text:
    JEAN LYONS, Guardian of the Person and Estate of Richard Raymond Whittington, a Minor, Plaintiff-Appellant, v. BADEN WHITTINGTON, Adm’r of the Estate of Ralph Whittington, Deceased, et al., Defendants-Appellees.
    Third District
    No. 81—424
    Opinion filed September 14, 1982.
    Rehearing denied October 15, 1982.

      Kenneth A. Kozel, of La Salle, for appellant.
    Kevin Kelly, of La Salle, for appellee Daniel Bute.
    Thomas A. Tonozzi, of Perona, Perona & Tonozzi, of Spring Valley, for appellee Baden Whittington.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Jean Lyons, guardian of Richard Raymond Whittington, a minor child, appeals from orders of the circuit court of La Salle County which required her to participate in the settlement of two causes of action in which her ward had an interest. The state of affairs giving rise to this litigation is fairly simple, but the legal ramifications have become quite complex.

On May 2, 1978, Cherry Whittington shot Ralph Whittington 11 times with a shotgun, and he died from his wounds later the same day. Cherry was prosecuted on charges of murder and manslaughter, but she was acquitted on all charges by reason of insanity. Daniel Bute was named her conservator and is her legal representative in this litigation. The decedent, Ralph Whittington, left surviving three children by previous marriages, and his brother Baden Whittington was named administrator of Ralph’s estate. Although Cherry and Ralph had lived together as husband and wife for nine years, there is no public record of their marriage, and it is doubtful that a marriage ever took place. Cherry gave birth to Richard Raymond about two months before she killed Ralph. According to the record on appeal, Richard Raymond’s paternity is in dispute. At one time Cherry stated that Ralph was the father, but at other times she has denied Ralph’s paternity and named another man as putative father of the boy. Jean Lyons, who has been appointed guardian of Richard Raymond Whittington, is Cherry’s aunt.

Out of these circumstances, five separate actions have been filed. Estate proceedings have been opened for Cherry Whittington, an incompetent; for Ralph Whittington, decedent; and for Richard Raymond Whittington, a minor. In addition, Baden Whittington as administrator of decedent’s estate filed a wrongful death action against Cherry Whittington which is being defended under a reservation of rights by Economy Fire & Casualty Company, issuer of a homeowner’s insurance policy to decedent. Finally, an interpleader action has been filed in the United States District Court by Bankers Life & Casualty Insurance Company, insurer of the life of decedent. Cherry was named as the beneficiary under the life policy, but the proceeds were claimed by Ralph’s administrator and by Richard Raymond’s guardian, as well as by Cherry’s conservator. The $30,000 insurance proceeds were paid to the clerk of the Federal court, and by the time this cause was settled, the accumulated interest had brought the total on deposit to $36,000. Federal jurisdiction was invoked under the diversity of citizenship clause, Bankers Life being an Iowa corporation, and the district court ruled that Cherry was not barred from receiving the insurance proceeds on the ground that she was profiting from her wrongful act since she was insane at the time of the shooting and thus not accountable for her actions. The court entered summary judgment in favor of Cherry, but upon appeal, the Seventh Circuit Court of Appeals reversed the cause and remanded for trial. This case is still pending in the District Court.

While the Federal suit was in progress, other legal proceedings were underway in the circuit court of La Salle County. The guardian Lyons filed a petition for a child’s award in the estate of Ralph Whittington and filed two claims against the estate of Cherry Whittington based upon her alleged responsibility for the wrongful death of Ralph Whittington. Economy, the homeowner’s insurer, filed a motion to dismiss the guardian’s wrongful death claim on the ground that only the personal representative of the decedent can bring a wrongful death action.

As indicated above, Baden Whittington as administrator of decedent’s estate did file a wrongful death action against Cherry on behalf of decedent’s four children, including Richard Raymond. Economy, the insurer under the homeowner’s policy, has threatened a declaratory judgment action on the ground that it has no duty to defend Cherry under its policy because Cherry and Ralph were never married, and because the shooting was not an “accidental injury” within the coverage of the policy.

The administrator of Ralph’s estate worked out a settlement of this litigation that was agreed to by Cherry’s conservator and by both insurance companies, but which was objected to by the guardian, Lyons. The State trial court approved the settlement and entered an order which was filed in all four cases pending in the circuit court of La Salle County. The settlement order provided that Ralph’s administrator was to accept $5,500 for the wrongful death action against Cherry, that the guardian’s wrongful death claim against Cherry’s estate was to be dismissed, that the administrator and the guardian were to execute releases in favor of Economy for all wrongful death claims, that the interpleader funds held by the Federal district court were to be distributed to the administrator ($9,000), the conservator ($18,000), and to a banking institution on behalf of Richard Whittington ($9,000), in return for which the administrator, the conservator and the guardian were required to release all claims to the life insurance proceeds. The court indicated that Richard Raymond’s share of the life insurance proceeds were to be free of all fees and costs, and that action upon a petition to replace Lyons as the guardian of the minor’s estate would be considered separately.

The guardian has appealed from the settlement order entered in all four circuit court causes. She presents two issues for review: (1) Did the circuit court of La Salle County have jurisdiction to order a settlement of the Federal interpleader suit, and (2) did the court fail to protect the rights of the minor in dismissing the guardian’s claims against the estate of Cherry Whittington?

The guardian asserts, firstly, the familiar rule that where two courts have concurrent jurisdiction, the court where jurisdiction first attaches retains jurisdiction to the exclusion of the other court. (E.g., Wilson v. Schnettler (1961), 365 U.S. 381, 384 n.3, 5 L. Ed. 2d 620, 628 n.3, 81 S. Ct. 632, 635 n.3.) She reasons that the Federal court thus had exclusive jurisdiction of the interpleader action and of the insurance proceeds which are the subject of that action. She argues, secondly, that the circuit court lacks probate jurisdiction to determine the rights of beneficiaries of insurance contracts under section 1 of “An Act concerning rights of a person entitled to succeed upon the death of another person to an interest in certain third-party beneficiary contracts and assignments” (Ill Rev. Stat. 1981, ch. 110½, par. 401), which provides that the Probate Act of 1975 does not govern the rights of beneficiaries to proceeds of life insurance policies.

Baden Whittington, the administrator of decedent’s estate, defends the settlement orders by relying upon the grant of authority contained in section 19 — 8 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 19 — 8) which provides:

“By leave of court without notice or upon such notice as the court directs, a representative may compound or compromise any claim or any interest of the ward or the decedent in any personal estate or exchange any claim or any interest in personal estate for other claims or personal estate upon such terms as the court directs.”

Thus, when the administrator of an estate desires to settle a lawsuit, he must seek approval of the court where the estate proceeding is pending regardless of where the suit was filed. Here, of course, the administrator was involved in two lawsuits, one in Federal court and the other in the circuit court, each of which required him to take a position that was inconsistent with his position in the other. In other words, in the interpleader suit, the administrator was contending that Cherry knew what she was doing when she killed Ralph and that she should not be allowed to profit from her wrongful act, while in the wrongful death action the administrator had to move that Cherry’s shooting of Ralph was “accidental” in order to qualify for coverage under the insurance policy. This dilemma naturally strongly suggested the need for settlements.

By ordering the representatives in the three estate proceedings to settle their claims against Bankers Life on the terms specified, the circuit court of La Salle County was not interfering with the jurisdiction of the Federal court to determine the factual and legal issues involved in the merits of those claims. The circuit court was exercising its probate jurisdiction in accordance with the statutory authority set out in section 19 — 8, and the guardian, Jean Lyons, was clearly subject to that jurisdiction since her powers derive from her appointment by that court. We conclude that the circuit court did not lack jurisdiction to enter the settlement order.

Lyons also claims that the trial court erred in dismissing the wrongful death claim which she filed in the estate of Cherry on behalf of the minor Richard Raymond. She contends that the Wrongful Death Act is not an exclusive remedy and that the minor has a right to sue under the survival statute (Ill. Rev. Stat. 1981, ch. 110½, par. 27 — 6) for damages accruing as a result of Ralph’s wrongful death. She reasons that the survival .statute is silent as to who may bring an action pursuant to the survival statute so the child of the decedent has just as much right to recover damages as does the administrator of the decedent’s estate. She cites no authority for this proposition, and we note that the statute has been authoritatively construed to the contrary. In National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 383 N.E.2d 919, the Supreme Court of Illinois construed the Survival Act as not creating a cause of action where one did not previously exist but rather as being the vehicle by which a pre-existing cause of action survives the death of the injured person. The court stated, “The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.” (73 Ill. 2d 160, 172, 383 N.E.2d 919, 923.) Since the guardian does not and cannot contend that the minor’s claim against Cherry for damages resulting from Ralph’s wrongful death constitutes a cause of action which Ralph had before his death, we conclude that her entire argument relating to the Survival Act is without merit.

