author: JUSTICE ROMITI

text:
    TRAVELERS INSURANCE COMPANY, Plaintiff-Appellant, v. LISA M. SMITH, Defendant-Appellee.—(C. FLOYD SMITH, Defendant-Appellant.)
    First District (4th Division)
    No. 81-1169
    Opinion filed April 22,1982.

      Hennessy, Faraci, Tassone & Cihak, of Chicago, for appellants.
    Hyman Riebman and Edward A. Warman, Ltd., of Skokie, for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff, a life insurance company, filed an interpleader action to determine who was entitled to the proceeds of a life insurance policy. Insured, covered by a group life insurance policy, had filled out a change of beneficiary form but his employer had rejected it because it was witnessed by only one person. Insured obtained a second witness’ signature, but the form was not returned to the employer before insured’s death. The trial court granted summary judgment for the original beneficiary. We reverse and remand, holding that such judgment is not warranted by the evidence presently before the court.

Plaintiff, Travelers Insurance Company, being confronted with two different claims to the proceeds of an insurance policy, filed an inter-pleader action; the proceeds of the policy have been paid into court and deposited in an interest-bearing account, and Travelers has been discharged. The original beneficiary filed a motion for summary judgment which was granted.

The sole evidence before the court discloses that sometime in 1978 (perhaps even earlier), the deceased became insured through his employer under a group life insurance policy issued by Travelers. On September 6, 1978, he designated his wife, Lisa M. Smith, the appellee, as his beneficiary. In pertinent part the policy provided that “any employee insured hereunder may designate a new beneficiary at any time by filing with the Employer a written request for such change on forms furnished by the Company, but such change shall become effective only upon receipt of such request at the office of the Employer where the record of the Employee’s insurance is maintained.”

In 1980 insured and his wife separated. Insured obtained a change of beneficiary form. This form was filled out, signed by the insured and dated May 17, 1980. However although two lines were provided for witnesses, insured at that time obtained the signature of only one witness. The form did not expressly require the signature of two witnesses. Indeed, although the line for the employee’s signature bore the legend “signature of employee,” the lines for the witnesses’ signatures bore no legend.

At some unspecified time this form was delivered by insured to his employer. And again at some unspecified time the employer returned the form to him with a form letter instructing him that two witnesses were required. There is no evidence that this letter was given to insured before he first filled out the form. There is also no evidence as to whether the requirement of two witnesses was one imposed by Travelers or was imposed, without authority, by the employer. It is noteworthy that while the form said it was signed in the presence of the witnesses, the employer did not request insured to fill out and sign a new form but simply required him to obtain a second signature.

Insured died on August 31, 1980. On September 15, 1980, his employer found an intercompany envelope in insured’s locker. In the envelope was the change of beneficiary form; the second witnessing signature had been added.

In most modern life insurance policies, like the one involved in this case, the insured is free to change the beneficiary at any time and the designated beneficiary has no vested interest in the policy. (Davis v. Metropolitan Life Insurance Co. (1936), 285 Ill. App. 398, 2 N.E.2d 141; 2 Appleman, Insurance Law & Practice §901 (1966).) Obviously before the designation can be changed, the insured must intend to change the beneficiary. But mere intent is not enough; there must be at least some overt act evidencing this intent. (Tatelman v. Tatelman (1975), 25 Ill. App. 3d 678, 323 N.E.2d 821, appeal denied (1975), 58 Ill. 2d 599; 2 Appelman, Insurance Law and Practice §963 (1966).) Where the insurer has specified in the policy the method for changing the beneficiary normally some type of compliance with the policy terms is required. Illinois, in accordance with the majority of States, generally only requires that the insured substantially comply with the policy terms (Tatelman v. Tatelman (1975), 25 Ill. App. 3d 678, 323 N.E.2d 821, appeal denied (1975), 58 Ill. 2d 599; Seipel v. State Employees’ Retirement System (1972), 8 Ill. App. 3d 182, 289 N.E.2d 288; Begley v. Miller (1907), 137 Ill. App. 278; and see Supreme Council of the Royal Arcanum v. Huckins (1911), 166 Ill. App. 555; Delaney v. Delaney (1897), 70 Ill. App. 130, aff’d (1898), 175 Ill. 187, 51 N.E. 961), particularly where, as here, the insurer has filed an interpleader action. (Kitchen v. North American Accident Insurance Co. (1954), 2 Ill. App. 2d 23, 118 N.E.2d 48; Kurgan v. Prudential Insurance Co. of America (1950), 340 Ill. App. 178, 91 N.E.2d 620, appeal denied (1950), 406 Ill. 625; O’Donnell v. Travelers Insurance Co. (1947), 332 Ill. App. 222, 74 N.E.2d 735, appeal denied (1948), 398 Ill. 629; Sun Life Assurance Co. of Canada v. Williams (1936), 284 Ill. App. 222,1 N.E.2d 247.) Requiring the insured to at least substantially comply with the policy provisions ensures that his intent is clearly manifested. But technical compliance with the policy provisions is solely for the benefit of the insurer, to protect it from paying the wrong person and being forced to pay twice. (Kitchen v. North American Accident Insurance Co. (1954), 2 Ill. App. 2d 23, 118 N.E.2d 48; Kurgan v. Prudential Insurance Co. of America (1950), 340 Ill. App. 178, 91 N.E.2d 620, appeal denied (1950), 406 Ill. 625; 2A Appleman Insurance Law and Practice §1042 (1966).) Interpleader protects the insurer from any danger of double liability. Accordingly where interpleader has been filed, it would be unreasonable to use technical requirements to defeat the clear and manifested intention of the insured; rather, the “ # * courts of equity seek to do that which the insured apparently intended to have done. * * *’ ” Sun Life Assurance Co. of Canada v. Williams (1936), 284 Ill. App. 222, 226, 1 N.E.2d 247, 248.

Appellee relies on Freund v. Freund (1905), 218 Ill. 189, 75 N.E. 925, and Young v. American Standard Life Insurance Co. (1947), 398 Ill. 565, 76 N.E.2d 501, as holding that the filing of an interpleader action does not waive the need for strict compliance. Freund involved in part the interpretation of a New York statute. Decided in 1905, before insurance law on this issue had been well established, it has not been followed in the State. Young merely held that an insurer could not, by filing an inter-pleader action, waive conditions set forth by the insured and distinguished such cases as Sun Life because there insurer was waiving its own requirements. As noted in Kitchen, the doctrine that the insurer’s filing of an interpleader action waives strict compliance is well established in this State.

The policy required the insured to fill out a form furnished by the insurer and file it with the employer. Insured did fill out the form, and he did file it with the employer. It follows that if the requirement of two witnesses was a requirement not of the insurer but imposed without authority by the employer, the employee strictly complied with the policy requirements, particularly since there has been no contention that it was not filed at the office where the insurance records were kept. (We note, however, that if due to the employer’s rejection of the form, the form never reached that office, this would not prevent the change of beneficiary from becoming effective.) (Sun Life Assurance Co. of Canada v. Williams (1936), 284 Ill. App. 222,1 N.E.2d 247.) The same would be true if the requirement of two witnesses was a requirement of the insurer but this requirement was not communicated to the insured before he originally filed the form. Any limitations and conditions in a policy must be clear and conspicuous (13 Appleman, Insurance Law and Practice §7403 (1976)), and certainly two blank lines with no legend of any kind cannot be considered to clearly convey the fact that the signatures of two witnesses are mandatory and their absence would invalidate the change.

However, even if we assume that the insurer did require the signatures of two witnesses and that the insured was informed of this requirement when he was first given the insurance form, it would appear, absent evidence to the contrary, that at least the requirement of two witnesses rather than one was not for the purpose of manifesting the intent of the insured but merely to protect the insurer. This, then, would be the type of technical requirement waived when the insurer filed its interpleader action. That the requirement was regarded as purely technical is indicated by the fact that although the form says “I have hereunto subscribed my name * * * in the presence of” with two lines underneath for the signature of the witnesses, the employer did not instruct the employee to fill out and sign a new form but simply to add a witness.

Accordingly, the real question is not whether the employee at least substantially complied with the policy requirements when he filed the form with his employer in May. It appears that he did. The question rather is whether the insured’s retention of this form for some unknown period after it was returned to him, on some as yet unestablished date, either vitiated this substantial compliance or manifested a change in the insured’s intent to change the beneficiary. As this court has repeatedly stated, summary judgment can only be granted where there is no question of material fact and the moving party is beyond doubt entitled to recovery. (Cuthbert v. Stempin (1979), 78 Ill. App. 3d 562, 396 N.E.2d 1197, appeal denied (1980), 79 Ill. 2d 630.) This is not the situation here.

