author: PRESIDING JUSTICE JOHNSON JUSTICE JIGANTI,

text:
      In re MARRIAGE OF BARBARA J. KOPEC, Petitioner-Appellee, and RONALD KOPEC, Respondent-Appellant.
    First District (4th Division)
    No. 81-724
    Opinion filed May 27,1982.

      JIGANTI, J., dissenting.
    Stephen L. Raum, Ltd., of Chicago, for appellant.
    Maureen J. McGann-Ryan, of Chicago, for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Respondent, Ronald Kopec, appeals from an order denying his petition to vacate a default judgment for dissolution of marriage or for a rehearing on the issue of property division. He contends that his right to substantial justice and fundamental fairness was violated by the action of the trial court, that the trial court erred by proceeding with an ex parte hearing without additional notice to him, and that the trial court abused its discretion by denying his post-trial motion.

We affirm.

On October 25, 1979, petitioner, Rarbara Kopec, filed suit for dissolution of marriage. Respondent answered but on January 22, 1980, his counsel withdrew. On February 29, 1980, a notice of motion for pretrial hearing was mailed to respondent and the case was assigned for a pretrial conference; respondent failed to appear. On July 23, 1980, a notice was mailed to respondent informing him that petitioner would appear in court on July 31, 1980, and request an immediate prove-up hearing. Again, respondent failed to appear.

At the ex parte hearing, petitioner testified that she and respondent were married on March 31, 1979, and separated on September 15, 1979. Attempted reconciliations in October 1979 and June 1980 failed. Petitioner requested $10,000 in a lump sum which represented her equity in the jointly owned marital residence. The trial court entered a default order against respondent.

On September 10, 1980, respondent filed a petition alleging that the July 31,1980, hearing was “manifestly unfair and unconscionable,” that he did not have counsel or notice, and that he had a meritorious defense. Respondent asked that the order be vacated, that the court refrain from entering a judgment for dissolution, that he be allowed to respond to the petition for dissolution, and that the case be returned to the contested trial court or, alternatively, that he be given sufficient time to prepare for trial.

At a hearing on October 10, 1980, respondent testified that he received no notices of pretrial conference or the prove-up, that he had trouble receiving his mail, and that he did not pursue the divorce litigation because he felt a reconciliation was possible.

Barbara Kopec testified that when she filed for divorce, respondent said he would carry out the proceedings forever and would never give her a divorce, and that after she moved back to the marital home in June 1980 respondent chased her out of the house and smashed her car with an ashtray. When petitioner’s counsel asked whether petitioner paid any of respondent’s debts, respondent’s objection was sustained. The court stated that respondent had not made an issue of the fairness of the property settlement even though he alleged unfairness in the September 10, 1980 petition. The court concluded, “So apparently he has abandoned that [issue] for the purpose of this particular case.” The trial court denied respondent’s petition and entered judgment for dissolution of marriage on October 23, 1980.

On November 20,1980, respondent filed a motion under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), asking the court to reconsider its judgment. On March 24,1981, the trial court denied respondent’s motion and respondent appealed.

Respondent contends his right to substantial justice and fundamental fairness was violated by the trial court’s refusal to vacate the default judgment. The test for vacating a default judgment is whether substantial justice is being done between the litigants and whether, under the circumstances of the case, it is reasonable to compel the other party to go to trial on the merits. (Prenzler v. Prenzler (1977), 55 Ill. App. 3d 244, 246, 370 N.E.2d 642, 644.) The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. Karaskiewicz v. Karaskiewicz (1976), 38 Ill. App. 3d 509, 511, 348 N.E.2d 184,186.

We note that respondent’s first petition of September 10,1980, did not seek to vacate a default judgment but an order of default. Judgment for dissolution of marriage was not entered until October 23, 1980. Respondent’s second petition urged the trial court to reconsider its judgment. Barbara Kopec urges that the trial court had no jurisdiction to consider either of respondent’s petitions because the first petition was filed over 30 days after the entry of the default order and the second merely repeated the points raised by the first. Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) provides as follows:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.”

Petitioner’s argument ignores the fact that the July 31,1980, default order was not a final judgment. (Kazubowski v. Kazubowski (1971), 48 Ill. 2d 401, 402, 270 N.E.2d 845, 846.) Therefore, we hold that the court had jurisdiction to consider respondent’s first petition prior to the entry of judgment.

Respondent’s second petition was filed under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), which provides as follows:

“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment * * * file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.”

Respondent’s second petition was filed November 20, 1980, which was within 30 days of the entry of judgment. Therefore, we hold that the trial court had jurisdiction to consider respondent’s second petition.

Assuming that substantial justice is the proper standard in this case, we hold that substantial justice will best be served by affirming the judgment of the trial court. On October 10, 1980, an evidentiary hearing was held on respondent’s first petition to vacate the default order. Respondent testified that he did not receive notice and presented no evidence on the disposition of the marital property. When the trial judge remarked that respondent had abandoned the issue of property division, respondent was silent.

The judgment for dissolution provided that respondent either pay petitioner $10,000 to relinquish her interest in the marital home or pay her one-half of net proceeds upon its sale. Respondent alleged that he paid the entire $25,000 down payment on the home which was owned in joint tenancy. It was purchased during the marriage and was properly characterized as marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503; In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 1008, 400 N.E.2d 625, 627.) Thus, the award of $10,000 represented less than petitioner’s one-half interest in equity in the home. In addition, no attorney fees nor maintenance was awarded to petitioner, and the personal effects, furniture and furnishings were fairly distributed. The trial court is required to distribute marital property in an equitable manner taking into account all relevant factors and its decision in this regard wiU not be reversed absent an abuse of discretion. (In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 1008.) We hold, therefore, that the settlement was fair and that the trial court did not abuse its discretion in this case.

