author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM R. TURNBEAUGH, Defendant-Appellant.
    Fifth District
    No. 82—105
    Opinion filed July 21, 1983.

      Donald E. Groshong, of Groshong and Moorman, Ltd., of East Alton, for appellant.
    Barbara Adams, State’s Attorney, of Hillsboro (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant was convicted in the circuit court of Montgomery County of unlawful possession of cannabis and with bringing contraband into a State penal institution. He appeals, contending that his automobile was unlawfully searched and that the evidence adduced, did not prove his guilt of either offense.

We first consider the issue raised by defendant regarding the alleged unlawful search. The essential facts are not disputed. Defendant turned off a State highway onto an access road which leads only to Graham Correctional Center near Hillsboro, Illinois. Larry Reynolds was a passenger in defendant’s car. Defendant had driven about 50 yards on the access road when he was stopped by guard Garland Reed. The point of the stop was on the access road about 50 feet from the institution parking lot and 300 to 400 yards from the front door of the institution. Defendant and Reynolds were ordered to open the glove box, get out of the car, unlock the trunk, and stand aside. The vehicle was then searched by a canine officer using a dog. A clear plastic bag containing cannabis was seized from the console between the seats.

Defendant testified that he “assumed” that he was already on institution grounds when stopped. He had already passed 40 to 45 feet beyond a sign which stated: “ALL PERSONS AND VEHICLES ENTERING OR LEAVING THE GRAHAM CORRECTIONAL CENTER ARE SUBJECT TO SEARCH AT ANYTIME. ANY PERSON FOUND IN POSSESSION OF CONTRABAND WILL BE PROSECUTED.”

Assignments regarding searches at the institution were varied periodically to prevent their detection and circumvention. On the date in question the assignment was to search all incoming visitors’ vehicles. However, while defendant’s car was being searched, some cars occupied by visitors drove through to the prison without being searched. Guard Reed testified that he had no reason to suspect that defendant or his car contained contraband and that he would not have searched defendant’s car if defendant had objected or chosen to “back out” of the search; however, he stated that he did not so inform defendant. Guard Reed testified that in his opinion defendant “consented” to be searched by coming onto institution grounds. Reed did not ask for defendant’s consent to conduct a search. Reed gave the following answers relative to other vehicles.

“Q. Have you had the experience on this facility grounds before of people driving in, driving around the facility and driving right back out again?
A. Yes, sir, I have had people that come in and that, when I asked them and they said they were just looking and I asked them to turn the car around and leave and in which they did.
Q. Have you ever seen the problem here in this facility of kids coming in and just driving around and going back out?
A. Well, we have more problems with the older people wanting to sightsee than the kids.”

The institution’s internal regulations state, inter alia, that the owner or driver of any vehicle to be searched should be advised that such person must either consent to be searched or be refused access to institution property.

The institution’s grounds maintenance crew, apparently made up of prisoners, had supervised access to the institution parking lot. Assistant Warden Kerley testified that small amounts of marijuana had been found in cells in the institution; “however we haven’t established that there is weapons that come in. [Sic.]”

Defendant first urges that no specific facts existed at the time defendant’s car was stopped which were sufficient to justify the stop, as opposed to the subsequent search. We need not consider the propriety of the stop as a matter distinct from the propriety of the search. This is true because it is undisputed that the search itself was undertaken without a warrant, probable cause or any level of suspicion on the part of the officers, i.e., with no more justification than the less intrusive stop.

The purpose of fourth amendment proscriptions is to impose a standard of reasonableness upon the exercise of discretion by government officials, including law enforcement agents; thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s fourth amendment interests against its promotion of legitimate governmental interests. (Delaware v. Prouse (1979), 440 U.S. 648, 653-54, 59 L. Ed. 2d 660, 667-68, 99 S. Ct. 1391, 1396.) Any search of an automobile is a “substantial” invasion of privacy. (United States v. Ortiz (1975), 422 U.S. 891, 896, 45 L. Ed. 2d 623, 629, 95 S. Ct. 2585, 2588.) Thus the question is whether the State’s interest in keeping contraband out of penal institutions is sufficient to warrant this “substantial” intrusion and whether the search policy in question is “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio (1968), 392 U.S. 1, 20, 20 L. Ed. 2d 889, 905, 88 S. Ct. 1868, 1879.

The instant search was justified when tested by both criteria. The legitimate governmental interest, keeping contraband out of penal institutions, is in our view of ample significance to justify this search.

The more difficult issue is whether the search is reasonably related in scope to the purpose of keeping contraband out of penal institutions. We agree with defendant that searching all visitors’ cars was not a foolproof method of preventing contraband from entering the prison, particularly since the policy did not include contemporaneous search of a vehicle’s occupants. However, it is important to note that vehicles traveling on the road which led only to the institution were the only ones subject to search, i.e., the group is self-selected (see State v. Manghan (1973), 126 N.J. Super. 162, 313 A.2d 225; 3 W. LaFave, Search and Seizure sec. 10.7(b), at 371 (1978)), since only those who choose to go to the institution use that road. Also significant is that visitors to the institution were warned at the point of entry by a prominent sign stating that they and their vehicles would be subject to search at any time if they continued on into the institution. (See State v. Manghan (1973), 126 N.J. Super. 162, 167, 313 A.2d 225, 228.) Such notice bears upon the reasonableness of the selection process: Because the group subject to search is self-selected by their decision to enter the institution, it is important that this decision be made with knowledge of the risks attendant upon further pursuance of their chosen course of conduct and with an opportunity to leave behind anything which might be embarrassing or incriminating if discovered. 3 W. LaFave, Search and Seizure sec. 10.7(b), at 372 (1978).

Defendant also urges that searching incoming cars was not a sufficiently reasonable method of detecting incoming contraband because of routine extensive searches of the person of each visitor to the institution, which would take place with or without the vehicle searches. We find that proposition sufficiently refuted by uncontradicted testimony that some inmates were allowed outside the perimeter enclosure of the institution and into the parking lot. Furthermore, this court has recently considered a case which, although dissimilar in issues, candidly indicates the type of activity the prison authorities are seeking to prevent. In People v. McNair (1983), 113 Ill. App. 3d 8, 446 N.E.2d 577, this court was presented with a situation in which an officer, in response to a “tip,” observed an object containing cannabis being thrown over a prison fence under the cover of darkness.

Defendant also suggests that he should at least have been given the opportunity to either consent to a search of his car or choose to depart. We disagree. An option to depart rather than be searched would constitute a one-way street for the benefit of the party planning mischief, as there is no guarantee that he would not return later and be more successful. State v. Manghan (1973), 126 N.J. Super. 162, 168-69, 313 A.2d 225, 228-29; see United States v. Skipwith (5th Cir. 1973), 482 F.2d 1272, 1277; contra, 3 W. LaFave, Search and Seizure sec. 10.7(b), at 372-73 (1978); but see People v. Whisnant (1981), 103 Mich. App. 772, 779, 303 N.W.2d 887, 891.

Defendant also argues that the officers conducting the search failed to comply with the Department of Corrections’ own directive that an individual whose person or vehicle is subject to search be offered the option of leaving the premises instead of being searched. While the undisputed facts indicate that that directive was violated, defendant does not offer authority upon which we might accord the violation some significance in the context of the case at bar, and we know of none.

Defendant cites for comparison People v. Thompson (1974), 185 Colo. 208, 523 P.2d 128, where the defendant was searched, apparently without consent, resulting in the discovery of two bottles of whiskey. “[U]nable to detect anything approaching a semblance of probable cause to search” (185 Colo. 208, 211, 523 P.2d 128, 130), the Colorado supreme court held that the evidence should have been suppressed. The court also rejected the attorney general’s contention that warrantless searches of penitentiary visitors and their cars should be permitted under a relaxed standard of probable cause. Considering the totality of the circumstances in the case at bar, we find Thompson unpersuasive in that it no more than pays lip service to the State’s imperative need to keep contraband out of penal institutions.

Defendant also cites for comparison State v. Custodio (1980), 62 Haw. 1, 607 P.2d 1048, where the defendant consented to a search resulting in the discovery of contraband. The instant case is distinguishable in that the State is not arguing consent as a potential justification in the case at bar. Moreover, we adopt that court’s observation that “[sjearch *** was only a condition of entry to the prison. To avoid the search appellee need only have refrained from seeking admission.” 62 Haw. 1, 6, 607 P.2d 1048, 1051-52.

Defendant also cites Jordan v. Wolke (E.D. Wis. 1978), 450 F. Supp. 213, 215, apparently for the proposition that jail visitors must be informed that they may refuse to be searched but will thereby forfeit the opportunity to visit. The case cites no authority in support of that proposition, and we find it unpersuasive to the extent that it suggests that a visitor may depart and avoid a search.

We next consider defendant’s contention that the undisputed facts did not prove that defendant committed the offense of bringing contraband “into” a penal institution. (Ill. Rev. Stat. 1981, ch. 38, par. 31A—1(a)(1).) Defendant argues that “into” refers to passage through a portal of some kind, as a door, gate, or fence. We find this contention to be without merit. It is uncontradicted that defendant was apprehended upon institution grounds; and there was ample testimony at trial that institution work details had access to the grounds beyond the perimeter fence surrounding the buildings themselves.

