any substantial portion of its case (see People v. McNeal (1980), 88 Ill. App. 3d 20, 410 N.E.2d 480). In the instant case, it appears that the victim’s identifications of defendant and his undisputed presence at the scene of the offense were the strength of the State’s case, and it is our view that the conflict complained of provides no support for defendant’s contention that there was a reasonable doubt of his guilt.

Defendant next contends that the trial court erroneously restricted his right to cross-examine State witnesses Wilson and Weaver. He posits that there was a close question as to identification and, consequently, he should have been allowed to cross-examine (a) Wilson as to the meaning of her response, “I glanced at someone” when the prosecutor asked her whether she had seen defendant in the hall after the crime and (b) Weaver as to whether he had spoken with the prosecuting attorney prior to testifying. The State responds that by failing to raise these allegations in his post-trial motion, defendant has waived any error thereto. We note that, as a general rule, a written post-trial motion must set forth with adequate specificity the errors relied upon for reversal (People v. Lawson (1980), 86 Ill. App. 3d 376, 407 N.E.2d 899) in order to afford the trial court the opportunity to reconsider the propriety of its rulings and, if warranted, order a new trial (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739); and while Supreme Court Rule 615(a) provides an exception to the waiver doctrine where “[p]lain errors or defects affecting substantial rights” are involved (87 Ill. 2d R. 615(a)), that exception is a limited one and should be invoked only where the evidence is so closely balanced that the verdict of the jury may have resulted from the error, or where it was so prejudicial as to deny defendant a fair trial (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233). An examination of defendant’s post-trial motion reveals no specific reference to either of the assignments of error herein presented, and thus it is our view that defendant has failed to properly preserve these issues for review. Moreover, it is also our belief that the evidence of guilt was not closely balanced, and we will therefore not invoke the plain error exception.

Defendant also contends that he was denied a fair trial by the cumulative effect of improper comments by the prosecutors in closing and rebuttal arguments. He maintains that these remarks misstated the evidence and shifted the burden of proof to the defense. While every defendant is entitled to a fair trial, free from improper comments (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68), including remarks which are unsupported by or are unreasonable inferences from the evidence (People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017) as well as those which draw attention to defendant’s failure to call witnesses (People v. Franklin (1981), 93 Ill. App. 3d 986, 418 N.E.2d 155) or otherwise attempt to shift the burden of proof to the defendant (People v. Smith (1982), 111 Ill. App. 3d 895, 444 N.E.2d 801), such remarks do not warrant reversal unless they result in substantial prejudice to defendant (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200), which is determined by examining whether the remarks were such a material factor in conviction that the jury would have reached a contrary verdict had they not been made (People v. Witted). Furthermore, defendant may not assert such prejudice where the comments complained of were provoked or invited by the arguments of his counsel (People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062), and the failure to make a timely objection at trial generally constitutes a waiver of any improprieties in closing argument (People v. Spann (1981), 97 Ill. App. 3d 670, 422 N.E.2d 1051), inasmuch as the absence of an objection deprives the trial court of the opportunity to prevent or cure any error by instructing the jury to disregard the objectionable remarks (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739).

Defendant cites two instances of alleged evidential distortion in the State’s argument, the first of which occurred when the prosecutor referred to Ira Block as “the witness who said the defendant had a good reputation, but [it] had never been discussed until after this incident.” He maintains that this was an incomplete and thus inaccurate representation of the testimony of Block, who, in fact, stated that he was familiar with defendant’s reputation for peacefulness and lack of violence and that there was “never any difficulty that I was aware of during the entire time he [defendant] was with Fast Messenger Service.” The second instance involved comments indicating defendant had lied concerning the lack of a room number on the building directory. Defendant argues that the directory did not list the room number of I.D.D., but rather, that he had not noticed it and thus that the State’s characterization of his testimony as a lie was prejudicially improper.