It is clear from John Hancock Mutual Life Insurance Co. v. Douglass (7th Cir. 1946), 156 F.2d 367, where the insured’s compliance with the policy requirements was much less than the compliance here, that if the insured died shortly after the form was returned, there still was substantial compliance. In Douglass the form was rejected because (1) it was signed with initials rather than the full first name of the insured, (2) there was no witness to the signature, (3) the new beneficiary’s name was not entered. The agent prepared a new form which was not completed because insured died a few days later. The court of appeals noted that the insurer has no interest in the matter except in carrying out the intentions of the policyholder, and when an insured takes a positive action which evidences his obvious desire for a change of beneficiary, the court will adopt such construction as will assist in carrying out such intention. It then held that there was sufficient positive action on the part of the insured to manifest his intention to make the changes which he then carried into effect by written request on the insurer’s form.

But even if it should be determined that the form had been returned to the insured more than a few days before and there wás no excuse fbr the delay in returning it to the employer, as there was in Thompson, it would seem that the determination of the effect of this delay is one for the trier of fact, which must determine how long is a reasonable time for returning the form, and whether any unreasonable delay manifests a change in the insured’s intention or otherwise vitiates the substantial compliance present in May. Questions as to the effectiveness of a change of beneficiary are generally for the jury (Bohannon v. Manhattan Life Insurance Co. (5th Cir. 1977), 555 F.2d 1205; Skamoricus v. Konagiskie (1935), 318 Pa. 128, 177 A. 809; 22 Appleman, Insurance Law & Practice §12871 (1979)), and this case is no exception.

Seipel v. State Employees’ Retirement System (1972), 8 Ill. App. 3d 182, 289 N.E.2d 288, relied on by appellee is not in point. In Seipel the beneficiary signed in the space on the form provided for the employee’s signature; where the employee signed, if he signed at all, is not stated. In June the retirement system notified the employee of the mistake and requested he execute a new change of beneficiary form. After the employee’s death nearly four months later, a fellow employee found the new change of beneficiary form in the employee’s desk. It was signed but not notarized. The appellate court simply held that the decision and finding of the administrative body that there was no substantial compliance was not against the manifest weight of the evidence, nor was it contrary to law. The court did not state that there had been no substantial compliance as a matter of law even though the employee had been required, unlike the employee here, to fill out a new form.

Accordingly the judgment of the trial court is reversed and the case remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

JOHNSON, P. J., and JIGANTI, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL GRAYER et al., Defendants-Appellants.
    First District (1st Division)
    No. 79-1880
    Opinion filed April 26, 1982.

      James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellants Daniel Grayer and Eric Harris.
    George M. Zuganelis, of Chicago, for appellant Leonard Kemp.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Sharon Eiseman, and Mark R. Fuller, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After a jury trial, defendants Daniel Grayer, Leonard Kemp and Eric Harris were found guilty of armed robbery and sentenced to six years imprisonment.

Defendants Grayer and Harris appeal, contending that they were denied a fair trial by the State’s improper and highly prejudicial cross-examination of a defense witness. Defendant Kemp appeals, contending that (1) he was denied effective assistance of counsel and (2) he was not proven guilty beyond a reasonable doubt.

On February 22,1979, Treena Moore, Cynthia Harris, Debra Harris and Debra’s fiance, Eugene Cannon, lived in an apartment building at 225 East 50th Street in Chicago. At approximately 8 p.m. on February 22, 1979, Treena Moore, Cynthia Harris and Debra Harris left their apartment building to go to a Burger King located at 48th and State Streets. After purchasing food, the three girls walked south on Wabash Avenue past DuSable High School at 49th and Wabash. Six boys were sitting in front of the school. The girls then walked east on 49th Street toward Michigan Avenue when three boys approached them from the rear. The girls stopped to let the boys pass when one said, “No mama we don’t want to get past we want what you got.” One of the boys asked Debra for money. When Debra said she did not have any, one of the boys pulled out a gun and pointed it at her head. Cynthia was then searched by one of the boys, who took her keys. She was told she had to give him money to get her keys back. At the same time one of the boys searched Debra and took some money from her pocket. One of the boys then ran past and snatched the bag of food Debra was holding. As the three boys left, the boy with Cynthia’s keys threw them to the ground and another boy turned and fired two shots at the girls. The girls then ran to a police car at 49th and Indiana. The officer in that car called another vehicle. Officer Willie Smith and his partner arrived, spoke to the girls about the incident and then drove them to their home at 225 East 50th Street. Officer Smith testified that he spoke with the girls for approximately 10 minutes after the incident and none of the girls gave a description of the offenders. However, the girls told him they could identify their assailants.

At trial, Treena Moore identified defendant Harris as the one who searched Cynthia’s pockets and took her keys. Defendant Grayer asked Treena if she had any money.

Cynthia Harris identified defendant Grayer as the one who first said that they wanted what the girls had. She also identified defendant Harris as the boy who searched her and took her keys. Cynthia identified a photograph as accurately depicting the lineup she viewed on February 22, 1979. That evening she identified No. 4 as searching her, No. 5 as the boy with the gun who searched Debra and No. 6 as the other boy who robbed them.

At trial, Debra identified Kemp as the one who said they wanted what the girls had. Debra testified that defendant Grayer pulled out a gun and defendant Harris searched Cynthia. She also stated that defendant Kemp was the one who searched her and ran past her and snatched her bag of food.

After returning home, Debra Harris and Eugene Cannon went back to Burger King to get Cannon’s lunch. Cannon carried a pipe that he found in the alley. Cannon did not have a gun. On the way, Debra saw the three defendants and another boy. Debra testified that defendant Harris was on a snowbank, making rhymes about how he had robbed her. After telling Cannon that the three others were the robbers, Debra and Eugene went home, the three defendants ran away and the fourth boy stayed there alone.

That evening Debra viewed a lineup and identified Nos. 4, 5 and 6 as the boys who had robbed her. She identified No. 4 as the one who searched Cynthia, No. 5 as the one who searched Debra and snatched her bag and No. 6 as the one who held the gun and took money from Debra’s pocket. Debra Harris further testified that one week before trial, when she was outside the courtroom with Eugene Cannon and Cynthia Harris, she saw the three defendants and that defendant Kemp told her that “if we didn’t press charges he would give us the money because he didn’t do it.”

Ernest Holmes testified that he was defendant Grayer’s cousin and had known defendants Kemp and Harris for years. Holmes testified that on the night of February 22, 1979, he had seen defendant Kemp and defendant Grayer watching television at Mr. Graham’s apartment at approximately 8:45 p.m. Mr. Graham lived at 4844 South State, which is one-half block west of DuSable High School and one-half block from 49th and Wabash. They left Mr. Graham’s apartment to buy beer. Holmes, Kemp and Grayer walked to 47th and State with four other boys. After they got the beer, the three got on a bus to go two blocks north because the bus was there and it was cold outside. They met defendant Harris on the bus. When they got off the bus at 49th and State, they were approached by a man and a woman. The man had a gun and shot twice at them. The man asked the woman, “Is that them, is that them?” and the woman replied, “No.” Holmes began to run when he was shot at, but he fell. The man came over to him and hit him with the gun.

A short time later Holmes found a plain-clothes policeman and they rode in his car looking for the man with the gun. When they found him, he was with uniformed police officers. They all went to the police station. Holmes was placed in a lineup. Holmes was not identified in the lineup or charged with armed robbery. However, the three defendants were identified in the lineup. The clothes they wore in the lineup were the same clothes they wore that evening. On cross-examination, the State’s Attorney inquired into the details of a prior offense committed by Holmes. This testimony is subsequently set forth.

Andrew Graham testified that defendants Grayer and Kemp came to his apartment about 8 p.m. on February 22,1979. He was training them to build cabinets and connect speakers. Graham did not remember whether defendant Harris was present. About 8:30 p.m. defendants Grayer and Kemp went to the liquor store to buy beer. They were gone about 15 or 20 minutes when they came back with the beer. Defendants Grayer and Kemp left Graham’s apartment at 9 p.m.

Eric Harris testified that on February 22,1979, he worked overtime at Automatic Electric, where he had been employed for approximately two years. He got off work at 6 p.m. that day. Before going home, he stopped at the home of Andrea Watson, who lived near 69th and Lowe. He left Watson’s home between 9:30 and 9:45 p.m. On his way home, he took the El and the bus. He got on the El at 69th and Wentworth and got off at 47th Street. He got on the bus there and saw defendant Grayer, defendant Kemp and Holmes on the bus. Defendant Harris identified himself in a photograph of the lineup he participated in on the evening of the incident as No. 4, defendant Kemp as No. 5 and defendant Grayer as No. 6. He stated that the clothes worn by defendants in the lineup were the clothes they wore that evening.