The guardian also contends that the trial court abused its discretion in approving the settlement proposal because the provisions of the settlement did not adequately protect the interest of the minor Richard Raymond. For example, she insists that it was unfair and unjust to enjoin her from pursuing her claims against Cherry for Ralph’s wrongful death when the administrator was seeking to settle the wrongful death action on behalf of only the three children by Ralph’s previous marriages, thereby giving Richard Raymond no share of the wrongful death proceeds. She argues that $5,500 was inadequate for the wrongful death cause, and she also disputes the validity of the provision in the order which directs payment of Richard Raymond’s share of the interpleader suit to a bank rather than to her as guardian.

The court has authority to direct the terms for the settlement of claims of a ward or decedent in any estate proceedings under section 19 — 8 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 19 — 8). Illinois courts long ago determined that they had authority to order the compromise of litigation involving minors when settlement is in the best interest of the minor. (Wolf v. Uhlemann (1927), 325 Ill. 165, 156 N.E. 334; Williams v. Williams (1903), 204 Ill. 44, 68 N.E. 449.) Considering the risks involved if the litigation continued to trial, we certainly cannot say that the trial court acted contrary to the best interest of the minor. Not only is his claim as an heir of Ralph in serious doubt, but Economy’s alleged liability under the homeowner’s policy is predicated upon the assumption that Ralph and Cherry were married, which is a much-disputed fact. In the event it would be determined that Ralph and Cherry were never married, there would be no insurance coverage for the wrongful death action against Cherry. The settlement ordered here provides Richard Raymond with $9,000 free of fees and costs. In the event his heirship is established, he will, of course, also receive his proportionate share of Ralph’s estate, including a portion of the wrongful death settlement of $5,500. We believe these provisions are very much in the best interest of the minor and well within the discretion of the trial court.

As to the provision that the money is to be paid to a bank, we think this was a permissible condition for the trial court to impose under the circumstances. A petition to terminate the guardianship of Jean Lyons and to restore custody to Cherry Whittington was pending in the circuit court of La Salle County. The administrator of Ralph’s estate, decedent’s brother Baden Whittington, has an understandable preference for keeping any funds payable to the minor as a result of Ralph’s death out of the hands of Cherry who was the perpetrator of the fatal injury Placing the funds in a neutral banking institution seems to have been a good solution to the problem and one well within the discretion of the trial court.

Having concluded that the trial court did have jurisdiction to order the settlement and that the court did not abuse its discretion, we affirm the judgments which were the subject of this appeal.

Affirmed.

ALLOY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES GOODMAN, Defendant-Appellant.
    First District (2nd Division)
    No. 81—830
    Opinion filed September 14, 1982.

      Alan D. Blumenthal, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and David A. Baitman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Following a jury trial defendant, James Goodman, was convicted of attempt armed robbery and armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 4, 33A-2.) The trial court entered judgment only on the armed violence conviction and sentenced defendant to serve eight years in the Illinois Department of Corrections. Defendant appeals contending that (1) the judgment of conviction for armed violence was improper because it constituted a double enhancement of the predicate felony of attempt armed robbery; (2) admission of evidence of a gun and of another crime deprived defendant of a fair trial; (3) a pretrial photographic identification procedure was unduly suggestive and therefore identification testimony given by witnesses Laura Potter and Debbie DeMaso should have been suppressed; (4) the trial court placed an improper limitation on defense counsel’s cross-examination of witness Debbie DeMaso; (5) prosecutorial misconduct deprived defendant of a fair trial; (6) defendant was not proved guilty beyond a reasonable doubt.

For the reasons which follow we reverse defendant’s conviction and remand the cause for a new trial.

On October 5, 1979, at approximately 9 p.m. two men entered the Brown’s Chicken restaurant located on South Harlem Avenue in Bridgeview, Illinois. One of the men shouted, “Don’t push any buttons or call the police.” As Laura Potter (Potter), an employee of Brown’s Chicken, turned to face the men, one of them placed a brown paper bag on the counter in front of Potter and ordered her to take the money from the cash registers and put it into the bag. Potter “crumpled the bag up” and threw it into the garbage. The offender subsequently identified by Potter as defendant thereupon produced a “dark revolver with white grips,” aimed the gun at Potter’s stomach and said “we are not kidding.” Potter screamed, “My God, someone help me. He wants money.” The unarmed offender began pounding on a cash register in an apparent attempt to open it. Since the restaurant was scheduled to close shortly, the cash register was locked; consequently the offender’s attempt to open it was futile. The armed man then raised the pistol and fired one shot into the menu signs which hung high on the wall behind the counter. Potter ducked behind the counter and lay on the floor until the offenders left the restaurant.

Bridgeview Police Officer Russell Harvey responded to the call from Brown’s. Although several employees allegedly observed the robbery attempt, only Potter spoke to Officer Harvey on the night of the incident. According to Harvey’s report, Potter described the armed offender as a “male Mexican, eighteen to nineteen years of age, wearing a red bandanna around his head, dark shoulder-length hair parted down the middle, having a dark moustache, dark complected, five foot-seven inches high, one hundred sixty-five to one hundred seventy pounds, possibly wearing high-heeled shoes.” The report indicated that Potter described the unarmed offender as a “male Negro, nineteen to twenty years of age, five foot nine inches high, one seventy to one seventy five, having a close-cropped natural type hairdo, wearing a blue jean jacket.” The record shows that defendant is a white male with a fair complexion. He was approximately 20 years old at the time of the robbery attempt. He is five foot seven inches tall and weighs approximately 165 pounds. He has brown hair, a moustache, long sideburns and green eyes.

Approximately three hours after the incident at Brown’s, a Hickory Hills police officer observed defendant and two other men sitting in an automobile parked at a gas station located at 95th and Roberts Road in Hickory Hills, Illinois. The gas station was approximately three miles from the Brown’s Chicken restaurant. Defendant was in the driver’s seat, one Michael Contreras, a Mexican-American, was in the front passenger seat and one Jeffery Roberson, a white male, was in the rear seat. The police officer ordered the three men out of the car. A brief argument ensued between defendant and Contreras, and the officer noticed that Contreras placed “something” under his seat. Upon searching the vehicle the officer found that the object Contreras had placed under the seat was a “blue steel Rome revolver with white grips.” The gun contained seven “live bullets” and one spent shell. A search of Contreras’ person revealed eight “live bullets” in his pocket. All three men were arrested and charged with the armed robbery of a 7-11 store located in Hickory Hills which had occurred earlier on the night of October 5. In addition, Contreras was charged with unlawful possession of a weapon. Contreras pleaded guilty to the charge of armed robbery. The record does not indicate the disposition of the weapons charge against him. Roberson was tried and convicted of the- armed robbery. Defendant was tried and acquitted of this charge.

William Dapkus, a criminal investigator with the Bridgeview Police Department, had been assigned to investigate the attempt armed robbery of the Brown’s Chicken restaurant. Upon hearing of the arrest of the three men in Hickory Hills, Dapkus arranged two physical lineups in which Contreras and Roberson were viewed by Potter. She was unable to identify either of them as having participated in the robbery attempt at Brown’s.

On November 1, 1979, Officer Dapkus prepared an array of six photographs to be used in an identification procedure. Included in the array was a copy of the “mug shot” of defendant which had been taken by the Hickory Hills Police Department following defendant’s arrest on October 6. The photograph depicting defendant was covered with a dull green film. The other five photographs in the array depicted five white males similar in height, build and age to defendant.

On November 1 Dapkus presented the array to Potter. She identified the photograph of defendant as depicting the armed offender in the attempted robbery of the Brown’s Chicken restaurant. Later that same day Dapkus presented the array to Debbie DeMaso, another employee of Brown’s Chicken who allegedly witnessed the attempted armed robbery of Brown’s. DeMaso also identified the photograph of defendant as depicting the armed offender. Defendant was subsequently arrested and charged with the attempt armed robbery of the Brown’s Chicken restaurant. Approximately two weeks after the witnesses’ photo identification, at defendant’s bond hearing, Potter, De-Maso and Dapkus sat in the spectator’s section of the courtroom and observed the defendant as he was brought before the bench by the sheriff’s deputies. On March 11, 1981, the day before trial in the instant case, Potter first identified a photograph of Contreras as depicting the unarmed offender who had participated in the attempted armed robbery of Brown’s.

At trial in the instant case Potter again identified defendant as the armed individual who had attempted to rob Brown’s. She testified that at the time of the attempt the restaurant was well lighted and that she stood directly in front of defendant during the incident. Potter estimated the attempt lasted approximately five minutes. On cross-examination Potter acknowledged that on the night of the incident she had described the armed individual to Officer Harvey as a “male Mexican” as his report indicated. At trial Potter added that the time of the attempt defendant was wearing white pants and that he had “collar or longer than collar length hair.” Potter identified as the gun used in the armed robbery attempt the gun that had been removed from the car in which defendant had been sitting in the Hickory Hills gas station.