Initially, we note that our review of the record reveals that defense counsel made no objection to either of these comments and has thus waived any error which might have resulted therefrom. Furthermore, assuming there was no waiver, we nevertheless disagree with his contention that these statements lacked record support. Although Block did testify on direct examination that defendant’s general reputation for peacefulness and lack of violence was good, he admitted on cross-examination that prior to defendant’s arrest, he had not specifically discussed defendant’s lack of violence or peacefulness with other persons.

With respect to the second comment, the record discloses that on his direct examination, when asked by his attorney, “What did the directory tell you?” defendant responded, “The directory told me what floor to go to.” Later, on cross-examination, he stated that when he looked at the directory “all I seen was twelve, and I was off to the floor.” Thus, his testimony indicated that there was no room number on the directory, and since it was crucial to his defense that the jury believe that he was looking for the I.D.D. office because he did not know its room number, it is our view that the second comment was within the proper scope of argument.

We turn then to defendant’s assertion that two comments made by the prosecutor in rebuttal argument shifted the burden of proof to the defense. In the first, the prosecutor made the following comment concerning complainant:

“Did you hear anything about the description provided that was different. We have what we call in this business impeachment of a prior inconsistent statement. And you better believe if she ever told anybody anything different you would have heard it because that would have been not only allowed but it is what they would have done. You know that she was consistent throughout in her description of the man that attacked her.”

Defendant posits that this statement was designed to call attention to his failure to present evidence challenging complainant’s identification of him as the offender. We once again note that no objection was made to this statement, and therefore any error which might have resulted therefrom must be deemed waived. Moreover, we agree with the State’s position that this was a proper comment on the consistency of her description and the credibility of her testimony, and that it was invited by defense counsel’s argument that she identified the wrong man.

Defendant also urges, however, that the prosecutor improperly commented on his failure to call the persons who had signed for packages defendant had delivered that afternoon. In considering the propriety of this remark, we note that defense counsel devoted a substantial portion of his closing argument to the time elements of this case and to his position that defendant lacked sufficient time to commit the offense. In support thereof, he relied on police department dispatch records, to which the State stipulated, stating that the crime was reported at 2:53 p.m. and on defendant’s delivery tickets which indicated that he had completed his last delivery in another building at 2:47 p.m. In challenging the reliability of the delivery slips, the prosecutor, after pointing out that the times indicated thereon were in defendant’s handwriting, made the comment complained of that the persons who received the packages were not heard from. It is our view that the comment was a proper response to the emphasis placed by defendant on the time shown on his delivery slips.

Finally, defendant contends that inadmissible hearsay testimony was allowed which, although not objected to at trial, was so prejudicial that its admission constituted plain error. Assistant State’s Attorney Martin, in response to the prosecutor’s question concerning the lineup identification of defendant by the victim, answered that when the room in which the participants were seated was illuminated, complainant immediately stated, “It is number four [defendant]. I would never forget that face. I would never forget those eyes.” As noted above, invocation of the plain error exception to the waiver doctrine occurs only where the evidence is so closely balanced that the error was such a material factor in defendant’s conviction that, without it, a contrary verdict would likely have been reached (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233) or where defendant’s rights were substantially impaired (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739).

Here, complainant had already testified to her lineup identification of defendant and had also identified him in court when Martin testified, and in view thereof and because of our belief as expressed above, that the evidence was not closely balanced, we see no basis to invoke the plain error exception.

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

Affirmed.

LORENZ and WILSON, JJ., concur.


author: JUSTICE PERLIN

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellee, v. GEORGE MARIS et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—3111
    Opinion filed February 7, 1984.

