author: JUSTICE MEJDA

text:
    WILLIAM J. TUNNEY, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANY et al., Defendants-Appellees.—(Jacqueline Hedges et al., Defendants.)
    First District (5th Division)
    No. 81—892
    Opinion filed September 17, 1982.
    Rehearing denied November 10, 1982.

      Barrett & Sramek, of Palos Heights, for appellant.

      Reuben & Proctor, of Chicago (Lawrence Gunnels, Samuel Fifer, and Mark Sableman, of counsel), for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff brought suit for damages for alleged libel and slander based on a television news story broadcast by American Broadcasting Company and WLS TV. The court granted ABC’s motion for summary judgment. Plaintiff appeals.

The issue on appeal is whether the granting of summary judgment was proper.

Plaintiff filed a two-count complaint for libel and slander. Count I was directed against American Broadcasting Company and WLS TV, its subsidiary (hereinafter referred to collectively as ABC). Count II was directed against four individual defendants who were subsequently dismissed as a result of plaintiff’s voluntary nonsuit. Only count I is involved in this appeal. Count I alleged in pertinent part that on June 5, 1975, ABC and its subsidiary WLS through their employee, Robert Petty, broadcast a report containing a false statement about plaintiff. The broadcast is set forth in its entirety below, with the words plaintiff claims as libelous italicized:

“Village inspectors are checking a long list of complaints being made by eleven homeowners in this relatively new subdivision. Cracked concrete and sidewalks is one of the most common complaints against the builder, William J. Tunney, who says such occurrences are not his fault, but an Act of God. But sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction.
This house cost its owner more than $40,000, as all of these houses in this area cost. According to inspectors, the entire house, which is less than one year old, needs tuckpointing.
William J. Tunney would not consent to be interviewed on TV but we did talk for 10 to 15 minutes or so. But he told me that he has been in the homebuilding business for more than 25 years. He says that he has built more than 60 homes in this particular section of Dolton, and he says of all those homes so far, only 10 or 12 people are complaining and he says that all of those complaints will be satisfied, given time. Bob Petty, Channel 7.”

The complaint further alleged that plaintiff was the owner of a construction company and that by-this broadcast defendants inferred that plaintiff built shoddy homes. ABC denied in substance the allegations of count I.

ABC filed a motion for summary judgment, asserting in pertinent part that the language contained in the broadcast was nonactionable under the Illinois rule of innocent construction; that the challenged language was fair comment on matters of public interest; and that the language was protected under the privilege of neutral reporting pursuant to the first and fourteenth amendments to the United States Constitution and article I, section 4 of the Illinois Constitution.

In support of the motion ABC submitted the affidavits of Robert Petty, describing his investigation of the story; that of Robert 0. Shackleton, a village of Dolton building inspector, attesting to the truth of a letter he sent to the Dolton Building Commissioner articulating his inspection of complaints received concerning homes built by Tunney Construction Co.; and that of LaVerne S. Cothroll, village clerk of the village of Dolton, certifying the correctness of attached minutes of the village of Dolton board meetings held on June 3 and June 10, 1975. The minutes noted that a letter and petition from 11 Dolton residents were presented to the clerk of the village of Dolton requesting a moratorium on construction in Dolton by William Tunney Construction Co.

Plaintiff filed a counteraffidavit and a “Response to Motion for Summary Judgment.”

After considering the memoranda of counsel, oral argument, tendered exhibits and depositions, the court granted ABC’s motion for summary judgment.

Opinion

Plaintiff contends that ABC’s motion for summary judgment should not have been granted because Petty’s affidavit was replete with hearsay statements inadmissible at trial and thus insufficient to support the motion. An affidavit in support of a motion for summary judgment is to be viewed as a substitute for testimony taken in open court. (Bougadis v. Langefeld (1979), 69 Ill. App. 3d 1010, 387 N.E.2d 965.) Based upon this standard we find no significant deficiencies in Petty’s affidavit. A review of Petty’s affidavit shows that it is in narrative form and relates the manner by which he received his assignment and investigated the story eventually publicized. While Petty did relate in his affidavit a number of comments made by unidentified inspectors and homeowners, the context of the affidavit shows that the testimony was offered not for the truth of the matters asserted therein but rather to show the manner in which Petty investigated his story and the reasonableness of the conclusions he drew in his broadcast statements. As such the statements were not hearsay. (See Peo ple v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) Nor did the narrative style of the affidavit render it insufficient. (Bougadis.) Therefore, we find plaintiff’s challenge to the sufficiency of Petty’s affidavit without merit.

Plaintiff next contends that summary judgment was improper because here a question of fact remained as to the cause of the sinking driveways and leaking roofs described in ABC’s broadcast.

Summary judgment will be granted if the pleadings, depositions, admissions, exhibits and affidavits on file reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

The broadcast stated that “sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction.” The report of Inspector Robert Shackleton submitted to the Dolton Building Commissioner and presented in support of ABC’s motion indicated that the driveway of one homeowner, John Tomzak, was broken by contractor’s equipment and that the 3” driveway had been poured with 2x4 forms contrary to the provisions of the Dolton building code. The report also cited at least one complaint of a leaking roof and several other water leaks in various rooms of at least four homes built by Tunney. The report indicated that it had inspected these complaints “of work not finished or repairs to be made under warantee [sic],” found most of them valid, and recommended that the situations be rectified. Wesley Lane, a village trustee of Dolton, and its building commissioner testified in his deposition that the homeowners’ complaints including roof damage and the concrete work of driveways were basically in his opinion the result of shoddy workmanship. Lane also testified, however, that he was primarily a tax accountant and had never engaged in construction work. Petty’s affidavit stated that during his inspection of the Dolton subdivision on June 5, 1975, he observed several defects such as cracked driveways, sinking sidewalks and leaking roofs, and that he met with two village of Dolton building inspectors and followed them around during their inspection and heard them call the work on the homes “shoddy.”

In contrast to this testimony Tunney’s counteraffidavit stated that he knew of two homes with cracked driveways. According to Tunney, John Tomzak, the owner of one home whose driveway had been described in Inspector Shackleton’s report, had driven a heavy moving truck across the corner of the driveway causing it to crack. Tunney stated that the crack in the driveway of the home owned by Jacqueline and Ralph Hedges was caused by the repeated parking of a semi-tractor and trailer owned by Ralph Hedges on the driveway. Tunney also stated that he knew of no roof which leaked as a result of poor construction, but that he did know of one home which had suffered roof damage from a wind storm.

We conclude, therefore, that Tunney’s affidavit raises an issue of fact as to whether the sinking driveways and leaky roofs were caused by poor construction or other factors.

ABC does not dispute the sufficiency of Tunney’s affidavit. Rather it responds that the broadcast statements are nonactionable because “substantially true,” relying on Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, 347 N.E.2d 757, and Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154, 221 N.E.2d 516. Both cases emphasize that to establish truth as a defense to a defamation action, it is not necessary to establish the literal truth of inoffensive details; rather, a showing of the truth of the gist or sting of defamatory imputation is sufficient. (Kilbane v. Sabonjian (1976), 38 Ill. App. 3d 172, 175; Mitchell v. Peoria Journal-Star, Inc. (1966), 76 Ill. App. 2d 154, 162.) In Kilbane, one of the plaintiffs had alleged that defendant’s statements were untrue and intended to mean that plaintiff had used public office for private gain. Plaintiff argued that defendant’s statements were untrue because the allegedly defamatory remark stated plaintiff had initiated a suit to recover a “finder’s fee” when in fact the suit had been to recover plaintiff’s share in a joint venture. The court held that this was an inoffensive detail which was immaterial to determining the truth of the defamatory statement. In Mitchell the alleged libelous publication stated that the plaintiffs were arrested in the “Men’s Social Club” when in fact they had been arrested at the “Shelly Tap.” The court held that this inaccuracy did not make the report libelous where there was no allegation that the use of the words “Men’s Social Club” connoted some libelous meaning. We believe, however, these cases are distinguishable from the case at bar. The allegedly libelous statement here “sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction” is not an inoffensive detail of the broadcast report but goes to the heart of the matter in question and is the “gist” or “sting” of the report. As such, we cannot say that this statement is nonactionable as a matter of law because the report was substantially true.

Assuming arguendo the untruth of this statement, ABC further argues the broadcast is privileged as a report of official government action, relying on Lulay v. Peoria Journal-Star, Inc. (1966), 34 Ill. 2d 112, 214 N.E.2d 746. That case dealt with a statement made in a government report rather than a statement made at a meeting of a governmental body (see discussion of Lulay in Catalano v. Pechous (1980), 83 Ill. 2d 146, 167, 419 N.E.2d 350, 360), but the court, following section 611 of the Restatement of Torts (1938) stated that a privilege to report government proceedings existed. (34 Ill. 2d 112, 115, 214 N.E.2d 746, 747.) Under section 611 as it then read the right to report the activities of a “ ‘municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgment of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.’ ” (34 Ill. 2d 112, 115, 214 N.E.2d 746, 748.) However, as the later case of Catalano v. Pechous points out, section 611 of the Restatement (Second) of Torts (1977) now reads:

“Sec. 611. Report of Official Proceeding or Public Meeting The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.”