Respondent next contends the trial court erred by proceeding with an ex parte hearing without additional notice to him. He cites section 405 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 405), which grants the trial judge authority to require additional notice to a respondent in default. We disagree with respondent’s contention. In this case, respondent was granted a hearing on October 10, 1980, and, thus, had notice of the pendency of the suit before entry of judgment for dissolution on October 23, 1980. Furthermore, respondent knew his attorney had withdrawn and the record shows that a notice of the July 31,1980, hearing was mailed to him on July 23,1980. It is the duty of every litigant to follow the progress of his case. (DeMet v. DeMet (1979), 74 Ill. App. 3d 680, 681, 394 N.E.2d 3, 5.) We hold that the trial court did not abuse its discretion by proceeding with the ex parte hearing without additional notice to respondent.

Finally, respondent contends the trial court abused its discretion by denying his post-trial motion. We disagree. In his post-trial motion, respondent asked the court to consider the fairness of the property settlement because the issue had been decided at an ex parte hearing. At the October 10, 1980, hearing, respondent chose to address only the issue of notice and not the fairness of the settlement. Where evidence could have been presented during the trial and there was ample opportunity to do so, it is not an abuse of discretion to deny a rehearing so that such evidence could be presented. (In re Marriage of Potter (1980), 88 Ill. App. 3d 606, 610, 410 N.E.2d 999, 1002.) We have decided above that the settlement was fair. Therefore, we hold that the trial court did not abuse its discretion by denying respondent’s post-trial motion.

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

Affirmed.

LINN, J., concurs.

JUSTICE JIGANTI,

dissenting:

Ronald Kopec failed to appear at his divorce prove-up hearing on July 31, 1980. The hearing was brief and was fairly held as were subsequent hearings in this matter. The court ordered that the marriage be dissolved and divided the property. The report of proceedings covers 18 pages. Before the judgment order was prepared by counsel for Barbara Kopec, Ronald appeared through counsel and asked to have the matter heard on the merits.

The majority states, and I believe properly so, that the court should be guided by a standard of doing substantial justice for the parties. There are several factors that I think should be considered in determining what constitutes substantial justice. Vacating the order eventually entered would only modestly inconvenience the court and Barbara because the hearing was so brief. Barbara was the only witness. The respondent exhibited no disrespect for the court in failing to appear. Ronald was timely in bringing about his motion asking the court to vacate the proceedings of July 31, 1980. It was brought even before a judgment was entered.

Most significantly, particularly in the context of this case, the ultimate result must be considered. After a SM-month marriage with apparently no particular equities on either side, Barbara will receive at least $10,000 that was the respondent’s property at the time of the marriage. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act provides that marital property shall be divided without regard to marital misconduct in just proportions considering 10 factors. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) Of particular significance are those factors that say that the court shall consider the contribution of each party to the acquisition of the property and the duration of the marriage. The trial court did not specifically consider the fairness of the property division after the initial prove-up hearing, but this court did and concluded the property distribution was fair. The only factor relied on in reaching that conclusion is that the $10,000 award was less than a half interest in the equity in the home. The apparent rationale is that marital property is required to be divided into equal proportions. That position, of course, is not sound. The requirement is that marital property be divided in just proportions. In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 402 N.E.2d 831, aff'd (1981), 87 Ill. 2d 174, 429 N.E.2d 465.

In my estimation substantial justice will be accomplished by vacating the judgment order that was eventually entered and by having a hearing on the merits.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY

license: Public Domain

text:
    VAL LORRIE GLOVER, Adm’r of the Estate of Gertrude Wilson, Deceased, Plaintiff-Appellant and Cross-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellees and Cross-Appellants.
    First District (3rd Division)
    No. 79-703
    Opinion filed May 19,1982.

      . Herbert F. Stride, Ltd., and William J. Harte, Ltd., both of Chicago, for appellant.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Maureen J. Kelly, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiff, Val Lorrie Glover, the administrator of the estate of Gertrude Wilson, filed a four-count amended complaint against the city of Chicago and police officers Daniel Fitzgerald and Thomas Ferry. The complaint sought to recover damages for loss of support, pain and suffering, lost wages and burial expenses that resulted from the shooting death of Gertrude Wilson. Counts I and II based recovery on the absolute liability provisions of section 1 — 4—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 1 — 4—5). Recovery under count III was based on alleged negligence and indemnification liability pursuant to section 1 — 4—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 1 — 4—5), and recovery under count IV was based on alleged wilful and wanton conduct.

At the close of the plaintiff’s case, the defendants asked for directed verdicts on all counts. The trial court directed verdicts for the city and Ferry on all counts and directed verdicts for Fitzgerald on counts I, II and IV. A verdict was directed in favor of the plaintiff against Fitzgerald on count III, and the jury awarded damages in the amount of $20,000 on that count. The plaintiff filed a post-trial motion seeking judgment against all the defendants and a new trial on the damages issue or a new trial on all the issues against all the defendants. The trial court ordered a new trial against all the defendants on all of the issues. Leave to appeal was granted by this court pursuant to Supreme Court Rule 306 (73 Ill. 2d R. 306).

The issues presented on appeal are whether the trial court erred in setting aside its directed verdicts and the jury award and ordering a new trial on all of the issues.

At trial Officer Fitzgerald testified as an adverse witness and stated that he met the decedent in March 1972 when they appeared before a judge to obtain a felony warrant against her ex-husband, Albert Winston. Fitzgerald spoke to the decedent several times during the following year and told her to call him if she knew Albert’s whereabouts. On April 12, 1973, at about 5 p.m., the decedent called Fitzgerald to advise him that Albert was in the area and would be at her apartment at about 7 p.m. Fitzgerald arranged to call her at about 7 p.m. and was informed during this second conversation that Albert had a gun.

