author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY KELLY, Defendant-Appellant.
    First District (1st Division)
    No. 82—2764
    Opinion filed October 17, 1983.
    Dennis A. Giovannini and Herbert L. Goldberg, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Matthew J. Egan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant was convicted of possession of a controlled substance with intent to deliver and sentenced to five years in the penitentiary. (Ill. Rev. Stat. 1981, ch. 561k, par. 1401(b).) On appeal, defendant contends he was entitled to an evidentiary hearing on his motion to quash a search warrant since his affidavit sufficiently alleged deliberate falsehood in the affidavit for the warrant and because there were uninitialed changes in the affidavit.

The affidavit for the search warrant stated in relevant part:

“I Chicago Police Detective Joseph Blass on 5 July 1981 have been told by a reliable informant, who I have known for over a year and who during this time has twice given me information relative to narcotics which has resulted in the seizure of narcotics and contraband and two arrests and a conviction of a person for narcotics violation, that in the past 9 months the reliable informant has made purchases of heroin from Henry Kelly at the apartment located at 4527 N. Paulina on countless occasions numbering in the hundreds. In all the instances the informant has gone to the apartment she has been able to purchase Heroin and that Henry Kelly keeps a supply on hand. The informant further related that she has been to Henry Kelly’s apartment as recent as the 4 July 81 and at that time has purchased and seen Heroin. My reliable informant further related that she has seen other persons purchase and use heroin for the past three years and the high she has achieved from the heroin purchased from Henry Kelly on numerous occasions was similar to the highs achieved from past experience with heroin. On 5 July 81 the informant directed Detective Blass to 4527 N. Paulina and pointed out the 1st Floor North apartment as the apartment where Henry Kelly lives and sells the narcotics from. Detective Blass was then given the unpublished phone number to Henry Kellys’ 769-5391. A check with the phone company listed the subscriber as Henry Kelly of 4527 N. Paulina. Detective Blass further obtained the arrest record and photo of one Henry Kelly IR447556. The arrest record lists numerous arrests for narcotics possession and delivery. The reliable informant was shown the photo of Henry Kelly for whom the arrest record was obtained, and she confirmed that this was in fact the same Henry Kelly who has sold her narcotics countless times at the apartment on Paulina. Detective Blass noted that two of these persons who had gone to the apartment in an apparent normal condition left the apartment in a semi-intoxicated or drugged state. The informant went on to say that all the buys from Henry Kelly of heroin that are referred to took place in apartment 1 north of 4527 N. Paulina.”

It was stipulated that the word “twice” was added to the first sentence and that throughout the affidavit the gender of the informant was changed from male to female; these changes were not initialed by the affiant or the magistrate.

Defendant moved to quash the search warrant in part on the following grounds:

“6. That the allegations in said affidavit are false, and are known to be false to the affiant, as is set forth in the affidavit of petitioner attached hereto.
7. That there remains, due to the above-cited defects in said affidavit, a serious doubt whether any such informant actually exists, or whether he/she is a figment of the affiant’s imagination.
8. That an order compelling the production of said informant, either in open court or in camera, is necessary to determine whether such informant exists, and whether the information attributed to him/her in said affidavit is true and correct.”

Defendant’s affidavit states in relevant part:

“1. That he *** resides at 4527 N. Paulina Street, Chicago, Illinois.
2. That on July 4, 1981, affiant did not sell a quantity of heroin to anyone, male or female, at said apartment or at any other location.
3. That on July 5, 1981, no one left petitioner’s apartment in a semi-intoxicated or drugged condition.
4. That petitioner has not sold drugs to any person, male or female, hundreds of times over a period of nine months preceding July 5,1981, at said apartment or any other location.”

Defendant relies on cases such as People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, which have required an evidentiary hearing be held where the defendant’s affidavit specifically denied each allegation in the police officer’s affidavit. For example, in People v. Garcia, defendant stated that at the time his Cadillac was parked in front of his apartment according to the warrant affidavit, he was driving it from Miami to Chicago. The State relies on cases such as People v. Cruz (1982), 111 Ill. App. 3d 95, 443 N.E.2d 769, which have found no evidentiary hearing required where the defendant’s general and unsupported denial that he sold anyone drugs was held insufficient.

In Franks v. Delaware (1978), 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684-85, the court discussed the type of chailenge to a search warrant affidavit that would mandate an evidentiary hearing.

“[T]he challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.”

The affidavit set forth above is merely a denial by the defendant of the facts set forth in the warrant affidavit. As the court observed in People v. Coleman (1980), 91 Ill. App. 3d 646, 650-51, 415 N.E.2d 553, if an unsupported denial by defendant of crucial facts in the warrant affidavit were sufficient to trigger an evidentiary hearing, the practical effect would be to allow a challenge in every case. It is the statement of the affiant only, that is the police officer, which may be challenged. (People v. Redmond (1983), 114 Ill. App. 3d 407, 412-13, 449 N.E.2d 533.) The only statement of this sort is the claim that on July 5, 1981, no one left his apartment in a semi-intoxicated or drugged condition. This is merely an unsupported denial of the officer’s statement in the affidavit in support of the warrant and is not sufficient. Cf. People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938.

Finally, we agree with the trial court that the uninitialed changes in the warrant affidavit are of no great significance under the circumstances, and probable cause existed whether the informant was male or female and whether the informant previously provided reliable information once or twice. Cf. People v. Lawrence (1971), 133 Ill. App. 2d 542, 273 N.E.2d 637.

Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State’s request that defendant be assessed $50 in costs for defending this appeal.

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

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    SHERYL HELDT, Special Adm’r of the Estate of Joseph Arlo Heldt, Deceased, Plaintiff-Appellant, v. JAMES BREI et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—99
    Rule 23 order entered August 24, 1983.
    Opinion filed and rehearing denied October 19, 1983.

      Greenberg & Teykl, of Park Forest (James S. Teykl and Daniel M. Green-berg, of counsel), for appellant.
    Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago (Victor J. Piekarski and Susan F. Zwick, of counsel), for appellees.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Sheryl Heldt, special administrator of the estate of Joseph Arlo Heldt, deceased, filed this action to recover damages incurred when an automobile driven by defendant Gil Dolmer struck plaintiff’s decedent. Counts III, IV and V of plaintiff’s complaint, charging defendants James Brei, Everett Brei and Virginia Brei with negligence and with violation of the Dramshop Act, were dismissed for failure to state a cause of action. Plaintiff appeals.

In count III, based upon the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135), plaintiff alleged that James Brei held a party at the house where he resided with his parents, Everett and Virginia Brei, who permitted such use of their house, knowing that liquor would be sold therein. At the party, James Brei sold alcoholic liquor to the partygoers, whose hands were then marked to show payment of the liquor charge. Dolmer attended the party, purchased liquor, and became intoxicated. After leaving the party, Dolmer, while intoxicated, drove his automobile and ran over plaintiff’s decedent, who had fallen from a truck in which he had been a passenger. As a result, plaintiff’s decedent sustained severe injuries which ultimately caused his death.

The trial court dismissed count III, finding that plaintiff had failed to state a cause of action under the Dramshop Act because defendants were not involved in the commercial liquor business. On appeal, plaintiff argues that the act applies to all sellers of alcohol, whether licensed or unlicensed, and that her allegations against the Breis were sufficient to state a cause of action.

The Dramshop Act provides in relevant part:

“Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. Any person owning, renting, leasing or permitting the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused the intoxication of any person, shall be liable, severally or jointly, with the person selling or giving the liquors.” Ill. Rev. Stat. 1981, ch. 43, par. 135.

The purpose of the act is to impose the costs resulting from its violation upon those profiting from the sale of liquor to the public. It is reasoned that those who enter such commercial enterprises do so with full knowledge of this attendant liability. (Wessel v. Carmi Elks Home, Inc. (1973), 54 Ill. 2d 127, 295 N.E.2d 719.) While the act has been held applicable to the unlicensed seller (Parsons v. Smith (1911), 164 Ill. App. 509; Walker v. Dailey (1901), 101 Ill. App. 575; Layton v. Deck (1895), 63 Ill. App. 553), Illinois courts have consistently refused to impose statutory liability upon anyone not at least indirectly engaged in the liquor business. Cruse v. Aden (1889), 127 Ill. 231, 20 N.E. 73; Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801; Camille v. Berry Fertilizers, Inc. (1975), 30 Ill. App. 3d 1050, 334 N.E.2d 205.

The uncompensated social host is clearly not subject to liability under the act. (Cruse v. Aden.) Although plaintiff alleges that James Brei was compensated in that he collected money from his guests to pay for the liquor, plaintiff fails to allege that Brei was in the business of selling liquor for profit. Due to the penal nature of the act, any enlargement of its scope to extend liability to persons not engaged in the liquor business is the prerogative of the legislature, not the judiciary. Camille v. Berry Fertilizers, Inc.; Miller v. Owens-Illi-

nois Glass Co. (1964), 48 Ill. App. 2d 412, 199 N.E.2d 300.