Vicki Spoon, another employee of Brown’s Chicken, testified that she was in the front of the restaurant at the time of the robbery attempt. She also identified the defendant at trial as the armed offender who had participated in the robbery attempt. She stated that she was approximately four feet from the defendant during the incident and that she ran into the back room of the restaurant after defendant fired the gun. She also stated that the gun admitted into evidence resembled the gun used by defendant. Ms. Spoon conceded that she did not give Officer Harvey a description of the offenders on the night of the incident. Nor did she participate in any pretrial identification procedure in connection with the instant case.

Debbie DeMaso testified in rebuttal for the State. She was “working the front counter” at Brown’s on the night in question. She identified the defendant as the armed offender, and she stated that the gun admitted into evidence looked like the gun used in the armed robbery attempt.

Officer Harvey testified that Potter seemed “quite shaken” as he interviewed her shortly after the incident. Although his report indicated that Potter had described defendant as a male Mexican, Harvey testified that Potter had merely said that defendant “looked Mexican.”

Defendant denied that he had participated in the attempt armed robbery of the Brown’s Chicken. He claimed that on October 5, 1979, he had attended a birthday party in Palos Hills, Illinois, from approximately 8 p.m. until shortly after midnight. Contreras and Roberson were also at this party. Defendant explained that he left the party with Contreras and Roberson at approximately 12:15 a.m. to “get some beer” and that they were arrested in the gas station shortly thereafter. The gas station was located approximately one mile from the site of the party.

Defendant’s sister, Sharon Goodman, and her boyfriend, Michael Principe, substantially corroborated defendant’s alibi.

I

Defendant first contends that the judgment entered on his conviction for armed violence was improper because the armed violence conviction constituted a double enhancement of the predicate felony of attempt armed robbery. Defendant argues that a single element — presence of a “deadly” weapon — served initially to enhance the charge of attempt robbery to the predicate felony of attempt armed robbery and that the State then used the same element to enhance again the charge of attempt armed robbery to the charge of armed violence in violation of People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.

Initially we note that although attempt offenses are not classified as either misdemeanors or felonies (People ex rel. Carey v. Scotillo (1981), 84 Ill. 2d 170, 417 N.E.2d 1356), where an attempt offense is punishable as a felony such an offense may be treated as a felony for purposes of the armed violence statute. People v. Gibson (1981), 99 Ill. App. 3d 1068, 425 N.E.2d 1208; People v. Kavinsky (1981), 98 Ill. App. 3d 579, 424 N.E.2d 340.

In Haron the defendant was charged with armed violence where the predicate offense was aggravated battery based on the use of a deadly weapon. In reviewing the language of the armed violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), the court concluded that the General Assembly did not intend that the presence of a weapon should serve both to enhance a misdemeanor to a felony and to support a charge of armed violence. The court stated:

“In our opinion the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” {People v. Haron (1981), 85 Ill. 2d 261, 278.)

Since, by virtue of the presence of a weapon, the offense of battery (a misdemeanor) had been enhanced to the offense of aggravated battery (a felony) and enhanced again to the offense of armed violence (a Class X felony), the court dismissed the armed violence charge. Our reading of Haron suggests that if the predicate offense is a felony by statutory definition when committed without possession or use of a dangerous weapon, such an offense may support the charge of armed violence.

In the instant case we believe the judgment entered on defendant’s armed violence conviction, predicated on the offense of attempt armed robbery, was consistent with the reasoning of Haron. Here, unlike Haron, the offense of attempt robbery, even if committed without the use of a weapon, is punishable as a Class 3 felony. Since the armed violence statute provides that a person commits armed violence “when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law” (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), it follows that an offender who utilizes a handgun in the course of his attempt to commit robbery is subject to the provisions of the armed violence statute. Accordingly we conclude that defendant’s conviction for armed violence based on the predicate felony of attempt armed robbery did not constitute an impermissible double enhancement in violation of Harón.

II

Defendant next contends that the trial court erred in admitting into evidence a handgun which had been seized by the police from Michael Contreras. Defendant argues that since the gun had been found in the car under the seat in which Contreras had been sitting, “the link between the gun and defendant was tenuous ***.”

It is well established that a weapon may be admitted in evidence where there is proof connecting it to the defendant and the crime, and it is not necessary to establish that the particular weapon in question was the one which was actually used. If it is shown that defendant, when arrested, possessed a weapon which could have been used in the commission of the crime charged, it may be admitted in evidence. (People v. Johnson (1966), 35 Ill. 2d 516, 221 N.E.2d 497; People v. Williams (1981), 96 Ill. App. 3d 8, 420 N.E.2d 710.) Here there was sufficient proof to connect the gun to both the defendant and the crime. The gun had been recovered from the same vehicle in which defendant was sitting in the gas station in Hickory Hills. Potter identified the gun admitted into evidence as the one defendant had used to commit the crime. Spoon and DeMaso identified the gun presented at trial as resembling the one used by defendant. Finally, when the gun was recovered, it contained one spent shell, and the record shows that one shot was fired during the robbery attempt at Brown’s Chicken. In our opinion these facts establish a sufficient nexus between the gun, the defendant and the crime so as to render the gun probative and admissible. People v. Daniels (1976), 35 Ill. App. 3d 791, 342 N.E.2d 809.

Ill

Defendant next contends that he is entitled to a new trial because the trial court allegedly erred in permitting the State to introduce evidence of another crime for which defendant had been charged and acquitted. We believe defendant’s contention has merit.

The evidence to which defendant objects is a portion of the testimony of arresting Officer Gibbs concerning the circumstances of defendant’s arrest at the gas station in Hickory Hills on October 6, 1979. Upon such arrest defendant was charged with the armed robbery of a 7-11 store which had occurred on the same night as the attempt armed robbery of Brown’s Chicken which is involved in the instant case. The following sequence of Officer Gibbs’ testimony is the basis for defendant’s objection:

. On cross-examination defendant questioned Gibbs concerning the gun he had found under the front passenger seat of the automobile in which defendant, Contreras and Roberson had been sitting. Defendant asked Officer Gibbs the following question:

Q. Do you remember, Officer, if Mr. Contreras was later charged with the criminal offense of possessing that gun, is that correct, to your knowledge?
A. Yes, sir.”

Seizing on defendant’s question, the State, on redirect, asked Officer Gibbs, “What other offenses was Mr. Contreras charged with that night?” Defendant objected to the State’s question, and a side bar ensued in which the State argued that by defendant’s inquiry into the weapons charge against Contreras, defendant had “opened the door” to further inquiry regarding any other crimes with which Contreras may have been charged that night. The trial court agreed with the State and allowed the State to ask Gibbs:

“Officer, what other crimes, if any, was Mr. Contreras charged with that night, when you recovered the gun in the car?
A. I believe armed robbery, armed violence.”

On re-cross-examination defendant asked Gibbs:

Q. You testified that Contreras was charged with armed robbery and possession of a gun on that night, is that correct?
A. Yes, sir.
Q. Okay, the armed robbery that Mr. Contreras was charged with, does that armed robbery have anything to do with Brown’s Fried Chicken on 80th and Harlem?
A. I don’t understand the question.
Q. The armed robbery that Mr. Contreras was charged with, did that charge contain any reference to a Brown’s Fried Chicken on 90th [sic] and Harlem?
A. I don’t believe so.”

On further redirect the State inquired of Gibbs as follows:

“Q. Officer, what time was the armed robbery committed that you were referring to in your answering the questions of Mr. Blumenthal?
[Defendant]: My objection, and your Honor knows the basis for it.
THE COURT: You have opened the door, overruled.
[Officer Gibbs]: Approximately six minutes after twelve.
[State]: Of what date?
A. The 6th.
Q. That’s the night of the fifth, and the early morning hours of the 6th?
A. Yes, sir.
Q. How many people were charged with that crime?
A. Three.”

Finally, on further re-cross-examination defendant questioned Gibbs as follows:

“Q. Officer, three people were charged with that particular crime, is that correct?
A. 711?
Q. 711.
A. Yes, sir.
Q. And one of those people was James Goodman? Is that correct?
A. That is correct.
[State]: Objection.
THE COURT: Overruled.
[Defendant]: Was one of the people charged James Goodman?
[Officer Gibbs]: Yes, sir.
Q. And James Goodman was tried, was he not?
A. Yes, sir.
Q. And he was found not guilty, isn’t this true?
A. Yes, sir.”