Defendant Grayer testified that he lives at 4844 South State. He stated that Mr. Graham was teaching him a trade in electronics. Grayer testified that defendant Kemp came to Grayer’s house at 7:30 p.m. on February 22, 1979. From there they went down to Graham’s apartment. They arrived there at 7:40 p.m. and left at 8:45 p.m. to go to the liquor store. They walked to the liquor store located at 47th and State and took the bus for the return trip of two blocks. They met defendant Harris on the street at 9 or 9:10 p.m. He was drunk and staggering. They did not return from the store.

Defendant Kemp testified that he lives at 4947 South Federal, three buildings from 4844 South State. He stated that he and defendant Grayer got to Graham’s at about 8 p.m. and left at 8:50 p.m. to buy beer. Defendant Kemp did not return with the beer.

All three defendants were arrested on the street outside 4844 South State at 9:30 p.m. on February 22, 1979. The time of the armed robbery was 8:40 p.m.

The jury found all three defendants guilty of the armed robberies of Debra Harris and Cynthia Harris.

Defendants Grayer and Harris contend that the State’s cross-examination of defense witness Ernest Holmes which elicited the details of a prior conviction requires a new trial. We disagree.

Holmes was cross-examined at some length and in some detail concerning a gun offense in which Holmes had accidentally fired a gun from a back porch injuring a conductor on a passing El train. Defense counsel’s only objection during that portion of the cross-examination of Holmes cited by defendants was one which challenged the relevancy of the State’s inquiry into the age of the victim shot on the El train. At no time did defense counsel make an objection on the grounds that the State’s line of questioning was improper. The failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Furthermore, an objection to evidence based upon a specific ground is a waiver of objection on all grounds not specified. (People v. Washington (1962), 23 Ill. 2d 546, 179 N.E.2d 635.) Thus, defendants Grayer and Harris waived their objections to the State’s cross-examination of Holmes and will not be permitted to raise these objections for the first time on appeal.

Assuming that this issue was not waived, we find that any error committed in allowing the State to cross-examine Holmes as to the details of his prior conviction was harmless beyond a reasonable doubt.

People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, sets forth the fundamental rule of impeachment of a witness by a prior conviction. It requires that the conviction be for an offense punishable by imprisonment in excess of one year, or, alternatively, that the offense involve dishonesty or false statement regardless of the punishment. The record here does not indicate the offense for which Holmes was previously convicted. However, the record does show that the facts of the offense for which Holmes was convicted involved his firing a gun, resulting in the injury of an El conductor. This offense clearly does not involve dishonesty or false statement. In order for Holmes’ conviction to be used to impeach him, the conviction would have to be for an offense punishable by imprisonment in excess of one year. Neither defendants nor the State argue that Holmes’ prior conviction was not for an offense punishable by imprisonment in excess of one year. Thus we will assume that the offense for which Holmes was convicted was punishable by imprisonment in excess of one year and was, under People v. Montgomery, a conviction which could be used to impeach Holmes.

Further, the latitude to be afforded in the cross-examination of witnesses rests largely in the trial court’s discretion and, absent a showing of abuse of that discretion, its determination will not be disturbed on appeal. (People v. Brown (1980), 91 Ill. App. 3d 582, 414 N.E.2d 1165.) Defendants here do not urge that the trial court erred in allowing the State to elicit evidence that Holmes had a prior conviction; rather, defendants argue that the trial court erred in allowing the State to elicit the details of the conviction. In People v. Upshire (1978), 62 Ill. App. 3d 248, 379 N.E.2d 38, the court found no abuse of discretion when the trial court permitted the prosecutor to elicit the date, crime and sentence from the witness during cross-examination. In People v. Humes (1979), 78 Ill. App. 3d 255, 397 N.E.2d 130, we held that the trial court did not abuse its discretion in refusing to allow the defense to cross-examine the victim regarding where he had been convicted, the time and place of the criminal acts, the particular facts of the crimes, whether he had pleaded guilty or innocent to the charges and the sentences imposed. Furthermore, in People v. Butler (1978), 63 Ill. App. 3d 132, 379 N.E.2d 703, the court found that the questioning of defendant concerning details of his prior conviction was improper because not relevant either (1) to impeach defendant’s credibility or (2) to prove a material issue in the case. However, because there was other sufficient competent evidence which established defendant’s guilt beyond any reasonable doubt and the error did not appear to contribute to the jury’s verdict, the error was harmless and reversal was not required.

In the case before us, we find that knowledge of the details elicited would not serve to aid the jury in judging Holmes’ credibility; the inquiry was improper; but, in view of the other evidence which established defendants’ guilt beyond a reasonable doubt, we find that the error was harmless.

Defendant Kemp contends that he was denied effective assistance of counsel because the public defender representing all three defendants would not cross-examine Debra Harris or argue regarding which of the defendants held the gun during the robbery without jeopardizing defendant Grayer. We disagree.

During direct examination Debra Harris identified defendant Kemp as the boy who made a comment to her and her companions as the girls stopped to let the three boys walk past them. She referred to Kemp as the defendant who was wearing a gray suit at trial. Debra Harris identified defendant Grayer as the boy who pulled the gun during the robbery and referred to him as the defendant who was wearing a red tie at trial. Debra Harris identified defendant Harris as the boy who searched Cynthia Harris and referred to him as the defendant who was wearing a grayish sports jacket and a goldish white shirt at trial. She then testified that the one in the gray suit ran past and snatched her bag. She was then asked:

“Q And what happened then after snatching your bag, what did Mr. Kemp do at that point?
A He snatched the bag and then he held the gun and—
Q Mr. Grayer had the gun now?
A Yes, the one in the red tie, red tie had the gun and then he snatched the bag and the one on the end right here next to Mr. Grayer he took — he was searching my sister and he snatched her keys out of her pocket and she asked him could she have her keys back and he told her that she had to give him some money, she told him she didn’t have any money, then he said that they can’t have the keys unless they gave him some money.”

Debra Harris then identified a photograph of the lineup from which she identified the three defendants. She said that she had identified the person in position No. 4 as the boy who searched Cynthia Harris; the person in position No. 5 as the boy who searched her and took her bag; and the person in position No. 6 as the boy who took her money and held the gun.

Defendant Kemp contends that when the prosecutor corrected Debra’s testimony as to which of the defendants held the gun during the robbery, the defense attorney was put in a position whereby he could no longer effectively cross-examine Debra or argue to the jury regarding which defendant held the gun without jeopardizing defendant Grayer and thereby resulting in a denial of effective assistance of counsel as to defendant Kemp.

We note that the public defender did not inform the court of this alleged conflict between defendants at trial or in defendants’ post-trial motion. In People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227, the court held that where the issue of joint representation of parties with conflicting interests was not raised at trial nor in the motion for a new trial, and where it did not appear that the failure of the trial court to raise the issue sua sponte was an error affecting the defendant’s substantial rights, the issue was waived and could not be raised for the first time on appeal. Furthermore, defendant Kemp does not contend here, nor do we find, that it is “plainly apparent from the record that an error affecting substantial rights was committed.” (People v. Precup (1978), 73 Ill. 2d 7, 17.) We hold that this issue has been waived.

Assuming that the issue had not been waived, we find that defendant Kemp was not denied effective assistance of counsel.

It is not a per se violation of the right to effective assistance of counsel to permit one attorney to represent multiple defendants. (People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169; People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 41,100 S. Ct. 64.) Furthermore, a defendant must show an actual conflict of interest in order to prevail in a constitutional claim of ineffective assistance of counsel due to joint representation of co-defendants by a single attorney. People v. Berland.

We find no actual conflict in the record. Debra Harris’ testimony was clear in describing which defendant held the gun during the robbery. It appears from the record that at some point the prosecutor was confused as to which defendant held the gun, but that Debra consistently identified defendant Grayer as the boy who held the gun. In addition, both defendant Kemp and defendant Grayer asserted the same defense at trial and no objection was made to their joint representation. Both Kemp and Grayer testified to being in each others’ presence at Mr. Graham’s place. Under these circumstances, we find that defendant Kemp was not denied effective assistance of counsel.

Defendant Kemp’s second contention is that he was not proved guilty beyond a reasonable doubt because two of the eyewitnesses, Cynthia Harris and Treena Moore, did not identify Kemp as a participant in the armed robbery and the third eyewitness’ testimony was confused and conflicting.

The weight and credibility to be given a witness’ testimony is a determination for the jury as the trier of fact, and unless that determination is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt as to guilt, a conviction will not be reversed. (People v. Stringer (1972), 52 Ill. 2d 564,289 N.E.2d 631; People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063.) Furthermore, the testimony of a single identifying witness is sufficient to sustain a conviction provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. People v. Yarbrough (1977), 67 Ill. 2d 222, 226, 367 N.E.2d 666, quoting People v. Stringer (1972), 52 Ill. 2d 564,569; People v. Hughes (1977), 55 Ill. App. 3d 359,371 N.E.2d 41.