We reject plaintiff’s contention that our approval of the trial court’s action here will encourage sellers to insulate themselves from liability under the act by failing to obtain a license. This argument fails because a seller engaged in the liquor business may be subject to liability under the act whether or not he is licensed. (Parsons v. Smith; Walker v. Dailey.) Defendants in the present case are outside the scope of the act, not because they are unlicensed, but because they are not engaged in the liquor business. The trial court properly dismissed count III.

Count IV, sounding in negligence, alleges that the Breis, by reason of their possession and ownership of the premises, had a duty to control and supervise the activities taking place thereon so as to minimize the risk of personal injury to others, including plaintiff’s decedent. In derogation of that duty, James Brei permitted Dolmer to purchase and consume excessive quantities of alcohol, knowing that his intoxicated state would render him a reckless driver. Plaintiff alleges that, in light of Dolmer’s state of intoxication, James Brei was negligent in failing to curb or terminate the party. Plaintiff also alleged in count IV that Everett and Virginia Brei negligently entrusted their home to James Brei when they should have known that he was incapable of properly supervising the activities taking place.

In dismissing count IV, the trial court found no special relationship between the parties which would warrant the imposition of a duty upon defendants to curb Dolmer’s activities.

To the extent that plaintiff’s allegations in count IV charge James Brei with negligence in continuing to provide Dolmer with liquor in spite of his intoxication, we note that Illinois has never recognized a common law cause of action in negligence for either selling or giving intoxicating liquor to an ordinary person. (Cunningham v. Brown (1961), 22 Ill. 2d 23, 174 N.E.2d 153; Cruse v. Aden; Thompson v. Trickle (1983), 114 Ill. App. 3d 930, 449 N.E.2d 910; Lowe v. Rubin (1981), 98 Ill. App. 3d 496, 424 N.E.2d 710; Miller v. Moran (1981), 96 Ill. App. 3d 596, 421 N.E.2d 1046.) The only remedy for such action is that provided by the Dramshop Act. (Cunningham v. Brown; Richardson v. Ansco, Inc.) In part, this rule is premised on the theory that it is the drinking of the liquor, not its sale, which is the proximate cause of intoxication. (Cunningham v. Brown.) Although plaintiff urges that the focus of count IV is on James Brei’s failure to supervise the party rather than his sale or supply of the liquor, the same reasoning would apply. Dolmer’s intoxication was proximately caused by his drinking, not by James Brei’s failure to restrain his drinking.

We also agree with the trial court that plaintiff failed to allege a special relationship between James Brei and either plaintiff’s decedent or Dolmer which would have required Brei to take affirmative action to restrain Dolmer’s drinking. Absent such a relationship, a member of the general public has no duty to protect another person from the misconduct of third parties. (Whalen v. Lang (1979), 71 Ill. App. 3d 83, 389 N.E.2d 10.) Even if plaintiff had effectively alleged the existence of a business invitor/invitee relationship, however, so as to impose upon Brei a duty with regard to the safety of his guests or patrons, that duty would not have extended to plaintiff’s decedent who was neither a guest nor a patron, nor would it have extended to Dolmer’s activities after leaving the premises. Gustafson v. Mathews (1982), 109 Ill. App. 3d 884, 441 N.E.2d 388.

Plaintiff’s attempt in count IV to state a cause of action against Everett and Virginia Brei based upon negligent entrustment was likewise insufficient. An action for negligent entrustment arises when the owner of a motor vehicle entrusts it to someone the owner knows to be incapable of using it properly and a third person is injured thereby. (Giers v. Anten (1978), 68 Ill. App. 3d 535, 386 N.E.2d 82; Bensman v. Reed (1939), 299 Ill. App. 531, 20 N.E.2d 910.) The duty of the owner to refrain from such action stems from the potentially dangerous nature of the automobile if used by an incompetent driver. (Bensman v. Reed.) Although the doctrine might be applicable to other types of potentially dangerous property, we fail to see how a house could be so characterized. We therefore find that Everett and Virginia Brei’s entrustment of their home to their son was not actionable negligence.

Count V, which was based upon the Survival Act (Ill. Rev. Stat. 1981, ch. llOVa, par. 27 — 6), was properly dismissed since the right to recover under that theory depended upon the legal sufficiency of counts III and IV.

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

Judgment affirmed.

McGILLICUDDY and RIZZI, JJ., concur.


author: PRESIDING JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM YOUNG, Defendant-Appellant.
    First District (5th Division)
    No. 81—0480
    Opinion filed October 21, 1983.

      Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Leslie E. South, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1) and was sentenced to 40 years’ imprisonment. On appeal he assigns numerous errors to the trial proceedings and contends that (1) the trial court’s admission of testimony about his arrest for an unrelated crime denied him due process; (2) the court erred in ruling that defendant could not testify about a conversation he had with a friend who allegedly told defendant about threats on defendant’s life; (3) the trial court committed reversible error by restricting defense counsel’s cross-examination of defendant’s ex-girlfriend; (4) the State improperly commented about defendant’s refusal to make a statement following his arrest; and (5) the State made improper comments during cross-examination and closing argument. For the reasons set forth below, we affirm.

On August 12, 1976, at about 11:45 p.m. defendant came to see his ex-girlfriend, Juanita Howard, who was visiting her sister on East Thirty-Seventh Street in Chicago. Ms. Howard, her niece Joanne Howard, Jonathan Davis, also a relative, and Edward Cole were returning from a restaurant in Davis’ car. As they got out of the car they noticed defendant walking toward them carrying a gun. Defendant approached Ms. Howard, reached for her and stated that he wanted to talk. When she pulled away defendant drew his gun, pointed it at Cole and said that if he could not have her, no one would. He fired two gun shots from a .45-caliber pistol and fatally wounded Cole in the left side of his chest. The bullet struck Cole’s heart and lung and exited his body in the right middle back. Young reached for Ms. Howard again, said that he wanted to talk to her and then ran away.

Although a warrant was issued, defendant was not arrested until two years later, on December 12, 1978, at approximately 11:45 p.m. when he was apprehended after he was seen climbing out of the broken window of a factory in a commercial district in Chicago. During processing at the police station on the night of his arrest it was discovered that there was an outstanding warrant for defendant’s arrest for the murder of Edward Cole.

Juanita Howard, the State’s first trial witness, testified that she had known defendant for about two years and had lived with him for six months. Their relationship ended about six weeks prior to this incident. She said that Cole was unarmed when he was shot and that her sister’s husband and Joanne Howard took Cole to the hospital that night. She stated under cross-examination that her mother disapproved of her relationship with Young and did not want her to see him. At the time of the shooting she had been dating Cole for about three weeks. She saw defendant three of four times after the shooting at various places, usually on the street but once at the home of defendant’s brother. She went there after her brother informed her that defendant wanted to meet with her. She said she knew that the police were looking for defendant but did not tell them that she had seen him several times after the shooting.

Next to testify was Dr. Eupil Choi, an assistant Cook County medical examiner who specializes in forensic pathology. Choi performed the autopsy on Edward Cole. He said that Cole died as the result of a bullet wound in the chest with penetration in the heart and massive internal bleeding.

Defendant next filed a motion in limine requesting that the court exclude the testimony of Officer Warren Rylko, who arrested defendant in 1978. Rylko stated in an in camera conference that while he and another officer were patrolling a commercial area he saw defendant jump from a broken factory window. Rylko stopped the squad car, got out with the police dog and told Young to halt. Young began to run but then stopped. He was searched and taken to the thirteenth district police station. During processing it was discovered that there was an outstanding murder warrant for defendant’s arrest.

The court ruled that Rylko could not testify about the type of neighborhood where the arrest took place nor could he mention that the businesses were closed. The court stated that “*** If they made the observation, told him to stop-go ahead. They made the observation. They told him to stop. He ran. They got the dog. He stopped. They put him under arrest and they brought him back, found the warrant for the murder of Ed Cole. That’s all. ***” Defendant’s motion for a mistrial was then denied.

The State next called Joanne Howard to testify. She stated that as she and the others got out of the car defendant approached them from the side of a building with a large gun. He told Cole that he wanted to talk to Juanita. Cole consented and said that he would not argue. When Juanita said that she did not want to talk, Young pointed the gun at Cole. Juanita walked toward defendant to convince him to put the gun down. Defendant fired a shot at Cole but missed him. He grabbed Juanita and she pulled away. Defendant fired again and the bullet entered Cole’s chest. Joanne stated that defendant was the only person with a gun. After further testimony under cross-examination, redirect and re-cross-examination, the State rested its case. Defendant made a motion for a finding of not guilty, which was denied.