When Officer Fitzgerald proceeded to the decedent’s apartment, he called for assistance and was met by Officers Ferry and DiGiacomo. The decedent’s apartment could not be located so Fitzgerald called her for additional directions. She told him that her aunt would direct them to the apartment. After receiving directions from the decedent’s aunt, the three officers walked in single file toward the outside stairway leading to the decedent’s two-story apartment. Fitzgerald was in the lead, and Ferry and DiGiacomo followed. Fitzgerald had his gun drawn.

Officer Fitzgerald stated that as he approached the stairs, he was fearful of being hurt since Albert Winston had a gun. When Fitzgerald reached the stairs, he saw a man wearing a light-colored t-shirt in a second-floor window. Fitzgerald testified that he then heard gunfire and saw two or three flashes of light, that he assumed was gunpowder burning from a discharged gun, emanate from the second-floor window. When Officer DiGiacomo fell to the ground with a bullet wound in the chest, Fitzgerald believed they were being fired upon and jumped back. He aimed his gun toward the figure that had disappeared from the window and yelled, “Winston, you’re under arrest, come on out.” The door to the decedent’s apartment opened about a foot and one-half to two feet, and Fitzgerald saw the man in the light-colored t-shirt. The man slammed the door and opened it a few seconds later. Fitzgerald saw a hand come out of the door, assumed the man was going to draw a weapon and then fired his gun twice at the man in the door. When Fitzgerald fired his weapon, he believed the decedent’s children were present in the apartment.

Upon entering the apartment, Fitzgerald saw the decedent lying on the kitchen floor dressed in red pants and a black sweater. She had been shot by a bullet fired from Fitzgerald’s gun. No weapons were found in the decedent’s apartment, and there was no evidence to indicate that a weapon had been fired on the premises. Fitzgerald was informed later that the bullet that injured Officer DiGiacomo had been fired from Officer Ferry’s gun when the gun slipped from Ferry’s hand and discharged. Albert Winston, who was wearing a light-colored t-shirt, was apprehended on the first floor of the apartment.

Officers Thomas Ferry and Joseph DiGiacomo corroborated Fitzgerald’s testimony regarding their involvement in the shooting incident. Ferry testified that he dropped his revolver as he drew it from his holster while approaching the stairs. The gun discharged but Ferry did not realize that the bullet had hit DiGiacomo. He saw no weapons being fired from the window of the apartment at the time DiGiacomo was shot and did not know who fired at least two subsequent gunshots. DiGiacomo testified that he did not hear or see any shots being fired before he was hit by a bullet. He did not know where the bullet came from at the time he had been shot.

Gerri Winston, the decedent’s daughter, testified that on the night of the shooting, she was at home with her mother, father, sister and brother. Also present were her grandmother and aunt. After her aunt left the apartment, Gerri heard a gun being fired outside and she and her mother went to look out the living room window. Her mother then went to the door and opened it to look out. Gerri looked out the door and saw a policeman lying on the ground. Her mother then closed the door; and as they turned to go back to the living room, two shots were fired. Her mother fell to her knees and crawled to the kitchen. Gerri testified that at the time of the shooting, her father was on the upper floor of the apartment and that he did not come downstairs until after her mother had been shot.

On cross-examination, Gerri testified that her father had been in the apartment on the night of the shooting but could not remember whether he had been there before that day. She admitted that she had stated previously that her father had returned to the apartment 2 or 2% weeks before the shooting and that he had moved in about 3 days later. Gerri further testified that after the shooting, the decedent reached for a skillet on top of the stove and hit her husband before falling back down. She also stated that on the night before her mother was shot, she had witnessed an altercation between her parents.

After evidence relative to the issue of damages was presented, the plaintiff rested. Thereafter, the trial court granted directed verdicts for the city and Ferry on all counts and directed verdicts for Fitzgerald on counts I, II and IV. A verdict was directed in favor of the plaintiff against Fitzgerald on count III. The defendants then sought to present testimony by several witnesses that Albert Winston was present in the decedent’s apartment before the day of her death, that Albert pointed a gun at the decedent on the evening before her death, that the decedent knew that Albert’s gun was not in the apartment at the time she told Officer Fitzgerald that Albert had a gun, that a .45-caliber bullet recovered outside the decedent’s apartment had markings consistent with the markings in Albert’s gun, and that a bystander who witnessed the shooting saw flashes of light emanating from the upper-floor window of the decedent’s apartment. The defendants were prohibited from presenting this evidence to the jury since the liability issue had been decided by the directed verdict rulings. Thereafter, the jury returned an award of $20,000 on count III. In ruling on the plaintiff’s post-trial motion, the trial court reversed all of the directed verdicts and ordered a new trial on all the issues.

Count I

Count I of the plaintiff’s amended complaint sought recovery pursuant to section 1 — 4—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 1 — 4—5), which provides in part:

“If any person in obeying the command of any such policeman [who as a member of the police department of a municipality having a population of 500,000 or more is engaged in the performance of his duties as a policeman] to assist in arresting or securing an offender is killed * * * the personal representatives of the person so killed shall have a cause of action to recover the amount of such damage or injury against the municipal corporation by which such policeman is employed at the time such command is obeyed.”

If injuries are suffered under the circumstances described in this statute, there is absolute liability by the municipality. (See Meador v. City of Salem (1972), 51 Ill. 2d 572,284 N.E.2d 266 (construed Ill. Rev. Stat. 1965, ch. 24, par. 1 — 4—6, which applies to smaller populated municipalities).) In New York where a similar statute exists (Meador v. City of Salem), the court stated that no precise words of command are required by the statute so long as the direction for assistance is evident from the language employed by the police officer. (Riker v. City of New York (1953), 204 Misc. 878, 126 N.Y.S.2d 229, aff'd without opinion (1955), 286 App. Div. 808, 143 N.Y.S.2d 620.) That court further stated that liability under the statute could be determined as a matter of law where the plaintiff clearly has proved a causal relation between his injury and the command of the police officer.