Defendant’s next argument is that he was not proved guilty of unlawful possession of more than 10 grams but less than 30 grams of cannabis or of bringing contraband into a penal institution because he was not proved to be in actual possession of the cannabis. Under the provisions of statutes prohibiting possession of contraband, constructive possession is generally accepted to be a sufficient possession to constitute a violation. To sustain a conviction on the basis of constructive possession, it must be shown that the defendant, although not having personal physical dominion, has the intent and capability to maintain control and possession and knows of the presence of the contraband. Knowledge may be proved by inferences from circumstantial evidence. The accused must be shown to have exclusive control of the area where the items illegally possessed were located. It has been held that the driver of a car is not without immediate and exclusive control of the inside of the car merely because he had one passenger. People v. McNeely (1981), 99 Ill. App. 3d 1021, 1023-24, 426 N.E.2d 296, 298.

We find sufficient circumstantial evidence of defendant’s constructive possession of the cannabis in the instant case. Defendant owned and drove the car in which it was found, having removed himself from it just prior to discovery of the cannabis; the cannabis was found in close proximity to where defendant had been seated; the console where the cannabis was found was a relatively small receptacle which the driver of the car was likely to resort to periodically; i.e., it is unlikely that anything of significant size would escape the driver’s attention for a lengthy period of time. We agree with the State’s argument that the jury was entitled to disregard defendant’s self-serving denial of knowledge of its existence.

Defendant also argues without supporting authority that our conclusion that defendant was proved guilty of bringing contraband into a penal institution is novel and should be applied prospectively only. We disagree because our construction of section 31A—1(a)(1) is merely a commonsense construction based on the clear wording of the statute.

For the foregoing reasons, the judgment of the circuit court of Montgomery County is affirmed.

Affirmed.

HARRISON, P.J., and JONES, J., concur.


source: Caselaw Access Project

author: JUSTICE LINN

license: Public Domain

text:
    AETNA SCREW PRODUCTS COMPANY, Plaintiff and Counterdefendant-Appellee, v. PHILIP BORG, Defendant and Counterplaintiff-Appellant.
    First District (4th Division)
    No. 81—1537
    Opinion filed March 24, 1983.
    Rehearing denied May 3, 1983.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann, Howard A. London, and Susan L. Brody, of counsel), for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (George S. Feiwell, Daniel C. Meenan, Jr., and Craig P. Ehrlich, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Aetna Screw Products Company (Aetna), brought an action in the chancery division of the circuit court of Cook County seeking a declaratory judgment that defendant, Philip Borg, owed Aetna $145,359.92 pursuant to a tax indemnification agreement between the parties. Borg counterclaimed for reformation of the tax indemnification clause of the contract. Following a bench trial, the trial court held that Borg had not proved his counterclaim for contract reformation and that he owed Aetna $173,900.81 in damages and interest for breaching the tax indemnification provision of the contract governing the sale of Borg’s stock to Aetna.

Borg appeals, claiming that the trial court erred by (1) denying his counterclaim for reformation, (2) denying his demand for a jury trial, (3) limiting his discovery, (4) enforcing an illegal contract, (5) ruling against him on several specific evidentiary matters, and (6) entering judgment against him in the amount of $173,900.81.

We affirm in part, reverse in part, and remand with directions.

Facts

In 1963, Philip Borg and Frank Valerio formed Aetna Screw Products Company, a corporation which distributed screw products. Borg and Valerio each owned 50% of Aetna’s stock and fully participated in all phases of the company’s operations. Two years later the two men also formed Bor-Val, a partnership whose sole business was to purchase screw products from Aetna and package them according to the particular specifications of one of Aetna’s largest accounts. Both businesses operated from the same location.

Aetna, whose fiscal year ended each June 30, used the accrual method of accounting, recording income and expenses at the time the right to or liability for payment accrued regardless of when the money actually was received or paid. Bor-Val, on the other hand, was a calendar year taxpayer utilizing a cash basis of accounting, recording income and expenses at the time money actually was received or disbursed.

Aetna’s inventory procedure was to record each purchase of products on inventory cards and then to subtract the quantity and cost of each lot sold as it was removed from stock. For several years prior to 1974, Aetna prepared its tax returns by taking inventory quantities from the cards, calculating the appropriate value, reducing that figure, and using the reduced value in calculating net profits and income tax. When the reduced closing inventory was subtracted from the combined opening inventory and cost of additions to inventory, the result was an apparently higher cost of goods sold than was actually the case. When this artificially high cost figure was subtracted from gross profits, the result was an artificially low net profit figure, which in turn resulted in artificially low income taxes. Testimony at trial established that as a result of continuing this practice for several years, Aetna had written down its inventory nearly 50% and therefore had underpaid its taxes by a substantial amount.

In addition to writing down its reported inventory, Aetna also reduced its taxes in one year by recording income from the Bor-Val partnership in a manner inconsistent with its established accounting method. Instead of recording the income when the right to it accrued, Aetna recorded income from Bor-Val when payment was received. This improper deferral of income further reduced Aetna’s net profits and therefore taxes for one year.

In 1974, Valerio and Borg agreed to terminate their business relationship; Valerio bought out Borg’s entire interest, paying $104,000 for the liquidation of the Bor-Val partnership, $98,000 for the profit-sharing plan, and $453,500 for Borg’s 50% stock interest in Aetna. In total, Borg received over $650,000.

As originally drafted, the written contract setting forth the terms of the sale did not contain any provision for Borg’s sharing in any additional tax liability. The final negotiations concerning the sale took place at a meeting between Borg, Valerio, Alfred Cowan, Aetna’s accountant, and Fred Carman, the attorney who drafted the contract of sale. At that meeting, each clause of the purchase agreement was read aloud and discussed, and the following clause was added:

“4. Additional Income Taxes

Borg shall be responsible to Aetna for one-half of any additional U.S. or Illinois income taxes, together with interest and penalties thereon, if any, (collectively referred to as a ‘tax deficiency’) which Aetna may be required to pay with respect to any of its fiscal years ending on or before June 30, 1974. Aetna shall be deemed to be required to pay such tax deficiency whether as a result of decision by court, or by agreement between Aetna and the Internal Revenue Service. Aetna shall promptly notify Borg of the amount of such tax deficiency and shall furnish him with written evidence of the details thereof. Borg shall pay Aetna one-half of the amount of such tax deficiency within 30 days after being notified thereof.”

Although the four participants in the contract meeting testified to seriously conflicting versions of the discussion concerning the above clause, all at least agreed that the tax indemnification paragraph was included in the contract by general concurrence. At the conclusion of the December 30, 1974, meeting, Borg and Valerio executed the final version of the agreement.

Within the next year, Sheldon Drobny replaced Cowan as Aetna’s accountant and conducted a complete review of the corporation’s entire financial structure. He advised Valerio that the cushion of understated inventory should be eliminated to avoid potential criminal tax charges. An outside tax consultant advised Valerio to follow certain Internal Revenue Service guidelines and revenue rulings and file either a request to change Aetna’s accounting method or a “correction of error” form eliminating the inventory write-down and correcting the Bor-Val accounts receivable.

In 1977, the Internal Revenue Service audited Aetna’s books and records. As a result, the inventory figure was corrected and carried back, and past income from Bor-Val was moved back and entered in the year earned. Aetna was then assessed approximately $293,000 in additional taxes, of which more than $290,000 was listed as attributable to 1974. However, when Aetna notified Borg of the audit results and billed him for half of the additional amount, $145,359.92, Borg declined to pay, whereupon Aetna began proceedings against him.

As originally filed on September 30, 1977, Aetna’s two-count complaint requested an injunction, an accounting, a declaratory judgment, and “other relief.” The injunction was directed at Borg’s alleged violation of a noncompetition agreement in the contract, and both the accounting and declaratory judgment claims were aimed at the additional taxes Borg allegedly owed. Borg filed a motion to dismiss or, in the alternative, to transfer the case to the extraordinary remedies section of the law division of the circuit court of Cook County. The transfer was granted, and the court gave both parties additional time to file memoranda arguing the merits of the motion to dismiss.

While the motion was pending, Borg requested and was granted leave to file an answer with affirmative defenses, a jury demand, and a counterclaim for reformation of the contract based on alleged mutual mistake and nonconformity of the written contract to the actual understanding of the parties. Because contract reformation is an equitable action, Aetna moved for a transfer back to chancery; meanwhile, the trial court dismissed Aetna’s request for a declaratory judgment and granted Aetna 28 days to file an amended complaint in the law division.

Borg’s answer was already on file along with his jury demand. Once the case was moved back to chancery, Borg requested that his contract reformation counterclaim be heard first but reasserted his claim to a jury trial on Aetna’s amended complaint for breach of contract. His jury demand was denied on the ground that any decision on the contract reformation claim would be res judicata on the issues of breach of contract and damages set forth in Aetna’s amended complaint. Over Borg’s objection, on June 30, 1980, the trial judge proceeded to hear the case.

In addition to refusing Borg’s jury demand, the trial court also granted Aetna’s motion to limit Borg’s discovery to the period ending December 30, 1974; further, Borg was denied discovery of any corporate fiscal activities subsequent to June 30, 1974, on the ground that because Borg’s liability terminated then, no corporate events after that date could lead to material or relevant evidence.

At the conclusion of the contract reformation proceedings, the court found that the agreement as written embodied the parties’ actual intent; the judge therefore ordered judgment in favor of Aetna on Borg’s counterclaim for reformation. On December 10, 1980, trial began on Aetna’s amended complaint for breach of contract.