Prior to his testimony in rebuttal, defendant also made a motion to prohibit the State from introducing his prior convictions for armed robbery and rape. Denying the motion, the court reasoned that the convictions could be used because they occurred within the past 10 years. The court indicated that it would give the jury a limiting instruction as to the significance of the testimony.

Testifying in his own defense, defendant stated that he had lived with Juanita Howard but that her family disapproved of the relationship because he would not allow her to do what they wanted her to do. A few days before Cole’s death, Juanita met him in a park and told him that Jonathan Davis, Joanne and Ed Cole “would do something” to him if he continued to see her. He further stated that on the night of the shooting at about 9:30 or 10 p.m. he was on his way to visit his friend, Larry Bausley. Davis, Cole and Joanne drove by, stopped the car to look at him and then drove on. Defendant continued walking and noticed that they were standing by the car as he approached. Defendant said that Davis approached him and that he “*** asked me what I wanted to do. I told him that I just wanted to talk.” Joanne Howard then reached into her purse and pulled out a gun. Cole reached into the car as though he was going under the front seat. Defendant testified that Joanne fired three shots and that defendant fired once into the ground. He saw that Cole held something in his hand which gleamed. Defendant backed away and fired a second shot which struck Cole in the chest. He said that he panicked and ran but that he would not have fired any shots that night if he had not been in fear of his life. He threw his gun in a garbage disposal. Defendant further stated that in 1971 he had pled guilty to two offenses of robbery and one rape.

On cross-examination, defendant stated that although he was not afraid of Juanita, Joanne, Cole or Jonathan Davis, Davis was a member of the Black Stone Ranger gang and that he and Joanne had shot at defendant at least four times in the past. Under further questioning defendant said that he was afraid and that he had a gun that night because he did not want to be hurt. Further testifying, defendant said that after he was arrested, assistant State’s Attorney Thomas Dwyer introduced himself and read defendant his Miranda rights. Defendant stated that he did not discuss the incident with Dwyer and told him to take him back to his cell.

On redirect examination defendant testified that he had never seen the faces of the individuals who shot at him in the past although other people told him that Juanita Howard’s family was involved.

Under re-cross-examination, defendant said he was not a member of a gang in 1976. At the close of his testimony, defendant rested his case.

Out of the presence of the jury the State informed the court that it would call assistant State’s Attorney Dwyer to impeach defendant’s testimony and would then read into evidence the certified copy of defendant’s convictions. Defendant objected to the reading of his conviction record and argued that he had already testified about these offenses under direct examination. His objection was overruled.

Dwyer testified that he informed defendant of his Miranda rights and then asked whether defendant knew about the shooting. He said that defendant answered that he didn’t know anything, that he was not there when Cole was shot but that he knew Cole and Juanita Howard.

On cross-examination, Dwyer reviewed a copy of his log entry which reported his conversation with Young. The entry showed that Young refused to make a statement and denied any knowledge of the shooting. Dwyer explained that defendant never said he did not wish to make a statement; rather, he indicated that he knew nothing about the shooting and was not there when it started. Dwyer said that the log entry was merely a summary which indicated that defendant did not want to discuss the facts of the case. On redirect examination Dwyer reiterated that defendant told him that he was not present when Cole was shot. The State rested. Defendant’s motion for a mistrial was denied but the court reserved its ruling on his motion for a directed verdict. Following closing arguments by both sides, the jury found defendant guilty of murder and sentence was entered on the verdict. Defendant appeals.

Opinion

Defendant first challenges the admission of testimony about his arrest in 1978. He contends that although Officer Rylko did not say that he arrested defendant for burglary, the damaging details of the incident were nonetheless admitted into evidence. The State, on the other hand, argues that the jury heard only the bare essentials of defendant’s arrest and that Rylko’s testimony falls within the continuing narrative exception to the general rule prohibiting the admission of other crimes.

At the outset of our legal analysis, we note that the decision whether to admit other-crimes evidence is within the sound discretion of the trial court. (People v. Lieberman (1982), 107 Ill. App. 3d 949, 955, 438 N.E.2d 516.) The evidence is inadmissible to show that the defendant had a propensity to engage in criminal activity; however, it may be admitted when relevant for other purposes. (People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) Other-crimes evidence has been held admissible if relevant to demonstrate knowledge, intent, motive, design, plan or identification (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238; People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489) or if it is relevant to police investigation of the offense at issue. The investigatory procedures must involve an integral part of the narrative of the arrest. (People v. Scott (1982), 108 Ill. App. 3d 607, 613, 439 N.E.2d 130.) Reference to another crime is also admissible if it explains the circumstances surrounding defendant’s arrest and is part of a continuing narrative. People v. Morthole (1977), 51 Ill. App. 3d 919, 932, 366 N.E.2d 606.

With the general guidelines for admitting evidence of other crimes before us, we turn now to the facts of the instant case. Rylko’s testimony revealed that defendant was observed as he exited a broken window at 11:45 p.m. in the area of Walnut and Damen Streets. This testimony was part of a continuing narrative which explained the circumstances surrounding defendant’s arrest (51 Ill. App. 3d 919, 932) and without it the jury would have been faced with the unexplained fact that the policemen suddenly appeared and stopped defendant that day. (People v. Lonzo (1977), 47 Ill. App. 3d 939, 945, 365 N.E.2d 528.) We find this conclusion amply supported by the court’s rationale in Morthole and People v. Robinson (1968), 98 Ill. App. 2d 285, 240 N.E.2d 397.

In Morthole, defendant was charged with possession of drugs discovered during an arrest. The arresting officer testified that he searched defendant that day because of an outstanding arrest warrant for an unrelated drug delivery charge. Such evidence was judged to have been properly admitted though it suggested other criminal activity because it was relevant to the circumstances of the arrest and it was part of a continuing narrative. People v. Morthole (1977), 51 Ill. App. 3d 919, 932.

The arresting officer in Robinson testified that he stopped defendant because he was driving a car that had been reported stolen. The officer looked in the rear window of the car and noticed numerous articles of stolen clothing and personal property. Although defendant was only charged with burglary, the court ruled that it was permissible for the officer to explain the circumstances surrounding defendant’s arrest and to testify that he had stopped defendant when he spotted the stolen car. People v. Robinson (1968), 98 Ill. App. 2d 285, 288-89.

Similarly, in the instant case, Officer Rylko’s testimony that defendant was stopped as he exited a broken window at 11:45 p.m. undoubtedly suggested other criminal activity. Nonetheless, it explained why defendant was apprehended as well as the circumstances surrounding his arrest two years after the murder.

Defendant next assigns error to the trial court’s ruling that he could not testify about a conversation he allegedly had with a friend, Larry Bausley, in which Bausley told defendant that Ed Cole and the Howard family had threatened defendant. Defendant contends that this testimony was nonhearsay evidence admissible to show his state of mind and relies on our decision in People v. Ortiz (1978), 65 Ill. App. 3d 525, 382 N.E.2d 303.

In Ortiz, the defendant contended that he should have been allowed to testify that he fatally shot a man in self-defense because he had been warned that the victim “was a killer.” Reversing the trial court’s judgment, we ruled that in order to justify the shooting it was necessary for the defendant to establish that he reasonably believed that the use of deadly force was necessary. Thus, the statement was probative of the defendant’s state of mind at the time of the shooting and under such circumstances the rule against hearsay would not disqualify the testimony. 65 Ill. App. 3d 525, 533.

In the case at bar, however, there was ample testimony about the alleged threats against defendant by the Howard family. Defendant testified on direct examination that a few days before the shooting Juanita Howard told him that her family had threatened him. He further testified that Jonathan Davis and Joanne Howard had shot at him the night before the incident and that the following night he had acted in self-defense because Joanne fired three shots at him. He also stated that the reason he shot Cole was because he observed him reaching into the car to reveal an object which could have been a weapon. In view of this testimony, we cannot agree with defendant’s argument that he was prejudiced by the trial court’s denial of testimony about the Howard family’s alleged threats on his life. Defendant was permitted to fully testify about his state of mind at the time of the shooting. He testified under direct and cross-examination that he was in fear of Juanita Howard’s family, that he did not fear Cole and that he shot Cole in self-defense or by accident. Defendant’s argument on this issue is therefore without merit.

Defendant next complains that the trial court erred by restricting his cross-examination of Joanne Howard. He contends that her testimony would reveal that she and her family disliked him, that she was biased and that she had a motive to lie.

The well-established rule of evidence provides that in a criminal prosecution the bias of a witness, whether favorable or adverse to the defendant, is always pertinent to the question of the witness’ credibility. (People v. O’Dell (1980), 84 Ill. App. 3d 359, 372, 405 N.E.2d 809.) In the instant case, the pertinent testimony on this issue was as follows:

“Q. Was your family pretty unhappy with the fact that William and your aunt, Juanita, had been living together and dating?
Mr. Locallo: Objection, Judge.
Q. Sustained.” (Emphasis supplied.)