The qualified privilege recognized in Lulay, however, still retains its validity. See, e.g., Catalano; Nagib v. News-Sun (1978), 64 Ill. App. 3d 752, 381 N.E.2d 1014.

As previously noted this privilege was extended in Lulay to a statement made in a government report based on an investigation of city health officers. We see no reason to distinguish between the report noting the results of an official government investigation and the investigatory process itself. Therefore, we conclude that the privilege enunciated in Lulay is applicable to the investigatory process of the building inspectors in this case. This privilege extends to a report of governmental proceedings even though it may repeat matters first expressed in the proceedings which, in fact, are false and defamatory. (Nagib v. News-Sun.) The privilege is lost, however, if the report of the proceedings is inaccurate or made with actual malice. Catalano.

Having determined that this privilege is applicable here, we must now determine if Petty’s allegedly libelous statement was an accurate report of the comments of the building inspectors. If the broadcast statement carried a “greater sting” in terms of libelous impact than did their statements, it cannot be considered a fair and accurate summary. See Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434.

Petty’s affidavit and deposition do not establish that the inspectors in question specifically told him that sinking driveways, leaking roofs and similar complaints “were the result of poor construction.” The affidavit stated that he followed two village of Dolton building inspectors as they inspected the homes in the Dolton subdivision. Both inspectors noted numerous defects and attributed the defects to poor construction work. In a later formal interview with Petty, one of the inspectors told him that his inspections had confirmed most of the complaints of defects that the homeowners had earlier made to the village of Dolton Board of Trustees. The affidavit also stated that Petty had prepared his news story based on his interviews with homeowners, Tunney, and one building inspector, and his observation of the building inspectors during their investigation.

In his deposition Petty stated that the inspectors had called the work done on the houses “shoddy” but that he could not recall if he talked with the building inspectors about leaky roofs. He further stated, however, that he' did not know why driveways sink and that the judgment that sinking driveways were caused by faulty construction was not his opinion; that most of the conclusions he came to in the story were based on talking with building inspectors and listening to them while conducting their inspection. Petty talked to no other village officials regarding this story.

Thus, Petty’s affidavit and deposition established only that the inspectors made general references to plaintiff’s “shoddy” work. We think this is significant because many of the homeowners’ complaints as itemized in Inspector Shackleton’s report concerned very minor defects such as missing screws, broken electrical outlets and/or loose towel racks. A determination of poor construction based on these kinds of defects would not have the gist or sting of a determination of poor construction based on leaking roofs and sinking driveways. Therefore, Petty’s affidavit and deposition are too general to establish the accuracy of the allegedly libelous broadcast statement, and a question of fact remains on that issue making summary judgment improper on the basis of this qualified privilege.

ABC further argues that it was not at fault in preparation of this broadcast. Both parties agree that the standard to be applied here was expressed in Troman v. Wood (1975), 62 Ill. 2d 184, 198, 340 N.E.2d 292, 299:

“*** in a suit brought by a private individual to recover actual damages for a defamatory publication whose substantial danger to reputation is apparent, recovery may be had upon proof that the publication was false, and that the defendant either knew it to be false, or, believing it to be true, lacked reasonable grounds for that belief. We hold further that negligence may form the basis of liability regardless of whether or not the publication in question related to a matter of public or general interest.”

“Reasonable grounds” in this context is generally a question of fact. (See Troman v. Wood (1975), 62 Ill. 2d 184, 196-97; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 755-56, 415 N.E.2d 434, 450.) Petty’s deposition indicates that he never inspected the leaking roofs in question, nor did he know what caused sinking driveways. Based on the affidavits and deposition in this case we think reasonable minds could differ as to the reasonableness of Petty’s conclusion that the sinking driveways and leaking roofs here were caused by poor construction.

Because discussed by plaintiff on appeal, we finally address two grounds for summary judgment urged by ABC at trial but not reasserted by ABC before this court: the rule of innocent construction and the privilege of “neutral reportage.”

The rule of innocent construction requires that a publication be read as a whole, that words be given their natural and obvious meaning, and that words allegedly libelous that are capable of being read innocently must be so read and declared nonactionable as a matter of law. (Fried v. Jacobson (1982), 107 Ill. App. 3d 780; John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105.) The broadcast in question here stated that village inspectors were checking a long list of complaints from homeowners in a relatively new subdivision of Dolton against the builder, William J. Tunney; that Tunney had been in the homebuilding business for more than 25 years and had built more than 60 homes in this section of Dolton; that cracked concrete and sidewalks were some of the most common complaints against Tunney, who said such occurrences were not his fault, but an act of God, but that sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction. In the context of this broadcast the words “[b]ut sinking driveways, leaking roofs and similar complaints are obviously the result of poor construction,” cannot be given an innocent construction. Given their natural and obvious meaning, they impute to Tunney a lack of ability in his business and trade and are thus libelous per se. Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 395 N.E.2d 1185.

Nor do we find the privilege of “neutral reportage” adopted in Krauss v. Champaign News Gazette, Inc. (1978), 59 Ill. App. 3d 745, 375 N.E.2d 1362, of assistance to ABC here, as this court in Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 757, 415 N.E.2d 434, 452, expressly declined to adopt this privilege recognized in Krauss. We find no reason to retreat from our holding in Newell.

For the reasons cited herein, the order granting defendant ABC’s motion for summary judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SULLimN, P. J., and WILSON, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD JUSTICE REINHARD

license: Public Domain

text:
    ROBERT P. WILL et al., Plaintiffs-Appellees, v. WILL PRODUCTS, INC., et al., Defendants-Appellants.
    Second District
    No. 82—19
    Opinion filed October 5, 1982.
    Supplemental opinion filed on denial of rehearing November 10, 1982.

      John R. Sloan, of Hall, Holmberg, Sloan, Roach, Johnston & Fisher, of Waukegan, for appellants.
    Murray Conzelman, of Conzelman, Schultz, Snarski and Mullen, of Waukegan, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendants, R. E. Peterson and Will Products, Inc., purchasers, appeal from a judgment of the trail court ordering specific performance of a contract to purchase plaintiffs’, Robert P. Will and Rena M. Will, real property. The essence of defendants’ contention on appeal is that plaintiffs’ failure to provide a sufficient title insurance commitment insuring against loss from encroachment of plaintiffs’ building onto the adjoining property within the time prescribed in the contract bars specific performance of the contract when, under the facts, there was no waiver of the time provisions of the contract.

On September 15, 1977, Will, Inc., seller, and Richard E. Peterson, purchaser, entered into a written contract wherein Peterson agreed to purchase the business of Will, Inc., owned by Robert P. and Rena M. Will. The parties further entered into a “Restrictive Agreement” whereby in consideration of the sale of the business Robert P. Will agreed not to engage in the business of operating a wholesale, retail or manufacturing business similar to the one being sold for a period of five years within a radius of 50 miles of the business located in Zion, Illinois. Also appended to the written contract was a lease agreement dated October 1, 1977, signed by the parties which called for a lease of the business property from the Wills for a 2-year period whereupon at the end of that period Will Products, Inc., now owned by defendant Peterson, would purchase said premises, if not previously sold by the Wills. Peterson further personally guaranteed the performance of the contract to purchase the real property. The agreement also contained in specific terms the method of payment, time of performance, and obligations of the Wills relative to a title commitment and survey. Two years later when the time for the sale of the real property arrived, Peterson refused to perform, claiming that an encroachment of the building upon adjoining property was a title defect not cured by the timely issuance of a title commitment policy insuring against damage caused by the encroachment. Suit for specific performance and other relief was brought by the plaintiffs.

At trial, the following evidence relevant to the contention raised on appeal was adduced. On or about September 4, 1979, plaintiffs, through their son, attorney Robert P. Will, Jr., placed an order with Chicago Title Insurance Co. for a title insurance commitment which was issued on September 13, 1979, and given by Will, Jr., to defendants’ attorney, Edward R. Holmberg, Jr., a few days thereafter. Among the exceptions in the title policy was the general exception to encroachments “which would be disclosed by an accurate survey.” A plat of survey dated September 11, 1979, was sent to attorney Holmberg, and also received by defendant Peterson by mail on September 28. The survey disclosed an encroachment of the pillasters of the building approximately 2 inches into the alley lying to the east of the subject property. The date for purchase of the property which was expressly set forth in the 1977 agreement was October 1, 1979. However, several days before that date Will, Jr., and Holmberg agreed to close on October 15 as Peterson was going to be out of town on October 1. There is no indication in the record that the encroachment was discussed then nor does the record disclose why the closing never took place on October 15. However, Will, Jr., testified that on October 25 he had a telephone conversation with Holmberg wherein Holmberg said Peterson did' not want to go ahead with the purchase because of the prevailing economic situation in the country and because of the encroachment; that Will, Jr., told Holmberg that the title company would give an encroachment endorsement and the Zion city council would vacate the alley; and that Holmberg said he told Peterson that he might have to perform and Peterson said he would perform when ordered to do so by a court. On October 26 Will, Jr., wrote to Peterson stating that the Zion city council indicated the alley would be vacated on November 26 and that the title company also had assured them that they would issue an encroachment endorsement over the encroachments and will insure the title. On the same date, Peterson wrote the Wills, pointing out the encroachment, and certain building code violations not pertinent to this appeal, and electing to terminate the contract to purchase the real property. On December 4 the alley was vacated subject to utility easements. A second commitment for title insurance was issued effective January 7, 1980, which did not make an exception to the encroachment but did specifically make objection to rights of the public, the city of Zion, and utility companies in the vacated alley. It stated that appropriate waiver letters would remove this objection. No letters were obtained from the city or the appropriate utility companies stating that they have no interest in the vacated alley. Will, Jr., testified he had always been willing to obtain a satisfactory title commitment endorsement, but that Holmberg let him know that to do that would be futile. He testified that “[w]e knew from the beginning his client did not want to close.” Peterson also admitted he never wanted to buy the building, but the Wills wouldn’t sell the business alone without the sale of the building to him. Will, Sr., testified that the sale of the business, the sale of the building, and the restrictive agreement was one package.