      Sapoznick, Sheridan & Freidin, of Chicago (John C. Vojta, of counsel), for appellants.
    Frederic J. Artwick and Richard J. O’Brien, both of Sidley & Austin, of Chicago, and Thomas Brooks and Ralph Frable, both of Federal Deposit Insurance Corporation, of Washington, D.C., for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

On June 9, 1980, the Des Plaines Bank (Bank) brought suit in the circuit court of Cook County to recover from George and Glenda Maris (husband and wife) (defendants) and Louis Kucharis loans made to Stacy Industries, Inc. (Stacy), and represented by three promissory notes alleged to have been personally guaranteed by defendants. On May 21, 1981, the Federal Deposit Insurance Corporation (FDIC), in its capacity as receiver of the Bank (Ill. Rev. Stat. 1979, ch. I6V2, par. 158), was granted leave of court to be substituted as plaintiff.

Defendants appeal from the trial court’s December 7, 1982, order in which the court (1) refused to vacate or modify its March 4, 1982, order dismissing defendants’ affirmative defenses and (2) granted FDIC’s motion for summary judgment in the amount of $88,958.78 plus costs.

The issue raised by this appeal is whether the trial court erred in striking defendants’ affirmative defenses and in entering summary judgment in favor of FDIC.

For the reasons hereinafter set forth we reverse the judgment of the trial court and remand this case for trial.

The Marises, at all times relevant to this action, owned 50% of the stock of “a small manufacturing and design firm,” Stacy Industries, Inc. George Maris was president of Stacy. On December 5, 1978, the Bank loaned to Stacy $15,000. Defendants executed a note (not the subject of this action) to secure that loan, which was timely repaid. At the same time, defendants each signed separate but identical guaranty instruments which in pertinent part provided as follows:

“CONTINUING GUARANTY
For and in consideration of the sum of One Dollar ($1.00) to the undersigned in hand paid by the Des Plaines Bank hereinafter referred to as the ‘Bank/ receipt of which is hereby acknowledged, the undersigned, and each of them, hereinafter referred to as the ‘Guarantors’ do hereby jointly and severally guarantee to the said Bank that Stacy Industries hereinafter referred to as the ‘Debtor,’ shall promptly and fully pay any and all indebtedness which now exists and/or which may hereafter accrue in any manner from■ said Debtor to the Bank up to the limit of_Dollars ($_) and in the event that the said Debtor fails at any time or times to pay promptly any and all indebtedness which now exists and/or may hereafter accrue from said Debtor to the Bank as same becomes due, the undersigned and each of them hereby jointly and severally promise to pay any and all such indebtedness as the same becomes due from said Debtor to the Bank, forthwith, upon demand, with all expenses incurred in enforcing payment under this instrument. This is a continuing Guaranty and by this instrument the Guarantors guarantee the prompt payment of any and all indebtedness which may now exist and/or may hereafter accrue at any time or times from said Debtor to the limit of this Guaranty.” (Emphasis added.)

These guaranty instruments also provide that defendants agree to pay “all expenses incurred in enforcing payment under this instrument *** including costs and reasonable attorney’s fees.”

In October and December of 1979 the Bank made three additional loans to Stacy. Three individual notes reflecting these loans were executed and delivered to the Bank by George Maris as president of Stacy. The execution dates, amounts, interest rates and maturity dates of each of the notes were as follows:

Date Principal Amount Interest Rate Due Date

10/29/79 $27,724.78 18.50% 1/28/80

10/29/79 7,000.00 18.50% 1/28/80

12/8/79 18,256.00 19.00% 3/7/80

It is undisputed that none of these notes was in fact repaid by Stacy upon maturity. Stacy’s corporate obligation on these notes was apparently discharged in bankruptcy. On June 9, 1980, the Bank initiated this action to recover the amount of the three notes based on defendants’ personal guarantees.

Defendants in their answer of November 6, 1980, admitted that the subject loans were made and that the notes and guaranty instruments were executed. Defendants admitted also that the loan proceeds were distributed to Stacy and were not repaid by Stacy. Defendants, however, raised as an affirmative defense to the Bank’s attempt to recover on the notes the contention that they were the victims of an alleged fraud perpetrated by “a bank officer.” Defendants assert that on December 5, 1978, they executed the guaranty instruments only upon the “affirmative assurances” of a “bank officer” that the guarantees applied only to the December 5, 1978, note, which had in fact been repaid.