As a general rule, evidence of other offenses which are separate and distinct from the crime for which a defendant is on trial is inadmissible. (People v. Burage (1961), 23 Ill. 2d 280, 178 N.E.2d 389, cert. denied (1962), 369 U.S. 808, 7 L. Ed. 2d 555, 82 S. Ct. 651; People v. Bartall (1982), 105 Ill. App. 3d 867.) Such evidence may be admissible, however, if it has probative value to establish a defendant’s motive, intent, identity, absence of mistake, or modus operandi, and its probative value outweighs its prejudicial effect. (People v. McCambry (1979), 76 Ill. App. 3d 314, 395 N.E.2d 129.) Another exception to the general rule allows evidence of other offenses to be admitted where the evidence is “procured, invited, or acquiesced to by the defendant.” (People v. Baseer (1980), 90 Ill. App. 3d 866, 414 N.E.2d 5.) Here the State relies on the latter exception to argue that defendant’s initial question posed to Officer Gibbs concerning the weapons charge against Contreras “opened the door” to the evidence regarding the armed robbery of the 7-11 with which defendant was charged. Such reliance we believe to be misplaced.

Defendant’s inquiry into the weapons charge against Contreras was relevant and proper because the gun was an important piece of physical evidence, and the question of its possession was probative of the nexus between the gun and the defendant. The scope of defendant’s inquiry, however, was limited to a probative issue in the case. In our opinion the State’s subsequent questioning of Officer Gibbs regarding the other charges which had been filed against Contreras was beyond the scope of defendant’s inquiry. Since Contreras was not on trial in the instant case, evidence relating to the armed robbery and armed violence charges against Contreras for the 7-11 armed robbery was not probative of an issue in this case. We conclude, therefore, that it was error for the trial court to admit such evidence. Once the jury heard Officer Gibbs testify concerning the other charges against Contreras, it became necessary for defendant to counter the negative inferences created by such testimony. Defendant attempted to do so by eliciting the fact that the charges against Contreras did not stem from the attempt armed robbery of Brown’s. The State, in turn, seized upon this fact to enlarge its inquiry and to educe the fact that three men had been arrested and charged with the 7-11 armed robbery. Under the circumstances in- the case at bar, eliciting the fact that two other men had been arrested and charged along with Contreras was tantamount to eliciting evidence that defendant had been arrested and charged with the 7-11 robbery. We do not believe that defendant opened the door to such evidence, and we find that its admission was highly prejudicial to defendant.

The prejudicial effect of this evidence was compounded when during closing argument the State repeatedly implied that defendant was actually guilty of the armed robbery of the 7-11 even though defendant had been acquitted of this charge. The following comments made by the State are illustrative:

“[State]: *** People get bored sitting around a party all night. They want to do something for excitement. Maybe that’s what they did, stick up a Brown’s here and whatever the other place was. [Objection overruled.]
* * *
[State]: We don’t contest the fact that the gun might have been carried on Mr. Contreras and it might have been Mr. Contreras’ gun. So what? So what? When they stuck up the Brown’s Chicken, it was his [defendant’s] turn to use it. [Objection overruled.]
* * *
[State]: *** Counsel has made a big point about the fact that
he was found not guilty in that other crime. Well, consider the facts of the first crime, and consider the facts of the apprehension, three hours later. There is three people out there. Well, who is driving the car? It’s fair to assume Mr. Roberson was driving the car, and I will explain why I think that was correct. Well, somebody had to drive the car in the first armed robbery. Somebody drove the car. He [defendant] drove the car. He was the driver. He’s got to take a turn with the gun now. And that’s what he did at Brown’s, that’s what he did at the Brown’s Chicken. [Objection overruled.]
* * *
[State]: He [defendant] was the driver of the car; he was never seen inside the place. That’s why he was found not guilty.
[Defense counsel]: Objection, Judge. That’s also—
THE COURT: I will sustain that objection.”

The prejudice inherent in the State’s foregoing remarks appears quite obvious. Although the State argues that defendant “opened the door” to these comments, we find nothing in defendant’s closing argument which would invite the State to argue that defendant was actually guilty of a crime of which he had been acquitted. In our opinion the erroneous admission into evidence of another offense with which defendant had been charged and acquitted and the State’s prejudicial comments during closing argument were sufficiently egregious to have deprived defendant of a fair trial.

IV

Defendant next contends that the pretrial identification procedures employed in the instant case were impermissibly suggestive and that the identification testimony of Potter and DeMaso was tainted thereby. Defendant argues that the photo array arranged by Investigator Dapkus approximately three weeks after the attempt robbery of Brown’s was suggestive because the photo depicting defendant was coated with a dark green film which made the color of defendant’s complexion and hair appear darker than they actually are. Defendant maintains that, as a result, he was made to resemble Potter’s description of the dark complected Mexican offender. Defendant also argues that it was impermissibly suggestive to allow Potter and DeMaso to view defendant as he was brought before the bench at his bond hearing conducted about two weeks after the photo identification.

The United States Supreme Court has often recognized that suggestive pretrial identification procedures can give rise to unreliable identification testimony at trial. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243; Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375; Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) The court’s decisions have sought to establish standards which will ensure that the testimony given at trial is reliable and not so tainted by suggestive procedures as to make it likely that the witness has replaced the image of the perpetrator with that of the accused. Manson v. Brathwaite (1977), 432 U.S. 98, 112, 53 L. Ed. 2d 140, 152, 97 S. Ct. 2243, 2252.

In deciding whether to permit a witness to give identification testimony, a two-step process must be employed. The court must first determine whether the pretrial identification procedures employed were in fact suggestive. If the procedures are found to be suggestive, the trial court must next decide whether the identification testimony is so tainted as to be rendered unreliable. Factors to be considered by the trial court in determining the reliability of the in-court identification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ prior description of the criminal, the level of certainty demonstrated by the witness, and the time between the crime and the pretrial identification. (Manson.) The Illinois Supreme Court has adopted and applied the foregoing principles. People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.

With regard to the photographic array in the. case at bar, we are of the opinion that defendant has not satisfied his threshold burden of proving that this procedure was impermissibly suggestive. (People v. Blumenshine (1969), 42 Ill. 2d 508, 250 N.E.2d 152.) Potter and DeMaso were shown an array of six photographs approximately three weeks after the robbery attempt. These photographs depict six white males of fair complexion and of similar height and build. The hair length of the individuals varied, and some of them had facial hair while others did not. Potter and DeMaso viewed the array independently of one another. There is no evidence to indicate that either of them was told about the progress of the investigation or that the police officer in any other way suggested which person in the array was under suspicion. Consequently, even though defendant’s photograph is indeed tinted green, we do not consider this fact alone to be sufficient to establish that the photo array was impermissibly suggestive.

We next address defendant’s contention regarding his appearance at the bond hearing. The record shows that Potter and DeMaso, accompanied by Officer Dapkus, sat in the audience section of the courtroom as defendant was brought before the bench by the sheriff’s deputies. Although the precise date of the bond hearing is not to be found in the record, it appears that the bond hearing took place approximately two weeks after the photo array was viewed by the witnesses and the defendant identified. The State does not suggest nor does the record disclose the reason for the presence in court that day of Potter and DeMaso. Indeed, our examination of the record suggests that Potter’s and DeMaso’s attendance at defendant’s bond hearing was intentionally planned for the sole purpose of reinforcing the witnesses’ photographic identifications. This type of confrontation is fraught with dangers of suggestibility because in this setting the defendant stands accused and is presented as one whom the State suspects of being guilty of an offense. (Jackson v. Fogg (S.D.N.Y. 1978), 465 F. Supp. 177; United States ex rel. Ragazzini v. Brierley (W.D. Pa. 1970), 321 F. Supp. 440.) Here the danger of suggestibility was exacerbated because the witnesses were accompanied by the police officer who was known by the witnesses to be investigating the Brown’s Chicken incident. Under these circumstances we conclude that the witnesses’ viewing of defendant at the bond hearing was impermissibly suggestive.

Having determined that the witnesses’ viewing of defendant at the bond hearing was impermissibly suggestive, we nevertheless find that Potter’s identification testimony at trial had a reliable basis independent of such suggestive confrontation. Potter testified that on the night in question the restaurant was well lighted, and she viewed defendant for approximately five minutes from a distance of approximately two feet. Although there are discrepancies between the description of defendant given by Potter to the police and defendant’s actual appearance, these discrepancies can be explained, in part, by the police officer’s failure accurately to transcribe Potter’s description. Moreover, Potter’s identification of defendant as the armed offender was unwavering. Given these facts we conclude that Potter’s identification testimony was reliable and admissible.

With regard to DeMaso’s identification testimony, we note that the record is devoid of evidence concerning the circumstances of her observation of defendant on the night of the attempt armed robbery. The record does not reflect the length of time she purportedly viewed defendant on the night in question. Nor did DeMaso give the police a description of defendant prior to her identification of him in the photo array or at the bond hearing. Once a court determines that identification testimony may be the product of a suggestive pretrial identification procedure, it becomes the State’s burden to establish that the identification testimony has a basis independent of the suggestive procedure. (McTush.) In the instant case we find that as to DeMaso’s identification testimony, the State has not met this burden. Accordingly, it was error for the trial court to admit into evidence De-Maso’s identification testimony. Since we have determined that DeMaso’s identification testimony is inadmissible, we need not address defendant’s contention that his cross-examination of DeMaso relative to such testimony was improperly limited.