In the agreement to purchase the real property, it was expressly provided that 5 days prior to closing, the Wills would furnish a title commitment for an owner’s title insurance policy showing good title; that if the title commitment disclosed unpermitted exceptions, the Wills had 30 days from the date of delivery of the title commitment to have the exceptions removed or to have the title insurer commit to insure against loss or damage, and in such event, the time of closing shall be 35 days after delivery of the commitment; that if the exceptions were not removed or insured against within the specified times, the purchasers may terminate, or may elect within 10 days after expiration of the 30-day period to take title as is with the right to deduct from the purchase price an ascertainable amount; and that a survey showing no encroachment be furnished prior to closing.

The trial court entered judgment for plaintiffs and ordered specific performance of the contract consistent with its terms for purchase. The court below also issued a memorandum setting forth its findings, which in pertinent part, were that the sale of the business, the lease and sale of the real property, and the restrictive agreement were a single transaction; that the testimony of the defendant Peterson was not credible concerning the closing date; that Peterson had waived the specific closing date; that Peterson was seeking to avoid completing the transaction and his actions misled the plaintiffs from actually obtaining the encroachment endorsement as required by the contract although from their testimony sellers would have obtained such an endorsement; that the vacation of the alley placed plaintiffs in a position to tender good and marketable title; and that specific performance was the appropriate remedy.

It is the defendants’ contention that the plaintiffs failed to have the exceptions to the title removed within 30 days of the delivery of the title commitment pursuant to the express contract terms and the defendants terminated the contract by their letter of October 26, 1979. They further argue that even as of the date of trial the plaintiffs had not tendered a title insurance commitment in conformance with the contract requirements since the title commitment of January 7,1980, contained objections relating to the alley vacation.

Under the express terms of the lease and agreement to purchase the real property, defendants were to purchase the property on October 1, 1979, unless the plaintiffs had sold the premises before that date. Other terms of the agreement specified the time period to furnish a title commitment and within what time any exceptions thereto were to be removed. From our examination of the agreement, we do not find any express “time is of the essence” provision. Nevertheless, time may be of the essence by express language in the agreement (Fannin v. Devine (1920), 294 Ill. 597, 605, 128 N.E. 745; Hart v. Lyons (1982), 106 Ill. App. 3d 803, 805, 436 N.E.2d 723) or may be clearly shown as the intention of the parties by the wording. (Zempel v. Hughes (1908), 235 Ill. 424, 431, 85 N.E. 641; Janssen Brothers, Inc. v. Northbrook Trust & Savings Bank (1973), 12 Ill. App. 3d 840, 844, 299 N.E.2d 431; O’Malley v. Cummings (1967), 86 Ill. App. 2d 446, 449, 229 N.E.2d 878.) The precise phraseology is not important, and the intention of the parties as expressed by the agreement controls. (Zempel v. Hughes (1908), 235 Ill. 424, 431, 85 N.E. 641.) We conclude from the express time provision relative to the closing date and other precise time periods for securing a title commitment and removal of exceptions that time was of the essence.

A party by his conduct may waive his right to enforce a contract provision where “time is of the essence” is originally intended. (Cantrell v. Kruck (1975), 25 Ill. App. 3d 1060, 324 N.E.2d 260.) A waiver of a contract provision may be express or implied from acts or conduct. (See Hart v. Lyons (1982), 106 Ill. App. 3d 803, 436 N.E.2d 723; Cantrell v. Kruck.) The findings of the trial court on this issue will not be upset on review unless they are against the manifest weight of the evidence. (Cantrell v. Kruck.) The trial court expressly found Peterson waived the specific closing date and we find that determination supported by the record. It is unrebutted that Will, Jr., stated that the defendants’ attorney requested an extension of the closing date to October 15 since Mr. Peterson was to be out of town. The record does not reveal why the closing did not take place then nor whether any further closing date was set. When the specified date for performance has been waived by the parties to a contract, the date is extended for a reasonable time. (Kitsos v. Terry’s Chrysler-Plymouth, Inc. (1979), 70 Ill. App. 3d 728, 732, 388 N.E.2d 1054.) No other date for closing appears to have been set, and the October 26 letters, which apparently crossed in the mail, indicate plaintiffs’ willingness to clear up the encroachment problem and defendants’ declaration to terminate the contract.

While we find a waiver of the date of closing specified in the agreement, we must also determine whether there was a waiver of the time provision relative to procurement of a title commitment and removal of any exceptions therein. Generally, the waiver of the time element of one provision of a contract does not necessarily effect a waiver of all its time specifications; the extent to which the contract is modified depends upon the nature of the change and the intention of the parties. (O’Malley v. Cummings (1967), 86 Ill. App. 2d 446, 450, 229 N.E.2d 878.) It is evident to us that the action of Peterson in extending the closing date of October 15 and not setting another specific date for closing upon the failure to close on October 15 was also a waiver of strict enforcement of the time requirements in the agreement relative to removal of exceptions in the title commitment. The time set for closing and the time periods for a title commitment and removal of any exceptions are all interrelated. The title commitment was issued on September 13, 1979, and was given to defendants’ attorney several days thereafter. By the terms of the agreement to purchase the real property, any exceptions in the title commitment were to be removed by plaintiffs within 30 days of delivery of the title commitment and closing would be 35 days after delivery of the new commitment. Thus, the encroachments would have had to be removed by October 13 according to the provisions of the contract. Nevertheless, the closing date had been extended first to October 15 and then indefinitely beyond October 15 without specific reference to the other time provisions relative to title or without mention of any title problem. Will, Jr.’s, uncontradicted testimony was that in his conversation with Holmberg several days before October 1 they discussed how title was to be taken and Peterson’s desire to change the date of closing to October 15. The record does not indicate that there was any discussion of a title defect during this conversation or an expression that the other time provisions in the contract were to be adhered to even though the closing date was extended. We believe that under these circumstances, the other time provisions were impliedly extended for a reasonable time.

Thereafter, plaintiffs obtained a new title commitment issued January 7, 1980, which contained an objection that the vacation of the alley was subject to the rights of the city of Zion and any utility companies which could be corrected by letters from them stating that there were no easements or equipment in the alley. Will, Jr., testified that he had always been willing to get an encroachment endorsement but defendants’ attorney had told him Peterson did not want to close. The trial court found plaintiffs had offered, or been able to perform all of the terms and conditions required of them, and considering the credibility of the witnesses, the court found defendants were not willing buyers eager .to fulfill the terms of the contract if plaintiffs would tender merchantable title. Under the factual circumstances of the case, the trial court found Peterson’s actions misled plaintiffs and excused the actual tender of another title commitment removing all title objections. We, too, conclude that plaintiffs’ continuous willingness to obtain an encroachment endorsement insuring defendants against loss coupled with their securing a vacation of the alley was a sufficient expression of willingness to perform under the circumstances considering Peterson’s acknowledged unwillingness to purchase the real property. This conclusion is supported by Will, Jr.’s, testimony that Peterson’s attorney said Peterson told him that he would perform when ordered by a court.

Where the evidence shows that a seller is ready, willing and able to perform, the actual tender of marketable title will be excused where the purchasers decline to proceed with the contract. (Feldman v. Oman Associates, Inc. (1974), 20 Ill. App. 3d 436, 439, 314 N.E.2d 338.) We find this to be the case here. The acts of one party to a contract may excuse an actual tender of performance by the other where the evidence shows the latter was able, ready and willing to complete the contract. (See Greengard v. Bernstein (1931), 343 Ill. 416, 175 N.E. 424.) Specific performance will not be denied where there is a fair and valid contract and the party seeking performance has performed or offered to perform all of the terms or conditions required of him. (Greengard v. Bernstein.) We do not find that Winters v. Polin (1941), 309 Ill. App. 458, 33 N.E.2d 497, cited by defendants is applicable under these facts. Winters did not involve actions by a purchaser which waived the actual timely tender of a title commitment. Additionally, in Winters the title company stated that their policy as written did not cover any loss by reason of encroachment against the title company.