We find that the record does not support defendant Kemp’s contention that he was not proved guilty beyond a reasonable doubt. Although Treena Moore did not identify defendant Kemp as a participant in the armed robbery, Cynthia Harris testified that she viewed a lineup on the evening of the incident and identified all three defendants as participants in the armed robbery. Furthermore, at trial Debra Harris identified defendant Kemp as the one who told the girls that they wanted what the girls had and as the boy who searched her and snatched her bag of food. On the evening of the incident, Debra Harris viewed a lineup and identified Nos. 4, 5 and 6 as the persons who robbed her. Defendant Kemp admitted that he was No. 5 in the lineup. Debra Harris had a good opportunity to observe defendant Kemp because he was the one who searched her. We find that Debra Harris’ identification of defendant Kemp was positive.

It is true that Debra Harris testified that it was defendant Kemp who first approached the girls and told them that the three wanted what the girls had and that Cynthia Harris testified that it was defendant Grayer who said this. However, conflicts in testimony are not uncommon and resolutions of questions of fact are for the jury. (People v. Yarbrough (1977), 67 Ill. 2d 222.) We cannot say that this conflict in testimony raised a reasonable doubt of defendant Kemp’s guilt.

We also do not find Debra Harris’ identification testimony to be confusing. During Debra’s testimony, she identified which participant had done what by referring to the clothes defendants wore at trial and where they were seated. Defendant Kemp wore a gray suit and sat next to defense counsel. Defendant Grayer had a red tie and sat next to defendant Kemp. Defendant Harris wore a gray jacket and gold shirt and sat next to defendant Grayer. Defendant Kemp claims that the testimony of this witness quoted above created a reasonable doubt of his guilt. We disagree. She was describing what each defendant had done during the incident. She did not state that defendant Kemp had the gun, but rather stated that the defendant wearing the red tie at trial, defendant Grayer, had the gun. A close reading of the record shows that in her answer, “[h]e snatched the bag and then he held the gun,” her use of “he” twice was not a reference to only one defendant, but to two. In any event, this testimony does not create a reasonable doubt of defendant Kemp’s guilt. In addition, we do not find that the fact that the girls did not give a description of their assailants to police soon after the incident creates a reasonable doubt of defendant Kemp’s guilt. Defendant Kemp was found guilty beyond a reasonable doubt.

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

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    STANLEY KUSICIEL et al., d/b/a World of Crafts, Plaintiffs-Appellants, v. LASALLE NATIONAL BANK, Trustee, et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2925
    Opinion filed April 26,1982.
    Harry Goiter, of Overton, Schwartz & Fritts, Ltd., of Chicago, for appellants.
    Peter B. Freeman and Wm. Carlisle Herbert, both of Hopkins & Sutter, of Chicago, for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

On November 21,1974, plaintiffs Stanley and Gloria Kusiciel, d/b/a World of Crafts, brought an action in fraud and deceit against defendants LaSalle National Bank as Trustee under Trust No. 40804 (LaSalle), Wood-field Development Corporation (Woodfield), and J. Emil Anderson & Son, Inc, (Anderson). The third amended complaint alleged that fraudulent misrepresentations made by defendants had induced plaintiffs to enter into a commercial lease in a shopping center known as Woodfield Commons in Schaumburg, Illinois. Defendants LaSalle and Anderson, the beneficiary of Trust No. 40804, filed a counterclaim seeking rent and damages for breach of the lease agreement. Plaintiffs filed an answer and affirmative defenses to the counterclaim. The trial court granted defendants’ motion for summary judgment on the third amended complaint, denied defendants’ motion for partial summary judgment on the counterclaim, and denied plaintiffs’ motion for summary judgment on the counterclaim. Plaintiffs abandoned further defense of the counterclaim and a default judgment was entered against them on the counterclaim on the question of liability. After a jury trial on the issue of damages judgment was entered for LaSalle in the amount of $227,333.47.

The issues presented for review are: (1) whether certain false representations made to a prospective tenant of a shopping center were representations of opinion or future promises and therefore not actionable; (2) whether a trial judge can make findings of fact which are contradicted by the record; (3) whether the doctrine of laches or waiver based on plaintiffs’ continuation with the contract can be applied to bar an action in fraud and deceit when the action is brought within the statutory period; (4) whether the trial court can consider a motion for summary judgment in a case assigned for immediate trial when consideration of such a motion will take longer than the prospective trial; (5) whether a contract in which one of the parties is exonerated from all liability or responsibility is void for lack of mutuality; and (6) whether the trial court can properly enter a judgment for an amount in excess of that claimed in the counterclaim.

For the reasons set forth herein the judgment of the circuit court is affirmed.

On April 9, 1973, plaintiffs leased Store No. 21 in Woodfield Commons Shopping Center from defendant LaSalle. Plaintiffs occupied the premises from August 18, 1973, until October 31, 1974. The third amended complaint alleged that two employees of Woodfield, the leasing agent of LaSalle and Anderson, made the following representations to plaintiffs during the negotiations for the lease: (1) that Woodfield Commons Shopping Center would be fully rented and all stores open for business no later than October 1973; (2) that M. Hyman & Sons, Sun Drugs and Gold Standard Liquors would be tenants of the shopping center; (3) that reconstruction work on Golf Road, a primary access point for the Commons, would be completed no later than July 1973; and (4) that plaintiffs would be the only tenants in the shopping center selling arts and crafts supplies during the term of the lease. The third amended complaint also alleged that defendants delivered certain promotional brochures to plaintiffs which depicted a Turn-Style Department Store as constituting a portion of the Commons, although the Turn-Style store was not a part of the shopping center, and that these brochures misled plaintiffs into believing that they were protected from Turn-Style competition in their craft store operation. The third amended complaint further alleged that the representations listed herein induced plaintiffs to execute the lease, that all of these representations were false, that defendants knew that the statements were false when they were made, and that the same or similar misrepresentations were made to other tenants and prospective tenants of the shopping center as part of a plan or scheme to defraud.

Plaintiffs urge that the trial court erroneously held that defendants’ misrepresentations were not statements of existing facts and therefore not actionable. Plaintiffs admit that the law in Illinois is that an action for fraud and deceit must be based on a misrepresentation of an existing fact and not an opinion or a promise of future action; however, plaintiffs contend that the four representations complained of were representations which most reasonable men would understand to be representations of existing facts in the context in which the representations were made. Plaintiffs urge that when a leasing agent represents to a prospective tenant that a shopping center will be fully leased by a certain date and that specific tenants will occupy the shopping center, most persons would understand such representations to mean that the center was fully leased and that specific tenants had signed leases, and that these interpretations relate to existing facts. Plaintiffs rely on Buttitta v. Lawrence (1931), 346 Ill. 164,178 N.E. 390, and Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190 380 N.E.2d 1040, in support of their position. In Buttitta the plaintiffs, who could not read or write English, were induced by defendants whom they did not know to exchange the deed to their residential property for a deed to a vacant lot owned by one of the defendants plus some worthless promissory notes which they had not seen and which were all past due. The court held that whether the representation that commercial paper is “good” is a statement of opinion or of a material fact may depend upon the circumstances, and that under the circumstances existing therein, if defendants asserted that the notes were good, such was an assertion of fact that the makers were responsible and the notes collectible.

In Perlman plaintiff agreed to a substitute subscription to Time magazine when defendant ceased publication of Life magazine. Plaintiff received 43 issues of Time magazine in exchange for the 60 remaining issues of Life magazine that he was entitled to under his Life Magazine subscription, and he brought suit against defendant alleging that he had not received full value. In setting aside a summary judgment in favor of the defendant, the court, citing Buttitta, held that whether a statement is one of fact or opinion depends upon the circumstances of each case, and that statements of value are common examples.

Plaintiffs further urge that even if the misrepresentations were promises or expressions of future intention, they were part of a scheme or plan to defraud and therefore actionable as an exception to the general rule stated above. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634; Roda v. Berko (1948), 401 Ill. 335, 81 N.E.2d 912.) In the Steinberg case plaintiff alleged that defendant stated in its catalog that it would evaluate applicants according to certain academic criteria, but that defendant actually evaluated applicants according to the ability of the applicant or his family to pledge or make payments of large sums of money to the school, and that plaintiff had relied on the statements in the catalog to his detriment. The court held that the allegations supported a cause of action for fraud, and that although the general rule denies recovery for fraud based on a false representation of intention or future conduct, there is a recognized exception where the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud.