On November 20, 1980, the Bank moved to strike defendants’ affirmative defense asserting that it was an attempt, through an impermissible use of parol evidence, to modify the written guarantees. On January 19, 1981, defendants were allowed by the trial court to amend their answer to include as an additional affirmative defense the fact that the guarantees, because they were “executed in blank,” were invalid.

On March 14, 1981, the Commissioner of Banks and Trust Companies of the State of Illinois declared the Bank insolvent and took possession and control of the Bank’s assets. (Ill. Rev. Stat. 1979, ch. I6V2, par. 153, redesignated without change as Ill. Rev. Stat. 1981, ch. 17, par. 365.) On that same date the Commissioner appointed FDIC as receiver of the Bank to proceed, in accordance with section 58 of the Illinois Banking Act, with the dissolution and winding up of the Bank. (Ill. Rev. Stat. 1979, ch. I6V2, par. 158, redesignated without change as Ill. Rev. Stat. 1981, ch. 17, par. 370.) On May 21, 1981, the FDIC’s motion requesting that it be substituted for the Bank as plaintiff in this action was granted by the trial court.

On June 9, 1981, the FDIC moved to strike and dismiss defendants’ affirmative defenses, asserting that in accordance with Federal common law, such defenses were “insufficient as a matter of law.” Defendants responded that Federal common law does not preclude a defense based upon “actual fraud” where the party asserting that defense was the victim of such fraud rather than a participant in a “secret agreement to defraud the bank and its creditors.” The FDIC, however, argued that defendants were involved in an undisclosed agreement which they were aware would allow the assets of the Bank to be overstated. Such involvement was, according to the FDIC, sufficient to preclude defendants from asserting their affirmative defenses.

On March 4, 1982, after considering the memoranda and arguments of the parties, the trial court granted FDIC’s June 9, 1981, motion to strike and dismiss defendants’ affirmative defenses.

On May 25, 1982, FDIC moved for summary judgment. On July 7, 1982, defendants requested that the trial court reconsider its order of March 4, 1982, striking defendants’ affirmative defenses. Additional memoranda were submitted, oral argument was heard and on December 7, 1982, the trial court granted defendants’ motion to reconsider. In that same order, however, the court concluded that “upon reconsideration the Court, based upon the D’Oench doctrine (D’Oench, Duhme & Co. v. FDIC (1942), 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676) of applicable Federal law, refuses to vacate or modify its March 4, 1982 order.” The trial court granted FDIC’s motion for summary judgment and entered judgment in the amount of $88,958.78 plus costs. Defendants appeal from the December 7, 1982, order.

Defendants contend that the trial court misapplied the D’Oench doctrine in striking their affirmative defense of fraud and that the court’s December 7, 1982, order of summary judgment in favor of FDIC was error. FDIC, on the other hand, asserts that defendants’ affirmative defense was properly precluded as a matter of law under the D ’Oench doctrine and that summary judgment in its favor was appropriately entered.

It is well established that summary judgment should be entered only where it is determined from a review of the pleadings and supporting documents that no genuine issue of material fact is presented and the movant is entitled to judgment as a matter of law. (Kocjancich v. Bridges (1981), 93 Ill. App. 3d 550, 552, 417 N.E.2d 694.) A triable issue precluding summary judgment exists where there is a dispute as to a material fact or where, the material fact being undisputed, reasonable persons might draw different inferences from the fact. (Susmano v. Associated Internists of Chicago, Ltd. (1981), 97 Ill. App. 3d 215, 218-19, 422 N.E.2d 879.) “Summary judgment provides a means of disposing of cases with dispatch, but is a drastic method and should be allowed only when the right of the moving party is clear and free from doubt.” 97 Ill. App. 3d 215, 219.