Preliminary testimony by Valerio and Borg established the facts of the Internal Revenue Service audit, the assessment of back taxes, and Borg’s failure to pay. Tax experts called as witnesses by the parties testified to the basis for the assessment of back taxes.

On April 14, 1981, the trial judge entered judgment against Borg for $172,900.81, one-half of the increase in tax liability for 1974 plus statutory interest. Borg then filed notice of appeal.

Opinion

I

Borg’s first claim on appeal is that the trial court’s denial of his counterclaim for reformation of the contract was contrary to the manifest weight of the evidence. In order to establish a case for reformation, a litigant must prove that the written contract did not reflect the parties’ true bargain because of (1) mutual mistake of the parties or (2) unilateral mistake by one party caused by the fraud of the other. (Parrish v. City of Carbondale (1978), 61 Ill. App. 3d 500, 378 N.E.2d 243.) Borg maintains that he has proven a clear case of mutual mistake because the parties intended that Borg’s tax liability not extend to any assessment resulting from adjustments to inventory and accounts receivable; however, the parties made a mutual mistake in estimating the legal effect of omitting the liability limitation in their written contract. We find Borg’s argument to be without merit, for he has misperceived and misapplied the concept of mutual mistake.

Before a court may reform a contract on grounds of mutual mistake, three requisites must be fulfilled: (1) there must have been an agreement between the parties; (2) the parties must have agreed to put their agreement into writing; and (3) a variance exists between the prior agreement and the writing. (J. Calamari & J. Perillo, Contracts sec. 9—31, at 313 (2d ed. 1977), citing Malone, The Reformation of Writings for Mutual Mistake of Fact, 24 Geo. L. J. 613 (1936).) Further, all three of these requisites must be established by clear and convincing evidence, a higher standard than the preponderance of the evidence standard applicable in most civil suits. Texas Eastern Transmission Corp. v. McCrate (1979), 76 Ill. App. 3d 828, 395 N.E.2d 624.

As noted earlier, all four participants in the contract meeting testified to widely varying versions of the discussion concerning the tax indemnification provision. The testimony included (1) Valerio’s denial that any discussion of understated inventory occurred at all, (2) Cow-an’s and Carman’s statements that the discussion included advice to agree orally to omit reference to inventory, and (3) Borg’s assertion that both parties orally agreed to omit the reference and not to hold Borg liable for any taxes resulting from correction of the understatement. Such disagreement does not approach the level of certainty needed to justify reformation of a contract provision. Even if Borg were able to prove that, contrary to the trial court’s finding, the manifest weight of the evidence favored his position, we would not find him entitled to reformation.

The essence of Borg’s argument is that it was the mutual intent of both parties to limit Borg’s potential liability to one-half of any additional taxes and penalties attributable to causes other than correction of inventory and accounts receivable. The parties agreed to exclude this limitation from their written contract to avoid “red-flagging” the inventory problem in the likely event that the Internal Revenue Service examined the contract during an audit of Borg’s tax return. Borg argues that the court should rewrite the contract to make it conform to the original intent of the parties because there was a mutual mistake of fact. (Stoerger v. Ivesdale Co-op Grain Co. (1973), 15 Ill. App. 3d 313, 304 N.E.2d 300.) Reduced to its simplest form, Borg’s contention is that he is entitled to reformation because both parties mutually intended to abide by the oral agreement, they mutually agreed to omit the contested term, and Borg now sees that to do so was a mistake.

“The rule of law that a mistake ***, to be susceptible of correction, must be mutual, does not mean that both parties must agree *** that the mistake was in fact made.” (Matthews v. Whitethorn (1906), 220 Ill. 36, 42, 77 N.E. 89, 91.) “The province of reformation is to make a writing express the bargain which the parties desired to put in writing. [Citation.] Agreements of which they did not desire written expression will not be put into writing by decree of the court.” (Emphasis added.) 13 Williston on Contracts sec. 1549, at 132 (3d ed. 1970).

Accordingly, we find no error in the trial court’s denial of Borg’s claim for reformation of the contract.

II

Borg’s next claim is that the trial court erred in enforcing an illegal contract provision to which Aetna was in pari delicto. Borg maintains that Manning v. Metal Stamping Corp. (N.D. Ill. 1975), 396 F. Supp. 1376, aff’d (7th Cir. 1976), 530 F.2d 980, establishes that in Illinois, a contract innocent in appearance but otherwise tainted by or connected with illegal activity will not be enforced. An examination of that case discloses no such broad rule.

The agreement at issue in Manning was a contract engaging the plaintiff as the defendant’s representative in the acquisition of contracts to manufacture license plates for various States. Both parties understood that Manning was to purchase influence with Paul Powell, then Illinois Secretary of State, and other Illinois officials in order to secure the contract for Illinois plates. After Powell died, the parties signed a second contract continuing their business relationship. While the second contract appeared innocent on its face, it specifically acknowledged the existence of the earlier agreement, the one both parties agreed was illegal. No such connection to the alleged tax evasion scheme appears anywhere in the contract clause at issue.

Furthermore, understating inventory is not necessarily illegal. Inventory write-downs, including those employing a flat percentage method, do not necessarily violate the regulations of the Internal Revenue Service. Even when a company is unable to provide objective evidence to justify its inventory write-down, the usual result is simply the Commissioner’s disallowance of the reduced figure, not an official accusation of illegality and criminal tax evasion. (See Thor Power Tool Co. v. Commissioner of Internal Revenue (1979), 439 U.S. 522, 58 L. Ed. 2d 785, 99 S. Ct. 773.) We note in this regard that no penalties were assessed against Aetna in connection with the Internal Revenue Service correction of the understatement of inventory.

A contract that appears innocent on its face is presumed to be legal. (Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 379 N.E.2d 1307.) In addition, in a nonjury case, a reviewing court will not substitute its judgment on the credibility of witnesses for that of the trial court unless the manifest weight of the evidence fails to support the trial court’s findings. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 163 N.E.2d 518.) Borg is arguing that had the tax indemnification provision been reformed as he requested, he could not be held to its terms because it then would have been illegal.

Borg’s inability to provide clear and convincing evidence to support his argument for contract reformation also defeats his argument that paragraph 4 of the agreement was illegal and therefore should not be enforced. The fact that we affirmed on alternate grounds the trial court’s decision on the reformation issue does not discredit the judge’s finding that Borg had not met the appropriate evidentiary standard. Accordingly, we find no error in the trial court’s decision that the tax indemnification provision in paragraph 4 should be enforced.

Ill

The third claim of error Borg raises on appeal is the trial court’s denial of his right to a jury trial on the issues of law raised by Aetna’s amended complaint. The basis of Borg’s claim is the constitutional provision, “The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, sec. 13.) The substantive right to trial by jury thus guaranteed is to be defined by examining the history of the common law. (People v. Brumfield (1977), 51 Ill. App. 3d 637, 366 N.E.2d 1130.) A complaint alleging breach of contract and resulting damages is an action cognizable at common law. Therefore, once Borg timely filed his jury demand in conformity with the requirements of section 64 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 64), he was guaranteed his right to a jury trial until he waived it or the court correctly determined that its holding on the equitable issues, heard first, was res judicata as to all legal issues as well. Power Electric Contractors, Inc. v. Maywood-Proviso State Bank (1978), 60 Ill. App. 3d 685, 377 N.E.2d 142.

Aetna would have us believe that by proceeding to trial first on the equitable issue of contract reformation, Borg waived his demand for jury trial on the legal issues. Indeed, despite vigorous argument and supporting cases presented by Borg, the trial judge himself stated, “[Ojnce equity assumes jurisdiction, it clings for all purposes” and agreed with Aetna that Borg’s choice of forum, a result of his equitable counterclaim, constituted a waiver of his jury demand.

The court bolstered its decision by agreeing with the res judicata argument advanced by Aetna:

“[Tjhere is no way under the law or in chancery that you [Borg] could ever segregate this damage issue or not cause it to be res judicata sometime or other. It would appear to me that *** all of this is intermingled. You could never prove your damage issue *** without having to bring in the very contract that is in issue here.
Your theory seems to be that I could move on the reformation *** one way or the other, that then the damage factor is so separate and distinct that you do not have to bring in the [same] factual situation as ultimately you will have to do in this court in the reformation.
In reading it, it seems to me to be so commingled, *** I’m going to deny the request for the jury demand.”

Contrary to the holding of the trial judge, we find that Borg did not waive his right to trial by jury either when he filed his counterclaim in equity or when he requested that the reformation issue be heard first. Even Power Electric Contractors, Inc. v. Maywood-Proviso State Bank (1978), 60 Ill. App. 3d 685, 377 N.E.2d 142, the case cited by Aetna as authoritatively establishing waiver of a jury trial in such a situation, does not, in fact, so hold. Power Electric holds, “[B]ecause of the identity of the factual issues raised by the complaint and by the counterclaim, defendants’ conduct in proceeding to trial before [the chancery judge] amounted to a waiver of their jury demand. *** [T]he factual issues upon which depended [both defendant’s legal and plaintiff’s equitable rights] were identical.” (60 Ill. App. 3d 685, 689, 377 N.E.2d 142, 145.) Power Electric is clearly a case wherein a decision on the equitable claim was res judicata as to the legal claim. In the instant case, the only similarity between the equitable and legal issues is that Borg’s counterclaim for reformation was the same as one of his four affirmative defenses filed in his answer to Aetna’s breach of contract action. We do not find in that one repetition sufficient identity of issues and facts to create a situation in which a decision on the equitable claim would be res judicata as to the legal claim.