V

Defendant further contends that he was not proved guilty beyond a reasonable doubt. Defendant argues that Potter’s identification testimony was totally impeached by the discrepancies between her description of defendant and his actual appearance. Specifically, defendant notes that Potter described defendant as dark complected while he is actually fair complected, she misdescribed his hair as shoulder length and parted down the middle, and she failed to mention defendant’s “prominent ‘mutton-chop’ sideburns” and his “striking green eyes.” Defendant further argues that Vicki Spoon’s identification was not credible because she did not attempt to give the police a description of the offender on the night of the attempt robbery.

In a jury trial the credibility of the witnesses and the weight to be given their testimony are matters within the province of the jury, and a reviewing court will not substitute its judgment for that of the trier of fact unless the evidence is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to defendant’s guilt. (E.g., People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.) It is well established that where the identification of the accused is at issue, the testimony of one credible witness who had a good opportunity to view defendant under circumstances that would permit a positive identification is sufficient to sustain a verdict of guilty. (E.g., People v. Rodriguez (1980), 89 Ill. App. 3d 941, 412 N.E.2d 655.) Perfect conditions for observation need not be present nor must the time for observation be of a prolonged nature. (People v. Reed (1980), 80 Ill. App. 3d 771, 400 N.E.2d 688.) Where the witness makes a positive identification, precise accuracy in the preliminary description is not necessary. (People v. Smith (1977), 52 Ill. App. 3d 583, 367 N.E. 2d 756.) Accordingly, it is generally held that discrepancies or inaccuracies or omissions as to facial hair (People v. Catlett (1971), 48 Ill. 2d 56, 268 N.E.2d 378; People v. Moore (1977), 50 Ill. App. 3d 952, 365 N.E.2d 1356), or other facial characteristics (People v. Miller (1964), 30 Ill. 2d 110, 195 N.E.2d 694), are not fatal but simply go to the weight of the identification testimony. (People v. Mendoza (1978), 62 Ill. App. 3d 609, 378 N.E.2d 1318.) Applying the aforesaid criteria to the instant case, we believe the witnesses viewed defendant under circumstances which permitted them to make a positive identification. Both Potter and Spoon testified that they observed defendant for approximately five minutes in a well lighted place from a distance of approximately two to four feet. The sufficiency of their observation was a question of fact to be resolved by the jury. We find that even absent DeMaso’s testimony, the State presented evidence which, if believed by the jury, was sufficient to support defendant’s conviction.

Despite this conclusion we must take cognizance that defendant is entitled to a trial free from substantial prejudicial error. As we have previously articulated, we are compelled to conclude that the admission in evidence of the 7-11 armed robbery charge against defendant grievously prejudiced defendant’s trial and may well have contributed to his conviction. This error, together with the State’s remarks during closing argument that even though he had been acquitted defendant was actually guilty of the 7-11 charge, was sufficiently prejudicial to warrant granting defendant a new trial. For such reasons, therefore, we reverse defendant’s conviction for armed violence and remand this cause for a new trial.

Reversed and remanded.

STAMOS, P. J., and HARTMAN, J., concur.


author: JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LYNN W. DORSEY, Defendant-Appellant.
    First District (4th Division)
    No. 81—814
    Opinion filed September 16, 1982.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Lynn Dorsey, was found guilty of attempted murder and aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 9 — 1, and 12 — 4). Defendant was sentenced to 40 years in prison for attempted murder.

Defendant makes the following arguments on appeal: (1) an injunction entered by the domestic relations division of the circuit court against returning to defendant the money posted as bail on these and other criminal charges operated to deny defendant his right to counsel of his choice; (2) the trial judge failed to give defendant the admonishments on waiver of counsel required by Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)), and as a result defendant did not knowingly waive his right to counsel; and (3) the trial judge’s ruling that prevented defendant from calling several witnesses in his defense violated defendant’s right to due process of the law.

We affirm.

Facts

Defendant was charged by indictment with the aggravated battery and attempted murder of his wife Jane. While the charges were pending, Jane filed a petition in the circuit court of Cook County for dissolution of her marriage to defendant. After his arrest for the attempted murder of Jane, defendant posted $2,000 to satisfy a $20,000 bond, and was released. On July 26, 1978, defendant was charged with aggravated arson and bond was set at $250,000. Defendant raised the $25,000 necessary to satisfy this second bond by selling the Dorsey home. On April 5, 1979, defendant was arrested for an unrelated murder; defendant was unable to satisfy the $500,000 bond in that case.

On April 19, 1978, pursuant to the dissolution of marriage proceedings, Jane obtained a temporary injunction in the domestic relations division of the circuit court of Cook County restraining the clerk of the circuit court from assigning, transferring, pledging, or in any other manner disposing of the bail money in the amount of $25,000. The temporary injunction order was continued from time to time and made permanent on May 16, 1979. On June 18, 1979, the domestic relations division ordered that the $2,000 bail deposit also be held in escrow by the circuit court clerk. Thus, the return to defendant of a total of $27,000 in bail deposits was enjoined by the domestic relations division of the circuit court. Defendant’s motions to vacate the injunctions were denied by the trial judge in the instant attempted murder and aggravated battery case, on the ground that “it’s beyond my jurisdiction as long as there is an unappealed and effective order of another branch of the court.”

Defendant had been represented by counsel in the marriage dissolution proceedings. Defendant stated that in spite of his wish to take an interlocutory appeal of the injunction against returning to him the bail posted, his counsel failed to do so. Defendant also had retained an attorney to represent him in the instant case, but that attorney requested and received leave to withdraw from the case before trial. In a motion to the trial court,- defendant subsequently charged that attorney with ineffective assistance of counsel. On August 21, 1980, the day after defendant’s counsel received leave to withdraw, a public defender was appointed for defendant. Defendant nevertheless contacted another attorney he wanted to represent him. That attorney told the trial judge he would represent defendant if he could be paid out of the bond deposits, and refused to represent defendant because the bail money was not available to pay his fee. During the trial defendant named 16 other attorneys he had contacted about representing him. Presumably, all of them declined to do so.

At a pretrial hearing on October 27, 1980, defendant requested leave to proceed pro se, telling the trial judge he did not want a public defender or an attorney from the Committee on Defense of Prisoners of the Chicago Bar Association to represent him. The judge accordingly read Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)) on waiver of counsel to defendant, explained that the purpose of the Rule is to insure that a waiver of counsel be knowingly and understandingly made, and thoroughly admonished defendant as the Rule requires.

On November 3, 1980, another pretrial hearing took place. Patrick Moriarty, an experienced criminal lawyer who was in private practice, was present at the trial judge’s request to confer with defendant. After a three-hour meeting with Moriarty, defendant requested that he be appointed to represent defendant. The trial judge then appointed Moriarty as counsel to assist defendant.

At a hearing on defendant’s motion to suppress evidence held on November 25, 1980, the trial judge reminded defendant of their earlier discussions of defendant’s right to counsel. Defendant responded that he would seek counsel of his choice if the court would “free” the $27,000 bond money. The trial court told defendant that he could not do that, and defendant then stated again that he wished to proceed pro se. During the trial proceedings counsel Moriarty advised defendant, conducted the direct examination of defendant, and objected to certain questions and statements made by the State’s Attorneys. During the trial, defendant stated that he had had many arguments with counsel Moriarty and moved the court to compel his withdrawal. This motion was denied.

The evidence presented at trial revealed that Lynn and Jane Dorsey had been married for 12 years when the attempted murder of Jane Dorsey occurred. Jane testified that on April 1, 1978, she and defendant left the bar he managed at closing time, about 2:30 a.m., and went home. At home, defendant began to beat Jane, striking her about 10 times with his fists. He then struck her on the head once or twice with a fireplace poker and kicked her down the basement stairs. Defendant ordered Jane to sign a confession to a murder, and when she refused he banged her head against the cement floor until she lost consciousness.

A nurse who worked in the emergency room at South Suburban Hospital testified that she had received a telephone call about 5:15 p.m. on April 1, 1978. The caller told her that his wife was very sick and he was going to send her to the hospital by ambulance. During a long conversation, the caller said that “he had beat the hell out of her and pushed her down the stairs.” He said his wife’s name was Jane Dorsey. The nurse called an ambulance and the police.