The trial court’s ruling was correct. Clearly, the question as presented would elicit a response requiring Ms. Howard to testify about her family’s feelings toward defendant rather than her own. Defendant urges that his query was improperly denied because he was preparing to reveal Joanne’s feelings toward him. This contention is unpersuasive. Although a defendant generally should be given the widest possible latitude in cross-examining a witness, the form that latitude takes rests in the sound discretion of the trial court. (People v. Boyd (1979), 69 Ill. App. 3d 671, 675, 387 N.E.2d 971.) The trial court’s decision will not be overturned absent a showing of a clear abuse of that discretion resulting in manifest prejudice. (People v. Poliquin (1981), 97 Ill. App. 3d 122, 136, 421 N.E.2d 1362; People v. Wallace (1980), 90 Ill. App. 3d 960, 965, 414 N.E.2d 99.) Here, the trial court did not abuse its discretion because it could not be expected to speculate that defense counsel’s strategy was to reveal Ms. Howard’s prejudices. We note that after the State’s objection was sustained, counsel did not rephrase his question but chose instead to next inquire whether Ms. Howard knew that her Aunt, Juanita, had continued to see defendant (followed by a second objection by the State which was sustained) and how much time had elapsed between the time defendant fired his two shots. Based on these facts, we find that the court’s ruling was correct. Defendant has failed to show that he was prevented from cross-examining Joanne Howard as to her possible bias because no such question was ever asked of her.

Defendant further contends that the State improperly commented on his right to remain silent following his arrest. Defendant testified that at the police station he told assistant State’s Attorney Dwyer that he did not want to talk and to take him back to his cell. Defendant reiterated this statement on redirect examination. Dwyer was then called by the State to testify in rebuttal. On both direct and cross-examination he stated that after defendant was advised of his Miranda rights he was asked about the shooting. Dwyer testified that defendant said that “*** he didn’t know anything about the shooting. He wasn’t present when he [Cole] was shot. And then, he told me that he knew Juanita Howard and Edward Cole. And then I asked him again, do you want to talk about the shooting and the facts of the shooting and he told me, no, I don’t. I don’t know anything about it. *** That was the end of my conversation with him.”

A defendant who makes some statements after being advised of his right to remain silent may be impeached at trial by these statements as prior inconsistent statements. (Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182; People v. Rehbein (1978), 74 Ill. 2d 435, 443, 386 N.E.2d 39 cert. denied (1979), 442 U.S. 919, 61 L. Ed. 2d 287, 99 S. Ct. 2843.) In the instant case, defendant’s testimony at trial that he shot and killed Cole in self-defense clearly contradicts his statement to Dwyer following his arrest that he knew nothing about the shooting. Moreover, Dwyer properly testified that, in effect, defendant did not remain silent but elicited incriminating statements that he was not present at the shooting but that he knew Juanita Howard and Edward Cole. It is axiomatic that by taking the stand, defendant placed his credibility in issue and was subject to be impeached. Dwyer’s testimony about what defendant told him therefore was not an impermissible comment on defendant’s silence. Rather, the reference to defendant’s post-arrest conversation was a proper impeachment by prior inconsistent statements. 74 Ill. 2d 435, 443.

Additionally, defendant argues that he was not found guilty of murder beyond a reasonable doubt. He contends that not only did Juanita and Joanne Howard give conflicting testimony, they tailored their story to make the shooting appear as though it was a murder. For example, Juanita testified that defendant was alone when he approached them, but Joanne said that he came with four or five men. Defendant further contends that the fact that Juanita admitted that she met with him on several occasions after the shooting discredits the State’s theory of the case that Cole was murdered rather than shot in self-defense because it is improbable that Ms. Howard would willingly visit her boyfriend’s killer. Defendant also argues that the record reveals inconsistent testimony about where everyone was standing at the time of the shooting.

Any inconsistencies in testimony do not negate its import but rather go to the weight the trier of fact gives to the testimony. (People v. Yuknis (1979), 79 Ill. App. 3d 243, 251, 398 N.E.2d 258; People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 327, 379 N.E.2d 847.) It is the prerogative of the trier of fact to determine the truth (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), and the appellate court’s judgment will not be substituted for that of the trier of fact where the evidence is merely conflicting. People v. Foster (1979), 76 Ill. 2d 365, 373, 392 N.E.2d 6.

In the instant case, although the record reveals contradictions in the testimony, both Juanita and Joanne Howard stated that defendant approached them with a gun, that he said he wanted to talk to Juanita and that they observed defendant shoot the gun twice. The alleged shiny object or gun that Cole drew from under the front seat was never entered into evidence nor were any police officers who investigated the murder brought to trial to testify about its existence. We further note the absence of testimony to rebut the State’s theory of the events leading up to the shooting. Thus, we believe that from the evidence presented, the jury could have properly concluded that defendant’s use of deadly force was unjustifiable. We cannot say that this finding was so unsatisfactory or improbable as to raise a reasonable doubt of defendant’s guilt. People v. Kyles (1980), 91 Ill. App. 3d 1019, 1022, 415 N.E.2d 499.

Defendant’s final contention is that improper comments made by the prosecutor during cross-examination and closing argument denied him a fair trial. Specifically, he argues that the prosecutor improperly queried during cross-examination whether defendant had dealt with guns in the past, whether he knew it was illegal to carry a gun and whether defendant was a gang member.

Initially, we note that the proper remedial measures were taken following defendant’s objections to these questions. On the second instance following defendant’s objection the jury was instructed to disregard the question. Defendant failed to object to the prosecutor’s question as to whether he was a gang member. Because this alleged error was not preserved for our consideration in a post-trial motion, it is considered waived on appeal. (People v. Thomas (1983), 116 Ill. App. 3d 216, 220, 452 N.E.2d 77.) We therefore disagree with his contention that the cumulative effect of these remarks were reversible error.

As to the propriety of the prosecutor’s remarks during closing argument, defendant contends that these statements denied him a fair trial because they had the effect of lessening the importance of the State’s burden of proof. Although defendant objected to these statements, his post-trial motion cites only two errors, neither of which was presented for our consideration during oral argument. Defendant explains in his motion that a full and complete transcript of the trial proceedings was unavailable at the time the motion was prepared. We will therefore exercise our discretion as a reviewing court and address the alleged error that was objected to at trial and was primarily argued by both sides on appeal.

The record shows that the prosecutor stated that the burden of having to prove that defendant was guilty beyond a reasonable doubt “*** is not an insurmountable burden by any means. *** It is the same burden of proof that was applied in every case where persons have been convicted and are in the penitentiary.” The prosecutor went on to state that he “welcomed the burden” and that defendant had been proven guilty by overwhelming evidence. He then reviewed the testimony of each occurrence witness and stated that the evidence established that defendant had performed the acts which resulted in Cole’s death. Thus, when these comments are read in context and in their entirety, they fail to imply that reasonable doubt was a minor burden. (But see People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86, where the court held that the prosecutor’s closing statement about reasonable doubt was improper. The prosecutor’s language and insinuation in that case differed from the case at bar, where as we have explained, the full thrust of the closing argument did not imply that the burden of reasonable doubt was inconsequential.) Our review of the record therefore does not support defendant’s charge that these remarks implied that reasonable doubt was a pro forma detail. Moreover, defendant failed to establish that there was a possibility that this language, in light of all the evidence, was a material factor in his conviction. (People v. Shorter (1978), 59 Ill. App. 3d 468, 479, 375 N.E.2d 513.) Reversal is not warranted unless the remarks influenced the jury in a manner that resulted in substantial prejudice to the accused. (People v. Yuknis (1979), 79 Ill. App. 3d 243, 250, 398 N.E.2d 258.) In the instant case, the prosecutor’s statements, even if left unsaid, would not have resulted in a different verdict because there was more than enough evidence from which the jury could conclude that defendant was guilty beyond all reasonable doubt. Accordingly, we find that defendant’s argument that the prosecutor’s remarks deprived him of the right to a fair trial is unsupported by the record.

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

      The cases defendant heavily relies on are unpersuasive as in those instances the evidence of other crimes was inadmissible because the State failed to establish their relevancy to the investigation of the crime for which the defendant was charged. In People v. Spiezio (1982), 105 Ill. App. 3d 769, 434 N.E.2d 837, defendants were charged with burglary. An officer testified that he arrested defendants for auto theft and that during a search he discovered stolen property. This testimony was judged improper because there was no showing that made the matter of the stolen vehicle anything but a separate unrelated crime undertaken at a different place and time. Similarly, in People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238, defendant was charged with murder and robbery. An officer testified that in a few hours after the murder defendant burned the victim’s house. The court ruled that this testimony was inadmissible because the arson added nothing to the State’s case except evidence of another crime which occurred after the murder.