Defendants argue that there existed a disputed material issue of fact as to whether they were the “innocent victims” of fraud perpetrated by “a bank officer.” Defendants urge that if they are permitted to establish that they were in fact innocent victims of fraud, the doctrine enunciated in D’Oench, Duhme & Co. v. FDIC (1942), 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676, would not, as FDIC contends, preclude their defense to FDIC’s attempt to recover on the three 1979 loans made by the Bank to Stacy.

In D’Oench the FDIC had loaned money to a bank which it insured and from which it had received D’Oench’s note as collateral. Plaintiff, D’Oench, maker of the note, and the bank which had loaned it the money, had a separate agreement whereby the bank would not seek to enforce the note. This arrangement allowed the bank to carry inflated assets on its records, thereby deceiving the bank examiners as to the bank’s true condition. No indication of this arrangement was, for obvious reasons, entered on the bank’s books. When FDIC granted insurance protection to the bank, it relied upon the bank’s records as they facially appeared. When the bank became insolvent, FDIC sought to enforce the note against D’Oench, which raised the affirmative defense of inadequate consideration based upon its “side agreement” with the bank.

The Supreme Court held that the note was, as a matter of Federal public policy, enforceable in the hands of FDIC. (315 U.S. 447, 459, 86 L. Ed. 956, 963, 62 S. Ct. 676, 680.) Justice Douglas, speaking for the court, said:

“Plainly one who gives such a note to a bank with a secret agreement that it will not be enforced must be presumed to know that it will conceal the truth from the vigilant eyes of the bank examiners. *** Moreover, as we have seen, the inability of an accommodation maker to plead the defense of no consideration does not depend on his commission of a penal offense. The test is whether the note was designed to deceive the creditors or the public authority or would tend to have that effect.” 315 U.S. 447, 460, 86 L. Ed. 956, 963, 62 S. Ct. 676, 680-81.

Justice Douglas further stated that in “this type of case” “it would be sufficient that the maker lent himself to a scheme or arrangement whereby the banking authority *** was or was likely to be misled.” (315 U.S. 447, 460, 86 L. Ed. 956, 963-64, 62 S. Ct. 676, 681.) Even if the maker of a note was not a participant in the particular transaction whereby FDIC acquired the note or if he was ignorant of such transaction, nevertheless the maker in D’Oench “was responsible for the creation of the false status of the note in the hands of the bank ***. If the secret agreement were allowed as a defense in this case the maker of the note would be enabled to defeat the purpose of the statute by taking advantage of an undisclosed and fraudulent arrangement which the statute condemns and which the maker of the note made possible.” (315 U.S. 447, 461, 86 L. Ed. 956, 964, 62 S. Ct. 676, 681.) D’Oench could not, therefore, assert its affirmative defense against FDIC.

In 1950 Congress codified the rationale of D’Oench in 12 U.S.C. sec. 1823(e). Both D’Oench and section 1823(e) have been applied numerous times to effectuate the public policy interest of not permitting “secret agreements” as a defense against FDIC when FDIC is carrying out its statutorily-mandated duties to protect depositors. Howell v. Continental Credit Corp. (7th Cir. 1981), 655 F.2d 743, 746, and cases therein cited.

In FDIC v. Meo (9th Cir. 1974), 505 F.2d 790, however, the court concluded that D’Oench and its progeny would not preclude an affirmative defense to an FDIC action where the defendant was “wholly innocent of wrongful conduct.”

In 1962 Meo and three associates executed a promissory note to the San Francisco National Bank (SFNB) which was to enable them to acquire 1000 shares of SFNB common stock. SFNB failed properly to execute the order for common stock. Instead, SFNB directed its broker to issue and transmit 1000 voting trust certificates in the name of the purchasers. Meo at no time viewed the trust certificates which remained in the possession of SFNB as security for the loan and was not aware of the incorrect manner in which the order had been executed. (505 F.2d 790, 791.) Meo’s note remained an asset of SFNB until SFNB’s insolvency at which time FDIC was appointed Receiver. FDIC filed an action to recover on the note and Meo asserted the affirmative defense of “lack of consideration” based on the incorrect manner in which the stock order was allegedly executed.