For the foregoing reasons, the trial court properly ordered specific performance of the contract to purchase the real property in ■ question.

Affirmed.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE REINHARD

delivered the opinion of the court:

Upon our denial of defendants’ petition for rehearing, we find it necessary to answer, briefly, one of the arguments raised therein. It is contended that this court did not address in its opinion whether certain building and fire code violations were uncorrected prior to closing. These violations allegedly would have given rise to defendants’ contractual right to terminate the contract. While this issue was raised below and determined by the trial court adversely to the defendants, the point was not raised or argued in defendants’ initial brief and is waived. (See 87 Ill. 2d R. 341(e)(7).) Although there was reference to this argument in defendants’ reply brief, this is in direct contradiction of Supreme Court Rule 341(e)(7) and (g) (87 Ill. 2d R. 341(e)(7), (g)). (See also Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785; Department of Transportation v. Drobnick (1977), 54 Ill. App. 3d 987, 993, 370 N.E.2d 242.) Accordingly, we adhere to our original opinion.

SEIDENFELD, P. J., and UNVERZAGT, J., concur.


author: JUSTICE KASSERMAN

text:
      In re GUARDIANSHIP OF NICHOLAS R. SMITH.—(The Department of Mental Health and Developmental Disabilities, Claimant-Appellant, v. Estate of Nicholas R. Smith, Respondent-Appellee.)
    Fifth District
    No. 81—678
    Opinion filed September 20, 1982.
    Tyrone C. Fahner, Attorney General, of Springfield (Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellant.
    Richard E. White, Chartered, of Murphysboro, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The State of Illinois, Department of Mental Health and Developmental Disabilities (the Department) appeals from the dismissal of its action against the estate of Nicholas R. Smith (Nicholas) in the circuit court of Saline County. The Department’s petition sought recovery of $35,328.80 from the estate for the period from October 5, 1977, through August 31, 1980, during which Nicholas allegedly was a resident at the A.L. Bowen Developmental Center (Bowen). That amount was assessed at a rate of $31.60 per day or $948 per month. During the bench trial, at the close of the Department’s evidence, the court granted respondent’s motion to dismiss on the ground that the Department had not sufficiently proved the days Nicholas was in attendance at Bowen.

The trial occurred on two days, more than two months apart. On the first trial date, the Department sought to introduce a computer •printout summarizing Nicholas’ days of attendance at Bowen. The medical secretary at Bowen testified by way of foundation that she had prepared the printout on a computer terminal linked with the Department’s central office in Springfield. The witness testified that the basis of the data on the printout was daily attendance reports entered on the terminal in her office and that each day’s attendance entry was compiled from daily written reports prepared by Bowen employees in each residence unit, a separate sheet for each unit for each day. The daily report sheets comprised a voluminous record kept in the witness’ office. She testified that the medical records director at Bowen had resigned two weeks previously and that prior to that time, either the witness or the medical records director had made the daily attendance entry. The witness had assumed the medical records director’s duties following the director’s resignation.

The trial court determined the computer printout to be inadmissible hearsay because the Department’s sole foundation witness had not testified that the records summarized therein were kept by her or under her supervision. The court granted a continuance to permit the Department to obtain the presence of the former medical records director; however, when trial resumed more than two months later, that person was not available to testify. Instead, the Department sought to introduce a list bearing the number of days of each month on which Nicholas was at Bowen. Recalled, the medical secretary testified that she had compiled that list from the individual daily residence unit attendance sheets in her office. She admitted that neither she nor someone under her supervision was entering the attendance records as of December 1977. The trial court refused to admit the list, observing, inter alia, that neither the keeper of the records nor the person in charge of the records had testified.

A reimbursement officer at Bowen testified that Nicholas’ mother had been sent a “Notice of Determination” reflecting the charges for Nicholas’ stay at Bowen. (Ill. Rev. Stat. 1981, ch. 91½, par. 5 — 111.) This notice, admitted in evidence, included a statement that the amount assessed could be contested by administrative hearing within a designated time. The witness testified that no such hearing had been requested in Nicholas’ case.

The Department called Nicholas’ mother under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60). She testified that Nicholas was at Bowen from October 1977 to December 23, 1980, except for Christmas and some weekends when Nicholas was home. The witness was equivocal as to what weekends Nicholas was at home and how long Nicholas was home for Christmas.

The Department having rested, the trial court granted respondent’s motion to dismiss, concluding that the amount of time Nicholas had spent at Bowen had not been proved. The court rejected the Department’s contention that Nicholas’ mother’s testimony established certain periods of time during which Nicholas was at Bowen and that the Department had sustained its burden with respect to those periods. The Department appeals. We reverse and remand.

The Department argues, that the computer summary and the list of days of attendance should have been admitted under the “records maintained by public officials” exception to the hearsay rule. This exception applies to records kept by persons in public office, which they are required, either by statute or the nature of their office, to maintain in connection with the performance of their official duties. Such records are admissible in evidence and are evidence of those matters which are properly required to be maintained and recorded therein. (People ex rel. Wenzel v. Chicago and North Western Ry. Co. (1963), 28 Ill. 2d 205, 212, 190 N.E.2d 780, 784.) It would be necessary for the Department to keep attendance records for its residents in order to discharge its burden of determining the charges applicable to each resident under section 5 — 105 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91½, par. 5 — 105). Therefore, such records are admissible in evidence as records required to be kept by persons in public office by the nature of their office.

Respondent argues that the computer summary was objectionable for the additional reasons that foundational requirements for admission of computer records were not met. Printout sheets of business records are admissible in evidence without testimony of the persons who made the entries in the regular course of business if it is shown that: (1) the electronic computing equipment is recognized as standard; (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded; and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission. (Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 202, 367 N.E.2d 1238, 1242.) Here, the Department’s foundation testimony merely showed that the entries were made in the normal course of business. (See Department of Mental Health v. Beil (1976), 44 Ill. App. 3d 402, 409, 357 N.E.2d 875, 880.) However, the list the Department sought to introduce on the second day of trial was not computer-prepared and thus need not have complied with these criteria. Further, we do not believe that the list prepared by the medical secretary was inadmissible on the basis that it merely summarized other documents. See Department of Public Aid v. Estate of Wall (1980), 81 Ill. App. 3d 394, 398, 401 N.E.2d 639, 641-42; but see People ex rel. Wenzel v. Chicago and North Western Ry. Co. (1963), 28 Ill. 2d 205, 213-14, 190 N.E.2d 780, 784-85, indicating that the underlying documents should at least be available for inspection.

For the foregoing reasons, we conclude that the trial court erred in refusing to admit into evidence the list prepared by the medical secretary without use of the computer. Distinguishable from the instant facts are In re Estate of Rupinski (1970), 131 Ill. App. 2d 393, 266 N.E.2d 190, Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266, and Messina v. Zody (1973), 13 Ill. App. 3d 566, 300 N.E.2d 851, all cited by respondent. These cases involved hospital records, not records kept by public officials. Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 367 N.E. 2d 1238, cited by respondent, concerns the business records exception to the hearsay rule. (87 Ill. 2d R. 236.) Also, the requirement for which respondent cites Smith v. Williams (1975), 34 Ill. App. 3d 677, 679-80, 339 N.E.2d 10, 12, pertains to “past recollection recorded,” not records kept by public officials, as is the subject of controversy in the case at bar.

We reject respondent’s contention that discrepancies in the medical secretary’s testimony regarding the date the medical records director resigned provided a basis upon which to disregard her testimony. This discrepancy was upon a relatively trivial matter. Further, the trial court’s comments indicate that the court’s basis for refusing the preferred evidence was that the testimony offered by the Department was insufficient if believed. No determination as to the credibility of the witness was made; none was necessary.

We need not discuss the Department’s contentions that the computer printout and the list prepared by the medical secretary without the computer should have been admitted under Supreme Court Rule 236 (87 Ill. 2d R. 236) and that Nicholas’ mother’s testimony sufficed to establish at least part of the Department’s claim. Further, we need not and do not comment upon the viability of any other defense respondent might raise upon remand.

For the foregoing reasons, we reverse the judgment of the circuit court of Saline County and remand for further proceedings consistent with this opinion.

Reversed and remanded.

JONES and HARRISON, JJ., concur.


author: JUSTICE ROMITI JUSTICE LINN,

text:
      In re M. D., a Minor.—(The People of the State of Illinois, Petitioner-Appellant, v. M. D., Respondent-Appellee.)
    First District (4th Division)
    No. 81—1063
    Opinion filed October 7, 1982.
    LINN, J., dissenting.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Aaron L. Meyers, Assistant Public Defender, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

The State appeals from the denial of its motion to permit prosecution of the minor-respondent, M. D., as an adult under the criminal laws. (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7(3).) The sole issue on appeal is whether the trial judge abused his discretion by denying the State’s motion. We find that he did not and consequently affirm the order of the trial court.

The petition for adjudication of wardship filed in the juvenile court alleged that respondent was delinquent in that on January 26, 1981, he committed murder by shooting and killing Vincent Jackson and Gregory Jackson. At the hearing on the State’s motion to permit the prosecution of the respondent as an adult the following pertinent evidence was adduced.