      The State concedes that it was improper for the prosecutor to question defendant about the veracity of the State’s witnesses. Defendant’s objection to this question was sustained and the proper remedial measure was taken by the court's instruction to the jury to disregard the statement. We find that defendant was not prejudicially harmed.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CASIMIRO CRESPO, Defendant-Appellant.
    First District (5th Division)
    No. 81—3045
    Opinion filed October 21, 1983.

      Joshua Sachs, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Maria Elena Gonzalez, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of two counts of armed robbery, two counts of armed violence, and two counts of unlawful restraint. He was sentenced to concurrent terms of 10 years on each count of armed robbery and armed violence, but the court imposed no sentence on the two convictions for unlawful restraint ruling that they merged into the armed robbery convictions. On appeal, defendant contends that (1) he was not proved guilty beyond a reasonable doubt; (2) his waiver of a trial by jury was invalid; (3) his right to cross-examine a State witness was erroneously restricted; and (4) the trial court erred in entering judgments and imposing sentences for both armed robbery and armed violence. Although a transcript of the proceedings was unavailable, the parties stipulated to the following testimony and evidence.

Ismael Robles (Robles) testified that he was working in his uncle’s tavern when, at approximately 1:30 a.m., two men, subsequently identified as Casimiro Crespo (defendant) and Pablo Gonzalez (Gonzalez), entered the tavern. After a short time, defendant put his hand in his pocket, told everyone to put their hands up, and then ordered them to lie on the floor. When one woman refused to obey, defendant picked her up by her hair and threw her to the floor. Gonzalez went behind the bar, held a knife to his (Robles) throat, and took money and jewelry from the cash register. Gonzalez then led him at knife-point toward the rear exit of the tavern while defendant went behind the bar and removed money from a drawer and placed it in his pocket. He and Gonzalez were in the rear doorway when the police arrived, and Gonzalez ran outside but was immediately apprehended. On cross-examination, Robles stated that he was 14 years of age, in the seventh grade, and had to repeat a grade in school. He also said that approximately $10 had been taken from the cash register. Robles denied telling an investigator that there were bad feelings in the tavern toward Puerto Ricans or that there had been any altercation between the patrons and the offenders.

Amadore Luchuga (Luchuga), the bartender at the tavern, testified that when he came from the kitchen of the tavern on the night in question, he saw Gonzalez holding a knife to Robles’ throat and defendant ordered him to lie on the floor with the customers. He was later ordered to get up and accompany defendant to the kitchen, where two boys were working. At that point, Luchuga managed to escape through the basement and he called the police. When he returned to the bar, the police were there. On cross-examination, Luchuga stated that not all of the money had been removed from the cash register, although he did not know how much was taken. He estimated it to be approximately $100 in one, five and 10-dollar bills.

Officer Schmidt testified that he and his partner were flagged down by a man on the street who told them that a robbery was in progress in the tavern. Upon reaching the rear door of the bar, he saw Gonzalez holding a knife to Robles’ throat. When he ordered Gonzalez to stop, Gonzalez released Robles and ran, but was apprehended by his partner. Schmidt then entered the tavern and found defendant behind the bar, holding a small knife. A search of defendant produced $21 and a watch which belonged to a patron, Jesus Rivera. He also found jewelry and money on the floor in the bathroom, as well as $140 in the possession of Gonzalez. On cross-examination, Schmidt recalled that he had inventoried $147 in various denominations, including two $50 bills. Luchuga told him that approximately $70 was taken from the cash register and customers reported losses totaling $79.

Jesus Rivera (Rivera) testified that on the night in question defendant and Gonzalez entered the bar and, after standing in the bar for a few minutes, defendant put his hand inside his coat, said “this is an assault,” and ordered everyone to lie on the floor. Defendant threw one woman to the floor and kicked him (Rivera) and another patron. Defendant then ordered the patrons to give him all of their money and threatened to shoou anyone who withheld any. He then took his (Rivera’s) wallet and pulled his watch from his wrist, breaking the band. Luchuga came out of the kitchen and was ordered to lie on the floor, but as defendant went to gather other people from the rear of the tavern, Luchuga ran to the basement. The police arrived shortly thereafter, and his watch and some money were recovered from defendant. Rivera denied that the tavern patrons had been involved in a fight with defendant and Gonzalez.

It was also stipulated that, if called, Investigator Bracek would have testified that Robles told him there had been a small altercation between the offenders and the patrons after the police arrived and that Robles also said that, although there were unfriendly feelings toward Puerto Ricans, no fight had taken place in the tavern prior to the arrival of police.

Defendant testified that on the night in question, he and Gonzalez stopped at the tavern to buy some beer. Because there were some women in the bar, they decided to stay for a short time. As they were drinking, an unidentified male Mexican approached him and inquired about his nationality. When he (defendant) replied that he was Puerto Rican, the Mexican told him to leave because Puerto Ricans were not welcome there. Defendant ignored him until he made disparaging remarks which provoked a fight. Several men attacked him, and a bartender brought out a gun and threatened to shoot him. Gonzalez then went behind the bar and picked up a knife, and in an effort to protect himself, he (defendant) grabbed a woman sitting nearby and warned the bartender, “If you shoot, I am going to cut this lady’s throat.” At that point, the police arrived and arrested him without allowing him to relate what had occurred. He denied robbing the tavern or any of its patrons. On cross-examination, he admitted that he had seen Gonzalez holding a knife to Robles’ throat and that when the police arrived he was holding a knife and the customers were on the floor, but he denied that the police found Rivera’s watch in his pocket or that he had ordered the people to lie on the floor.

Defendant first contends that he was not proved guilty beyond a reasonable doubt. He maintains that the testimony of prosecution witnesses was impeached and untrustworthy; that the court did not give his exculpatory testimony the weight to which it was entitled; and that the trial court’s finding of guilt was erroneous as a matter of law.

It is the function of the trier of fact to determine the credibility of witnesses and to resolve conflicts in testimony (People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154; People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313), and in doing so, the fact finder is not required to believe the defendant’s exculpatory testimony (People v. Adams (1979), 71 Ill. App. 3d 70, 388 N.E.2d 1326); rather, it must consider the evidence as a whole, weighing all the circumstances of the incident and the testimony of the other witnesses in assessing the plausibility of the accused’s version of events (People v. Zolidis (1983), 115 Ill. App. 3d 669, 450 N.E.2d 1290). Even where there are minor discrepancies in testimony (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029), a reviewing court will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt (People v. Yarbrough (1977), 67 Ill. 2d 222, 227, 367 N.E.2d 666). Moreover, the testimony of a single credible witness is sufficient to sustain a conviction. People v. Jones (1975), 60 Ill. 2d 300, 325 N.E.2d 601.

In our view, the evidence in the instant case is not only reasonable and probable, but is overwhelming. Although defendant maintains that the testimony of Robles should not be believed because of his age, low intelligence, and his impeachment on collateral matters, we note that Rivera testified to substantially the same events as Robles, and their version of what happened was also corroborated in part by the observations of Luchuga and Officer Schmidt as well as by the discovery of Rivera’s watch and cash in defendant’s possession.

Defendant’s further assertion, that the discrepancies between the testimony of witnesses concerning the amount of money taken renders their testimony untrustworthy, is also without merit. We have often stated that minor inconsistencies in testimony of witnesses are matters for the trier of fact to weigh and resolve (People v. Winfield), and we do not believe, given the overwhelming evidence in this case, that the discrepancies rendered the evidence so unsatisfactory as to leave a reasonable doubt of guilt as to each of the charges.

Defendant next contends that his waiver of a jury trial was invalid because there is no evidence that it was knowingly or understandingly made. He argues that he was given “incomplete admonishments” by the court regarding the nature of the right he was waiving and that there is a serious question as to whether his English was adequate to understand the proceedings without an interpreter. At the outset of trial, the following exchange took place:

“MR. RADAKOVICH [defense counsel]: *** We are ready to begin.
THE COURT: Bench or jury?
MR. RADAKOVICH: Bench.
THE COURT: Mr. Crespo and Mr. Gonzalez, each of you heard your attorneys indicate that it is your wish to have the Court hear your case sitting without a jury. This means that each of you will not have the opportunity of exercising your constitutional right of having a jury in this case. Each of you have a constitutional right of having a jury hear the case without the Court being the finder of facts. That is a right individual to each one of you and you have to tell me what your wish is. Mr. Crespo, what is your wish, a bench or jury?
DEFENDANT CRESPO: A bench.
THE COURT: Have them execute a jury waiver. *** Do we need an interpreter?
MR. RADAKOVICH: I think it might be advisable.
THE COURT: Call up for an interpreter.
DEPUTY SHERIFF: We have one here. ***
MR. RADAKOVICH: I’m tendering a jury waiver executed by my client, Casimiro Crespo, after being admonished by the Court here in English and by myself in Spanish on prior occasions.”