The plaintiff in the instant case argues that the trial court erred in granting a directed verdict for the city and denying a directed verdict for the plaintiff. A motion for a directed verdict should be granted only when all of the evidence, viewed favorably to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) Furthermore, a defendant is not entitled to a directed verdict at the close of the plaintiff’s case unless the evidence, when viewed most favorably to the plaintiff, totally failed to establish one or more of the necessary elements of the plaintiff’s cause of action. Rogall v. Kischer (1971), 1 Ill. App. 3d 227, 273 N.E.2d 681; see 3A Nichols, Illinois Civil Practice sec. 3485, at 234 (1977).

The evidence presented at trial in the case at bar presented a factual question as to whether the plaintiff was obeying the command of Officer Fitzgerald to assist in the arrest of Albert Winston. Although the plaintiff presented testimony that the decedent had been told a year prior to her death to contact the police when she knew of Albert’s whereabouts and that the information she supplied the police assisted in Albert’s arrest, the city attempted during the plaintiff’s case to elicit additional reasons for the decedent’s actions. It was the city’s position that the plaintiff knew of Albert’s whereabouts for more than a week before she called the police and that she did not make the call until after she had been involved in an altercation with Albert. Had the city been given an opportunity to present additional evidence on this issue during its case in chief, this factual dispute clearly would have required a jury determination.

Considering the evidence that had been presented when the trial court granted the city’s motion for a directed verdict, however, we cannot say that the evidence, when viewed most favorably to the plaintiff, failed to establish the necessary elements of the plaintiff’s cause of action or that the evidence so overwhelmingly favored the defendant that no contrary verdict could ever stand. Similarly, we believe that the plaintiff was not entitled to a directed verdict (see 3A Nichols, Illinois Civil Practice §3503, at 242 (1977)), since the evidence, when viewed favorably to the city, did not overwhelmingly favor the plaintiff. Thus, as neither party was entitled to a directed verdict at the close of the plaintiff’s case, the trial court correctly ordered a new trial on count I of the plaintiff’s amended complaint.

Count II

Based on the liability theory set forth in count I of the amended complaint, count II sought to recover for the decedent’s pain and suffering and burial expenses. When the court directed a verdict in the city’s favor on count I, it also directed a verdict on this count. As a new trial has been ordered on count I, we find it necessary to address the city’s argument that the facts in the case at bar do not support recovery for pain and suffering.

In Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 308 N.E.2d 583, a case relied upon by the city, the Illinois Supreme Court abandoned the long-standing abatement rule that prevented recovery for personal injuries, including pain and suffering, when the victim died as a direct result of those injuries. (See Note, Death of the Abatement Doctrine — Murphy v. Martin Oil Co., 24 DePaul L. Rev. 608 (1975).) There was no discussion in that case, however, as to the degree of proof necessary to support recovery for pain and suffering.

The city contends that because the decedent in Murphy survived for nine days, there can be no recovery for pain and suffering in Illinois unless the evidence demonstrates a significant time lapse between the time of injury and the time of death. We do not believe that such a rule is implied from Murphy. The fact that a decedent has suffered for only a short period of time is not a bar to a claim for pain and suffering. (See In re Air Crash Disaster (N.D. Ill. 1980), 507 F. Supp. 21, and cases cited therein.) The duration of the pain and suffering affects the amount of damages to be awarded, not the ability to recover damages.

The evidence in the instant case was that the decedent crawled from the front door of her apartment to the kitchen after she had been shot. The decedent’s daughter testified that when her father came into the kitchen, the decedent grabbed a skillet from the stove, hit him with it and then fell back. As the decedent was conscious for a time after she was shot, her death was not instantaneous; and in the event liability is found to exist under count I, the compensable damages should include recovery for the decedent’s conscious pain and suffering. Therefore, the trial court correctly ordered a new trial as to count II.

Count III

Count III of the plaintiff’s amended complaint alleged that Officers Fitzgerald and Ferry were negligent in the performance of their police duties and that liability existed pursuant to the indemnity provisions of section 1 — 4—5 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 1 — 4—5). At the close of the plaintiff’s case, the trial court directed verdicts for the plaintiff against Fitzgerald and for Ferry against the plaintiff. The court stated that it would order the city to indemnify Fitzgerald after judgment was entered against Fitzgerald.

The pertinent portion of section 1 — 4—5 of the Illinois Municipal Code provides:

“In case any injury to the person 8 8 8 is caused by a member of the police department of a municipality 8 8 8, while the member is engaged in the performance of his duties as [sic] policeman, and without the contributory negligence of the injured person 8 8 8, the municipality 8 8 8 shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the policeman.”

This provision does not create direct liability on the part of the municipality or the police officer. (Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144; Karas v. Snell (1957), 11 Ill. 2d 233,142 N.E.2d 46.) It creates liability on the municipality for indemnification after a judgment has been recovered against the officer. Until a judgment is obtained against the officer, no action, other than a possible third-party action by the police officer against the municipality, will lie pursuant to section 1 — 4—5 of the Illinois Municipal Code. (Arnolt v. City of Highland Park.) Thus, neither the city nor the officers were liable to the plaintiff based on the indemnity provisions of that section.

We also find that the defendants were not liable to the plaintiff under common law negligence theories. Pursuant to section 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1973, ch. 85, par. 2 — 202), a public employee is not liable for his actions in the execution or enforcement of any law unless the conduct is wilful and wanton. Section 2 — 109 of the Tort Immunity Act provides that a public entity is not liable for any injury resulting from an employee’s action where the employee is not liable.