The court in Meo found that, under the circumstances of that case, FDIC’s reliance on D’Oench and its progeny was misplaced. The court, citing D’Oench, determined that it had not been established that Meo “lent himself to a scheme or arrangement whereby the banking authority *** was or was likely to be misled.” (FDIC v. Meo (9th Cir. 1974), 505 F.2d 790, 792.) Meo was found to be “wholly innocent of the wrongful action of SFNB” and “not negligent in failing to discover the manner in which the stock order was actually executed.” (505 F.2d 790, 792.) The court stated:

“We conclude that a bank borrower who was neither a party to any deceptive scheme involving, nor negligent with respect to, circumstances giving rise to the claimed defense to his note is not estopped from asserting such defense against the bank receiver.” (505 F.2d 790, 793.)

In the case at bar, where summary judgment was entered by the trial court in favor of FDIC, defendants had no opportunity, as did defendant in Meo, to establish that they were neither a party to a “deceptive scheme” nor negligent in failing to discover the alleged fraudulent acts of the bank officer. A careful review of the total record in this case and the uncertainties underlying the motives for and the execution of the December 5, 1978, guaranty instruments compel us to conclude that there exists disputed material issues of fact which warrant resolution. We believe defendants should be accorded an opportunity to prove their affirmative defense prior to judgment. In our opinion, therefore, the trial court’s entry of summary judgment in favor of FDIC was premature.

Because of this conclusion, we find it unnecessary to address defendants’ further contention that the guaranty forms were voidable because they were issued “in blank” and their terms were never completed. Such contention can more appropriately be considered at trial.

For the foregoing reasons we reverse the action of the trial court and remand the case for trial in accordance with the views expressed herein.

Reversed and remanded.

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

      Louis Kucharis is not party to this appeal.

      At no time was the guaranty limit established or the blank spaces of the guaranty form providing therefor completed.

      No date of Stacy bankruptcy proceedings or documentation of such proceedings has been provided in this record.

      The Illinois Banking Act (Ill. Rev. Stat. 1979, ch. I6½, par. 101 et seq., redesignated without change as Ill. Rev. Stat. 1981, ch. 17, par. 301 et seq.) authorizes the Commissioner of Banks and Trust Companies, under designated circumstances (i.e., if the bank’s capital is impaired) to begin proceedings in the circuit court of the county in which the bank is located to take whatever steps are necessary “to remedy the situation.” Ill. Rev. Stat. 1981, ch. 17, par. 365.
      The documentation of proceedings initiated by the Commissioner against the Des Plaines Bank, resulting in the appointment of the FDIC as receiver in this instance, has not been made a part of this record. It is, however, apparent that neither party disputes FDIC’s authority to act as receiver.
      The Federal Deposit Insurance Corporation Act (12 U.S.C. secs. 1811-1832 (1982)) requires the FDIC to accept receivership appointments from State banking officials where, as in this case, the bank has been declared insolvent. (12 U.S.C. sec. 1821(e) (1982).) After being so appointed, the FDIC is charged with winding up the affairs of the bank, including liquidation of its assets, in an effort to protect the interests of bank depositors and creditors.

       12 U.S.C. sec. 1823(e) (1982) in pertinent part provides:
      “No agreement which tends to diminish or defeat the right, title or interest of the Corporation (FDIC) in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, which approval shall be reflected in the minutes of said board or committee, and (4) shall have been, continuously, from the time of its execution, an official record of the bank.” See Howell v. Continental Credit Corp. (7th Cir. 1981), 655 F.2d 743, 746.


author: PRESIDING JUSTICE HARTMAN

text:
    NOVAK FOOD SERVICE EQUIPMENT, INC., Plaintiff-Appellant, v. MOE’S CORNED BEEF CELLAR, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 83—1463
    Opinion filed February 14, 1984.
    Thomas D. Murray, of Levinson, Murray & Jensen, P.C., of Chicago, for appellant.
    Gerald E. Frank, of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, Novak Food Service Equipment, Inc. (Novak), appeals from the circuit court’s refusal to enter a preliminary order of replevin of restaurant equipment in possession of defendant Moe’s Corned Beef Cellar, Inc. (Moe’s). Novak brought this interlocutory appeal pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)) and raises issues of whether: the refusal to enter an order of replevin at the preliminary hearing is appealable as of right; and, the circuit court erred in refusing to enter the preliminary order of replevin.