Defendants urge that the trial court correctly found that defendants made no fraudulent misrepresentations to plaintiffs. In advancing this position defendants cite Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599, wherein the Illinois Supreme Court listed the elements of a cause of action for fraudulent misrepresentation as follows:

“(1) false statement of material fact (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. * * * Furthermore, the reliance by the other party must be justified, i.e., he must have had a right to rely.” (79 Ill. 2d 282, 286, 402 N.E.2d 599, 601.)

Defendants claim that even if the statements were made during lease negotiations, they cannot be characterized as fraudulent misrepresentations because they do not satisfy the elements set forth in Soules.

Defendants contend that the statements that the shopping center would be fully rented by October 1973, that M. Hyman & Sons, Sun Drug and Gold Standard Liquors would be tenants, and that reconstruction of Golf Road would be completed by July 1973 were all predictions or stated expectations of future events, and must be interpreted as such and not as plaintiffs would have this court interpret them. Moreover, defendants contend that Stanley Kusiciel admitted in his deposition that defendants had not told him that all of the stores would be leased by October 1973 or that these particular businesses had signed leases for space in the shopping center. Defendants claim that they did not know that the statements were false when made, and that plaintiffs did not have a right to rely on these three statements because they were representations of future events which were not within the complete control of defendants (Zaborowski v. Hoffman Rosner Corp. (1976), 43 Ill. App. 3d 21,356 N.E.2d 653), and that plaintiffs had ample opportunity to verify the truth of the representations. Broberg v. Mann (1965), 66 Ill. App. 2d 134, 213 N.E.2d 89.

In Zaborowski plaintiffs-homeowners sued defendant-land developer alleging fraud and deceit to enjoin defendant from developing its remaining property across the street for other than single-family purposes. Plaintiffs argued that the false representation that single family dwellings would be constructed on the land was part of a scheme used to accomplish the fraud of inducing plaintiffs to purchase their respective homes. The appellate court rejected this argument and affirmed the judgment dismissing the complaint. In so doing the court held that a promise to perform an act even though the party intends not to perform is an insufficient false representation to constitute fraud. In order to constitute fraud the representation must be an affirmance of fact and not a mere promise or expression of opinion or intention, and a representation merely boosting the property relating what will happen in the future does not amount to actionable fraud. In Broberg plaintiff purchased land from defendant believing that it contained 26 acres when it in fact contained only 18 acres. In reversing judgment for plaintiff the appellate court held that if by the exercise of ordinary prudence, a party has ample opportunity to determine the truth of the representations before acting, but fails to do so, he is charged with knowledge and may not be heard to say his loss was due to the deceit of another.

Defendants also contend that the representation that plaintiffs would be the sole craft store at the shopping center during the term of their lease was a promise which was incorporated into their lease and that this promise was kept and that plaintiffs do not allege that they were not the sole craft store at the shopping center during the term of their lease. Defendants further claim that despite plaintiffs’ claim that they were misled by a brochure which showed a Turn-Style Department Store on the shopping center premises, which operated a crafts department during a portion of plaintiffs’ tenancy, Stanley Kusiciel admitted in his deposition that he had reviewed the lease carefully before he signed it, that the shopping center was defined in the lease on a map attached to the lease as Exhibit “A”, and that he knew the Turn-Style Department Store was outside the area defined on the map as the shopping center. Defendants urge that plaintiffs were not justified in relying on a misrepresentation as to the terms of a contract which they had been afforded an opportunity to read. Hurley v. Frontier Ford Motors, Inc. (1973), 12 Ill. App. 3d 905,299 N.E.2d 387.

The purpose of the summary judgment procedure is to render expeditious judgment on a question of law, after first deciding that no genuine issue as to any material fact exists between the parties. (Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 430 N.E.2d 131.) This is to be determined by the trial court from the pleadings, depositions, affidavits, and exhibits in each case. (Littrell v. Coats Co. (1978), 62 Ill. App. 3d 516, 379 N.E.2d 293.) A defendant may at any time move for a summary judgment in his favor for all or any part of the relief sought against him. (Ill. Rev. Stat. 1977, ch. 110, par. 57(2).) In the interpretation of the pleadings, the movant’s motion for summary judgment and its supporting documents must be strictly construed and must leave no question as to the movant’s right to judgment; conversely, in considering the motion, the respondent’s counteraffidavits and supporting documents must be liberally construed. Littrell v. Coats Co.

The record before us discloses that the trial court had before it and did consider all of the documents and exhibits submitted to it by the parties in support and in opposition to the various motions for summary judgment. In granting defendants’ motion for summary judgment on the third amended complaint the court found that the representations that the shopping center would be fully rented and all stores open for business no later than October 1973, that M. Hyman & Sons, Sun Drugs and Gold Standard Liquors would be tenants of the shopping center, and that the reconstruction work on Golf Road would be completed no later than July 1973, all related to events that were to occur in the future and which were not within the control of defendants. The court found that these representations were not promises made without any intention of performing them but instead were predictions of events that depended in essential part on the conduct of others, and were not a proper basis for a charge of fraud. (Steinberg v. Chicago Medical School; Roda v. Berko; Broberg v. Mann.) The trial court further found that plaintiffs’ reliance on Steinberg and Roda was based on promises made by defendants therein, the performance of which was within the exclusive control of the respective defendants, contrary to the representations on which the instant action is based.

With respect to the representation that plaintiffs would be the only tenants in the shopping center selling arts and crafts supplies during the term of the lease, the trial court found that plaintiffs had taken the lease home and studied it before signing, and that the lease depicted a property line between the property defendants were leasing and the Turn-Style store. Plaintiffs did not allege that there were any other crafts stores in the shopping center, and contrary to the allegation of plaintiffs that they would be the only tenants in the shopping center selling arts and crafts supplies, the lease specifically provided that plaintiffs would be the sole crafts store at the shopping center. The trial court found that plaintiffs were not entitled to claim that they were deceived about the scope of the provision in the lease limiting competition when the scope of that provision was clearly set forth in the lease. (Hurley v. Frontier Ford Motors, Inc.) The trial court then concluded that this representation was not a proper basis for a charge of fraud. (Hurley v. Frontier Ford Motors, Inc.) We have reviewed the record and the authorities cited by the parties, and we agree with defendants that the trial court did not err in entering a summary judgment for defendants on the third amended complaint based upon a finding that no genuine issue as to any material fact existed between the parties and that as a matter of law plaintiffs’ complaint did not support an action for fraud. (Steinberg v. Chicago Medical School; Zaborowski v. Hoffman Rosner Corp.; Broberg v. Mann; Hurley v. Frontier Ford Motors, Inc.) In light of the opinion expressed herein we find it unnecessary to pass on the second, third, and fourth issues raised by plaintiffs.

Plaintiffs’ fifth contention is that the lease agreement was void for lack of mutuality. This argument was advanced by plaintiffs as their fourth affirmative defense to defendants’ counterclaim. Plaintiffs assert that the exculpatory clause which was affixed to the lease as a rider negated any responsibility on the part of the trustee to fulfill any affirmative covenants under the lease. There is no basis in the written lease for a claim against the trustee in any capacity, and the lease purports to exclude any recourse except such recourse as the lessee might have to the premises, namely a small store (No. 21) totalling 5,250 square feet.

Defendants respond by claiming that plaintiffs concede that a trustee can enter into a contract with a third party for the benefit of the trust estate, binding the trust but not the trustee personally. Schumann-Heink v. Folsom (1927), 328 Ill. 321,159 N.E. 250; Miller v. Racine Trust (1978), 65 Ill. App. 3d 207, 216, 382 N.E.2d 41, 48; Elmore Real Estate Improvement Co. v. Olson (1947), 332 Ill. App. 475, 481, 76 N.E.2d 204, 207; Empire Fire Proofing Co. v. Comstock (1905), 121 Ill. App. 518, 527.

The rider limited recourse by the tenant to the premises leased for payment of any liability occurring under the lease. Plaintiffs have not cited any authority to suggest that the power to limit recourse by plaintiffs to only a portion of the trust assets renders the lease void for lack of mutuality, nor has plaintiff made a convincing showing to support the contention that the asset which was exposed by agreement to plaintiffs’ claims was not adequate to provide an effective means of enforcing the landlord’s covenants. Parties may agree to limit liability under a contract to a particular fund, and there is no reason to require a trustee to include all the assets of the trust in the fund. (Schumann-Heink v. Folsom.) The trial court ruled that if the trustee lacked power to limit recourse by plaintiffs to the leased premises, then any of the trust assets would be available to satisfy their claims.

We are not persuaded by the contention of plaintiffs that the lease is unenforceable for lack of mutuality, and plaintiffs’ admitted failure to participate in any further court proceedings after the entry of the order for summary judgment for defendants and the denial of plaintiffs’ motion for summary judgment on the counterclaim has not aided their cause. We do not have a compelling reason or legal authority to accept the contention of plaintiffs that the lease was unenforceable for lack of mutuality, and we must conclude that the ruling of the trial court was proper in this regard and the cases cited by plaintiffs may be distinguished on the facts.