In the case at bar, it is undisputed that the plaintiff’s decedent was shot by Officer Fitzgerald while he and Officers Ferry and DiGiacomo were attempting to arrest Albert Winston. Clearly, the defendant officers were executing or enforcing a law at the time the decedent was injured. Therefore, under the Tort Immunity Act, the officers and the city were immune from liability for the negligent acts alleged by the plaintiff; and the trial court erred in granting a new trial on count III.

Count IV

Count IV of the plaintiff’s amended complaint sought recovery based upon allegations of wilful and wanton conduct by Officers Ferry and Fitzgerald. Although the trial court directed a verdict for the defendants at the close of the plaintiff’s case, this decision was reversed during post-trial motions when a new trial was ordered on all issues.

Under the Tort Immunity Act, a public employee is not immune from liability when, while enforcing or executing a law, he acts wilfully and wantonly. (Ill. Rev. Stat. 1973, ch. 85, par. 2 — 202.) Similarly, allegations of wilful and wanton conduct by a public employee are sufficient to state a cause of action against the municipality-employer. (Hampton v. City of Chicago (7th Cir. 1973), 484 F.2d 602, cert, denied (1974), 415 U.S. 917,39 L. Ed. 2d 471, 94 S. Ct. 1413; LaMonte v. City of Belleville (1976), 41 Ill. App. 3d 697, 355 N.E.2d 70; see Ill. Rev. Stat. 1973, ch. 85, par. 2 — 109.) Therefore, as the allegations in the plaintiff’s complaint stated a cause of action against all the defendants, we must examine the evidence presented at trial to determine whether it supports either of the trial court’s rulings.

In the case at bar, the plaintiff argued that the reckless use of firearms by Officers Fitzgerald and Ferry constituted wilful and wanton conduct. Wilful and wanton conduct has been defined as conduct which is intentional or committed under circumstances exhibiting a reckless disregard for the safety of others. (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 69 N.E.2d 293; Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910.) A person is guilty of wilful and wanton conduct when he ignores known or plainly observable dangerous conditions and does something that will naturally and probably result in injury to another. (Madigan v. Browning Ferris Industries (1978), 61 Ill. App. 3d 842, 378 N.E.2d 568.) Whether a person is guilty of wilful and wanton conduct is a question of fact for the jury and should rarely be ruled upon as a matter of law. (Dumpert v. Liechty (1969), 114 Ill. App. 2d 59, 251 N.E.2d 652.) In determining whether a charge of wilful and wanton conduct ought to have been submitted to the jury, neither the trial court nor a reviewing court may resolve conflicts in the evidence, decide what weight to apply to the evidence or decide the relative credibility of the witnesses. In accordance with Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, a directed verdict should not be granted for the defendant unless it can be said that the evidence in its aspect most favorable to the plaintiff so overwhelmingly favors the defendant that a wilful and wanton verdict based thereon would never stand. Madigan v. Browning Ferris Industries.

The evidence viewed in its aspect most favorable to the plaintiff in the instant case shows that Officers Fitzgerald, Ferry and DiGiacomo ascended the stairway leading to the decedent’s apartment. Ferry, who was behind Fitzgerald, dropped his revolver as he drew it from his shoulder holster and it slipped from his hand. When the gun discharged, hitting DiGiacomo, Fitzgerald thought that the bullet was fired from the apartment and fired two shots into the door. Ferry and DiGiacomo did not see a weapon being fired from the apartment before DiGiacomo was shot, and no weapons were recovered from the apartment after Albert Winston was apprehended. Fitzgerald testified that at the time he fired his weapon, he believed that the decedent’s children were in the apartment.

We believe that a jury could conclude that Officer Ferry was guilty of wilful and wanton conduct when he took his gun from his shoulder holster in a manner that allowed his gun to slip from his hand, to fall to the ground, and to discharge hitting Officer DiGiacomo. A jury also could conclude that Officer Fitzgerald was aware of the potential danger implicit in firing his gun into a closed door of an occupied apartment and that he chose to ignore the natural and probable result of his actions. As we cannot say that the evidence overwhelmingly favored either Officer Ferry or Officer Fitzgerald, the factual question of their wilfulness and wantonness was one for the jury to decide. Therefore, as neither party was entitled to a directed verdict at the close of the plaintiff’s case, the trial court correctly granted a new trial on count IV of the plaintiff’s amended complaint.

Damages

The final issue on appeal is whether the trial court erred in setting aside the jury award of $20,000 against Officer Fitzgerald under count III of the amended complaint. We have held that the plaintiff has no right to recover damages under count III. However, we find it necessary to address the adequacy of the award as this issue may arise on retrial in the event liability is found to exist on one of the other counts.

It generally has been stated that the amount of damages to be awarded in a wrongful death action cannot be determined with mathematical certainty and rests largely with the discretion of the jury. A jury verdict should not be set aside unless it is evidently the result of passion or prejudice, it bears no relation to the pecuniary injuries of the decedent’s descendants (Prather v. Lockwood (1974), 19 Ill. App. 3d 146,310 N.E.2d 815), or it is so low as to be a compromise upon the issue of liability and damages (Long v. Bennett (1977), 55 Ill. App. 3d 50, 370 N.E.2d 627).

In the case at bar, the plaintiff argues that a new trial on the issue of damages was warranted because the $20,000 verdict bore no relation to the damages sustained by the decedent’s children. The plaintiff contends that the verdict was the result of defense counsel’s improper attempt to appeal to the passion of the jury by stating that Officer Fitzgerald, the only defendant remaining in the lawsuit, would have to pay the verdict and by asking the jury to vindicate Fitzgerald by not awarding damages.