Because the decision depends upon the facts and circumstances of each case (People v. Spain (1980), 91 Ill. App. 3d 900, 415 N.E.2d 456), there is no precise formula for determining whether a jury waiver is understandingly made (People v. Lewis (1980), 89 Ill. App. 3d 840, 412 N.E.2d 565); however, a waiver will not be held invalid where the defendant, with counsel at his side, unambiguously chooses a bench trial, unless some prejudice to him is alleged and proved (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; People v. Murrell (1975), 60 Ill. 2d 287, 326 N.E.2d 762).

Here, defendant asserts that he was prejudiced because the court did not advise him of facts concerning the composition of a jury and his right to challenge prospective jurors. However, he does not cite, nor has our research discovered, any authority to support his position that, absent such information, his waiver was ineffective. In fact, we have held that although a court “may not perfunctorily discharge its duty to explain the right to a jury trial to an accused, an explanation of the ramifications of a waiver of that right is unnecessary ***” (People v. Villareal (1983), 114 Ill.App. 3d 389, 392, 449 N.E.2d 198, 200), and that “ ‘[mjerely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made ***’ ” (People v. Jones (1981), 93 Ill. App. 3d 475, 480, 417 N.E.2d 647, 651). Here, the trial court explained to defendant that he had a right to a trial by jury and that a waiver of that right would result in the court acting as fact finder. We find no prejudice to defendant because he was not advised of the jury composition or that jurors could be challenged.

Defendant further argues that he suffered prejudice as a result of his linguistic handicap. He does not expressly assert that he could not understand English, but suggests that there is some question as to whether his jury waiver was knowingly made in the absence of an interpreter. However, we note that after defendant’s attorney, in open court with defendant present, indicated his choice of a bench trial, defendant was personally admonished by the court regarding his constitutional right to have a jury hear the case; that when questioned by the court, defendant responded, in English, that he preferred a bench trial; that he subsequently executed a written jury waiver; that his attorney, in the presence of and without objection from defendant, stated for the record that he had admonished defendant in Spanish concerning his right to have a jury; and that during the trial, defendant testified without assistance from the interpreter who was available. Moreover, where a linguistic handicap is at issue on appeal, a reviewing court “should accord more than ordinary deference to the conclusions of the trial judge, who observed the witness’ demeanor and gestures” and who could determine whether the waiver was knowingly made. (People v. Ortiz (1981), 96 Ill. App. 3d 497, 503, 421 N.E.2d 556, 560.) Here, the court concluded that “each of the defendants understood what a jury waiver was and what rights they were losing by saying that they didn’t wish to have a jury trial ***,” and we are in accord with this conclusion.

Defendant also contends that the trial court erroneously restricted his right to cross-examine a State witness concerning the amount of money taken from the tavern’s cash register.

While cross-examination of an adverse witness is a matter of right (People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135), the scope of cross-examination is within the discretion of the trial court (People v. Blakes (1976), 63 Ill. 2d 354, 348 N.E.2d 170), and its rulings will not be reversed absent a clear, abuse of discretion resulting in manifest prejudice to defendant (People v. Burris (1971), 49 Ill. 2d 98, 273 N.E.2d 605).

Defendant argues that the amount and denominations of money taken by the police from him and Gonzalez did not correspond to those which the State witnesses testified had been taken. Positing that these discrepancies were an important subject of inquiry because they supported his version of events, he maintains that the trial court abused its discretion by preventing him from cross-examining Luchuga concerning them.

Initially, we note that Luchuga stated on cross-examination that although he did not know how much money had been taken, he estimated it to be approximately $100, and when asked if he had told the police that $70 was taken, he responded “we were not sure.” When counsel then asked whether he told the police how much money he thought was taken, the court stated, “I am not going to get involved with whether it was $70 or $100 ***,” thus indicating that he was aware of the discrepancy concerning how much was taken.

While defendant suggests that this was “an important area of inquiry,” no such statement was made to the trial court, and we fail to see its importance in view of the fact that in armed robbery it is not necessary to establish the value of the property. (Ill. Rev. Stat. 1981, ch. 38, pars. 18 — 1, 18 — 2; People v. Lawler (1961), 23 Ill. 2d 38, 177 N.E.2d 183.) Moreover, Officer Schmidt testified that Luchuga told him that $70 was taken. Thus, the inconsistency as to the amount of money taken was before the court, and because defendant asked no questions concerning the denominations of the money taken, we see no prejudicial restriction of defendant’s right to cross-examine as to the amount of and the denominations of the money taken. See People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.

Defendant’s final contention is that the trial court erred in imposing sentences on the convictions for both armed robbery and armed violence based on unlawful restraint. We believe that the recent supreme court decision in People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512, is dispositive as to the armed violence sentences. There, the court held that a charge of armed violence cannot be founded upon the underlying felony of unlawful restraint and declared the armed violence statute unconstitutional as applied to the unlawful restraint statute.

The State argues at great length that the reasoning in Wisslead is faulty and urges us to reject the majority opinion and to adopt, instead, the more “well-reasoned and practical” dissent which would uphold a conviction of armed violence predicated upon unlawful restraint. However, it is fundamental to our judicial system that “once our supreme court declares the law on any point, its decision is binding on all Illinois courts,” and we cannot refuse to follow it because we have no authority to overrule or modify supreme court decisions (People v. Jones (1983), 114 Ill. App. 3d 576, 585, 449 N.E.2d 547, 555). Therefore, in accordance with Wisslead, we must reject the State’s arguments and vacate defendant’s convictions and sentences for armed violence. See People v. Alexander (1983), 118 Ill. App. 3d 33.

Anticipating our refusal to reject the ruling of the supreme court on this matter, the State alternatively argues that we should remand this case for imposition of sentences on defendant’s convictions of unlawful restraint because the convictions for armed robbery and unlawful restraint arose from separate, albeit closely related, physical acts which were sufficient to support separate convictions.

The general rules on the merger of offenses were set forth in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, wherein the court expressly rejected the “independent motivation” test of People v. Stewart (1970), 45 Ill. 2d 310, 259 N.E.2d 24, under which a defendant could not be convicted and sentenced for two offenses if they arose out of the same conduct. The focus of that test was defendant’s overall criminal objective at the time the acts were committed. The King court adopted, instead, the “separate and distinct acts” standard, stating “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845.) “Act” was defined as “any overt or outward manifestation which will support a different offense.” 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.

Applying this analysis to the instant case, we initially note that unlawful restraint is committed when a person knowingly and without legal authority detains another (Ill. Rev. Stat. 1977, ch. 38, par. 10— 3); whereas, armed robbery is committed when a person takes property from a person by the use of force or by threatening the imminent use of force (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 1) while armed with a dangerous weapon (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2). Thus, unlawful restraint is not a lesser-included offense of armed robbery, as the two crimes require proof of different elements. People v. Boclair (1982), 106 Ill. App. 3d 515, 435 N.E.2d 1237.

The question remains then, whether defendant committed separate “acts” which would support convictions for both armed robbery and unlawful restraint. Defendant argues that the very essence of armed robbery involves temporary restraint of the victim and that the acts supporting unlawful restraint in this case were limited to those necessary to supply the element of force and to accomplish the robbery. We disagree. The crime of unlawful restraint was committed when defendant forced the tavern customers to lie on the floor and when Gonzalez held Robles at knife-point both during and after the commission of the robbery. Neither of these acts was necessary to effectuate the robbery, and each exceeded the “force” requirement of the armed robbery statute which was satisfied when defendant threatened to shoot anyone who withheld money and when Gonzalez produced a knife after defendant announced their intent to rob the tavern. Although the purpose of restraining the victims may have been to facilitate the commission of the robbery, we have already noted that under King, the offender’s general criminal objective is no longer the standard by which the propriety of multiple convictions with concurrent sentences is determined. So long as there were separate and distinct acts, such as those here, which would constitute a crime which is not a lesser-included offense of the more serious crime charged, conviction and concurrent sentencing for both offenses is proper.

For the reasons stated, we affirm the convictions and sentences for armed robbery, vacate the convictions and sentences for armed violence, and affirm the convictions for unlawful restraint and remand with a direction that the trial court impose sentences on the unlawful restraint convictions.

Affirmed in part.

Vacated in part and remanded with direction.

WILSON, P.J., and LORENZ, J., concur.


text:
    DANIEL N. FINDLEY, Plaintiff and Defendant and Counterdefendant-Appellant, v. CATHY POSWAY, Defendant and Plaintiff and Counterplaintiff-Appellee.
    First District (5th Division)
    No. 82—1276
    Opinion filed October 21, 1983.