Borg’s counterclaim sought to establish the agreed-upon terms of the contract itself; Aetna’s legal action alleged a breach of at least one of those contract terms as written. A decision on the meaning of one contract term clearly does not dispose of an allegation that that term was in fact breached and what damages resulted. Relevant evidence pertinent to the reformation action included only those events leading up to the execution of the contract. The breach of contract action, on the other hand, required evidence of the audit, its effect on the tax liability for the years audited, and a determination of the additional taxes which should be assessed against Borg under the agreement. All that the trial court decided by correctly refusing to reform the contract was that Borg’s liability for additional taxes was not restricted to a certain type or source of increased tax assessment; he would be liable for one-half of any tax deficiency that Aetna was required to pay for any period through June 30,1974.

Precedential authority instructive on the instant case is that found in Rozema v. Quinn (1964), 51 Ill. App. 2d 479, 201 N.E.2d 649, a case involving a legal counterclaim filed in response to a complaint filed in chancery. In that case, the defendants, who originally had requested a jury trial on their legal counterclaim, also requested reference to a master in chancery; when the reference was granted, plaintiffs neither filed their own jury demand nor made any objection to the court’s decision that both causes should be tried together. Defendants’ later motion to withdraw their jury demand was granted over plaintiffs’ objection that they had a right to a jury trial on the legal issues raised in defendants’ original counterclaim. The appellate court, noting that the plaintiffs had never filed their own jury demand, concluded,

“[Wjhere a law and equity action are joined but a proper demand for a jury in the law action is made, the latter cannot be tried with the chancery action. [Citations.] ***
In the case at bar, the defendants’ counterclaim, being an action at law for a money judgment, was within the class of cases to which there existed a right to trial by jury at the request of either of the parties. ***
*** Since the jury was waived by action of the parties, the chancellor had jurisdiction to hear both the legal and equitable actions.” 51 Ill. App. 2d 479, 486-87, 201 N.E.2d 649, 653.

It is clear to us that not only did Borg make a proper jury demand, but he strongly and correctly objected to the court’s decision that the causes of action were identical. In view of our finding that a decision in the reformation action would not be res judicata in the contract action, we reverse the trial court’s denial of Borg’s jury demand and remand the case for further proceedings in accordance with our decision. Parenthetically, we note that the trial court has already ruled as to the meaning of paragraph 4 of the agreement and the parties are bound by that finding. Consequently, the subsequent trial must be limited to the issues stated in this opinion, and the evidence which may be presented must relate solely to Borg’s liability for one-half of the additional taxes which Aetna may prove it was required to pay for any of its fiscal years ending on or before June 30, 1974. Because Borg is entitled to a new trial on Aetna’s breach of contract action, to be held before a jury, we need not address the additional claims of error in evidentiary rulings.

Affirmed in part, reversed in part, and remanded with directions.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFFORD THOMAS, Defendant-Appellant.
    First District (2nd Division)
    No. 82—645
    Opinion filed July 5, 1983.

      Giovannini & Goldberg, of Chicago (Dennis A. Giovannini and Herbert L. Goldberg, of counsel), 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 STAMOS

delivered the opinion of the court:

After a jury trial, defendant Clifford Thomas was convicted of murder. A sentence of 40 years was entered on the verdict. Defendant’s sole contention on appeal is that he was denied his right to a fair trial as a result of improper comments made by the prosecutors in closing and rebuttal arguments.

Theodus James was fatally shot on the night of August 20, 1981, while he was standing near a tavern at Huron and Avers streets in Chicago. Terry Coulter testified for the State that he, Jerome Steele, Kathy Steele, and defendant were riding in a station wagon that night, and that they drove to Huron and Avers. Kathy Steele left the car, went near the tavern, and began to speak with the victim. Defendant left the car and approached the two. Kathy returned to the car while defendant and the victim talked. Defendant then struck the victim in the face with a pistol. The victim turned and went toward the door of the tavern, and defendant shot him in the back. Defendant got back into the car and he, Coulter, and the Steeles drove back to the apartment where defendant was living with Kathy Steele. Coulter also testified that he saw defendant give the gun to another man at the apartment that same night.

Melvin McGowan testified that he, his brother Charles, and the victim went to the tavern at Huron and Avers on the night of August 20, 1981. Melvin went into the tavern, where he was later joined by his brother while the victim stayed outside. He looked out the window and saw the victim talking to Kathy Steele, who was formerly the victim’s girlfriend. Melvin looked out the window again and saw Kathy step away from the victim as a man who he later identified as defendant approached. Defendant struck the victim in the face with a pistol. Melvin walked back towards the bar and told his brother that “something is fixing to happen.” Melvin heard a shot and ducked under a table. He saw the victim run into the bar toward the washroom. Melvin went into the washroom and saw the victim lying on the floor bleeding from his chest.

Charles McGowan testified that he saw the victim talking to Kathy from the tavern window. He stated that after Melvin told him that a man was hitting the victim with a gun, he looked out and saw a man strike the victim with a pistol. He then went to the tavern door and saw the man shoot the victim in the back. As he followed the victim into the tavern, he saw the man and Kathy get into a station wagon with two other people and drive away.

Tyrone Kilgore testified that the victim and the McGowan brothers had stopped by his house on the night of the shooting. After they had left, Coulter, Jerome and Kathy Steele, and an unknown male stopped at his house and asked about the victim’s whereabouts. Kilgore later identified a photo of defendant as the man with Coulter and the Steeles.

After the State rested its case in chief, the court granted a motion in limine which precluded the introduction of evidence that the victim had been convicted of possession of a controlled substance and that the Vice Lords street gang had threatened the victim with death if he continued to sell drugs in the area of Huron and Avers. The defense had made an offer of proof as to those threats, and of the fact that Terry Coulter and Jerome Steele were members of the Vice Lords.

Defendant’s sister testified that defendant was at home on the night of the shooting. She stated that she left for work that night at approximately 11 p.m. and that shortly before she left defendant had received a telephone call from their mother, who was in the hospital. She stated that on that date defendant was living with Kathy Steele, whom he had recently married.

On February 5, 1982, the defense continued its case in chief. Defendant’s mother testified that she spoke with defendant on the telephone on the night of the shooting at about 10 p.m.

The defense also called Odell Jennings and Torrence Evans. Both witnesses testified that they were in a holding cell awaiting court on January 11, 1982, when they were approached by Terry Coulter. Coulter identified himself as a member of the Vice Lords by a hand sign and stated that he was testifying against defendant primarily because he thought defendant was a member of the Disciples, and because the police had told him that if he did not testify, he or another Vice Lord would be accused of the murder. Evans testified that he was a member of the Disciples, and that he told Coulter that defendant was not a Disciple, after which Coulter stated that he would straighten things out.

On cross-examination, both witnesses testified that they had been visited in jail by defense counsel on February 3. Both stated that they were represented by other counsel. Evans said that he had not seen defense counsel sign in as his attorney, and an objection was sustained when the same question was asked of Jennings. Evans also denied that defense counsel told him how to act on the stand.

Jerome Steele testified that he was Kathy Steele’s brother and defendant’s brother-in-law. He stated that he was a “five point general” in the Vice Lords, and that the primary rivals of that gang were the Disciples. Steele testified that the primary rules of the Vice Lords were to protect each other and not to allow the sale of drugs.

Steele stated that on the night of the shooting he and Kathy drove to Huron and Avers. Kathy left the car to speak with the victim and the victim “got shot.” He and Kathy drove away, picked up Kathy’s children "and then picked up defendant. Steele denied shooting the victim.

The jury found defendant guilty of murder, and sentence was entered on the verdict. Defendant appeals, contending that he was denied a fair trial by virtue of improper remarks of the prosecutors during closing and rebuttal arguments.

Initially, we note that defendant’s post-trial motion merely states that the prosecution’s closing argument contained “prejudicial, inflammatory, and erroneous statements designed to arouse the passions and prejudices of the jury” without setting forth the specific remarks complained of. This court has held that such a post-trial motion does not preserve the issues for review. (See People v. Buford (1982), 110 Ill. App. 3d 46, 54-55, 441 N.E.2d 1235; see also People v. Turk (1981), 101 Ill. App. 3d 522, 533, 428 N.E. 2d 510.) Additionally, no objections were made by defense counsel during the State’s closing and rebuttal arguments. Although we may elect to review the asserted errors under the plain error rule (87 Ill. 2d R. 615(a)) after a finding that the evidence is closely balanced and that the error has prejudiced substantial rights of defendant (see People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233), we decline to do so in the instant case. The evidence of defendant’s guilt in this case can only be described as overwhelming, and those comments complained of which are not completely proper argument can not be said to have prejudiced defendant in such a way that there is a reasonable doubt that the verdict would have been the same had the remarks not been made.