We have reviewed the record in the case at bar, and we believe that the $20,000 verdict was so low as to be a compromise by the jury upon the issue of liability and damages. We also believe that the jury was prejudiced by defense counsel’s improper remarks concerning the liability of Officer Fitzgerald when the liability issue had been decided as a matter of law and was not before the jury. Defense counsel’s closing argument should have been limited to a discussion of evidence regarding the pecuniary loss to the decedent’s children (Ill. Rev. Stat. 1973, ch. 70, par. 2), including the contributions of the decedent to her children and the economic conditions that existed at the time of the decedent’s death without regard to the pecuniary circumstances of the children since the death of their mother. (Pennsylvania Co. v. Keane (1892), 143 Ill. 172, 32 N.E. 260; see Ranson v. Wilson (1948), 335 Ill. App. 7, 80 N.E.2d 381; Annot., 30 A.L.R. 121 (1924).) Thus, a new trial on the issue of damages was correctly ordered by the trial court.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with the views expressed herein.

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

McNAMARA and RIZZI, JJ., concur.

       The Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, pars. 1 — 101 to 10 — 101) must be read in pari materia with the indemnity provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, pars. 1 — 4—5 and 1 — 4—6). (Mills v. County of Winnebago (1969), 104 Ill. App. 2d 366, 244 N.E.2d 65, overruled on other grounds sub silentio,Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144; see Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 289 N.E.2d 481.) While the two legislative schemes are not totally compatible, our supreme court in Arnolt imparted meaning to both by applying the Tort Immunity Act only to acts “done while in the actual execution or enforcement of a law and not to every act or omission done while on duty as a public employee.” (52 Ill. 2d 27, 33, 282 N.E.2d 144,147.) The court stated that a police officer who is merely cruising in a vehicle while in the line of duty may not be immune from liability for his wrongful act if he was not enforcing or executing a law at the time the injury occurred. The officer could, however, be indemnified by the city as he was engaged in the performance of his duties. 52 Ill. 2d 27, 34, 282 N.E.2d 144,147-48.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE WELLS, Defendant-Appellant.
    First District (5th Division)
    No. 80-1852
    Opinion filed May 28,1982.

      Ralph Ruebner, Edwin R. McCullough, and John L. Stainthorp, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Rartnik, and Rryan D. Schultz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted and sentenced to 12 years for robbery in violation of section 18 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1). On appeal, defendant contends that (1) he was denied effective assistance of counsel; (2) there were evidentiary errors requiring reversal and remandment for a new trial; and (3) he was denied due process of law because the use of a photographic display for identification was unnecessarily suggestive and conducive to irreparable mistake.

It appears that on December 8, 1978, two men entered a food store and one, holding a gun, ordered employee Thomas Bauer from behind the checkout counter. Shortly thereafter, a third man wearing a ski mask entered and took Bauer’s wallet; then, on the order of the man with the gun, Bauer opened the cash register and was told to lie on the floor, and his watch was taken by the man with the gun. Glen Simon, a customer in the store, was also told by the man with the gun to hand over his watch and to lie on the floor. After the men left, Bauer noted that the cash register was empty. On December 28, defendant was arrested and indicted on two counts of armed robbery after having been identified as the man who held the gun.

Prior to trial, the court denied motions (1) of defense counsel to withdraw, (2) of defendant to preclude the testimony of witness Hope Pablo because of the failure to produce her criminal record, and (3) to suppress witness Thomas Bauer’s identification.

At trial, Bauer testified that the time of the robbery was from 1 to 5 minutes; that the man with the gun was approximately 6 feet tall, had an Afro hairstyle, sideburns, mustache, black-rimmed glasses, and was wearing a half-length brown coat; that he had previously seen the man in the store but was not certain when or how many times; that he told the police on the night of the robbery he could probably recognize the man with the gun if he saw him again in person; that he looked through three books of police mug shots after the robbery and was unable to recognize any of the robbers, but on January 30 he did identify defendant as the man with the gun and one of the other men from photographs; and that later, during an in-court lineup, he again identified defendant as the man with the gun.

Glen Simon, a customer in the store, testified that during the robbery he observed one of the robbers and heard the voice of another and that, after looking at mug shots on the night of the robbery, he could not recognize anyone but that later he identified Frank Lucius at the lineup as the person he thought was the man with the gun.

Hope Pablo, also a customer, testified that she recognized defendant as the man who held the gun; that she knew him before the robbery; and that he was standing 6 or 7 feet from her during the holdup. On cross-examination, she stated that at the time of the robbery defendant was not wearing an Afro hairstyle and that she never knew him to wear one; that she identified Frank Lucius, and William Hearn as the man wearing the mask; and that Eddie Aikens was standing outside the store before the robbery., Pablo also testified that when the police arrived, she made no statement other than that the store had been robbed; that when she spoke with the police officers again on December 23, she gave them Hearn’s name but asked that they not write it down because she was his girl friend, and they told her “they wouldn’t put it down, they wouldn’t have to put it down, they would just put — another man.” She later admitted she did not tell the police officers at the time of the robbery the name of the man wearing the mask and that she had lied to the police on December 23. She testified further, on cross-examination, that while she was a prostitute in the summer of 1977 and intermittently since then, she was not a prostitute during the months of November and December 1978; that during the later months, William Hearn was her boyfriend but not her pimp; that their relationship began in September or October 1978 and lasted about five months; that she was arrested on a warrant in October or November 1978, but that no one had offered to drop charges against her in exchange for her testimony in the instant case. On redirect examination, she said that she first talked to the State’s Attorney about testifying in the instant case on the day she was brought to court; that she did not make an identification on December 8 because she was afraid; and that the State promised her, if she testified, that they would relocate her and provide police protection.

Officer Gresham testified that he arrested defendant on December 28, pursuant to a warrant, and that police recovered a gun after defendant informed him of its location at his girl friend’s house.

During trial, Pablo’s criminal record was produced and the existence of the gun was disclosed for the first time, but the court denied motions to suppress any evidence of a gun and to recall Pablo for cross-examination with regard to any deal made with the State in December 1978. Defendant was found guilty of one count of robbery and not guilty as to two counts of armed robbery.