For the reasons hereinafter presented, we dismiss for lack of jurisdiction and direct the circuit court to make a final determination on the merits.

Novak’s verified complaint in replevin alleged its entitlement to all the equipment delivered to Moe’s under various attached sales invoices, and sought the issuance of a court order for possession of the property, the value of property not delivered and damages for property detention. Moe’s filed its verified answer and counterclaim. The answer denied the material allegations of Novak’s right to possession and damages. The verified counterclaim alleged that: the equipment did not fit the spaces set forth in Novak’s design plan for installation of the equipment which Novak was bound to supply under the agreement; Novak failed to provide supervision of the equipment’s installation as provided by contract; and Moe’s incurred extra expenses in attempting to fit the equipment into the space available, all allegedly amounting to a material breach of the sales agreement. Novak filed no answer to the counterclaim.

A hearing was held pursuant to sections 19 — 105 and 19 — 107 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1981, ch. 110, pars. 19 — 105, 19 — 107). Those sections require a hearing when the application for entry of an order for replevin is contested, as in the present case. If a plaintiff establishes a prima facie superior right to possession of the disputed property and also demonstrates to the court the probability that the underlying claim to possession will ultimately prevail on final hearing, an order for replevin is authorized by section 19 — 107. In the instant case, the hearing before the circuit court developed evidence, through Novak’s secretary, which revealed that the invoices of sale were subject to a security agreement requiring payment of $16,300 in lump sum, the nonpayment of which is the basis for the replevin action. The secretary testified that Moe’s made a partial payment of $9,000, which was accepted by Novak, leaving a balance of $5,934. He also testified with respect to subsequent changes made in the equipment described in the contract, in addition to equipment returns to Novak, for which credits were reflected in the balance claimed to be due.

On cross-examination, he stated that one of the supporting invoices was a contract requiring Novak to render design services and provide a layout plan for the designated equipment sold to Moe’s. Moe’s sought to continue examination of this witness under section 2 — 1102 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102) (formerly section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60)). The circuit court sustained Novak’s objection to any testimony being elicited from this witness relating to Moe’s counterclaim. The counterclaim asserted that the supporting contract for design and layout services had been breached by Novak and that the equipment purchased did not fit the premises properly. Moe’s claimed that the resulting damages exceeded the balance due Novak under the sales contract and therefore dissipated the basis for ordering the replevin.

Moe’s argues that under section 19 — 107, the second part of the twofold test therein provided must be satisfied before the court may issue a replevin order, namely, that plaintiff must establish that it will probably prevail on the subsequent underlying claim of possession. Moe’s insisted that the latter provision could not be fulfilled in the instant case because if Moe’s owed Novak no money, the basis for replevin is absent. The circuit court appears to have agreed. At a subsequent hearing on Novak’s motion for reconsideration the court observed that it doubted Novak’s ability to prevail at a final hearing. For that reason, the court denied the motion to reconsider its denial of the preliminary order for replevin. This appeal followed.

Novak claims the denial of the replevin order at the preliminary hearing is appealable as of right because it is tantamount to the denial of an injunction and therefore appealable pursuant to Supreme Court Rule 307(a) (87 Ill. 2d R. 307(a)). It asserts that an interlocutory appeal provides the only meaningful method for review since no other alternatives sufficiently remedy damages incurred by deprivation of the property until the final hearing. The supreme court has amended its rule several times since section 19 — 107 was enacted by the legislature, effective August 13, 1973 (then Ill. Rev. Stat. 1973, ch. 119, par. 4c). The court has not amended Rule 307, governing interlocutory appeals, to include this type of order, however.