Defendant took the police officer who responded to the call into a bedroom of defendant’s home, where the officer saw a woman lying on a bed, nude and unconscious. Defendant told the officer that at 6 o’clock that morning, while intoxicated, he had had a fight with his wife and had thrown her down the stairs. The officer, a certified paramedic, observed that the woman’s eyes were discolored and swollen shut, she had lacerations and contusions on her face, and several bruises on her legs. He also noticed that defendant’s hands were discolored and swollen.

When Jane arrived at the emergency room she was comatose and in extremely critical condition. The nurse described Jane’s injuries as swelling of the brain, a collapsed lung, extreme bruising of the face, arms, hands, legs, chest, and hips, and contusions and lacerations that had happened “a long time” before her arrival at the emergency room.

The doctor who treated Jane in the emergency room testified that Jane was in severe shock with hardly any blood pressure and pulse; she had multiple lacerations. Jane was paralyzed on the right side of her body because of a left phleborrhexis and subdural hematoma. On April 2, 1978, the testifying physician assisted a neurosurgeon who performed a craniectomy operation on Jane. A tracheotomy was also performed, and Jane required breathing assistance for two weeks.

Jane testified that she recalled regaining consciousness more than a month after she was injured. She was discharged from the hospital on June 12, 1978, 79 days after she was admitted, still paralyzed. She had a very severe speech impediment, and needed assistance to eat or to get out of bed. At the time of trial, Jane was still undergoing speech and physical therapy and was confined to a wheelchair. She was living with her parents, and had filed a petition for dissolution of her marriage to defendant.

Defendant cross-examined his wife. Jane denied having purchased a gun. She denied trying to arrange defendant’s murder. She denied pointing a gun at defendant while he slept, debating whether to kill him. Jane was aware of the injunction on defendant’s bail money; she did not think the money would induce her to testify against defendant. She said she had never fired a gun.

Defendant called a married couple as witnesses who testified that they had seen guns in Jane’s possession. An attorney who had been acquainted with defendant since 1970 or 1971 testified that he had represented defendant at a bond hearing after defendant had been arrested in April 1978. The attorney stated that defendant had told him Jane had shot at defendant. Defendant had shown the attorney a patch on the wall of defendant’s house that defendant said covered bullet holes in the wall. The attorney did not recall seeing bullet holes. Defendant had also discussed a divorce with the attorney, and told him he had a document signed by Jane that purported to renounce her claims to her marital property. The State later stipulated to the existence of such a document.

Another defense witness testified that she never saw Jane with a weapon. Later in the trial, defendant read a statement by Dan McCallum into the record, which stated that Jane had offered him $10,000 to arrange to have defendant killed. The trial judge denied defendant’s motion to call two ostensibly friendly but adverse witnesses. Defendant asked to recall the doctor and nurse who had testified previously. When the judge asked defendant’s purpose, observing that defendant had cross-examined these witnesses when they testified, defendant said that he had not been prepared to go to trial at that time. Defendant wanted to question the doctor about the lack of depressions in Jane’s skull, in view of Jane’s testimony that defendant had struck her with a poker. Defendant’s motion was denied. Defendant later requested permission to recall four other witnesses, including Jane Dorsey. This motion was denied also. Offers of proof by defendant that Jane had committed adultery with two men were denied by the court. The trial judge would not permit defendant to call one of these men and his wife as court’s witnesses; he told defendant, “You can call any witness that you wish to call.” Defendant replied, “I am not going to vouch for these people’s credibility. I don’t know what they are going to say.”

Defendant next called a friend of Jane’s to testify. The witness said she had heard a rumor years ago that Jane was committing adultery with the Dorseys’ neighbor. The witness had' helped Jane leave her marital home in the 1960’s. On cross-examination, the witness stated that Jane had been beaten at that time.

Defendant testified on his own behalf, with his court-appointed attorney conducting the direct examination. He testified that he left his tavern about 1:15 a.m. on April 1, 1978, and drove a customer home. He then went to several taverns and drank “quite a bit.” He went home, drunk, before dawn. Jane made a derogatory comment about the person he had been with, and defendant hit her. Defendant accused Jane of committing adultery. The telephone rang, and as defendant answered it Jane came out of the bedroom with a revolver and fired two shots at defendant. Defendant grabbed Jane and took the gun away from her and then beat her. He threw her down the stairs and punched her, and her head went through a wall and hit a stud, which knocked her out. Defendant slapped her again; then he went upstairs for a blanket, which he threw at Jane. Defendant then went to sleep.

Several hours later, defendant woke up. Jane was still lying in the basement. Defendant carried her to bed, and then went to sleep again. He woke up several times and left the house once. At about 5:30 p.m., after Jane vomited, defendant called the hospital. Defendant stated he had not intended to kill his wife. During cross-examination, defendant denied striking Jane with a poker. He denied telling Jane that she should sign a document he had because “You’re going to die anyway so you might as well sign it.”

Closing argument was waived. The trial judge found that the defense of self-defense was totally unsupported by the evidence. The trial judge found the conclusion inescapable, in view of the serious and permanent nature of Jane’s injuries, that defendant intended to kill Jane at the time he injured her. The judge also found defendant guilty of aggravated battery. Defendant was sentenced to a term of 40 years for attempted murder; no sentence was imposed for aggravated battery.

Opinion

I

Defendant’s first argument on appeal is that he was denied his constitutional right to be represented by counsel of his choice by an improper order issued by the domestic relations division of the circuit court, which prevented him from using cash deposited as bail to retain an attorney in his criminal case. Defendant concedes that under our unified court system there is no question that the domestic relations division had the power to enter an order affecting a case in the criminal division of the circuit court. However, defendant contends, the domestic relations division was without authority to enter this particular order enjoining the return of his bail bond deposits “to protect the interest of a private party.” Finally, defendant maintains that even if the injunction was proper it had the effect of depriving him of counsel of his choice, and therefore warrants reversal of his conviction. We disagree.

Defendant has not shown that the money in question was his to spend, either for legal services or for any other purpose. The major part of the sum enjoined was the proceeds from the sale of defendant’s home, which occurred during the pendency of Jane’s suit for dissolution of the Dorseys’ marriage. There evidently was some dispute about whether the home was marital property, because Jane allegedly had signed a document relinquishing her rights to her marital property. Thus the appropriate disposition of the money enjoined was an issue to be determined by the court in the dissolution proceedings, and that court’s injunction against returning the money to defendant was properly issued to preserve the disputed property pendente lite. The trial judge in the instant case correctly ruled that he lacked authority to vacate an effective order of another branch of the court.

Bail bond money held by the circuit court clerk is in custodia legis, held solely to be disposed of as directed by statute. A-1 Lithoplate, Inc. v. AFS Publishing Co. (1978), 66 Ill. App. 3d 560, 384 N.E.2d 395.

“When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited. ***
At the request of the defendant the court may order such 90% of defendant’s bail deposit, or whatever amount repayable to defendant from such deposit, to be paid to defendant’s attorney of record.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7(f).)

Here the domestic relations division had “ordered otherwise,” as it was specifically authorized to do by the statute, and the criminal court properly recognized that order. That the court “may” order a defendant’s bail deposit paid to his attorney (instead of to the defendant) is of no significance when an injunction against returning the money to anyone previously has been entered.

We find defendant’s reliance on Gende v. Flemming (1977), 55 Ill. App. 3d 659, 371 N.E.2d 191, to support his contention that the court improperly refused to refund his money to be misplaced. Gende held that a private judgment creditor has no right to garnishee money in the possession of an agent of the court, and is factually distinguishable from the instant case on two bases. First, here it was not a judgment creditor seeking recovery of a private debt but the circuit court of Cook County seeking to preserve property at issue before it that prevented defendant from recovering his bail deposit at the time he wished. And second, defendant was not deprived permanently of his money; it was merely held in escrow pending a determination by the domestic relations division of whether the money belonged to defendant. During trial, in discussing this issue, the trial judge told defendant, “[Tjhough you are prohibited — restrained from getting your hands on that money — it has not in fact been taken from you.” Defendant replied, “That is true.”

Defendant urges that even if we find the injunction to have been proper, and we do so find, we should hold that the effect of the injunction was to deny defendant his sixth amendment right to counsel of his own choosing. We consider such a conclusion to be both unreasonable and unsupported by legal precedent; we hold that defendant’s right to counsel was not violated under the circumstances of this case.

The primary defect in defendant’s argument is his apparent assumption that by making a bail bond deposit he had in effect created a fund for payment of his legal fees. As we have already said, in this case there was an actual dispute about ownership of the funds. Even in the absence of an actual dispute, bail deposits presumptively belong to the defendant for the purposes of paying fines and costs (People v. Nicholls (1977), 45 Ill. App. 3d 312, 359 N.E.2d 1095, aff’d as modified (1978), 71 Ill. 2d 166, 374 N.E.2d 194), but do not presumptively belong to defendant for all purposes (People v. Wood (1980), 91 Ill. App. 3d 414, 414 N.E.2d 759). The State argues persuasively that the constitutional right to counsel has never been interpreted as a right to keep one’s assets free from all encumbrances so that they can be spent to pay attorney fees.