Opinion

Defendant first contends he was denied effective assistance of counsel because of his court-appointed attorney’s “commitment to co-defendant William Hearn.” Initially, we note that joint representation of co-defendants by one attorney does not per se violate a defendant’s right to effective assistance of counsel (People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E.2d 261), and that this court will not attempt to create an actual conflict of interest through conjecture or mere speculation (People v. Berland (1978), 74 Ill. 2d 286,385 N.E.2d 649, cert, denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42,100 S. Ct. 64). As explained in People v. Doyle (1978), 61 Ill. App. 3d 571, 575, 377 N.E.2d 1093,1097:

“A finding of adverse interests cannot be based on mere assertion and unless the defendant can establish that such conflict in fact existed at trial, this court will not indulge in speculation or conjecture to determine whether separate counsel was required. (People v. Bass (1968), 101 Ill. App. 2d 259, 243 N.E.2d 305, appeal denied (1969), 40 Ill. 2d 581.) We cannot and will not create a conflict of interest out of mere conjecture as to what might have been shown.”

It appears here that William Hearn had been charged in connection with the occurrence in question and that defense counsel had represented him at a preliminary hearing which resulted in his discharge on a finding of no probable cause. Prior to trial, a motion of defense counsel to preclude Hope Pablo from testifying was denied, and counsel then moved for leave to withdraw on the ground that his representation of Hearn would conflict with his representation of defendant. This was so, he stated, because Hearn’s testimony would be necessary to discredit the anticipated testimony of Pablo regarding her prostitution activities and her relationship with Hearn, and to rebut any denial she might make of a deal with the prosecution to drop charges against Hearn. The conflict would result because it would be necessary for him to advise Hearn to take the fifth amendment and thus prevent testimony favorable to defendant.

It is our belief, however, that there was no basis upon which the trial court could properly have concluded that there was a conflict of interest. We note that no such conclusion could have been reached until Pablo had completed her testimony, because it would not be known until then whether there would be any need to call Hearn for rebuttal. Furthermore, counsel informed the court that he had other witnesses to impeach the expected testimony of Pablo and, of course, counsel could have avoided any such possible conflict by withdrawing his representation of Hearn. Additionally, it appears that during his extensive cross-examination of Pablo, she admitted that she had been a prostitute; that she had been arrested therefore; that Hearn was her boyfriend, although she stated he was not her pimp; and that she did not tell the police that Hearn had participated in the robbery because she did not want to implicate him. Moreover, it appears that defense counsel did not believe rebuttal of Pablo’s testimony was required, as he did not renew his motion for leave to withdraw after she testified and did not call Hearn or any of the other witnesses he said were available to impeach Pablo. In light thereof, we find no impropriety in the denial of the motion of defense counsel for leave to withdraw.

We next consider the evidentiary rulings of the court which defendant suggests were erroneous. Defendant first argues that it was reversible error for the court to have allowed the prosecution to introduce into evidence a revolver not listed in pretrial discovery material and disclosed for the first time during trial.

Supreme Court Rule 412(a) (v) requires the State, upon written motion of defense counsel, to disclose any “tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused.” (73 Ill. 2d R. 412(a)(v).) The admission of physical evidence, which the State has failed to furnish in compliance with discovery, is within the discretion of the trial court and does not constitute reversible error absent a showing by defendant of resulting prejudice. People v. Houck (1977), 50 Ill. App. 3d 274, 365 N.E.2d 576; People v. Acevedo (1976), 40 Ill. App. 3d 105,351 N.E.2d 359; People v. Jones (1973), 13 Ill. App. 3d 684, 301 N.E.2d 85; see also 73 Ill. 2d R. 415(g).

Seven days after trial began and during the cross-examination of Officer Heytow, the parties first learned that a gun was recovered from the home of defendant’s girl friend shortly after his arrest. The State informed the court that this testimony of the police officer was the first time anyone associated with the prosecution had any knowledge of the weapon; that no evidence of a gun appeared in any report concerning the robbery in question; and that it had been determined that the police had mistakenly inventoried the gun under another case. The gun was admitted over the objection of defendant, and it is now contended that defendant was prejudiced because the defense had been planned and conducted on the basis that there had been no gun recovered; that the defense was thus seriously impaired, particularly with reference to the armed robbery charges; and that the short recess granted “could not cure the error of the disclosure of the gun.”

It is our view, however, that the record discloses no prejudice because (1) defendant was found not guilty on the armed robbery charges; and (2) after a 2-day recess, defendant moved to suppress evidence as to the gun and the motion was denied, but defendant did not at that time ask for additional time to reprepare his defense and he does not, in his brief here, state how he was prejudiced either by the lack of more time or in any other manner. We see no merit in defendant’s suggestion that although he was found not guilty as to armed robbery, the jury might have found him not guilty as to simple robbery had the gun not been admitted. We are thus of the belief that no prejudicial error resulted from the admission of the gun.

Defendant’s second evidentiary argument is based on the failure of the court to compel the prosecution to produce the criminal history sheet of Pablo prior to trial and in refusing a motion to recall her after her purported criminal record sheet was produced.

Supreme Court Rule 412 requires that the State, upon the request of defense counsel, obtain and disclose the criminal histories of its potential witnesses which may be used for impeachment purposes at trial, and that the State shall use “diligent good faith efforts” to provide such records. (73 Ill. 2d R. 412.) A reversal is not warranted absent a showing of prejudice by the defendant in the procedure which was followed by the State in its efforts to obtain criminal histories of potential witnesses. People v. Higgins (1979), 71 Ill. App. 3d 912, 390 N.E.2d 340.