      James A. Swanson, of Chicago, for appellant.
    Goggin & Furda, of Chicago (Gregory H. Furda, of counsel), for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

This is an appeal taken by plaintiff-counterdefendant Daniel N. Findley from an order of the circuit court of Cook County denying the motion of plaintiff to strike the counterclaim of defend ant-counter-plaintiff Cathy Posway. Although it was not brought to this court’s attention by the parties, we observe that we lack jurisdiction to hear this appeal because no final and appealable order was entered by the trial court. For this reason we find it unnecessary to reach the merits of this appeal and the appeal is dismissed.

On May 5, 1978, Findley filed the original suit for alleged property damage resulting from an accident of December 22, 1977, against Posway and she was personally served.

On May 17, 1978, Posway filed the second suit for alleged property damage based on the same against Findley and personal service was had on him. On November 4, 1979, Findley filed the third suit for alleged personal injuries resulting from the same occurrence of December 22, 1977, against Posway. She was personally served on August 11,1980.

Finally, on September 10,1981, all three cases were consolidated.

Previous thereto, on July 20, 1981, Posway sought leave to file her counterclaim for personal injuries against Findley pursuant to the provisions of section 17 of the Limitations Act (the Act) (111. Rev. Stat. 1979, ch. 83, par. 18). This section permits the filing of a counterclaim for personal injuries arising out of the same occurrence after the expiration of the period of limitations applicable to the pleaded cause of action to which the counterclaim responds.

Following a hearing, the trial court on January 20, 1983, granted Posway leave to file her appearance, jury demand and counterclaim and, upon agreed order, Findley was granted an extension of time to plead to the counterclaim until March 17,1982.

Counterdefendant Findley then moved, on April 6, to strike and dismiss the counterclaim for personal injuries, claiming that counter-plaintiff Posway could not avail herself of the right to file a counterclaim pursuant to the provisions of the Act because she was an active litigant seeking relief of the court as a plaintiff in one suit and as a defendant in two others prior to the tolling of the statute of limitations applicable to her personal injury action. After a hearing, including arguments of counsel, the trial court denied the motion to strike. The pertinent portion of the order is as follows:

“*** It is hereby ordered that the motion to strike the counterclaim of defendant Cathy Posway be, and is hereby denied and the counter defendant be given 28 days to answer or otherwise plead.
It is further ordered that the court finds no just reason to delay enforcement or appeal of this order as it is final and appeal-able.”

Plaintiff-counterdefendant Findley filed his notice of appeal on May 25,1982.

It is the duty of this court to consider whether it has jurisdiction to hear an appeal even though this issue was not raised by the parties. Keen v. Davis (1969), 108 Ill. App. 2d 55, 246 N.E.2d 467.

Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)) provides that where multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all the claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. To be appealable thereunder, the order must contain the requisite express finding (Chicago Miniature Lamp Works, Inc. v. D’Amico (1979), 78 Ill. App. 3d 269, 397 N.E.2d 138) and must be final in its character apart from that finding (O’Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 388 N.E.2d 1073), as mere inclusion thereof cannot confer appellate jurisdiction where the order is not in fact final. Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174; Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App. 3d 695, 393 N.E.2d 712 (dismissing an appeal despite inclusion of a Rule 304(a) finding).

A final order is one which terminates and disposes of the parties’ rights regarding issues in the suit so that, if affirmed, the trial court has only to proceed with execution of judgment. (Maple Investment & Development Corp. v. Skore (1976), 38 Ill. App. 3d 654, 348 N.E.2d 498; Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 387 N.E.2d 918.) Where an order of the court leaves a cause still pending and undecided, it is not a final order. (Gutenkauf; La Vida, Inc. v. Robbins (1961), 33 Ill. App. 2d 243, 178 N.E.2d 412.) We point out that “the purpose of the rule is to prevent a multiplicity of suits and piecemeal appeals.” Robinson v. City of Geneseo (1966), 77 Ill. App. 2d 308, 310, 222 N.E.2d 331.

Jurisdiction of this court to hear an appeal is confined to reviewing appeals from final judgments unless it comes within one of the exceptions for interlocutory orders specified by Supreme Court Rules. (Johnson v. Northwestern Memorial Hospital; Joliet Federal Savings & Loan Association v. O’Hare International Bank (1973), 12 Ill. App. 3d 1012, 299 N.E.2d 350; Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill. 2d 31, 357 N.E.2d 430.) In the pending case, the entry of the order denying the motion to strike the counterclaim is not a final judgment even though the requisite express finding is included, because it does not terminate and dispose of the parties’ rights regarding issues in the suit, but leaves the cause pending and undecided. Highway Industries, Inc. v. Trailer Leasing Co. (1977), 48 Ill. App. 3d 235, 237, 363 N.E.2d 60 (holding the denial of plaintiff’s motion to strike defendant’s answer and counterclaim to be an interlocutory order); see Cahokia Sportservice, Inc. v. Illinois Liquor Control Com. (1975), 32 Ill. App. 3d 801, 336 N.E.2d 276; George F. Mueller & Sons, Inc. v. Daly (1970), 124 Ill. App. 2d 265, 260 N.E.2d 319 (concluding that orders denying plaintiff’s motion to strike defendant’s answer and counterclaim were interlocutory orders); Walsh v. Walsh (1943), 319 Ill. App. 253, 48 N.E.2d 729 (abstract) (finding denial of defendant’s motion to strike supplemental and amended complaint and counterclaim to not be final or appealable).

Without expressing any opinion as to the merits, we also comment that the denial of counterdefendant’s motion to strike the counterclaim does not preclude him from raising the defense of statute of limitations in his answer as an affirmative defense because the court in its order granted counterdefendant 28 days to answer or otherwise plead. The statute of limitations is an affirmative defense which must be pleaded and proved by defendant. Book v. Ewbank (1941), 311 Ill. App. 312, 35 N.E.2d 961; Anfinsen Plastic Molding Co. v. Konen (1979), 68 Ill. App. 3d 355, 386 N.E.2d 108.

Accordingly, for the reasons stated, a final and appealable order has not been presented for a disposition by this court and the appeal is dismissed.

Appeal dismissed.

LORENZ and MEJDA, JJ., concur.


author: JUSTICE "VAN DEUSEN

text:
    CECH BUILDERS, INC., et al., Plaintiffs-Appellees, v. THE VILLAGE OF WESTMONT, Defendant-Appellant.
    Second District
    No. 82—790
    Opinion filed October 5, 1983.
    Rehearing denied November 21, 1983.

      Kenneth T. Kubiesa, of Borla & Kubiesa, of Westmont, for appellant.
    Frank J. Petru, of Wheaton, for appellees.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

Defendant, village of Westmont, appeals from an order of the trial court that the village’s zoning ordinance as applied to the plaintiffs’ property was unconstitutional and void, that plaintiffs could develop the subject property as depicted on either of two plans, that the village was restrained from maintaining any court action to block such development, and that the village was required to issue all necessary permits for such development upon application and compliance with all ordinances and regulations other than the zoning ordinance. Among other grounds it raises on appeal, the village of Westmont contends that the plaintiffs did not sustain their burden of proving by clear and convincing evidence that the zoning classification as applied to the subject property was arbitrary, capricious, and bore no relationship to the public safety, morals and welfare, and further, that plaintiffs have also failed to prove by clear and convincing evidence that the proposed uses are reasonable.

We agree and reverse.

A zoning ordinance is presumptively valid; this presumption may be overcome only by clear and convincing evidence, and the burden of proof is on the plaintiff. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46.) To sustain the validity of a zoning classification, it must bear a substantial relation to the public health, safety, comfort, morals or general welfare, and its validity as applied to a specific piece of property depends on the sum total of the particular facts found in each case. Fiore v. City of Highland Park (1966), 76 Ill. App. 2d 62, 71, 73.

The zoning function is primarily in the province of the municipal body, and Westmont correctly observes that, where there is room for a legitimate difference of opinion concerning reasonableness of an ordinance governing the use of private property or where such question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. (Trust Co. v. City of Chicago (1951), 408 Ill. 91, 98-99; see La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 428.) However, a mere conflict of testimony does not create an irrebuttable presumption that an ordinance is valid or require a finding that the reasonableness of the ordinance is debatable; such conflicts go to the credibility of witnesses and the weight to be afforded their testimony. These are matters to be determined by the trier of fact, subject to reversal only when against the manifest weight of the evidence. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 53-54.

La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, sets out six factors that may be taken into consideration in making a determination on the validity of an ordinance.

The first factor is the existing uses and zoning of nearby property. The subject property is presently zoned R-3, single-family residential. It is rectangular in shape and consists of approximately four acres. The southern half is bisected by a stream flowing in a generally northern direction. It appears to have been the westerly portion of a larger tract of land, now known as Newfield Manor, that had been developed by plaintiffs Cech and Flavell for single-family residential use.