Officer Ralph Vucko testified concerning certain statements made to him by respondent concerning the shootings. Respondent said that at about 6:30 p.m. on January 26, 1981, he went to the home of Izear Sewell, known as Tookie, to ask Sewell for help because Gregory Jackson had hit him across the face with a pistol. Respondent, who stated that he wanted to get revenge, was armed with a gun when he went to Sewell’s house. Sewell agreed to help, saying they should “gun up,” and as they left he told respondent he also had a gun. They went to a laundromat where they encountered Gregory Jackson. Respondent told Sewell “talk to the dude, he jumped on me a couple of times, man.” Sewell told Gregory he should leave respondent alone. According to respondent Gregory took a stick out of a garbage can and began walking toward them. (However three other eyewitnesses interviewed by Vucko did not see any stick.) Gregory also called Se-well a “punk.” Sewell shot Gregory and then respondent also fired at him, although he claimed to have missed him. When Vincent Jackson started to come towards them, they shot at him. Respondent stated that he shot Vincent four times. Respondent and Sewell then ran to an apartment, where Sewell put both guns on a shelf.

When Vucko saw respondent the night these statements were made respondent had scab marks about his face which he said were the result of the pistol-whipping by Gregory a week earlier. Respondent also told Vucko that Gregory and Vincent were in a gang called the “Q-Dogs,” which was part of another gang. Vucko had never heard of the Q-Dogs but conceded that he did not work with the gang crimes unit of the police department and was not familiar with every gang in the area.

Jeffrey Greenfield, an investigator for the office of the Public Defender, testified to an interview he conducted with Bernard Strowder, who had known the respondent for three to four years and the Jackson brothers for two years. Strowder told Greenfield that the Jack-sons were members of the Q-Dogs, which was part of the Vice Lords. Strowder also recounted several incidents involving Gregory Jackson and the respondent. On one occasion Gregory and another boy approached respondent and Strowder and forced them at gunpoint to give them money. Another time Gregory told the respondent “you owe me” and hit him with a stick. According to Strowder, Gregory had also struck respondent with a gun and on another occasion he and Vincent pushed respondent off a bike and struck him. Greenfield testified that he knew the Q-Dogs to be a street gang.

Respondent’s mother testified that on January 24, 1981, she learned from respondent and her nephew that Gregory Jackson and another person had threatened respondent with a gun in an effort to obtain a microwave oven. The next morning respondent returned from a trip to the store with his eye and face swollen. He told her that Gregory Jackson had beaten him up. Respondent’s mother called the police and reported this, a fact verified at the hearing by a police tape recording.

Three reports were submitted to the court for its consideration. One was a social investigation report prepared by probation officer Vergus Hurks, who ¿Iso testified at trial. In his report and testimony Hurks related the following. Respondent was bom July 11, 1965, and was 15 years old at the time of the hearing. He was living with his unemployed mother and eight siblings in a public housing complex. His mother reported that he associated with older children she did not approve of and these children were a negative influence in his life, resulting in his delinquent behavior and truancy. She believed male supervision would be beneficial, but said there was no male role model in the home as she had been separated from her husband since 1977.

Respondent had been placed on probation for one year because of a finding of delinquency based on his commission of a burglary. That probationary period was satisfactorily completed on January 20, 1981. Hurks had been respondent’s probation officer and he reported that respondent had cooperated with him and had complied with the conditions of his probation. During this period respondent was referred to the Garfield Park Comprehensive Health Center for counseling. His counselor reported that he had made progress there but then had lost interest and had failed to keep his appointments. Respondent also had eight prior station adjustments dating from August 1979 to October 1980.

In his testimony Hurks stated that he considered respondent to be a follower who was shy and passive. He believed respondent had rehabilitative potential but cited one problem as being the lack of a male role model. He stated that the juvenile division of the Department of Corrections had programs to provide role models for minors and he believed respondent could benefit from such programs. Although he reported that respondent had been failing his school courses at the Audy Home, Hurks expressed his belief that respondent could benefit from the school programs available in the juvenile division. It was his opinion that respondent had rehabilitative potential within the juvenile system.

A second report submitted to the court was that of Kimberly Merrill, the court psychologist, who examined and tested respondent. She found that respondent’s test scores placed him in the mentally deficient range. However, it was her belief that these results were at least partially attributable to the confusion and sense of disintegration which resulted from respondent’s extreme anxiety about his current situation. Merrill found respondent to be extremely immature. He was uncertain about his own masculinity and appeared to confirm that masculine identity through association with older boys and the use of weapons. Merrill found that he was extremely impulsive and exhibited a childish fascination with violence. She concluded:

“[Respondent] is dangerous, but he is not a hardened delinquent. He has reached the age of fifteen without acquiring appreciable socialization. He needs structure, limits and firm moral instruction. Long term residential placement is recommended, and [he] needs to understand that he can expect punishment for wrongdoing. It should be emphasized that the moral environment provided by this placement will play a critical role in the development of [his] emerging personality.”

The court also received a report from a psychiatrist, Dr. Jaime Trujillo. Dr. Trujillo found respondent to be operating in the low normal range of intelligence, making him “an easy prey for persons who could socialize with him and try to induce him into certain criminal activities without him having full understanding ***.” Dr. Trujillo found respondent to be dangerous because he was impulsive, lacked internalized discipline, and did not have a code of morals to control himself. He recommended that respondent be “treated in a closed secured environment where good disciplinary measures are imposed upon him so that he can realize that he has to comply with certain societal norms ***.” In this placement Dr. Trujillo recommended that respondent have education aimed at overcoming his learning difficulties and individual therapy to treat his lack of values and his self-centeredness.

I

Section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 et seq.) lists six factors to be considered by the trial court in determining whether a minor should be prosecuted as an adult:

“*** (1) whether there -is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3)(a).)

Our function on review is to determine whether in the light of these factors the trial court abused its discretion in making its decision. In re Burns (1978), 67 Ill. App. 3d 361, 385 N.E.2d 22.

In this cause it is clear there was sufficient evidence to support an indictment of the respondent for murder. However, the evidence concerning aggression and premeditation is not as clear. Respondent admitted to having armed himself and then sought “revenge” with the aid of Izear Sewell. But according to his statement he also asked Se-well to talk to Gregory Jackson, and it was only after Gregory advanced with a stick that Sewell and then respondent fired at him. Again, according to respondent, Vincent was shot only after he too advanced toward them. There was evidence that the Jacksons had physically attacked respondent in the past, including a pistol-whipping by Gregory administered within a week of the shooting, and this history could have caused respondent to arm himself. Thus the trial judge could have concluded that, contrary to the State’s suggestion, these were not premeditated revenge killings. Still, it is clear that the actions of the respondent resulted in the violent deaths of two young men, and thus it becomes even more important to examine the remaining evidence concerning respondent’s personal history and the evaluations of the experts who examined him.

Respondent was 15 years of age at the time of the shooting. The court was informed that he was also immature, shy and passive. Both the psychiatrist and the psychologist who examined him found him to be of lower than normal intelligence although one expert believed this finding to be in part attributable to the respondent’s current stressful situation. Dr. Trujillo found that this low intelligence made respondent vulnerable to being induced by others, to perform criminal acts. Both experts found respondent to be dangerous but not beyond treatment, and both recommended residential placement in a structured, disciplined environment. Merrill emphasized in her report that the moral environment .of this institution would be critical to respondent’s development. Probation officer Hurks, who had supervised respondent during his successfully completed one-year probation, and who was familiar with the station adjustments in which he had been involved, informed the court that he believed respondent could benefit from the programs available in the juvenile division of the Department of Corrections. The State failed to present evidence that facilities benefit-ting the respondent would not be available to him in the juvenile system. (See In re Burns (1978), 67 Ill. App. 3d 361, 385 N.E.2d 22.) Indeed, it is clear that the trial court accepted the opinion of the State’s own witness, Hurks, that the respondent had rehabilitative potential within the juvenile system.

Based-on this evidence we find no abuse of discretion in the trial court’s denial of the State’s motion.

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

Affirmed.

JOHNSON, P. J., concurs.

JUSTICE LINN,

dissenting:

With all due respect, I disagree with the majority. Based upon the evidence presented in connection with the transfer hearing, it appears clear to me that the trial court abused its discretion in concluding that the minor respondent should be tried as a juvenile in the juvenile court setting and not as an adult in the criminal court. See Ill. Rev. Stat. 1981, ch. 37, par. 701 et seq.

The evidence discloses that two vicious, heinous, premeditated murders had occurred and that the respondent may well have been involved in the brutal killings. As noted by the majority, the respondent acknowledged that he had armed himself, enlisted the aid of an acquaintance, and proceeded “to get vengeance.” Such an assertion coupled with a later deliberate execution of the intended act surely indicates the malevolent attitude and criminal character of the actor.