With regard to our finding of a waiver, we take this opportunity to note the conflicts in authority concerning the proper method of preserving error for review. Although some opinions of our appellate court have stated that errors are not waived when they are objected to at trial or noted in the post-trial motion (see People v. Clark (1982), 108 Ill. App. 3d 1071, 1077, 440 N.E.2d 387; People v. Fleming (1964), 54 Ill. App. 2d 457, 460, 203 N.E.2d 716), the decisions of our supreme court indicate that alleged errors must both be objected to at trial and noted in the post-trial motion in order to be preserved for review. (See People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E .2d 227; People v. King (1963), 29 Ill. 2d 150, 155, 193 N.E.2d 790.) In People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856, the court explained the purpose of the requirement that errors be set forth in the post-trial motion in order to bring them to the attention of the trial court:

“ ‘Requiring defendant’s written motion for a new trial to specify errors allegedly entitling him to a new trial may save the delay and expense inherent in an appeal in those instances where the motion is meritorious. Additionally, it focuses the attention of the trial judge upon those aspects of the proceedings of which the defendant complains, and gives to the reviewing court the benefit of the judgment and observations of the trial court with reference thereto.’ ” 54 Ill. 2d 280, 284, quoting People v. Irwin (1965), 32 Ill. 2d 441, 443-44, 207 N.E.2d 76.

We regard the failure to include alleged errors in the post-trial motion as a waiver of those issues even where objections were made at trial. (See People v. Stamps (1982), 108 Ill. App. 3d 280, 293, 438 N.E.2d 1282.) We note that although objections at trial also serve to bring alleged errors to the attention of the trial judge, the hearing on the post-trial motion is the only point in the trial at which the trial judge has the opportunity to realistically assess the cumulative impact of errors which may have occurred during the trial, and therefore the failure to bring errors to the attention of the trial court in this manner deprives the trial court of the ability to make an informed ruling on the motion.

Additionally, the remarks complained of in the instant case do not constitute plain error. Defendant contends that reversible error resulted from the prosecutor’s argument that Terry Coulter’s trial testimony was consistent with his testimony before the grand jury, stating that there was no evidence in the record of Coulter’s grand jury testimony and thus the credibility of the witness was impermissibly bolstered. The record shows, however, that defense counsel made several attempts to impeach Coulter with that testimony, and several times the State’s objection that the material so employed was not impeaching was sustained. Defendant, having demonstrated the consistency of Coulter’s testimony to the jury in this manner, can not be heard to complain of the State’s argument based on that testimony.

Defendant next contends that the State’s remark that defense counsel had signed into county jail as Evans’ and Jennings’ attorney in order to interview them amounted to an accusation that defense counsel had acted dishonestly in obtaining that testimony. That remark was clearly a reference to a fact not in evidence. The remark, however, came during the segment of the State’s argument concerning the credibility of those two witnesses, and no particular emphasis was placed on the possibility that defense counsel had made a misrepresentation in order to gain access to the witnesses. The main thrust of that portion of the argument was the fact that neither witness had informed anyone of Coulter’s alleged admission that he was perjuring himself until the witnesses were interviewed by defense counsel two days before they testified in this case. The remark is inconsequential when taken in the context of the whole argument, and we find that no prejudice accrued to defendant as a result of it.

The remainder of the remarks complained of are statements which defendant contends were designed to disparage defense counsel. In the State’s rebuttal and closing arguments, the prosecutors stated that defense counsel was trying to confuse the jury, that it was defense counsel’s job to “twist words,” and that the defense closing argument was “preposterous, outrageous, and convoluted.” The State also remarked that Evans and Jennings “rehearsed” their testimony when they were interviewed by defense counsel. Defendant also contends that the defense closing argument was interrupted continually by baseless objections after the State had been admonished to refrain from such objections.

It is well settled that comments implying that defense counsel is attempting to win an acquittal through trickery or misrepresentation are improper. (See, e.g., People v. Witted (1979), 79 Ill. App. 3d 156, 167-68, 398 N.E.2d 68.) However, the remarks complained of in the instant case do not, as defendant contends, amount to a charge that defense counsel was suborning perjury or fabricating the defense. Although the State argued that counsel “rehearsed” their testimony with Jennings and Evans, the jury was properly instructed that a lawyer has the right to interview all witnesses. The thrust of the argument was that defense counsel was attempting to obscure the evidence. Such an argument does not constitute reversible error. See People v. Smylie (1981), 103 Ill. App. 3d 679, 686, 431 N.E.2d 1130; People v. Lavoy (1980), 91 Ill. App. 3d 639, 644, 415 N.E.2d 487.

Defendant’s contention that the defense closing argument was repeatedly interrupted by baseless objections after the State had been admonished to refrain from making such objections is meritless. The objections complained of are in the main well taken objections to references by defense counsel to facts not in evidence, to which the court responded that counsel would be allowed to argue and the jury would remember the testimony.

For the reasons expressed herein, the judgment of the circuit court is affirmed.

Affirmed.

BERLIN and HARTMAN, JJ., concur.


author: JUSTICE CAMPBELL

text:
    BLENDA J. NORDLUND, Plaintiff-Appellant, v. EVELYN NORDLUND, Defendant-Appellee.
    First District (1st Division)
    No. 82—1041
    Opinion filed June 27, 1983.

      Edward J. Fitzsimons and Richard L. Jones, both of Chicago, for appellant.
    Harry P. Stinespring & Associates, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Blenda Nordlund, sought the declaration of a constructive trust in her favor over certain assets she transferred to her son, who is now deceased, and her daughter-in-law, defendant Evelyn Nordlund. The trial court entered a judgment in defendant’s favor at the close of plaintiff’s case and plaintiff appeals.

Plaintiff raises the following issues: (1) whether plaintiff established the elements necessary for the creation of a constructive trust; (2) whether the burden of establishing donative intent shifted to the donee once plaintiff, the donor, challenged the validity of the gift; and (3) whether the court correctly refused to allow plaintiff to testify to a conversation between plaintiff and defendant.

The events complained of in this suit occurred in 1978 at which time plaintiff, Blenda Nordlund, was 85 years old. At the time of trial Blenda was 89 years old. Plaintiff’s husband, Albert, had died in 1964. They had two children, Roy Nordlund and Blanche Nordlund Buell. Roy Nordlund was married to Evelyn, defendant in this suit, and they had several children.

Testimony at trial established that Blenda and Albert had operated a machine shop as a sole proprietorship for many years. Roy had worked in the shop since he was about age 16 and, after his father’s death, he was the shop’s sole employee. Prior to June 25, 1978, Blenda maintained the books and records of the business and performed other miscellaneous office tasks. Blenda paid Roy a salary of approximately $200 a week and paid herself $65 a week out of the business checking account.

On June 23, 1978, Blenda suffered a stroke and was hospitalized for several weeks. She then moved into Roy and Evelyn’s home.

Plaintiff attempted to testify to a conversation she had with Roy shortly after returning from the hospital but the trial court struck the testimony on grounds of hearsay. Evelyn was allegedly present during this conversation though she denied it. The excluded testimony was:

“I told him that the doctor told me that I should not be alone anymore. I told Roy that and it would [be] up to you to take over the job. And he said that he would have to take over the shop. And he didn’t seem to say very much. He said — then, I said, ‘Well, I got to be worried a little bit and what is going to happen to me?’ So he said, ‘Don’t worry, Ma, I will take care of you.’ ”

Blenda further stated that nothing more was said on this topic.

Blenda testified that sometime in July, after moving into Roy’s home, she asked Evelyn to look up the telephone number of an attorney, Barry Kroll. Kroll's father had been a personal attorney for Blenda’s family and Kroll had taken over part of his father’s practice.

On July 19, 1978, Blenda’s grandson, Robert Nordlund, drove Blenda to Kroll’s office to meet with Kroll. Kroll’s father had prepared a will for Blenda dated in 1975. In this will Blenda bequeathed to Roy the machine shop business, the real estate it occupied, and a vacation cottage in Cary, Illinois. Blenda bequeathed to Blanche her residence at 2919 North Kolmar in Chicago, and a savings account.

At the conclusion of Blenda’s conference with Kroll, Blenda executed deeds to the business real estate and the Cary property and signed a bill of sale for the business assets conveying these items as a gift to Roy and Evelyn in joint tenancy. A codicil to Blenda’s will also was executed and witnessed. The codicil specifically referred to the current gift and stated that the bequest contained in the will was satisfied.

Blenda testified that she told Kroll that she wanted Roy to have the business’ building, machinery, tools and inventory. She did not know that she transferred the Cary property or the business’ $24,000 bank account to Roy and defendant and she did not sign any documents transferring the shop building to them. Blenda also testified that at that time she was unable to see well enough to read an ordinary document and could not hear well.

On October 22, 1978, Roy died of a heart attack. The business ceased operations. Blenda, who had been living with Roy and Evelyn, was readmitted to the hospital shortly after her son’s death. When she was discharged she did not return to Evelyn’s home. Blenda testified that she returned to the business only once after her stroke and that Roy and Evelyn continued to pay her $65 a week from the business until Roy’s death.

Statements of Blenda’s treating physician that were admitted at trial indicate that the physician noticed no deterioration of Blenda’s eyesight, hearing or mental capabilities between January of 1978 and August 10, 1978, when he last treated Blenda. The doctor also stated that in his opinion Blenda possessed her mental capabilities on August 10, 1978.