A defendant’s right to assistance of counsel (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8; Ill. Rev. Stat. 1979, ch. 38, par. 113 — 3) includes the right to assistance of counsel of his choice. (People v. Burson (1957), 11 Ill. 2d 360, 143 N.E.2d 239.) However, while the right to counsel is absolute, the right to choice of counsel is limited (People v. Spurlark (1978), 67 Ill. App. 3d 186, 384 N.E.2d 767), and “such right may not be employed as a weapon to *** thwart the administration of justice, or to otherwise embarrass the effective prosecution of crime.” People v. Solomon (1962), 24 Ill. 2d 586, 590, 182 N.E.2d 736, 739, cert. denied (1962), 371 U.S. 853, 91 L. Ed. 2d 87, 83 S. Ct. 94. See also People v. Mueller (1954), 2 Ill. 2d 311, 118 N.E.2d 1; People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142.

Here, defendant claims that the injunction on his bail deposit precluded him from retaining counsel of his choice despite the fact that the trial judge appointed an attorney who advised defendant and participated in his trial, and represented defendant at the sentencing hearing. In Kelly v. Springett (9th Cir. 1975), 527 F.2d 1090, 1093, such a contention was analyzed as follows:

“The broad statement that an accused has a constitutional right to retained counsel must be qualified in at least two important respects. Either the accused must have been denied effective assistance of appointed counsel, Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, (1932), or he must have been entirely unrepresented by counsel. Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954).”

Kelly held that “the effective assistance of appointed counsel prevented the accused from successfully claiming a constitutional deprivation by reason of absence of counsel of his own choice.” 527 F.2d 1090, 1093.

Defendant’s effort to distinguish the Kelly decision on the ground that defendant Kelly’s funds were seized by the State rather than by a private creditor is unavailing in view of our holding that the injunction issued by the domestic relations division was a valid restraint on the return of the funds at issue. The effect of the injunction was to render defendant indigent for purposes of retaining private counsel. While a criminal defendant may not be deprived of counsel because of his inability to pay for legal services (Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792), an indigent defendant has no right to choose his own counsel absent a showing of good cause (People v. Sylvester (1979), 71 Ill. App. 3d 130, 389 N.E.2d 601). Although defendant claimed that he disagreed with his counsel during trial, he has failed to show that his appointed counsel’s assistance was ineffective. We hold that defendant’s constitutional right to counsel has not been abridged or denied.

II

Defendant’s second argument is that the trial judge failed to give him the admonishments on waiver of counsel required by Supreme Court Rule 401(a) (73 Ill. 2d R. 401(a)), and defendant therefore did not knowingly waive his right to counsel. This claim lacks merit for two reasons. First, the record reveals that at the pretrial hearing at which defendant stated that he wished to proceed pro se, the trial judge thoroughly discussed this matter with defendant. The judge read Supreme Court Rule 401(a) to defendant verbatim, explained the purpose of the Rule, and admonished defendant in accordance with the Rule’s provisions. Defendant’s claim that he did not receive the required admonitions is directly contradicted by the record.

Furthermore, the record indicates that defendant accepted the services of an attorney appointed to represent him. Because defendant had told the trial judge he did not want a public defender, the judge asked an experienced criminal attorney in private practice, Patrick Moriarty, to represent defendant. Moriarty conferred with defendant for more than three hours at the court’s request, and the two agreed that Moriarty “could provide assistance to him of a technical nature while he was conducting his own defense.” Defendant specifically requested the appointment of Moriarty to represent him, which was done by the trial judge. Defendant’s attorney was present at the trial; he advised defendant and explained the proceedings when necessary, made an offer of proof on defendant’s behalf, conducted the direct examination of defendant, and frequently objected to questions or comments by the prosecutor.

Thus, although defendant stated that he wished to proceed pro se, we think this situation falls within the rule that “[w]hen ‘a defendant requests that he be allowed to conduct his own defense with the assistance of a court-appointed lawyer, he does not waive the right to counsel.’ ” (People v. Pittman (1979), 75 Ill. App. 3d 683, 687, 394 N.E.2d 702, 705, quoting People v. Lindsey (1974), 17 Ill. App. 3d 137, 141, 308 N.E.2d 111, 115.) In such a situation it is not necessary that a defendant be given the admonitions of Supreme Court Rule 401(a) because the defendant has not waived counsel within the meaning of the Rule. (People v. Pittman.) For both of these reasons we find defendant’s second claim of error to be entirely lacking in merit.

Ill

Finally, defendant claims that his right to due process of the law was violated by the trial judge’s refusal to permit him to call Jane Dorsey and the emergency room doctor and nurse to testify. The court’s ruling was based on the fact that defendant had cross-examined these witnesses at the time they were called by the State. The record indicates that the further questions defendant wished to ask of these witnesses could properly have been asked when defendant cross-examined them.

Defendant correctly points out that evidence that is probative of an issue should be heard. (Marr v. Marr (1963), 43 Ill. App. 2d 25, 192 N.E.2d 559.) However, it is also true that “the decision whether a party may introduce evidence that should have been introduced earlier rests largely in the discretion of the trial court.” (Savitch v. Allman (1977), 52 Ill. App. 3d 884, 888, 368 N.E.2d 224, 227.) Considering that the probative value of the evidence defendant wished to present was doubtful, that the questions were of such a nature that they should have been asked during cross-examination, and that defendant had ample opportunity to cross-examine these witnesses, we find no abuse of discretion in the trial judge’s denial of defendant’s request to call these witnesses to testify further.

Alternatively, we hold that even if defendant should have been permitted to call these witnesses, the trial judge’s refusal to do so was harmless error in view of the proof beyond a reasonable doubt of defendant’s guilt. “Where the competent evidence shows, beyond all reasonable doubt, that the defendant is guilty *** error will not ordinarily require reversal of the judgment of conviction.” People v. Tranowski (1960), 20 Ill. 2d 11, 17, 169 N.E.2d 347, 350, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290; (1962), 368 U.S. 978, 7 L. Ed. 2d 440, 82 S. Ct. 484.

For all of the reasons discussed above, defendant’s conviction is affirmed.

Affirmed.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE McNAMARA

text:
    MILDRED D. SCHOTT et al., Plaintiffs-Appellants, v. REYNALDO P. GLOVER, Indiv. and as Agent for Isham, Lincoln & Beale, Defendants-Appellees.—MILDRED D. SCHOTT et al., Plaintiffs-Appellants, v. CHARTERED BANK, a/k/a The Standard Chartered Bank, Defendant-Appellee.
    First District (3rd Division)
    Nos. 80—3160, 82—142 cons.
    Opinion filed September 15, 1982.

      Sidney Z. Karasik, of Chicago, for appellants.
    Hedlund, Hunter & Lynch, of Chicago (Reuben L. Hedlund, John R. McCambridge, and Kevin A. Russell, of counsel), for appellee Reynaldo P. Glover.
    Chapman, & Cutler, of Chicago (Christine Hehmeyer Rosso, of counsel), for appellee Chartered Bank.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Mildred D. Schott, First Women’s Realty Corp., and Cedilla Co., brought this action seeking damages from defendants Standard Chartered Bank, Reynaldo P. Glover, and the law firm of Isham, Lincoln & Beale. Plaintiffs alleged in count I of their amended complaint that the bank had breached an exclusive agency agreement with plaintiffs and in count II that attorney Glover, individually and as agent for Isham, had tortiously interfered with that agreement. Count III contained alternative allegations that Glover had tortiously interfered with plaintiffs’ business relationship and expectancy. The trial court dismissed counts II and III for failure to state a cause of action. The trial court also struck count I but granted plaintiffs leave to amend that count. Plaintiffs’ second amended complaint against the bank was subsequently dismissed for failure to state a cause of action. Plaintiffs’ appeals have been consolidated.

We first address plaintiffs’ contention that their amended complaint stated a cause of action for breach of contract against the bank. The complaint averred that the bank had entered into three written exclusive agency agreements with plaintiffs each of which provided that plaintiffs were to act as the bank’s “sole and exclusive real estate broker” for the purpose of securing office space for the bank in the Chicago area. The bank was to pay no fee for plaintiffs’ services, but commissions were to be paid by the owner of the building in which the bank leased or purchased space. The initial agreement was between the bank and plaintiff First Women’s Realty Corp. of which plaintiff Schott was president and stockholder. It was for a term of six months, commencing January 1, 1977. The second agreement was between the bank and plaintiff Cedilla Company, of which Schott was president and stockholder. That agreement lasted for three months. The third agreement, also between Cedilla Co. and the bank, was for a term of six months, expiring June 30, 1978.