It appears to me that the respondent’s prior delinquency record (a burglary conviction with a probationary sanction coupled with eight previous station adjustments) unequivocally directs that trial of the defendant as an adult is in order. In view of the evidence presented, the six factors to be considered by the trial court in making its transfer determination compel the trial court to order the requested transfer. I am, of course, aware of the well-established rule that a reviewing court is not justified in substituting its discretion for that of the trial court. But to me it remains evident, considering all of the circumstances, that to deny a transfer to the criminal court for trial of the respondent as an adult is to act arbitrarily so that legal principles are overlooked and a substantial injustice occurs.

The juvenile court was established on the premise that younger people need special protection and consideration. Assertedly, their youth makes them more vulnerable and somehow less criminal than older law breakers who by dint of a few added years are considered more adult and therefore more responsible for their, actions. Many youngsters have been helped and set on the right track because the juvenile court has provided the right service at the right time for those minors whose character was still malleable enough for proper role modeling, education, and therapy to have a positive effect. However, when the crime is a premeditated double murder and the respondent has an awareness of and experience with the criminal justice system, the interests and protection of society may well be paramount to the interests of respondent that are based on chronological age. In my judgment, immaturity of personality in the commission of such a heinous crime does not entitle respondent to extraordinary protection or consideration. I would allow the transfer motion and hold the respondent to trial as an adult.

       Sewell, age 22 at the time of the shooting, was separately prosecuted as an adult.


author: PRESIDING JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. WILBUR N. HILLIARD, Petitioner-Appellant.
    First District (3rd Division)
    No. 80—477
    Opinion filed October 13, 1982.

      James J. Doherty, Public Defender, of Chicago (Frances Sowa, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

This case is before this court for the second time. In our prior opinion (People v. Hilliard (1978), 65 Ill. App. 3d 642, 382 N.E.2d 441), we held that Wilbur Hilliard’s petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401) should not have been dismissed without an evidentiary hearing on the validity of the recantation by the key prosecution witness. We also expressly held that we were not ruling on the other issues raised by Hilliard’s direct appeal from his murder conviction and his appeal from the dismissal of his petitions for section 72 and post-conviction relief, which were consolidated by this court prior to our earlier opinion. We reserved ruling on them until the evidentiary hearing had been completed. On remand, an evidentiary hearing was held, and Hilliard was denied relief. He now appeals from that order, contending that the trial court’s refusal to grant relief was contrary to the manifest weight of the evidence. In this opinion we address that issue and the remaining issues from the earlier consolidated appeal.

At the evidentiary hearing the State’s primary witness, Johnny Obie, Hilliard’s minor stepson who had recanted his trial and grand jury testimony, testified that he had lied in his previous testimony when he said that Hillard woke him at their home on the morning of March 16, 1974, and told him that he (Hilliard) was going to kill a man in the basement, and that he lied when he testified that he watched as Hilliard stabbed the man in the basement. Johnny was the State’s only eyewitness. The trial judge correctly stated after the post-conviction hearing that the only issue which he had to determine was whether or not Johnny lied at Hilliard’s murder trial. If he did lie, there was no question that the lies contributed to the guilty verdict. At trial the boy’s account of the stabbing was bolstered by testimony relating to a knife in evidence. Johnny testified that after Hilliard told him he was going to kill the man, his stepfather went to the pantry and got the knife with which he did the stabbing. He testified that after the stabbing Hilliard and he went through a gangway and through an alley to a place where defendant threw the knife on a roof. Later when Johnny spoke to the police he told them about the knife and showed them where defendant threw it. At the post-conviction hearing Johnny testified that he also lied in this part of his trial testimony. He never saw his stepfather get a knife from the pantry, and a couple of weeks after the victim’s body was found in the basement he saw the knife which was on a roof but could be seen from the street. This is the knife he pointed out to police officers. Johnny said his reason for lying to the grand jury and at trial was that his mother told him to do so. At the post-conviction hearing Hilliard’s mother testified that Johnny’s mother, Hilliard’s wife, admitted to her that she told Johnny to lie.

A prosecutor at Hilliard’s trial and two police officers involved in the investigation of the killing also testified at the evidentiary hearing. The prosecutor testified that Johnny never gave him any kind of problem as a witness and that he did not threaten Johnny or his mother. One of the officers also testified that he never made any threats to Johnny’s mother and that she was not threatened by anyone in his presence.

The results of a polygraph examination taken by Johnny were also admitted into evidence at the evidentiary hearing. The conclusion of the examiner was that Johnny did not tell the truth in response to the following three questions:

“Q. Did you see your stepfather take the knife from the drawer?
A. No.
Q. Did you see your stepfather throw the knife on the roof?
A. No.
Q. Do you believe your stepfather stabbed the man?
A. No.”
There was no indication of deception as to the following response:
“Q. Did you see your stepfather stab the man?
A. No.”

At the conclusion of the evidentiary hearing the trial judge was of the opinion that Hilliard had not met his burden of showing peijury. He specifically noted that Johnny was “still lying at this point in time, even on the lie detector test.” Accordingly, the trial court entered an order denying section 72 relief.

The only issue presented on appeal from this order denying relief under section 72 is whether such denial was contrary to the manifest weight of the evidence. We conclude that it was not.

Several Illinois Supreme Court cases involving petitions for relief under section 72 have stated that in order for a conviction to be disturbed on the basis of perjured testimony, the defendant must show by clear and convincing evidence that the claimed perjured testimony was not merely false, but was knowingly and purposely falsely given. (People v. Bracey (1972), 51 Ill. 2d 514, 519, 283 N.E.2d 685; see People v. Jennings (1971), 48 Ill. 2d 295, 299, 269 N.E.2d 474; People v. Lewis (1961), 22 Ill. 2d 68, 71, 174 N.E.2d 197, cert. denied (1961), 368 U.S. 876, 7 L. Ed. 2d 77, 82 S. Ct. 124, overruled in part by Bracey.) If this burden is met, then the State has the burden of establishing beyond a reasonable doubt that the perjured testimony did not contribute to the verdict. (People v. Bracey (1972), 51 Ill. 2d 514, 520.) Like the judge below, we do not reach the latter “harmless error” inquiry, because we are of the opinion that the trial court did not err in holding that Hilliard did not establish the use of perjured testimony.

Before determining the propriety of the denial of relief, we must determine whether it was appropriate for the court below in arriving at this decision to consider the results of a polygraph examination taken by Johnny. This court, in its prior opinion, specifically stated that it was not deciding the question of the admissibility of polygraph results. (65 Ill. App. 3d 642, 646.) The issue of the admissibility of such results was raised, however, in the briefs in the first appeal, and the issue should be resolved.

Neither party cites us to any Illinois case addressing the question of the admissibility of polygraph results at a post-conviction hearing, and our research has disclosed no such case. It is well established in Illinois that the results of a polygraph examination cannot properly be introduced as evidence of either the guilt or innocence of the accused. (People v. Baynes (1981), 88 Ill. 2d 225, 238, 430 N.E.2d 1070; People v. Nicholls (1970), 44 Ill. 2d 533, 539, 256 N.E.2d 818; People v. Zazzetta (1963), 27 Ill. 2d 302, 306, 189 N.E.2d 260.) In Baynes, the court specifically found that polygraph evidence is not reliable enough to be admitted at trial, even if the parties stipulate that the results of such an examination would be admissible. (88 Ill. 2d 225, 244.) This prohibition against the use of polygraph evidence at trial extends to both examinations taken by defendants (see Baynes) and examinations taken by witnesses (see People v. Vriner (1978), 74 Ill. 2d 329, 347, 385 N.E.2d 671), and we further observe that our General Assembly has expressed distrust of the reliability of polygraph tests, both in criminal trials and in civil cases. People v. Triplett (1967), 37 Ill. 2d 234, 238, 226 N.E.2d 30; Ill. Rev. Stat. 1979, ch. 38, par. 155-11; Ill. Rev. Stat. 1979, ch. 110, par. 54.1, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2-1104.

But the general rule is not necessarily applicable to a post-conviction proceeding, where the question of guilt or innocence of the person seeking relief is not before the court. Nevertheless, Illinois courts have held that polygraph evidence is not admissible even when no question of guilt or innocence is presented. Thus, in People v. Ackerman (1971), 132 Ill. App. 2d 251, 254, 269 N.E.2d 737, the court held that polygraph evidence should not be used at the sentencing stage of criminal proceedings. The court stated: “[T]he use *** of a process which has not been considered a valid method of determining truthfulness would seem to be no more reliable or valid in the sentencing proceedings than in the determination of guilt or innocence.” (132 Ill. App. 2d 251, 254-55.) In People v. Reese (1980), 90 Ill. App. 3d 284, 290, 412 N.E.2d 1179, the court held that the results of polygraph examinations are not admissible at juvenile transfer hearings.

On the basis of these authorities, we feel compelled to conclude that the court below erred when it admitted into evidence the results of Johnny’s polygraph examination. Hilliard cites People v. Barbara (1977), 400 Mich. 352, 412, 255 N.W.2d 171, 197, which held that a judge in a post-conviction hearing may in his discretion consider the results of a polygraph examination. We are of the opinion, however, that Illinois case law precludes such a holding.

Since the court below also ruled that Hilliard was not entitled to section 72 relief on the basis of Johnny’s recantation, even if the polygraph results were not admitted, we next address the propriety of that determination.