The immediately surrounding area is single-family residential, somewhat mixed with vacant areas. Immediately west of the subject property and south are a golf course and a park, also zoned R-3 single-family residential. The only multiple-family use, such as that proposed by plaintiffs, is King Arthur Apartments, and it is off the northwest corner of the property. Access to King Arthur Apartments is from a northern direction, and residents of Newfield Manor testified that they have no contact with these apartment residents. Other than King Arthur Apartments, the only uses other than single-family residential are at least one-half mile away, and the park and golf course and Newfield Manor appear to naturally buffer this tract from other uses. While the testimony of witnesses for each side concerning the character of the area varied almost predictably, the area in which the subject property is located can most accurately be characterized as single-family residential, which is the present zoning of the subject property.

The second La Salle factor is the extent to which property values are diminished by the particular zoning restriction. Plaintiffs insist that the property as zoned is virtually worthless because of the high costs of improvements to make it possible to develop it for zoned purposes. The only evidence of current value of the property was Peter J. Cedi’s testimony that he contracted to purchase the 3.9 acres from his father’s company for $18,000 and defendant’s real estate appraiser’s testimony that the property as zoned is worth $75,000. There is no evidence of the value of the property if rezoned. There is predictable dispute about the effect on surrounding property values if the property is rezoned. Several of defendant’s witnesses say that either plan will have deleterious effects, and plaintiffs’ expert real estate appraiser stated that, while the first plan might cause a 2-5% depreciation, the second plan would cause no such depreciation, although his opinion was largely dependent on landscaping not shown in the plans or required by the court order.

The next two factors to be considered are closely related. They are the extent to which the destruction of property values of the plaintiff promotes the health, safety, morals, or general welfare of the public and the relative gain to the public as opposed to the hardship to the individual property owner. Again, plaintiffs insist that the hardship on them is enormous because the cost of improvements required would put the cost of single-family homes on the property out of the market and that the gain to the public by retaining the current zoning is minute, especially compared to the benefit of increased tax revenue from development as proposed, so that there is no valid basis for the current restrictions. See generally La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 308-09.

It is well established that a party who, like plaintiff Cech, acquires the property with knowledge of the present zoning but with the expectation of using it for a purpose not permissible thereunder cannot expect loss resulting from the denial of the change to be a persuasive argument in securing the change. (E.g., Lapkus Builders, Inc. v. City of Chicago (1964), 30 Ill. 2d 304, 310.) Moreover, traffic problems would result from both plans, reconstruction of the creek under both plans would increase its depth and velocity creating a hazard to nearby residents and users of the park, and the first plan would diminish nearby property values 2-5% and create traffic hazards for Newfield Manor residents. Therefore, it appears that the development under either plan would have a negative effect on the public health, safety and welfare.

The next factor is the suitability of the subject property for zoned purposes. The experts’ testimony once again varied predictably on this subject. The plaintiffs’ witnesses found the property unsuitable for single-family residential development, while defendant’s witnesses found it suitable. Basically, it was established that the cost of improving each lot for permitted purposes was approximately $30,000. Plaintiffs’ real estate appraiser figured that a $65,000 cost per lot would allow for profit, stated that a house on such lots would cost $350,000 in an area of $80-150,000 homes, and expressed the opinion that there was no market for homes of that cost so that the highest and best use of the property was not single-family residential. Defendant’s real estate appraiser, on the other hand, opined that plaintiffs could improve the lots for $27,000 per lot, sell homes in the $100-130,000 range, and still make a profit.

The last factor set forth in LaSalle is the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property. Both parties agree that the property has been vacant at least since its annexation by Westmont in 1965 and that it has always been zoned for single-family residential use. Plaintiffs insist that the property is and will remain vacant because the configuration of the creek and costs necessary to solve that problem prohibit development or sale as zoned.

However, as noted above, there was evidence that the property could be profitably developed under the present zoning. Adjacent to and immediately east of the subject property, plaintiffs Cech and Flavell built and sold 200 Newfield Manor homes between 1968 and 1978. Plaintiff Peter J. Cech himself testified that the property was not developed because the platted Williams Street bordering the entire 800-foot western boundary of the subject property had not been put in and that they had never attempted to market the property as single-family residential. Plaintiffs have failed to establish that the property remained vacant and undeveloped because of the zoning classification. See Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 384.

In addition to the six factors enumerated in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, the Illinois Supreme Court in Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, added two more factors to be considered — community need for the use proposed by plaintiff and the care with which the community had undertaken to plan its land use development. (Accord, Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 54.) Regarding the first of these, both defendant’s expert land planner and its mayor testified that Westmont had a greater than normal amount of multiple-family units for a community of its size, and there does not appear to be evidence of a need for plaintiffs’ proposed multiple-family residential use in the community. Regarding the second, Westmont has a comprehensive plan of which the zoning ordinance is a part, and defendant’s expert planner, mayor and planning commission chairman testified regarding the planning program that produced the plan. Based on this record, plaintiffs’ assertion on appeal that Westmont exercised minimal care in planning and zoning land use appears to be, as defendant characterizes it in its reply brief, a bold assertion. Although the long-range zoning plan of the county is not sacrosanct, it is entitled to a certain amount of respect (Parkway Bank & Trust Co. v. County of Lake (1979), 71 Ill. App. 3d 421, 426), and the development of the property as single-family residential or, alternatively as shown on the proposed map, as retention/park is harmonious with this plan.

Having considered the evidence in this case in light of the factors enumerated in La Salle and Sinclair, we conclude that the plaintiff failed to overcome the presumption of validity implicit in defendant’s zoning ordinance and that the trial court’s finding to the contrary is against the manifest weight of the evidence.

Further, even if plaintiffs had proven the zoning ordinance as generally applied to the subject property was invalid, they would still have had the burden of proving by clear and convincing evidence that their proposed plans of development were compatible and reasonable in their application to the subject property in order to be entitled to relief. Drogos v. Village of Bensenville (1981), 100 Ill. App. 3d 48, 56-57.

Plaintiffs proposed to use the property for 60 multiple-family units in five buildings and for two single-family homes. Plaintiffs introduced into evidence two plans for development. The trial court found the plans to be substantially similar and reasonable.

The first plan proposed access to the property through single-family Newfield Manor. The second plan, among other changes, proposed access to the property on one-half of Williams Street to be completed by Cech from 59th Street to the property. Under both plans, the floodway on the property would be partially filled and the creek through the property would be reconstructed in that it would be narrowed, reinforced and velocities of water therein increased. Under both plans, a major portion of the required storm water storage would have to be stored off the property, though the location of the required storm water storage offsite had not yet been determined. Neither plan provided for sufficient parking under the applicable Westmont ordinances or for the completion of 58th Street (James) through the property as required by the Westmont land development ordinance, and the first plan provided for rights-of-way therein narrower than required.

Both plans create public safety problems in this area of traffic and storm water control that will have a deleterious effect upon the residential quality of the neighborhood. While the traffic safety problems in adjacent Newfield Manor in plaintiffs’ first plan are largely handled in the second plan, even the second plan has traffic safety problems, according to Westmont’s traffic safety expert. These are largely related to increased density. Density is a legitimate concern in a zoning case and an adequate basis for classification. Residents of an area are entitled to the lower density requirements which directly relate to their health, safety and morals, and a municipality may reasonably restrict increases in population density where necessary for health, safety and welfare. Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 383.

The reconstruction of the creek, increasing its depth and velocity, is a public safety problem in both plans. Defendant’s expert civil engineer testified that the creek would be deeper and the increased velocity could cause a person to lose footing in the creek and that setting a hard, unyielding surface on the creek bed, as proposed, would increase the potential for injury from a fall as compared to the potential for injury from a fall in the current soft clay bottom. Also, since the creek flows from south to north and detention is planned south of the property, the storm water detention is provided for upstream rather than downstream. According to defendant’s expert civil engineer, the proposed storm water management poses “a very definite potential for damaging conditions in the servient property,” and the planned storage is inadequate.

Additionally, the plans are speculative in nature. Both provide for storm water detention on park district property. However, the testimony of the park district administrator and a commissioner, as well as that of Peter J. Cech, establishes that the park district has discussed the matter with Cech but has not committed itself. Illinois Department of Transportation permits for the relocation of the creek have not been issued. Neither of these bodies is a party to the lawsuit and would not be bound by the plans approved by the court. (Newberry Library v. Board of Education (1944), 387 Ill. 85.) Also, the second plan calls for construction of Williams Street for ingress and egress to the development that would take it across property not owned by plaintiffs.

We conclude that the trial court’s finding that the plans are reasonable in their application to the subject property is against the manifest weight of the evidence and constitutes an additional basis for reversing the trial court’s judgment.

Having so found, it is not necessary to reach the other issues raised by defendant.

For both reasons set forth above the judgment of the trial court is reversed.

Reversed.

SEIDENFELD, P.J., and NASH, J., concur.