Novak’s argument also ignores the statute under which it applied for its order of replevin, section 19 — 107, particularly that part which requires an applicant for replevin to demonstrate the probability that the underlying claim to possession will affirmatively prevail on final hearing. Novak’s right to possession in the present case is predicated upon sales agreements which, it claims, Moe’s has breached by nonpayment of the contract price. Moe’s countervailing argument is that Novak’s right to possession is dissipated by Novak’s own breach of the same agreements resulting in damages to Moe’s exceeding the contract price, as set forth in Moe’s verified counterclaim, which has not yet been answered. Its right to possession, Novak maintains, cannot be challenged by a counterclaim and should not be permitted to defeat its right to possession under the contract at the preliminary hearing. The law is to the contrary.

In a replevin action, a defendant may recoup or set off a sum owing to him or her from a plaintiff. (Cottrell v. Gerson (1938), 296 Ill. App. 412, 428, 16 N.E.2d 529, aff’d (1939), 371 Ill. 174; Berg v. Henry (1956), 12 Ill. App. 2d 226, 139 N.E.2d 179 (abstract).) The provisions of the Code are in consonance with the foregoing cases. Under section 1 — 108, article 2 of the Code regulates the procedure to be followed in article 19 of the Code within which the replevin statute is now situated, unless otherwise provided in article 19. (Ill. Rev. Stat. 1981, ch. 110, pars. 1 — 108, 2 — 101 et seq., 19 — 101 et seq.) Counterclaims are authorized under the Code, are governed under sections 2 — 608 and 2 — 614 thereof (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 608, 2 — 614), and are thus applicable here. Moe’s counterclaim is not simply a setoff, but goes to the essence of Novak’s right to replevy the chattels by virtue of its own alleged breach of the same sales agreement with which Moe’s is charged with violating. It is germane, relevant and material to the principal issue raised and Moe’s should have been permitted to submit evidence in its support at the preliminary hearing. In accordance with the second requirement of section 19— 107 of the Code, the circuit court stated, upon reconsideration, that Novak’s probable right to replevin at the full hearing was in doubt and denied the issuance of the proposed order of replevin. This denial was in compliance with the rule that replevin is a statutory proceeding and its provisions must be strictly followed. (Universal Credit Co. v. Antonsen (1940), 374 Ill. 194, 200, 29 N.E.2d 96.) Under the foregoing circumstances, we find that there was no order from which an interlocutory appeal as of right may be taken.

Even were we to assume, arguendo, that an appeal should lie from the order of the circuit court and the case decided on the merits of the court’s denial of the preliminary order of replevin, Novak’s appeal would fail. Taking Novak’s analogy of the present circumstances to that in which an injunction has been denied, it must be observed that the extraordinary remedy of a preliminary injunction seeks to maintain the status quo by preventing the perpetration of a wrong or the doing of an act whereby the right in controversy may be materially injured. (See, e.g., Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 761, 424 N.E.2d 719.) Status quo, in this instance, is the last peaceable and uncontested status which preceded the pending controversy. (Illinois Housing Development Authority v. Arbor Trails Development (1980), 84 Ill. App. 3d 97, 103, 404 N.E.2d 1097.) Here, the granting of the preliminary replevin order would have disrupted the status quo because the effect of the order would have necessitated the removal of fixtures, secured to realty being used in Moe’s ongoing business, pending a full hearing. In contrast, the denial of the order of replevin at this preliminary stage does not foreclose Novak’s pursuit of its remedies since further hearing on this issue is contemplated by section 19 — 107.

For the foregoing reasons, the appeal herein is dismissed and the cause remanded to the circuit court for further proceedings.

Dismissed and remanded.

STAMOS and PERLIN, JJ., concur.