The credibility of the testimony of the witnesses in a post-conviction hearing is a matter for determination by the trial judge. Unless it can be said that the determination of the trial judge was manifestly erroneous, he will be upheld, since he had an opportunity to see and hear the witnesses. (People v. Bracey (1972), 51 Ill. 2d 514, 517; People v. Bermundez (1975), 31 Ill. App. 3d 945, 947, 334 N.E.2d 907.) Moreover, several Illinois cases recognize the inherent unreliability of recantation testimony. Thus, in People v. Marquis (1931), 344 Ill. 261, 265, 176 N.E. 314, our supreme court stated:

“Recanting testimony is regarded as very unreliable, and a court will usually deny a new trial based on that ground where it is not satisfied that such testimony is true. Especially is this true where the recantation relied on involves a confession of perjury.”

(See also People v. Bickham (1974), 23 Ill. App. 3d 1074, 1078, 320 N.E.2d 478.) More recently, in People v. De Mario (1969), 112 Ill. App. 2d 420, 425, 251 N.E.2d 274, cert. denied (1970), 397 U.S. 1057, 25 L. Ed. 2d 675, 90 S. Ct. 1404, the court stated: “The mere recantation of prior testimony is not even sufficient proof in itself to establish that the earlier testimony was perjured.”

Hilliard, however, argues that this is not a case of mere recantation, and that Johnny’s testimony at the evidentiary hearing was corroborated by the physical evidence at the trial, and the inconsistencies between his grand jury and trial testimony which are summarized in our earlier opinion. (65 Ill. App. 3d 642, 644.) Hilliard’s theory is that the trial evidence supports the recantation because defendant could not have performed the savage attack upon the victim without covering himself with blood, yet there was only one spot of blood on the trousers Hilliard was supposed to have worn during the stabbing.

We cannot accept Hilliard’s argument. The judge at the evidentiary hearing had the opportunity to see and hear the witnesses testify, and we will not disturb his determination that Johnny’s recantation testimony was untrustworthy. In reaching this conclusion we note that that portion of the recantation in which Johnny stated that he saw the knife on the roof “a couple of weeks” after the victim’s body was found was inconsistent with the trial testimony of police officers that the knife was recovered six days after the body was found. After reviewing all of the evidence including Johnny’s trial testimony and his recantation, the trial judge said, “On the finding of fact, there is no question that John Dwaine Obie is lying. The question is when?” On this state of the record we cannot say that the judge erred in finding that Hilliard failed to establish by clear and convincing evidence that Johnny’g trial testimony was perjured. This conclusion disposes of Hilliard’s claim of perjury under both section 72 of the Civil Practice Act and under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1 et seq.).

We next address the questions presented by Hilliard’s direct appeal. He first contends that he was not proved guilty beyond a reasonable doubt because the testimony of Johnny and Mary Hilliard was incredible. We, in fact, characterized Johnny’s testimony as “unusual” in our earlier opinion. 65 Ill. App. 3d 642, 646.

In addition to the trial testimony of Johnny Obie that on the morning of March 16, 1974, he saw Hilliard stabbing the man in the basement of their home located at 7933 South Parnell Street, the State introduced the following evidence. Robert Beard, a CTA bus driver, identified photographs of Hilliard and the victim at trial. He testified that Hilliard boarded the bus he was driving on 43d Street at approximately 2 a.m. on March 16, 1974; that the victim boarded the bus shortly thereafter; and that both of them exited the bus at the end of the line. Beard had conversed with Hilliard on the bus, and Hilliard had told him that he had recently moved to 79th Street and Parnell. Chicago Police Officer William Mosher, who observed the body of the victim in Hilliard’s basement on March 16, 1974, and Dr. Tae An, a coroner’s pathologist, testified to the numerous wounds on the victim’s body. Mosher also testified to the recovery of the knife from a rooftop. Dr. An testified that in his opinion the cause of death was a stab wound to the chest and that the knife recovered from the roof could have produced the stabbing and cutting wounds on the victim’s body. Mary Hilliard, Hilliard’s wife, testified that at approximately 4 or 5 a.m. on March 16, 1974, Hilliard arrived at their home. He asked her to get two sheets for a friend who was in the basement. She did so, and Hilliard went out the back door toward the basement, returning about 15 minutes later. Later that morning, Hilliard and Johnny Obie left the house for a period of time, and when Hilliard returned, he told her that he had found a dead man in the basement. Mary Hilliard also testified that before the police arrived at their home on March 16, 1974, Hilliard told her that he arrived home about 2 a.m. on March 16, and that she should not mention the sheets or his friend in the basement or he would kill her. When the police arrived, she told them that Hilliard arrived home at 2 a.m. She did not tell them about the sheets.

Hilliard testified to having ridden on certain buses during the early morning hours of March 16, 1974. He rode on a 43d Street bus, but said Beard was not the bus driver, and he did not exit at the end of the line. Shortly after he arrived home, he went to bed. At approximately 6 a.m., his wife woke him and said that their two dogs were barking and fighting in the basement. Hilliard went to the basement and saw the victim’s body. He had never seen this person before. Hilliard denied that he took any sheets to the basement or that he told his wife a friend would stay overnight in the basement, or that he asked his wife for any sheets.

On the basis of this evidence, the jury concluded that Hilliard’s guilt had been established beyond a reasonable doubt. This court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) The.jury believed the evidence presented by the State, and that evidence was not so improbable as to warrant reversal.

In arguing that there was insufficient evidence of guilt, Hilliard notes that his counsel was not permitted to ask Mary Hilliard whether she was pregnant at the time of trial, which was approximately 10 months after Hilliard’s arrest. Determining the scope of cross-examination is primarily the responsibility of the trial judge. We agree with Hilliard that this appears to be a proper subject of cross-examination, because it tends to indicate bias or a motive to testify falsely. However, we are of the opinion that this restriction of cross-examination did not contribute to the verdict. Mary Hilliard had testified several times on cross-examination that she feared her husband, and thus, by her own testimony admitted motive to testify falsely.

Hilliard next contends that several instances of prosecutorial misconduct deprived him of a fair trial. First, he points to three segments of the State’s cross-examination of him. In the first segment, Hilliard was repeatedly questioned regarding whether he had testified on direct examination that the police arrived at 9 a.m. on the day the body was found, when Hilliard had in fact testified that nine police officers came to his home that morning. In the second segment, Hilliard was asked a question which assumed that he on direct examination had testified that he had told no one about knives on the roof when in fact, he had testified he had shown them to his wife. Hilliard answered that he had not told anyone other than his wife, but later said that he could not answer the question. In the third segment, Hilliard was cross-examined as to whether he found the knives in the basement on the day after the body had been removed or the day after that. It appears that the first segment of cross-examination relied upon by Hilliard was the result of an unintentional misstatement by the prosecutor. In any event, we are of the opinion that none of these alleged errors, when viewed in the context of the entire trial, was of such a prejudicial nature as to require a new trial.

Secondly, Hilliard contends that he was denied a fair trial when the prosecution, in its cross-examination of him, made an insinuation prejudicial to him and then failed to present impeaching evidence in response to his specific denial of such insinuation. On cross-examination, Hilliard testified that while riding the Cottage Grove bus on the early morning hours of March 16, 1974, he fell asleep and that when he awoke his coat and wallet were missing. He reported this to the bus driver, who was white. The prosecutor then asked Hilliard questions concerning whether the police had ever told him that there were no white bus drivers working the Cottage Grove route on the night in question and whether police showed him information indicating that he had not filed a report about this incident. Hilliard denied ever having been told or shown such information. Later, when.the prosecution presented rebuttal testimony, police officer McKenna testified that he told Hilliard that he had checked with CTA authorities as to whether there was a white bus driver on the Cottage Grove route on March 15 and 16. The State never called a witness who testified that there were not any white bus drivers on that route on those days or that CTA officials had not received a report of Hilliard’s loss. Hilliard relies upon People v. Nuccio (1969), 43 Ill. 2d 375, 381, 253 N.E.2d 353, which held that it was improper for the prosecution to make unsupported insinuations of misconduct on cross-examination without producing supporting evidence in response to denials of misconduct. Here, the questions did not insinuate misconduct on the part of Hilliard. Moreover, the complained-of cross-examination consisted of only three questions and not a “persistent course of [improper] cross-examination,” as was the case in Nuccio. (43 Ill. 2d 375, 381.) We find no reversible error.

Thirdly, Hilliard contends that prejudicial error occurred when the prosecution asked Hilliard on cross-examination why he had

stabbed a sleeping man, although objections to similar questions had already been sustained. An objection to this question was sustained, and in our opinion, the prompt action of the trial judge cured any error.

Hilliard next argues that he was denied a fair trial by improper remarks made by the prosecutor during closing argument. He, however, failed to object to these remarks during argument, and therefore, any error is deemed waived. (People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) As to his contention that the prosecutor misstated the evidence by stating that there was blood on the knee area of his trousers, when the parties had entered into a stipulation that there was blood on the lower portion of the leg of the trousers, we note that the jury was given an instruction informing it that closing arguments are not evidence and that arguments not based on the evidence should be disregarded. We further note that Hilliard, himself, testified that he was wearing the trousers when he cleaned the basement, and that this could explain the presence of blood on them. Improper comments by a prosecutor during closing argument do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881.) We conclude that the prosecution remarks at issue were not a material factor in Hilliard’s conviction, and therefore, not reversible error.