Kroll testified that at plaintiff’s request he prepared documents to accomplish a gift of certain properties. Kroll testified that he never deviated from any instructions given to him by Blenda. Kroll testified that Blenda told him that Roy was entitled to the properties because he had earned them. While Blenda was in his office, Kroll called Roy and asked him how he wanted to take ownership. Kroll explained the characteristics of ownership by joint tenancy to both Blenda and Roy although he did not recall if he specifically explained to Blenda what would occur if Roy predeceased her. Kroll explained to Blenda that once she made a gift to Roy it was his absolutely and he could do whatever he wanted with it. Kroll testified that he was acting as Blenda’s attorney but he was also carrying out the wishes of her son as to how he would like to take title to the gift he was to receive and relaying his wishes to Blenda. Kroll stated that other than that he had not acted for Roy in any other fashion. Kroll also testified that after discussing the taxes and business implications of the transfer of the business, Blenda decided that it would be easiest if the transaction was backdated to July 1, rather than on July 19, when she signed the documents.

Plaintiff first contends that the entry of the judgment was improper because plaintiff had established that a confidential relationship existed between plaintiff and her son, Roy. Plaintiff argues that once such a confidential relationship exists, there is a presumption that any transaction between the parties was the result of undue influence and the burden shifts to the grantee to show that the transaction was fair and equitable and did not proceed from the superiority and influence of the dominant party. (Kester v. Crilly (1950), 405 Ill. 425, 432, 91 N.E.2d 419, 423.) Defendant contends that plaintiff failed to establish the existence of a confidential relationship. We agree.

The proof of a fiduciary relationship must be clear, convincing and strong. It must unequivocally and unmistakably lead to one conclusion, the existence of the confidential relationship. (Perry v. Wyeth (1962), 25 Ill. 2d 250, 253, 184 N.E.2d 861, 863.) The mere fact of blood relationship, such as parent and child, does not establish a fiduciary relationship. (Perry.) Nor is it sufficient to show merely that plaintiff could not see or hear well. (Guerrieri v. Guerrieri (1973), 13 Ill. App. 3d 1043, 301 N.E.2d 603.) The record is devoid of any evidence that Blenda entrusted the handling of her business and financial affairs to Roy or reposed faith and confidence in him sufficient to create a fiduciary relationship. Further, there is no evidence that plaintiff was mentally deficient at the time of these transfers.

Although the parties and the trial court applied the rule for a directed verdict stated in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, to this case, since this was not a jury trial, the Pedrick rule is inapplicable. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.) In a case tried without a jury, when defendant moves for judgment at the close of plaintiff’s case, the trial court is to weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. (Ill. Rev. Stat. 1979, ch. 110, par. 64(3), now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2—1110.) “In weighing the evidence, the court had the responsibility to consider all the evidence, including any favorable to the defendant. The court was not to consider the evidence in the light most favorable to the plaintiff.” (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 57-58, 349 N.E.2d 399, 408.) A reviewing court will not reverse the decision of the trial court to enter judgment for the defendant unless it is contrary to the manifest weight of the evidence. Under the facts of this case, the trial court’s decision is supported by the manifest weight of the evidence.

Secondly, plaintiff contends that the burden of proving donative intent of the inter vivos gift shifted to defendant once plaintiff has questioned the validity of the gift. Plaintiff’s testimony, however, failed adequately to raise the issue of the validity of the gift. Evidence at trial tended to show that plaintiff went to her lawyer’s office and executed a deed and codicil to her will conveying the subject property to her son as a gift. When granting defendant’s motion for judgment, the trial court observed, “this woman changed her mind after she gave the property away.” (See Auer v. Walter (1971), 132 Ill. App. 2d 150, 267 N.E.2d 4.) In Frey v. Wubbena (1962), 26 Ill. 2d 62, 70-71, 185 N.E.2d 850, 855, the court recognized that there is a presumption that in taking or placing of title by a parent in a child is a gift or advancement, and the burden is upon one questioning the gift to overcome the presumption by clear and convincing evidence. There is a further presumption of acceptance of a gift that is beneficial to the donee. (Maciaszek v. Maciaszek (1961), 21 Ill. 2d 542, 173 N.E.2d 476.) Plaintiff has also not contested the fact that following her illness, her son ran the business himself, and she had no part in its operation. Under the facts of this case the burden of establishing the gift did not shift to defendant. See Kraft v. Kretchman (1959), 17 Ill. 2d 71, 160 N.E.2d 806.

Lastly, plaintiff contends that the trial court improperly excluded plaintiff’s testimony to the conversation between herself and Roy. Plaintiff contends that this conversation is not hearsay since it was offered only for the purpose of showing her state of mind and the existence of the confidential relationship. The trial court ruled that plaintiff’s testimony as to what Roy said to her was inadmissible hearsay. An out-of-court declaration offered as proof of the matter asserted therein is hearsay and is inadmissible. (Simon v. Plotkin (1977), 50 Ill. App. 3d 603, 365 N.E.2d 1022.) The son’s comments do not demonstrate the mother’s state of mind on the issue whether she reposed faith and confidence in her son and, therefore, a state of mind exception to the hearsay rule is inapplicable. Further, Roy’s statements are hearsay when offered to prove the existence of a confidential relationship. Plaintiff has not presented any precedent supporting the admissibility of this evidence under an exception to the hearsay rule. The trial court did not err in excluding the conversation between the plaintiff and the deceased.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE MEJDA

text:
    FRANCISCO HERRERRA, Plaintiff-Appellant, v. LESTER ENGINEERING COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—1882
    Opinion filed June 30, 1983.

      Sheldon N. Reibman and Michael R Holverson, both of Reibman and Hoffman, Ltd., of Chicago, for appellant.
    Hugh R. McCombs, Jr., Bruce D. Becker, and Clay A. Tillack, all of Isham, Lincoln & Beale, of Chicago, for appellee Lester Engineering Company.
    Mitchell A. Orpett, of Chicago (Haskell & Perrin, of counsel), for appellee Bell & Howell Company.
   JUSTICE MEJDA

delivered the opinion of the court:

This is an interlocutory appeal from an order of the circuit court dismissing plaintiff’s action in strict product liability for his failure to commence the action within the time permitted under the Illinois statute of repose applicable to such actions. Ill. Rev. Stat. 1981, ch. 110, par. 13—213.

The sole issue to be determined in this appeal is whether the statute of repose as originally enacted (see Ill. Rev. Stat. 1979, ch. 83, par. 22.2) bars plaintiff’s strict product liability action against defendants.

On July 23, 1979, plaintiff sustained a traumatic injury while operating a die cast machine which had been manufactured by defendant Lester Engineering Company. The machine was first sold to defendant Bell & Howell Company in 1959.

On September 20, 1979, plaintiff filed a three-count complaint against these two defendants stating as count I an action for strict liability in tort for the alleged unsafe and defective machine. Counts II and III alleged causes of action in negligence against each of the defendants. At the time of the injury and at the filing of this suit, an Illinois statute of repose for strict product liability actions was in effect. (Ill. Rev. Stat. 1979, ch. 83, par. 22.2.) This statute was originally enacted as Pub. Act 80-1367, sec. 2, effective January 1, 1979. Approximately one year later the statute was amended effective January 1, 1980, adding subsections (f) and (g). (See Ill. Rev. Stat. 1981, ch. 110, par. 13—213.) Both the original and amended versions contain, as subsection (b), the following relevant provision:

“(b) *** [N]o product liability action based on the doctrine of strict liability in tort shall be commenced except *** within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, par. 13—213(b).

Subsection (g), added by the amendment effective January 1, 1980, provides:

“(g) The provisions of this Section 13 — 213 of this Act apply to any cause of action accruing on or after January 1, 1979, involving any product which was in or entered the stream of commerce prior to, on, or after January 1, 1979. (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, par. 13—213(g).

Defendants’ motion to dismiss the plaintiff’s product liability count on the basis of the statute of repose was granted by the trial court on July 6, 1982.

Opinion

Plaintiff contends that the statute effective at the time of his injury does not bar his action because it only applies to products entering the stream of commerce after the statute’s effective date, January 1, 1979. This contention is premised on the maxim that a statute will not be applied retroactively unless clearly intended by the legislature. (See Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, 426 N.E.2d 824; 2 A. Sutherland, Statutory Construction sec. 41.04, at 252 (1973).) This maxim, however, is inapposite to the circumstances at bar since the cause of action here accrued more than seven months after the statute’s effective date. (See Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 305.) Thus, as to the accrual of this cause of action, the application of the statute is prospective. Moreover, without merit is plaintiff’s contention that the statute should only be applied “prospectively” to products manufactured after the statute’s effective date for this is contrary to the legislature’s intent. Accord, Kline v. J.I. Case Co. (N.D. Ill. 1981), 520 F. Supp. 564.