Plaintiffs alleged that after the expiration of the third written agreement the “Exclusive Agency was continued at the oral request of BANK’S Vice President and Manager, Timothy P. Nunan *** via various telephone and face-to-face conversations, and evidenced by certain correspondence,” copies of which were attached to the pleadings. They asserted that “plaintiffs and defendant’s agent understood that said extension of plaintiffs’ exclusive agency was to be for an additional six-month period,” although this term was “not specifically mentioned in said conversations and correspondence.”

Plaintiffs alleged further that, pursuant to this understanding between the parties, they “continued to exert time and effort and rendered valuable services to locate suitable office space for the bank.” The bank, allegedly aware that plaintiffs were continuing to perform such services, independently entered into a lease for space in a building in downtown Chicago and notified plaintiffs by letter dated December 12, 1978, that their services were no longer required. Plaintiffs charged that the bank’s execution of the lease during the existence of their exclusive agency agreement, as extended, was a breach of that agreement and that it deprived plaintiffs of their brokerage commission. Alternatively, plaintiffs alleged that the December 12 letter in itself constituted a premature termination and breach of agreement.

Plaintiffs asserted that as early as January 1978, they presented the bank with data regarding space at the building in question and discussed that structure with the bank. All parties agree, however, that in order to state a cause of action for breach of contract in the present case, it was necessary for plaintiffs to allege that their exclusive agency agreement with the bank was extended past the June 30, 1978, expiration date and that such extension was for a specific term. Absent exclusivity, plaintiffs would not be entitled to commissions for their unsuccessful efforts. (Lord v. Melton (1980), 80 Ill. App. 3d 1057, 400 N.E.2d 547.) Without a specific term, the alleged agency contract would have been terminable at the will of either party thus negating any cause of action for premature termination. Kraftco Corp. v. Kolbus (1971), 1 Ill. App. 3d 635, 274 N.E.2d 153.

Any allegations in the body of plaintiffs’ second amended complaint which might indicate an extension by the parties of their exclusive agency agreement were clearly contradicted by the exhibits attached to that complaint. In a letter dated August 2, 1978, Nunan thanked Schott for her efforts on the bank’s behalf “whilst you were acting as our exclusive agent.” Schott, in a letter to Nunan dated October 24, 1978, expressed her own confusion as to how the bank was presently handling its search of a location. She then referred to their working relationship “since January 1977 and up until a few months ago under an exclusive agreement.”

Contrary to plaintiffs’ allegations, these exhibits clearly indicate that both sides were aware that their exclusive agency agreement had not been extended beyond the termination date of June 30, 1978. Facts set forth in exhibits attached to a complaint control over contrary allegations in the complaint itself. (W.H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 403 N.E.2d 1325.) Plaintiffs’ allegations of an extension by the parties of the exclusive agreement must therefore be disregarded. Since plaintiffs failed to allege sufficiently an extension of their exclusive agency agreement, the trial court properly dismissed the second amended complaint for failure to state a cause of action as to the bank.

We next address plaintiffs’ contention that count II of their amended complaint stated a cause of action against Glover, individually as attorney for the bank and as agent for Isham for tortious interference with a contractual relationship. Plaintiffs alleged that Glover, with knowledge that the bank had agreed to extend its exclusive agency agreement with plaintiffs and that plaintiffs were performing services pursuant to that extension, induced the bank to breach and terminate prematurely that exclusive agency. Specifically, plaintiffs charged that Glover minimized the value of plaintiffs’ services; erroneously informed the bank that its contractual obligations to plaintiffs had ceased on June 30, 1978, and advised it not to continue the agency relationship; and misled the bank by informing it that a continuation would result in office rentals inflated by the amount of plaintiffs’ commission. Plaintiffs alleged further that Glover negotiated directly with a realty firm on behalf of the bank with regard to the property in question and advised the realty firm that it was unnecessary to negotiate with plaintiffs.

To maintain an action for tortious interference with a contractual relationship, a plaintiff must plead and prove: (1) the existence of a valid and enforceable contract between plaintiff and another; (2) defendant’s awareness of the contractual relationship; (3) defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the other, caused by defendant’s wrongful conduct; and (5) damages. (Connaughton v. Gertz (1981), 94 Ill. App. 3d 265, 418 N.E.2d 858.) Plaintiffs in the present case failed to allege effectively the existence of a contractual relationship. They alleged that the exclusive agency had been orally extended. Nevertheless, they attached the same correspondence between Schott and Nunan which clearly negated any inference of an extension. Since plaintiffs failed to plead an essential element of the tort of interference with a contractual relationship the court properly dismissed count II.

Count II was also deficient in that it failed to plead effectively that Glover’s acts were unjustified. The purpose of imposing liability on persons who interfere with the contractual relationships of others is to protect one’s interest in such relationships against forms of interference which, on balance, the law finds repugnant. (Swager v. Couri (1979), 77 Ill. 2d 173, 395 N.E.2d 921.) The question of justification therefore rests on whether protection of the contractual interest merits prohibition of the particular conduct which interferes with that interest. (Swager v. Couri.) Under certain circumstances a third party may be privileged purposely to bring about a breach of contract between other parties. This privilege occurs where the third party acts to protect a conflicting interest which is considered to be of equal or greater value than that accorded the contractual rights involved. Connaughton v. Gertz.

The fiduciary duty owed by an attorney to his client is such an interest and under the circumstances here alleged Glover was privileged, in his capacity as the bank’s attorney, to perform the acts and give the advice alleged in count II. We need not decide whether the advice given was correct in every aspect. Although incorrect advice as to a client’s contractual obligations might cause that client to become liable to a third party in contract, it does not follow that the attorney would also be liable to that party. To impose such liability on an attorney would have the undesirable effect of creating a duty to third parties which would take precedence over an attorney’s fiduciary duty to his client. Public policy requires that an attorney, when acting in his professional capacity, be free to advise his client without fear of personal liability to third persons if the advice later proves to be incorrect. D. & C. Textile Corp. v. Rudin (Sup. Ct. 1964), 41 Misc. 2d 916, 246 N.Y.S.2d 813.

Plaintiffs’ reliance on W.P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill. App. 2d 404, 152 N.E.2d 615, for the argument that Glover was not conditionally privileged in his action, is surprising and misplaced since that holding was expressly rejected by our supreme court. Swager v. Couri.

The privilege accorded an attorney when advising his client is not absolute. A plaintiff can state a cause of action for tortious interference with a contract against a third party who is conditionally privileged if the plaintiff can set forth factual allegations from which actual malice may reasonably be said to exist. (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514.) Such allegations, however, would necessarily include a desire to harm, which is independent of and unrelated to the attorney’s desire to protect his client. (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association.) No such allegations are contained in count II. In light of Glover’s conditional privilege, plaintiffs failed to allege sufficiently unjustified conduct, and the trial court properly dismissed count II for failure to state a cause of action.

We finally address plaintiffs’ contention that count III of their amended complaint stated a cause of action for tortious interference with a business expectancy. Count III recites that, even absent an extension of the exclusive agency agreement, plaintiffs’ continued efforts on the bank’s behalf, with the bank’s knowledge and consent, amounted to a valid business relationship and expectancy under which plaintiffs would have realized substantial brokerage commissions from the owner of any building in which the bank leased or purchased space. Plaintiffs charged further that Glover, aware of plaintiffs’ valid business relationship with the bank, induced the bank to repudiate and terminate that relationship thus depriving plaintiffs of their commissions. The specific conduct by Glover which allegedly caused this termination was the same as that alleged in count II.

In order to state a cause of action for tortious interference with a valid business relationship and expectancy a plaintiff must effectively plead a reasonable expectancy of entering a valid business relationship and purposeful interference by defendant which defeats that expectancy thereby causing harm to the plaintiff.

We need not decide, however, whether plaintiffs sufficiently alleged a valid business expectancy. Even assuming the existence of such an expectancy, we find that Glover, in his capacity as the bank’s attorney, was conditionally privileged to perform the acts and give the advice alleged in count III. Although an individual has a general duty not to interfere in the business affairs of another, the question whether such interference amounts to tortious conduct requires a balancing of societal values. The right to engage in a business relationship is accorded less protection than the right to receive the benefits of a contract. Consequently, interference in the business affairs of another by an outsider is even more likely to be privileged where no contract is involved. (Beldon Corp. v. Internorth, Inc. (1980), 90 Ill. App. 3d 547, 413 N.E.2d 98.) Plaintiffs’ amended complaint failed to allege facts which would constitute actual malice. Therefore, in light of Glover’s conditional privilege, plaintiffs did not effectively state a cause of action for tortious interference with a business expectancy, and count III was properly dismissed by the trial court.

For the reasons stated, the orders of the circuit court of Cook County dismissing counts II and III of plaintiffs’ amended complaint and their second amended complaint are affirmed.

Orders affirmed.

WHITE, P. J., and McGILLICUDDY, J., concur.