Hilliard’s last argument in his direct appeal is that error occurred when six photographs of the deceased were admitted into evidence. Three. of the photographs depicted the appearance of the victim’s body from different locations in the basement. Two provided a closer view of his wounds, and the last showed a wound on the victim’s face. The State responds that any error was waived by Hilliard’s failure to object either during trial or in his motion for new trial to the admission of these photographs, and that, in any event, no prejudicial error is involved.

Where photographs are relevant to establish any fact in issue, they are admissible in spite of the fact that they may be of a gruesome nature. (People v. Foster (1979), 76 Ill. 2d 365, 377, 392 N.E.2d 6.) In determining whether to admit such photographs into evidence, a trial court should balance their probative value against their prejudicial effect, and its decision will not be reversed absent an abuse of discretion. (People v. Foster (1979), 76 Ill. 2d 365, 378; People v. Hicks (1981), 101 Ill. App. 3d 238, 242, 427 N.E.2d 1328.) Here, the photographs were probative of the manner and cause of death, the means used, and the location of the events in question. We find no error in the admission of the photographs into evidence.

The two remaining issues, which were reserved in our earlier opinion, arise out of the first denial of post-conviction relief in the court below. In his petitions for relief, Hilliard asserted that he was entitled to relief under the Post-Conviction Hearing Act because, inter alia, he had been deprived of a fair trial by the misconduct of the prosecution and because he had been deprived of due process of law because of ineffective assistance of his trial counsel.

With regard to Hilliard’s claim that prosecutorial misconduct deprived him of a fair trial, we observe that he bases this claim upon the same arguments raised in his direct appeal. He, however, expands on his argument concerning the impropriety of the prosecutor’s closing argument comment that there was blood on the knee area of defendant’s trousers, by relying on the report of a microanalyst. This report was the basis for the stipulation at trial that there was blood on the lower portion of the leg of the trousers, but it was not admitted into evidence at trial. It stated that minute reddish-brown stains were present on the lower right rear leg panel, and that chemical tests yielded positive reactions for the presence of blood. We have already concluded that the prosecution’s comment was not a material factor in Hilliard’s conviction, and we are of the opinion that this holding and the holdings on the other prosecutorial errors raised on direct appeal are dispositive of this issue.

Hilliard also alleged in his petitions that he was denied effective assistance of counsel at his trial. The State initially responds that Hilliard had waived his right to raise the issue of competency of counsel in his post-conviction petition because he failed to raise that issue in his direct appeal. The State cites People v. Walker (1972), 6 Ill. App. 3d 909, 286 N.E.2d 812, a case in which a defendant, during the pendency of his appeal from his conviction, filed a petition seeking post-conviction relief, and relies specifically on the following language therein: “[W]here a direct appeal from a conviction has been taken, a defendant cannot raise in a post-conviction petition those issues which were or could have been reviewed in the direct appeal [citations], unless it is fundamentally unfair to prevent a consideration of the issue.” (6 Ill. App. 3d 909, 911.) Hilliard replies that the circumstances of this consolidated appeal do not support a finding of waiver. He notes that this court stayed oral argument in the direct appeal pending resolution of the first post-conviction proceedings, and that this court consolidated Hilliard’s direct appeal with his appeal from the first denial of post-conviction relief. Therefore, he contends it would be ludicrous to require appellate counsel to file a supplemental brief on direct appeal raising this issue, when in fact he has already succeeded in getting all of the issues before the appellate court in consolidated appeal. Under the circumstances, we believe the issue was not waived. However, we are of the opinion that Hilliard was not denied effective assistance of counsel.

Hilliard was represented at trial by privately retained counsel. A defendant’s representation will be held constitutionally deficient, “if his counsel was ‘actually incompetent, as reflected in the performance of his duties as trial attorney, and if the incompetence produced substantial prejudice to the defendant without which the result * * * would probably have been different.’ ” (People v. Talley (1981), 97 Ill. App. 3d 439, 442-43, 422 N.E.2d 1084; see also People v. Nelson (1982), 106 Ill. App. 3d 838, 842, 436 N.E.2d 655.) Competency is determined from the totality of counsel’s conduct at trial, and a defendant is entitled to competent, not perfect, representation. (People v. Nelson (1982), 106 Ill. App. 3d 838, 842; People v. Talley (1981), 97 Ill. App. 3d 439, 446.) And “[sjubstantial prejudice is not established by mere conjecture or by second-guessing counsel’s trial tactics.” People v. Nelson (1982), 106 Ill. App. 3d 838, 842.

Hilliard bases his claim of ineffective assistance of counsel on several instances of alleged incompetence. We address his major contentions briefly.

First, he contends that his trial counsel failed to perfect the impeachment of Johnny by having the transcript of his grand jury testimony admitted into evidence, after Johnny had responded that he did not remember several of the questions asked of him and the answers given by him before the grand jury. If a witness fails to recall making a prior statement, it is incumbent upon the examining party to offer evidence of that statement. (People v. Purrazzo (1981), 95 Ill. App. 3d 886, 896-97, 420 N.E.2d 461, cert. denied (1982), 455 U.S. 948, 71 L. Ed. 2d 661, 102 S. Ct. 1448.) This was not done here. We observe, however, that defense counsel, during his cross-examination of Johnny, quoted at length from the grand jury testimony, and that defense counsel was permitted to argue the inconsistencies between Johnny’s grand jury and trial testimony to the jury. Under these circumstances, we cannot find substantial prejudice to Hilliard.

Secondly, Hilliard argues that his counsel was incompetent because he failed to object to bus driver Beard’s identification of a photograph of Hilliard at trial despite the fact that Beard never made an in-court identification of Hilliard. We note that Beard’s identification of Hilliard’s photograph was corroborated by his testimony that the black man on the bus had told him that he had recently moved to 79th and Parnell Streets and by the evidence that Hilliard lived at 7933 South Parnell. In the light of this corroboration, defense counsel may have made a tactical decision not to pursue further identification before the jury of Hilliard by Beard.

Thirdly, Hilliard contends that his trial counsel’s incompetence was shown by his failure to object to the prosecution’s closing argument comment that there was blood on the knee area of Hilliard’s trousers and by his failure to object when the prosecution attempted to impeach Hilliard by asking him if police officers had told him that there were no white bus drivers working the Cottage Grove route on the night in question. We addressed these issues earlier in this opinion and found that they did not warrant a reversal of Hilliard’s conviction. Accordingly, we find that counsel’s failure to object to the comment and the cross-examination did not cause substantial prejudice to Hilliard.

Lastly, Hilliard contends that his trial counsel’s incompetence was demonstrated by his failure to raise the privilege afforded marital communications with regard to certain testimony of Mary Hilliard against her husband. Hilliard specifically refers to Mary’s testimony that he asked her to get two sheets for a friend in the basement, her testimony that he told her to tell the police that he had arrived home at 2 a.m., and her testimony that he told her not to tell the police about the sheets and his friend in the basement, or he would kill her.

Pursuant to Illinois statute, in criminal cases neither spouse may testify concerning any communication or admission made by either of them to the other, or as to any conversation between them during marriage, subject to certain exceptions not relevant to this case. (Ill. Rev. Stat. 1975, ch. 38, par. 155 — 1.) And a statement made in private by one spouse to the other is presumed to be confidential, unless the contrary is evident. (People v. Burton (1972), 6 Ill. App. 3d 879, 887, 286 N.E.2d 792, cert. denied (1973), 411 U.S. 937, 36 L. Ed. 2d 399, 93 S. Ct. 1919.) Thus, it appears that had defense counsel raised the marital privilege, portions of Mary Hilliard’s testimony would have been excluded. We note, however, that Johnny, not Hilliard’s wife, was the critical prosecution witness at trial, and we are unable to conclude that defense counsel’s failure to raise the marital privilege constituted such incompetence as to require reversal of Hilliard’s conviction.

We also observe that defense counsel vigorously cross-examined prosecution witnesses, especially Johnny and Mary Hilliard, and that he made a clear and logical, albeit unsuccessful, closing argument. Viewing the totality of counsel’s conduct at trial, we are of the opinion that Hilliard was not denied effective assistance of counsel. Therefore, we conclude that the court below did not err in dismissing the allegations of Hilliard’s post-trial petition concerning prosecutorial misconduct and ineffective assistance of counsel.

Accordingly, Hilliard’s conviction of murder and the denial of post-conviction relief are affirmed.

Affirmed.

McNAMARA and RIZZI, JJ., concur.

       A microanalyst’s report, which was the subject of a stipulation at trial, stated that minute reddish-brown stains were present on the lower right rear leg panel, and that chemical tests yielded positive reactions for the presence of blood.

       We note that defense counsel attempted to rehabilitate Johnny and that Johnny testified later that he was not sure that he saw the knife on the roof weeks later.