Plaintiffs’ final argument claims that the court erroneously entered a judgment for an amount in excess of the amount in LaSalle’s counterclaim. Plaintiff chose to ignore and refused to participate in these proceedings after 1979, when defendants’ motion for summary judgment was allowed and plaintiffs’ motion for summary judgment on defendants’ counterclaim was denied. The trial court noted in the default judgment entered on August 15, 1980, as to liability on the counterclaim of LaSalle, that no one had appeared on behalf of plaintiffs since November 13,1979, despite several hearings during 1980 and notice to plaintiffs’ counsel. The counterclaim upon which LaSalle based its action sets forth a claim for damages for unpaid rent, interest, reasonable attorney fees and costs and plaintiffs were aware of said claim. Plaintiffs abandoned further participation in the proceedings and facilitated the necessity of ex parte hearings. Plaintiffs contributed greatly to the entry of the default judgment, and we must accept defendants’ position that plaintiffs have waived this issue on appeal and these matters should have been raised in the first instance in the trial court and not on appeal.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

GOLDBERG and McGLOON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE HARRISON, Defendant-Appellant.
    First District (1st Division)
    No. 80-2665
    Opinion filed April 26,1982.

      Thomas Peters, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James B. Koch, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant was found guilty by a jury of murder and armed violence and was sentenced to a term of 30 years. On appeal, defendant contends that: (1) the trial court erred in permitting the jury to resume deliberations after the jury had returned a verdict on one of four charges; (2) the trial court erred when, after accepting a verdict on one of four charges, it ordered the jury to continue deliberations without first determining whether the jury had reached any other verdicts or without providing the jury with cautionary instructions; (3) the testimony of the only occurrence witness was insufficient to establish the guilt of defendant beyond a reasonable doubt; (4) the trial court erred in failing to give the jury an accomplice instruction; (5) the trial court erred when it admitted into evidence, over defendant’s objection, the arresting officer’s statement that he had seen defendant’s photograph in a daily police bulletin; and (6) the State made improper comments during closing argument which warrant reversal.

For the reasons set forth herein, we affirm.

The first witness for the State was Betty Perry, who lived with the decedent Timothy Bey. Perry stated that during the late evening hours of February 26, 1979, or the early morning hours of February 27, 1979, she saw Bey, defendant Joe Harrison and one Sims enter her apartment. Perry then identified defendant Harrison in court. She testified that when she saw the three men enter her apartment, she was on her way to visit her girlfriend in a downstairs apartment. She stated that she twice left her girlfriend’s apartment and returned to her apartment. On each occasion, she observed Bey and defendant playing dice and Sims sitting in a chair. Perry stated that she returned to her apartment a third time and observed that the door to the apartment partially was opened. She then entered the apartment and saw Timothy Bey lying on the floor. According to Perry, the apartment was “all messed up.” She stated that his papers and wallet were scattered and that there was blood on the floor of the kitchen.

Darryl Sims testified that he had known defendant for approximately seven months prior to February 27, 1979. Sims stated that he had met defendant and Harrison at a pool hall earlier and that he decided to accompany Bey and Harrison to Bey’s apartment to play dice. According to Sims, defendant and Bey had played dice earlier that day and decided to go to Bey’s apartment “to shoot some more dice.” Sims testified that Bey had said that he had $500 at his apartment. According to the witness, the three men arrived at the apartment at approximately 12:30 a.m. on February 27, 1979. Sims stated that as the dice game began, Betty Perry left the apartment. Sims testified that he watched Bey and defendant shoot dice and that defendant and Bey also were drinking wine. According to Sims, the dice game lasted for 15 or 20 minutes. He stated that while Bey and defendant were playing dice, Perry returned to the apartment “about three times.” Sims stated that defendant had won approximately $35-$40 from Bey at the time the game ended. Defendant then asked Bey where the remainder of his money was. The witness stated that Bey told defendant that he did not have any more money, whereupon defendant removed a gun from his coat, aimed it at Bey and repeated his demand for money. Sims testified that Bey took Sims’ knife from a slot on the side of Sims’ carpenter pants. After Bey took the knife, he retreated to the apartment bedroom. Sims stated that he went into the bedroom after Bey and told Bey that there was no sense in trying to fight with a knife against a gun. Bey then pushed Sims and told Sims that there was nothing else that could be done. Sims testified that defendant then entered the bedroom and Bey grabbed the barrel of the gun. During the struggle, Bey was cut and dropped the knife. Bey then went into the kitchen and he was followed by defendant. Defendant aimed the weapon at Bey who was behind the refrigerator. As Bey began to “ease out of the kitchen,” he grabbed the barrel of the gun. Sims stated that Bey and defendant again struggled and that the first shot was fired while Bey held the barrel. Sims testified that the bullet struck the television set. He stated that the two men separated and that Bey “broke for the door.” He testified that defendant was approximately 4-5 feet from Bey when he fired the gun at Bey as Bey was trying to leave the apartment. He stated that Bey was struck by a bullet near the right eye and that Bey then fell to the floor. Sims testified that defendant then removed Bey’s wallet and, after inspecting the contents, stated that Bey did not have any more money.

Sims testified that he told defendant that defendant had killed Bey. As defendant and Sims were leaving the apartment, defendant told Sims to be quiet and to say nothing about the incident. Sims stated that defendant drove Sims home and, as Sims exited the car, stated, “Remember, you got a wife and family.”

On cross-examination, the witness stated that he had spoken with various police officers about his observations of the evening of the shooting. Sims stated that, to his knowledge, he never was accused of the murder of Bey, although he acknowledged that he was read his Miranda rights. He testified that he was at the police station for a period of four days. Sims stated that he went to the police station at approximately 8 a.m. of the morning following the shooting. He testified that, while he was at the police station, he had signed a consent form authorizing the search of his home and that he informed the police officers of the location of the knife which he had hidden. Sims stated that on the evening of the shooting, he was not intoxicated or under the influence of any drugs. The witness testified that the pants which he had worn that evening had blood stains and that his wife had laundered the pants because it was washday. On redirect examination, the witness stated that he went to the police station on the morning following the shooting because the police had requested him to come to the station. He testified that Bey’s blood probably was on his pants because he had put the knife which had blood on it into the slot in his trousers. On further recross-examination, Sims stated that he told the police substantially the same account of events that he related in court.

Officer Salvadore Colello of the Chicago Police Department testified as to the condition of the apartment when he arrived there at approximately 1 a.m. on February 27, 1979. The State next called Officer Paul Venticinque who had arrested defendant. He stated that he recognized defendant from a photograph in a daily police bulletin and that the bulletin indicated that defendant was being sought for a murder. On cross-examination, the witness stated that he was off-duty at the time the arrest was made and that he had drawn his gun. On stipulation by the parties, the court read to the jury an agreed statement of facts concerning the autopsy of the decedent. The court told the jury that an autopsy by the Office of the Cook County Medical Examiner disclosed that the cause of death was a bullet wound to the head. According to the statement, Timothy Bey was 30 years of age, was 5T1" tall and weighed 196 pounds. A blood toxicology report disclosed that Bey had consumed an alcoholic beverage prior to his death and that analysis of the decedent’s urine did not disclose the presence of opiates or barbituates.

The defense called Officer Investigator Thomas Blomstrand of the Chicago Police Department as its sole witness. Blomstrand testified that he had an opportunity to speak with Darryl Sims on February 27, 1979. He stated that Sims told him that defendant had won approximately $60-$80 in the earlier dice game that day between defendant and Bey. He stated that Sims had told him that Sims had wrestled with the decedent in the bedroom of Bey’s apartment and that Bey had exited the kitchen and jumped onto defendant and that Bey and defendant wrestled in the living room of the apartment.

After deliberating for a short while, the jury announced to the court that it had reached a verdict and tendered to the bailiff the verdict forms. The jury found defendant guilty of armed violence-murder and did not sign any of the remaining verdict forms. The State then asked the court about the remaining verdict forms and the court responded that the one guilty verdict was the only verdict returned by the jury. The State requested the court to order the jury to resume deliberations on the remaining verdict forms. The court refused and stated that it had accepted the one verdict as the verdict of the jury. The court also noted that the one guilty verdict served as an acquittal on the remaining charges. After further discussion, the court agreed to permit the State to research the law during which time the jury would be held. The State subsequently presented to the court the case of People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626, where the supreme court held that a finding by a jury does not become a verdict until it is received, accepted by the court and entered of record. The trial court indicated that it was bound to follow the procedure set forth in Wilson and indicated that the remaining verdict forms did not serve as acquittals because it had not entered judgment. The court also indicated that no authority for the proposition that unsigned verdict forms operate as an acquittal had been found. The court indicated that it was aware that armed violence is a crime which requires the commission of a felony while armed with a dangerous weapon (Ill. Rev. Stat. 1977, ch. 38, art. 33A), and that, therefore, the jury must have concluded that all the elements of murder existed in order to find defendant guilty of armed violence-murder. The court also expressed concern that if it discharged the jury, it could not correct that decision at a later time, whereas if it permitted the jury to resume deliberations, the court could rectify any mistake that may have been made. The court then instructed the jury to continue its deliberations on the remaining verdict forms. Thereafter, the jury returned a guilty verdict on the murder charge and not guilty verdicts on the remaining charges. Defendant subsequently was sentenced to a term of 30 years.