In construing an ambiguous statute, courts must give primary effect to the spirit, intent and purpose of the enactment (People v. Kezerian (1978), 63 Ill. App. 3d 610, 379 N.E.2d 1246), and to determine these issues the court may look to a subsequent amendment of the statute being construed. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204; Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 319 N.E.2d 37, cert, denied (1975), 421 U.S. 914, 43 L. Ed. 2d 780, 95 S. Ct. 1573; Willis v. Ohio Casualty Co. (1981), 101 Ill. App. 3d 1099, 428 N.E.2d 1061.) The parties agree that the unamended statute was unclear as to its effect on products already manufactured and, indeed, this problem in the statute was well recognized shortly after the statute’s initial promulgation. (See “Beat the Clock: The New Product Liability Statute of Limitations in Illinois,” 1979 Ill. B.J. 414.) The legislative history of the amended provision, however, aptly illustrates that the legislature viewed the amendment as a “technical amendment” which “clarifies the effective date” of the original enactment. (See Senate debate on H.B. 2168, June 30, 1979.) An amendment to an ambiguous statute does not indicate a purpose or intent to change the law. (O’Connor; Willis.) Here, the circumstances of the passage of the amendment demonstrate that the amendment was intended to clarify, rather than change, the applicability of the statute of repose. Under the express terms of the amendment, the statute of repose applies to any cause of action accruing on or after January 1, 1979, involving any product which entered the stream of commerce prior to, on, or after that date. (See Ill. Rev. Stat. 1981, ch. 110, par. 13—213(g).) Thus, we conclude that as to the entry of products into the stream of commerce, the statute as originally enacted is retroactive. Accord, Kline.

Our construction of the original enactment as applicable to products already in the stream of commerce is further supported by the legislative purpose of the statute of repose which was to establish time limits to dampen the rapid escalation of insurance costs associated with the burgeoning number of product liability actions. (See Thornton v. Mono Manufacturing Co. (1981), 99 Ill. App. 3d 722, 425 N.E.2d 522; see also “Beat the Clock.”) Whether this statute is wise or is the best means to achieve the purpose of the legislature is not, of course, a proper subject of judicial inquiry. (Bridgewater v. Hotz (1972), 51 Ill. 2d 103, 281 N.E.2d 317; Thornton.) It is sufficient that our construction renders the statute both useful and logical in view of its intended purpose.

Plaintiff next questions the constitutionality of a retroactive application of the amended statute to bar his action. The amendment, however, has not been applied retroactively here but rather it has been examined under established principles of statutory construction to interpret the original enactment.

Finally, without merit is plaintiff’s reliance on Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 427 N.E.2d 999. The discussion of the retroactive application of the statute of repose in that case centered on the question of whether the then new statute could be applied retroactively to bar plaintiff’s pre-existing cause of action, a situation not presented in the instant case. Moreover, in a footnote to the Balzer opinion, the court observed that since the product was sold no later than 1960, “the statute of repose would bar any action in 1972, 12 years after the sale.” (Emphasis added.) (100 Ill. App. 3d 1071, 1073 n. 4, 427 N.E. 2d 999, 1000 n. 4.) Thus, the Balzer opinion lends additional support to our holding here that the statute, as originally enacted, applied to products already in the stream of commerce on its effective date.

For the foregoing reasons, the order of the circuit court dismissing count I of plaintiff’s complaint on the basis of the statute of repose is affirmed.

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.


author: JUSTICE JOHNSON PRESIDING JUSTICE ROMITI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT JONES, a/k/a Robert Jackson, Defendant-Appellant.
    First District (4th Division)
    No. 81—2072
    Opinion filed July 14, 1983.

      ROMITI, P.J., dissenting.
    Steven Clark, of State Appellate Defender’s Office, and John R. Herrmann, of Winston & Strawn, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and James F. Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Robert Jones, was convicted of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8—4) in a jury trial and sentenced to 20 years’ imprisonment. He raises the following issues for review: (1) whether the trial court erred in refusing to grant his severance motion; (2) whether his right to confrontation was violated when the trial court permitted a witness to testify as to a codefendant’s out-of-court statement; (3) whether the State’s use of a codefendant’s statements imparted substantive effect to those statements in violation of the hearsay rule, thereby denying him a fair trial; (4) whether the trial court erred in admitting the victim’s pretrial and in-court identification; and (5) whether he was proved guilty beyond a reasonable doubt.

Robert Jones, Booker Haynie and Willie Baylock were charged jointly with attempted murder, armed violence, armed robbery and unlawful use of a weapon (Ill. Rev. Stat. 1979, ch. 38, pars. 8—4, 33A—2, 18—2(a), 24—1(a)(10)). Defendant Jones’ motion to sever because of antagonistic defenses was denied and the three defendants were tried jointly.

Testimony at trial established the following.

James Ramp testified that on March 30, 1980, he lived at 1101 Winona in Oak Park, Illinois. At about 6:55 p.m., he was closing his garage door when two men ran inside the garage. One man was six feet three inches in height, slim, and wearing a bandanna over his face and an object in his hand which Ramp could not identify. The other man was about five feet seven inches or five feet eight inches in height and also wore a bandanna. Ramp could not identify the offenders. The taller of the two men took Ramp’s wallet containing $9 and both men went through his pockets. Later that evening Ramp identified his stolen wallet.

Ronald Zielke, an Oak Park policeman, was working in plainclothes on March 30, 1980. At about 7 p.m., he heard a report of the robbery in Ramp’s garage. He was in his car about six blocks away. When Officer Zielke was one block from the scene, he saw a “beige” Cadillac with three men in it. He followed the car into an alley where it stopped near a street light. A man with a bandanna around his neck exited the Cadillac from the passenger side. He pointed a revolver at Zielke, who was 30 or 40 feet away, and fired five or six shots, the first of which struck the windshield. Zielke sat upright during the shooting. The man got back in the Cadillac which then left. In court, Zielke identified defendant Jones as the person who shot at him. Eventually the Cadillac was found abandoned. When Zielke heard that three suspects had been arrested, he went to the Oak Park police station where he saw defendant at the rear of the squadroom. At that time Zielke realized that he had seen defendant about one or two months before in the Oak Park police station and in the May-brook courthouse.

Don and Zoe Minnoch, brother and sister, were walking home around 7 p.m. on March 30, 1980, when they heard a series of “bangs,” like firecrackers, and then saw the Cadillac speeding through an alley. Zoe saw something thrown from the car. After talking with police who had responded to Officer Zielke’s call for help, the children returned with the police to the alley where the Cadillac had passed by. Don found Ramp’s wallet.

Thomas Stec, an Oak Park policeman, responded to Zielke’s call for assistance. When Stec saw a garbage can that was overturned about two blocks from where the Cadillac was abandoned, he searched a nearby garage where he found the three suspects. In court Stec identified Jones, Baylock and Haynie as the three suspects. A .38-cali-ber revolver-was found in the garage about 15 feet from the defendants.

James Leahy, an evidence technician, administered gunshot residue tests to Baylock and Haynie but not to Jones because Jones had washed his hands. No residue was found on either Baylock’s or Haynie’s hands. Bullet fragments were removed from the back seat of Zielke’s car and from under its hood. It was established that two of the fragments were fired from the revolver found in the garage. It was also established that the 1973 gold Cadillac was registered to Haynie. A fingerprint of Baylock’s was lifted from a beer bottle found in the Cadillac.

Booker Haynie testified in his own defense and denied that he participated in any crime on March 30, 1980. Jones, then Baylock, drove his car that evening. Haynie fell asleep on the back seat because he was drunk. The trial judge commented outside the presence of the jury that Haynie appeared to be drunk during his testimony. Neither Jones nor Baylock testified.

On rebuttal, Officer Stec testified to a conversation he had with Haynie on March 30, 1980. According to Stec, Haynie was not intoxicated. Haynie stated that during the evening he woke up and the car was in the alley and Baylock and Jones had left. They returned and drove away at a high rate of speed. Jones said to stop the car. Jones jumped out and shortly thereafter Haynie heard some “pops.” Jones got back in the car and said that he had stopped the person who had been following them. The jury was cautioned that this evidence was admissible only against Haynie. On cross-examination, Officer Stec admitted that he wrote a report of the incident in December 1980, eight months later.

At the close of trial, the jury found Haynie and Baylock not guilty, and Jones guilty of attempted murder. Defendant Jones was sentenced to 20 years and appeals his conviction.

The first issue raised by defendant is whether the trial court erred in refusing to grant his motion for a severance. Before trial, defendant moved to sever because of antagonistic defenses, and at trial Officer Stec testified on rebuttal as to statements made by co-defendant Haynie. Defendant argues that this testimony implicated him as the one firing the gun.

We reject defendant’s contentions. Defendants jointly indicted are to be jointly tried unless fairness to one of the defendants requires a separate trial to avoid prejudice. (People v. Lee (1981), 87 Ill. 2d 182, 187, 429 N.E.2d 461, 463.) In seeking a separate trial, a defendant is required to do more than simply move for severance. He must actively and specifically point out the antagonism of the defenses and so demonstrate the prejudice which will be suffered from a joint trial. (87 Ill. 2d 182, 189.) The decision to grant a separate trial is within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. 87 Ill. 2d 182, 186.

In our opinion, Jones did not demonstrate prejudice in his pretrial motion. He merely stated that the codefendants were hostile and speculated that he might be prejudiced by statements made by Haynie. Because Jones offered no defense, the record shows no antagonism between Haynie’s testimony and Jones’ defense. (People v. Lee (1981), 87 Ill. 2d 182, 189.) Haynie testified that he could not recall what happened on the evening of the shooting because he was drunk. On rebuttal, Officer Stec testified to statements made by Haynie on the night of the shooting which impeached the latter’s testimony. However, the jury was instructed that the statements could only be considered against Haynie. We conclude that the trial court did not abuse its discretion in refusing to grant defendant’s motion for a severance.