Defendant first argues that it was improper for the court to permit the jury to resume deliberations on the unsigned verdict forms after the court had accepted the jury’s finding of guilty on the armed violence-murder charge. Defendant contends that by returning only one signed verdict form, this operates as an acquittal on the remaining charges. (See People v. Rehberger (1979), 73 Ill. App. 3d 964, 392 N.E.2d 395.) Defendant argues that the trial court improperly relied upon People v. Wilson (1972), 51 Ill. 2d 302, 281 N.E.2d 626, where the court ordered the jurors to return to the jury room and sign the uncompleted verdict forms prior to the reading of the verdict in open court and without the court knowing what the jury’s verdict was. Defendant contends that once the signed verdict form is read in open court, it becomes a final verdict, especially after the court has accepted the verdict. (See People v. Rehberger (1979), 73 Ill. App. 3d 964.) Defendant also cites People v. Gallas (1966), 77 Ill. App. 2d 132, 221 N.E.2d 782, where the trial court entered judgment on defendant’s motion for a directed verdict at the close of the State’s case, but later rescinded the order. On appeal, this court held that once judgment is entered, it cannot be rescinded because to do so would violate defendant’s constitutional rights. Defendant argues that the situation in the instant case is analogous to Gallas.

In Wilson, the supreme court held that the finding of a jury does not become a final verdict until it has been received, accepted by the court and entered of record. In the instant case, the court received and accepted the jury’s finding, but it did not enter that finding of record. We also note that the court specifically indicated, when making its ruling, that no judgment has been entered. Therefore, we conclude that there was no final verdict of the jury as defendant contends and the jury’s finding does not serve to acquit defendant of the remaining three charges. (See People v. Wilson (1972), 51 Ill. 2d 302.) Gallas is distinguishable from the instant case since, in that case, the court had entered a memorandum order granting defendant’s motion for a directed verdict and that order subsequently was rescinded by the court. This court held that a reinstatement of the charge against defendant after the court had dismissed the charge constituted double jeopardy and, therefore, violated defendant’s constitutional right. We also view People v. Rehberger to be inapposite since in that case, the court declared a mistrial after the jury was unable to reach a decision on two of six charges against defendants. The court then discharged the jury. Three and one-half months later, the court entered judgment on the four guilty findings. This court held that the finding of the jury does not become a final verdict until it has been received, accepted by the court and entered of record. In Rehberger, the trial court had discharged the jury prior to the jury’s findings being read in open court and, therefore, the jury’s findings were never received. In addition, there was no opportunity to poll the jury concerning its findings. Accordingly, the court could not accept the findings of the jury.

Related to defendant’s contention that the trial court erred in permitting the jury to continue to deliberate is his claim that the trial court erred in failing to provide cautionary instructions to the jury upon the resumption of deliberations. Defendant claims that by ordering the jury to resume deliberations on the remaining three charges against defendant, the court’s order implied that the jury must reach a verdict and that guilty verdicts must be reached. We have reviewed defendant’s arguments and that portion of the record at issue and we believe that the remarks of the court to the jury were neutral and not of a nature which would influence the jury to find defendant guilty. (See People v. Broadnax (1974), 23 Ill. App. 3d 68, 318 N.E.2d 499.) We also note that defendant does not indicate the nature of cautionary remarks which he believes would have been appropriate under the circumstances.

Defendant next contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Defendant argues that extra caution must be taken in our review of this case because the State relies upon the uncorroborated testimony of Darryl Sims who, at one time, was the primary suspect of the police investigation. (See In re Brown (1978), 71 Ill. 2d 151, 374 N.E.2d 209; People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291.) Defendant argues that In re Brown is indistinguishable from the instant case. In that case, which involved the adjudication of wardship, a minor was charged with aggravated battery. The sole witness for the State was another minor who previously had been charged with the crime and whose testimony varied from his prior statements made to the police. The supreme court affirmed reversal of the case because the testimony of the witness was insufficient to establish guilt beyond a reasonable doubt. Defendant argues that such testimony must be viewed with caution under Brown and People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291. Defendant urges that Sims’ testimony at trial “strains the imagination to its limits.” Defendant points to various aspects of Sims’ testimony which he claims support his argument. He argues that it is difficult to believe that Sims merely observed the dice game between defendant and Bey, that he did not have money with him and that he did not consume any alcohol at Bey’s apartment. Defendant contends that Sims’ testimony concerning the shooting of Bey is highly improbable. Defendant also argues that Sims’ behavior following the shooting indicates that Sims knew that he would be a suspect in the shooting and that, by implicating defendant, Sims had everything to gain.

A reviewing court will not disturb the jury’s verdict of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. (People v. Lewis (1981), 88 Ill. 2d 129,430 N.E.2d 1346; People v. Clark (1972), 52 Ill. 2d 374,288 N.E.2d 363.) In the instant case, it is clear that the reasonable doubt issue focuses on the issue of the credibility of Darryl Sims. Since the jury found defendant guilty of murder and armed violence-murder, it did believe the testimony of Sims. It is the function of the trier of fact to evaluate the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) We cannot say that the testimony of Darryl Sims is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. See People v. Lewis; People v. Clark.

Defendant next argues that the trial court erred in failing to read to the jury an accomplice witness instruction. (Illinois Pattern Jury Instructions, Criminal, No. 3.17.) Defendant argues that the activities of Darryl Sims on the morning of the shooting were sufficient to conclude that Sims was involved in the commission of the crimes and, therefore, should be considered an accomplice witness. Since neither the State nor defendant tendered this instruction at trial, defendant argues that the failure of the court to give sua sponte this instruction constitutes “plain error” and compels reversal. (See People v. Neal (1975), 26 Ill. App. 3d 22, 324 N.E.2d 476.) We view defendant’s contention to be without merit. An “accomplice” has been defined as “one who could himself have been indicted for the offense either as principal or accessory * ” (People v. Nowak (1970), 45 Ill. 2d 158,168, 258 N.E.2d 313, 318.) At trial, there was no evidence to support defendant’s argument on appeal that Sims was an accomplice. Accordingly, the failure of the trial court to instruct sua sponte the jury concerning the testimony of an accomplice witness was not error. See People v. Parks (1976), 65 Ill. 2d 132, 357 N.E.2d 487; People v. Nowak.

Defendant next argues that the trial court erred in permitting the State to question the officer who arrested defendant about the daily police bulletin which contained a photograph of defendant. He urges that by allowing this line of questioning, it gave to the jury the appearance that defendant had been involved in other criminal activities and this may have affected the jury’s determination of his guilt. (See People v. Wheeler (1979), 71 Ill. App. 3d 91,388 N.E.2d 1284; People v. Hawkins (1972), 4 Ill. App. 3d 471, 281 N.E.2d 72.) Defendant claims that evidence concerning the photograph in the bulletin suggested criminal activity which was unrelated to charges against defendant and, therefore, such testimony was incompetent and prejudicial. (See People v. Hawkins.) The State contends that the evidence concerning the police bulletin was properly admitted because it relates to the circumstances surrounding defendant’s arrest which connected defendant to the murder of Timothy Bey. See People v. Cheatem (1976), 35 Ill. App. 3d 414, 342 N.E.2d 410.

The two cases cited by defendant involve the introduction of mug shot photographs upon which was imprinted the name of the police department and the date of the photograph which was prior to the date on which the crime with which defendant was charged occurred. There is no suggestion by defendant in the instant case that the jury could determine solely through the officer’s testimony when the photograph which appeared in the police bulletin was taken. The testimony of the officer concerned the circumstances surrounding defendant’s arrest. (See People v. Cheatem.) We do not believe that defendant has established that the admission of testimony of the officer resulted in prejudice to defendant or was an abuse of discretion. See People v. Warmack (1980), 83 Ill. 2d 112, 413 N.E.2d 1254; People v. Hawthorne (1978), 60 Ill. App. 3d 776, 377 N.E.2d 335.

Defendant’s final contention is that the prosecution’s misconduct during closing argument warrants reversal of this cause. Defendant argues that the prosecution’s references to the evidence as being uncontradicted unduly focuses on defendant’s failure to testify in his defense and that this resulted in a violation of defendant’s right to remain silent. (See People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028; People v. Edwards (1979), 77 Ill. App. 3d 237, 395 N.E.2d 1095.) The State contends that it is permissible to comment during closing argument that the evidence is uncontradicted. (See People v. Satchell (1981), 94 Ill. App. 3d 422, 418 N.E.2d 1063; People v. Vinson (1978), 61 Ill. App. 3d 684, 378 N.E.2d 348.) The State argues that its reference to the uncontradicted evidence was not designed to highlight the failure of defendant to testify, but rather was a plain and accurate summarization of the evidence presented at trial. People v. McTush (1978), 61 Ill. App. 3d 214, 377 N.E.2d 1148.

In the instant case, counsel for defendant objected to the State’s reference to the testimony as being uncontradicted on only two occasions. In the first instance, the court overruled defendant’s objection, while in the second instance, the court sustained the objection. Under the circumstances presented herein, we do not believe that the State was attempting to draw the jury’s attention to the fact that defendant did not testify, rather we view the comments of the prosecution during closing argument to be a permissible comment on the evidence. (See People v. Satchell (1981), 94 Ill. App. 3d 422, 418 N.E.2d 1063; People v. Vinson (1978), 61 Ill. App. 3d 684, 378 N.E.2d 348.) As to those references to the testimony being uncontradicted where counsel for defendant failed to object, we hold that the failure to object serves as a waiver of any objection on appeal. People v. Vinson; see also People v. Hanson (1972), 53 Ill. 2d 79, 289 N.E.2d 611, cert, denied (1973), 411 U.S. 937, 36 L. Ed. 2d 398, 93 S. Ct. 1916.

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

Judgment affirmed.

McGLOON and O’CONNOR, JJ„ concur.


author: JUSTICE McGLOON

text:
    PARKWAY BANK AND TRUST CO., Trustee, et al., Plaintiffs-Appellees, v. THE VILLAGE OF NORRIDGE, Defendant-Appellant.
    First District (1st Division)
    No. 81-864
    Opinion filed April 26,1982.
    Bernard J. Hennessy, of Schultz, Hennessy & McGrath, of Chicago, for appellant.
    Richard L. Wexler, of Wexler, Siegel and Shaw, Ltd., of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendant Village of Norridge (Village) appeals from the trial court’s judgment finding the Village’s zoning ordinance invalid as applied. On appeal, the Village contends the trial court’s finding is against the manifest weight of the evidence.

We affirm.

In 1978, Schorsch purchased two adjacent parcels of realty, commonly known as 8300 and 8308 West Lawrence Avenue, in the Village of Norridge. Schorsch was the sole beneficiary of a land trust under which Parkway Bank held title to the property. The zoning ordinance in effect at the time the property was purchased restricted the use to single-family residences. Schorsch, however, intended to build a two-story office building and applied to the Village for a zoning amendment and variances to accommodate the proposed structure. The application was denied. Consequently, Schorsch and Parkway filed an action in the court below seeking to have the zoning ordinance declared invalid as applied.

During trial, the following evidence was presented. The subject property is located on the north side of Lawrence Avenue approximately one-half block west of the intersection of Cumberland Avenue and Lawrence Avenue. Both Cumberland and Lawrence are heavily traveled thoroughfares. The areas directly east and north of the Schorsch property are improved with single-family dwellings. Immediately west of the subject property on Lawrence Avenue is a hardware store parking lot capable of accommodating 60 to 70 cars. The hardware store, directly west of the parking lot, is a 20,000-square-foot building. Adjacent to the hardware store is a corner lot in which are situated insurance and medical offices, a real estate office, a pharmacy, a jewelry store, and a pizza parlor. South of the subject property across Lawrence Avenue is a bank and parking lot. A shopping center is west of the bank.

Plaintiff’s witness Jerome Soltan, an architect, described the area in which the property is located as a commercial district surrounded by residential areas. He had reviewed the rendering of the proposed development and concluded that the development would be compatible with the existing land uses. He believed the existing residential areas would not be adversely affected if the proposed structure were built because the structure would be no higher than the residences, would be of an interesting design, and would be built with materials which would harmonize with those used in the residences. He further testified that in recent years, the area in the vicinity of plaintiff’s property was being developed commercially.

Ralph Bunke, a licensed real estate broker, testified that he had appraised plaintiff’s property. Under the existing zoning and use, the 8300 property had a value of approximately $59,000. The vacant 8308 property was valued at $35,000. If rezoned, the property would be worth $210,000. He believed the proposed development would be the highest and best use of the property and an asset to the area.

Rolf Campbell, a city planning and zoning consultant, testified on behalf of the Village. He stated that the property at the intersection of Cumberland and Lawrence Avenues was clearly established as a commercial district and the surrounding areas were clearly residential. The character of plaintiff’s property was influenced by both the commercial and residential properties and the proposed use was compatible with the commercial areas to the west and south. Nonetheless, Campbell believed the subject property was residential in character because of the existing zoning and adjacent residential uses. He further testified that the size of the proposed structure would not adversely affect the residential areas; however, the use of it as offices and the resulting increase in traffic would be detrimental to the nearby residents.

The sole issue raised on appeal is whether the trial court’s finding is against the manifest weight of the evidence. The Village contends that the evidence did not show that the existing ordinance is arbitrary or unreasonable and at the very most only showed that the reasonableness of the ordinance was debatable.

A party challenging the validity of a zoning ordinance bears the burden of establishing by clear and convincing evidence that the ordinance as applied is arbitrary and unreasonable and bears no substantial relation to the public health, safety or welfare. (Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899; Duggan v. County of Cook (1975), 60 Ill. 2d 107, 324 N.E.2d 406; Heller v. City of Chicago (1979), 69 Ill. App. 3d 815,387 N.E.2d 745.) In Duggan v. County of Cook (1975), 60 Ill. 2d 107,111-12, 324 N.E.2d 406,409, the court enunciated the factors to be used in determining whether the burden has been met:

“The general factors considered in arriving at this determination include the uses and zoning of nearby properties, the extent to which existing zoning diminishes the property’s value and the proposed zoning enhances it, the suitability of the property for the purposes permitted under the existing zoning, and the relative gain to the public as compared to the hardship imposed upon the property owner by the existing and the proposed zoning uses. [Citations.] Ultimately if it clearly appears that the relative gain to the public is small when compared with the hardship imposed upon the property owner by the zoning restriction, there is then no valid basis for the exercise of the police power to so limit the owner’s right to the use of his property. [Citations.]”

While no single factor is controlling, the questions of whether the property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established are of paramount importance. La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 388 N.E.2d 388, citing Standard State Bank v. Village of Oak Lawn (1963), 29 Ill. 2d 465,194 N.E.2d 201, and River Forest State Bank & Trust Co. v. Village of Maywood (1962), 23 Ill. 2d 560,179 N.E.2d 671.

Applying these principles to the case at bar, we find that the trial court’s finding is not against the manifest weight of the evidence. As is true in most cases, the subject property would have a substantially higher value if zoned for business purposes. There is no evidence that the proposed use would be detrimental to the value or use of the adjacent areas. Most important, however, is the lack of uniform zoning in the area. The subject property is surrounded by both business and residential areas. Plaintiff’s expert testified that the trend in the area was toward commercial development. Conflicts in the evidence affect only the credibility of witnesses and the weight of the testimony and do not necessarily indicate that the reasonableness of the zoning ordinance is debatable. (Reedy v. City of Wheaton (1981), 102 Ill. App. 3d 1082, 430 N.E.2d 273.) Although the property is suitable for the zoned purpose, the existing zoning ordinance was shown not to be substantially related to the promotion of the public health or welfare.

The Village also contends that plaintiff is in a less advantageous position to challenge the zoning ordinance because the property was purchased with knowledge of the zoning restriction. However, as noted in Fay v. City of Chicago (1979), 71 Ill. App. 3d 603, 610, 390 N.E.2d 125, 131:

“Those who purchase property with knowledge of existing zoning restrictions occupy an unfavorable position in challenging the validity of these limitations; however, a property owner may prevail where, as in the instant case, there is no gain to the public as compared with the economic detriment that will be sustained if the restriction were to apply (La Salle National Bank v. City of Evanston (1962), 24 Ill. 2d 59, 64, 179 N.E.2d 673). This is especially true when there is no evidence that the values of the surrounding properties will be affected by the proposed use. Myers v. City of Elmhurst (1958), 12 Ill. 2d 537,546-47,147 N.E.2d 300.”

In view of our findings that there would be no gain to the public in retaining the existing ordinance and that the value of the surrounding properties would not be affected adversely if the ordinance were changed, plaintiff’s knowledge of the zoning ordinance does not preclude a finding in his favor.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.