Defendant raises two additional issues concerning Haynie’s out-of-court statements. First, defendant claims he was denied the right to full and effective cross-examination because the statements implicated him in the crimes alleged and their prejudicial effect was not overcome by the limiting instruction. Defendant contends that it was impossible for him to cross-examine Haynie because the latter testified that he was drunk and asleep on the back seat of the car and could not remember anything he said. Defendant cites Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and Nelson v. O’Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723, in support of his contentions.

In People v. Morris (1979), 79 Ill. App. 3d 318, 398 N.E.2d 38, defendants alleged that their sixth amendment right to confront witnesses against them was violated. The appellate court stated:

“Defendants correctly point out that in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the Supreme Court held that testimony by a witness of an out-of-court statement by a co-defendant implicating the defendant violates the defendant’s right of cross-examination secured by the confrontation clause of the sixth amendment. We note that a violation of the Bruton holding constitutes plain error in Illinois. (People v. Hopkins (1970), 124 Ill. App. 2d 415, 259 N.E.2d 577.) In a later case, however, the Supreme Court limited the Bruton holding to cases where the declarant-defendant does not take the stand. (Nelson v. O’Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723.) In Nelson, the co-defendant took the stand; denied making the statements implicating defendant; and testified favorably to the defendant concerning the underlying facts. The Nelson court reasoned that under these circumstances a defendant is denied neither the opportunity for cross-examination nor, in light of co-defendant’s favorable testimony, the benefit of full and effective cross-examination. (Nelson, 402 U.S. 622, 629, 29 L. Ed. 2d 222, 228, 91 S. Ct. 1723, 1727.) The Illinois courts have followed the Nelson ruling in People v. Brooks (1972), 51 Ill. 2d 156, 281 N.E.2d 326, and People v. Holtz (1974), 19 Ill. App. 3d 781, 313 N.E.2d 234.” (79 Ill. App. 3d 318, 326-27.)

In the instant case, Haynie took the stand and testified that he could not remember what he said. Defendant Jones had the opportunity to cross-examine Haynie but chose not to do so. We hold that Jones was not denied his constitutional right to confront witnesses against him.

Secondly, defendant claims that use of Haynie’s out-of-court statements gave them substantive effect, that they were prejudicial hearsay introduced under the guise of impeachment, and that he was thus denied a fair trial. Again we reject defendant’s argument. Evidence of prior inconsistent statements by a witness is admissible to impeach the witness’ credibility. Such evidence is not admitted as proof of the truth of the facts stated by the witness, but to cast doubt on the testimony of the witness by showing his inconsistency, and the evidence is therefore not hearsay. People v. Morgan (1963), 28 Ill. 2d 55, 63, 190 N.E.2d 755, 759.

In the instant case, Haynie’s statements were introduced to show that on the evening the crime occurred, Haynie could recall what had happened. The jury was instructed that this impeachment was not substantive evidence against defendant Jones. In our opinion, Officer Stec’s testimony on rebuttal as to statements made by codefendant Haynie was properly admitted as impeachment by prior inconsistent statements.

Defendant next contends that the trial court erred in admitting Officer Zielke’s pretrial and in-court identifications. Defendant states that Zielke’s designation of Jones as his assailant when everyone else in the squadroom was a police officer was an unnecessarily suggestive identification. According to defendant, Zielke was a distraught victim who expected to see his assailant in the police station. Since he had seen Jones before in a police station and in a courtroom, he identified Jones as his assailant because of unconscious transference.

Accidental confrontations do not vitiate an out-of-court identification where they are immediate, spontaneous, unprompted and positive. (People v. Braxton (1980), 81 Ill. App. 3d 808, 816, 401 N.E.2d 1062, 1068.) We have examined the record in this case and find nothing which indicates that Zielke was either improperly induced to make an identification or knew that defendant would be in the squadroom. In our opinion, Zielke’s out-of-court identification was not unnecessarily suggestive and was properly admitted.

Defendant argues that Zielke’s in-court identification was tainted by the pretrial identification, thus rendering the in-court identification inadmissible. He claims that because Zielke had an insufficient opportunity to view his assailant and because he failed to give a description prior to the police station confrontation, the State would be unable to meet its burden of showing by clear and convincing evidence that the in-court identification was based on observations independent and uninfluenced by the improper identification at the police station.

Again we reject defendant’s argument. The existence of an independent origin will validate an in-court identification even though there may have been a previous identification which was impermissibly suggestive. (People v. Harrison (1978), 57 Ill. App. 3d 9, 14, 372 N.E.2d 915, 919.) Zielke saw defendant under circumstances which allowed a positive identification to be made: There was a lighted street light above the car in which defendant was riding when he got out to fire at Zielke; defendant was two car lengths away and facing Zielke; and Zielke had seen defendant on two previous occasions. This, in our opinion, adequately establishes that there was a sufficient independent origin to support his in-court identification of defendant.

Finally, defendant contends that he was not proved guilty beyond a reasonable doubt. He argues that the State failed to provide a motive, a credible eyewitness with a believable story, a proper identification or a fingerprint on the gun. In our opinion, the identification evidence was sufficient to support defendant’s conviction. As stated above, Zielke’s identifications of defendant were properly admitted. Where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. People v. Manion (1977), 67 Ill. 2d 564, 578. 367 N.E.2d 1313, 1320.

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

Affirmed.

LINN, J., concurs.

PRESIDING JUSTICE ROMITI,

dissenting:

Because I believe that the prosecution’s introduction and use of a codefendant’s statement deprived defendant of a fair trial I would reverse defendant’s conviction and remand for a new trial.

As the majority correctly notes, in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, it was held that the use of a codefendant’s out-of-court statements implicating the defendant violated the defendant’s right of cross-examination as guaranteed by the confrontation clause of the sixth amendment. The Bruton court held that this was reversible error despite what they described as “clear” instructions to the jury to disregard the statements insofar as the defendant was concerned. The court held that despite these instructions there was a substantial risk that the jury utilized these statements in determining the defendant’s guilt, stating that:

“*** y^ere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” Bruton v. United States (1968), 391 U.S. 123, 135-36, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1627-28.

The majority contends, however, that under Nelson v. O’Neil (1971), 402 U.S. 622, 29 L. Ed. 2d 222, 91 S. Ct. 1723, no reversible error occurred because the codefendant took the stand. The Nelson court construed Bruton as holding that the right of confrontation is violated by the introduction of a codefendant’s inculpatory hearsay statement only where the codefendant is unavailable at trial for full and effective cross-examination. In Nelson the codefendant testified at trial, denying having made the statements attributed to him and testifying at length and favorably to the defendant. Indeed, the codefendant’s testimony substantially corroborated the defendant’s exculpatory account.

In this cause the codefendant, Booker Haynie, did take the stand and either denied making or denied any recollection of making the inculpatory statements attributed to him. However his account of the occurrence effectively precluded any meaningful cross-examination. He professed to have been in a drunken stupor throughout most of the occurrence. The few details he did recall were inculpatory for the defendant: thus he named defendant as being in the car that was linked to the offenses at issue. Moreover the witness, by the trial court’s own evaluation, was apparently intoxicated during his testimony. Under these circumstances it cannot reasonably be said that the prejudice arising from the introduction of the statement was alleviated by the opportunity to cross-examine an inebriated witness who claimed not to recall most of the occurrences at issue.

I would also note that contrary to the majority’s assertion the defendant, in seeking a severance prior to trial, did much more than merely state the codefendants were hostile or merely speculate that statements made by Haynie might prejudice him. The trial court was informed that at the preliminary hearing it had been disclosed that both codefendants made statements to the police indicating that defendant had shot at Officer Zielke and had committed the armed robbery. The prosecution would only represent to the court that they would not use those statements in their case-in-chief yet despite this the court held that no severance was required.

In opening argument to the jury Haynie’s lawyer stated that Haynie would testify that he was drunk and asleep in the back seat of the car and only awoke and ran with the defendants when the car came to a screeching halt and he was told to run. On the basis of these representations the defendant renewed his motion for a severance (after the testimony of the first State witness). Defendant’s counsel informed the court that the prosecution would use the statements of Haynie in rebuttal and the prosecution in response specifically refused to rule out this possibility. The court still refused to grant the severance motion.

As we stated in People v. Clark (1959), 17 Ill. 2d 486, 490, 162 N.E.2d 413, 416:

“*** where the circumstances are such that a defendant will be deprived of a fair trial if jointly tried, a severance must be granted. [Citations.] *** [W]e have repeatedly held that when a motion for separate trial is based on the fact that a codefendant’s confession implicates the moving defendant, a severance should be granted unless the prosecution declares that the admissions or confessions will not be offered in evidence at time of trial, or if offered, that there will be eliminated therefrom any and all reference to the party applying for a severance.”

In this cause no severance was granted. Nor was the prosecution required to forswear all use of the statements or at least all references to the defendant. The result was that the statements were introduced to the prejudice of the defendant in a case where the prosecution otherwise would have had to rely almost exclusively on an identification of the defendant made by a police officer who had viewed the defendant only briefly, at night and while under fire. And although the statements were introduced under the guise of impeachment, their devastating impact on the defendant and the extensive manner in which the prosecution utilized them both in cross-examination of Haynie and on rebuttal indicates that the prosecution was improperly attempting to make substantive use of this evidence against the defendant. (People v. Rudolph (1977), 50 Ill. App. 3d 559, 365 N.E.2d 930.) Under these circumstances I would also hold that the denial of defendant’s severance motion was an abuse of discretion and constituted reversible error.