Our review of the record shows that following a demand by defense counsel to provide him with Pablo’s criminal history, an assistant State’s Attorney asked the Evanston Police Department to fingerprint Pablo and to send her prints to the Skokie police where, through a fingerprint facsimile machine, they could obtain her fingerprint records. The search came back showing no arrest. Then, after the witness testified and had been extensively cross-examined, defense counsel produced a noncertified xerox copy of a rap sheet from the Chicago Police Department for a woman under the name of Marty Terry and Martha Terry — the ages, addresses and fingerprint classification of whom matched those for Pablo. The contents of the criminal history sheet included two misdemeanor prostitution convictions in 1976 and two in 1978, including a conviction on December 8, and indicated that she was sentenced and served two days for each of the convictions. The court denied defendant’s request to recall Pablo for additional cross-examination with respect to her prostitution convictions.

It appears that the State furnished all information to defendant which it had obtained regarding Pablo’s past criminal convictions, and we agree with the trial court that the State complied to the best of its ability. Further, we believe defendant has failed to make the requisite showing of prejudice necessary to warrant reversal. Although defendant does not argue on appeal that he could have used the misdemeanor convictions to impeach the witness, he contends that there was prejudice in not having been able to cross-examine her on specific dates of arrest and in having been prevented from showing her motive to testify falsely — particularly because the December 8 conviction was on the robbery date.

Defendant was permitted to thoroughly cross-examine Pablo on her prostitution criminal history, during which she admitted her occupation as a prostitute and admitted having been arrested. We believe that further examination as to specific dates would have been cumulative only. In addition, we reject defendant’s contention that the court erred in not recalling Pablo for questioning after the receipt of her rap sheet to determine whether, when convicted on December 8, a “deal was cut” with the State for her testimony in the instant case. It is apparent from the rap sheet that she had been tried and sentenced on December 8 — hours before the robbery in question took place — so that there could not have been any such deal. This is further indicated from the fact that the sentence given her on December 8 was the same given on her prior convictions. In view thereof, we are of the opinion that there was no prejudicial error in rulings complained of.

Defendant next contends that it was improper for the police to use a photographic display as a means of identification while he was in custody, and that witness Bauer’s identification of him by photograph rather than by lineup was so unnecessarily suggestive and conducive to mistake as to deprive him of due process of law.

Although our supreme court has criticized the use of photographic identification where a suspect is in custody and a lineup is feasible (People v. Jackson (1973), 54 Ill. 2d 143, 295 N.E.2d 462; People v. Holiday (1970), 47 Ill. 2d 300, 265 N.E.2d 634), it has not prohibited the use of such procedures (People v. Brown (1972), 52 Ill. 2d 94,285 N.E.2d 1; People v. Duarte (1979), 79 Ill. App. 3d 110,398 N.E.2d 332). In Brown, the court reasoned that the use of photographs is often essential to effective law enforcement and stated:

“The Court has held that each case must be considered on its own facts, and that convictions based on in-court identifications following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 382-385, 19 L. Ed. 2d 1247, 88 S. Ct. 967.” People v. Brown (1972), 52 Ill. 2d 94, 99, 285 N.E.2d 1, 5.)

Nonetheless, even a pretrial identification procedure which was unnecessarily suggestive and conducive to mistake may be admissible at trial if reliability of the identification under the totality of the circumstances is shown. (People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Brisbon (1980), 89 Ill. App. 3d 513, 411 N.E.2d 956, cert, denied (1981), 451 U.S. 990, 68 L. Ed. 2d 849,101 S. Ct. 2328.) According to Manion, the factors to be considered in assessing reliability include “ ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” People v. Manion (1977), 67 Ill. 2d 564, 571,367 N.E.2d 1313,1317, citing Neil v. Biggers (1972), 409 U.S. 188,199, 34 L: Ed. 2d 401,411,93 S. Ct. 375, 382.

The record here reveals that on the night of the robbery, Bauer was shown three books of mug shots but was unable to identify anyone from those photos. However, after defendant’s arrest, the police held a lineup on December 29 which included the defendant, but Bauer was unable to attend. Simon was present and identified Frank Lucius as the man he thought had the gun. Then, on January 30, Officer Heytow showed Bauer a stack of 13 additional photographs — one of which was of defendant wearing curlers in his hair. From that photo, Bauer identified defendant as the man who held the gun, and on February 5 he again identified him in an in-court identification held in open court in the presence of the preliminary hearing court judge. While defendant concedes that a photograph identification is permissible where a lineup is not feasible, he argues that “it should not be permitted when the only excuse is the State’s neglect or unwillingness to hold a lineup.” We believe, however, that the circumstances here justify the use of the photograph display. At the suppression hearing on the identification procedures, evidence was presented that although the police had made repeated efforts to contact Bauer, they were unable to obtain his presence at the initial lineup and that his availability was limited because of subsequent severe weather conditions, his work, his school schedule, and the fact that Bauer lived in Niles and worked in Evanston while defendant lived in Chicago.

Although defendant also posits that the photographic display was unnecessarily suggestive and conducive to mistake, he fails to point to any evidence in support of this position, and we find nothing improper or particularly suggestive in the identification procedure. There is no indication that the police directed Bauer’s attention to any particular photograph or that the photographs themselves were suggestive. At the suppression hearing, Bauer testified that nothing was said to him before he was shown the pictures and that he made no comments concerning them, and that he was handed a stack of about 20 photographs which he flipped through and showed Officer Heytow those he recognized in the pictures. Officer Heytow stated that the original three books of photographs which were shown to Bauer on the night of the robbery did not contain a photograph of defendant. Finally, after viewing the photographs shown to defendant, the trial court found “nothing suggestive about that procedure which would give rise to irreparable identification.”

Even assuming that the identification procedure was in some way suggestive, the totality of the circumstances shows the reliability of the identification, and reversal of defendant’s conviction would not be required. Bauer testified that he was behind the cash register, approximately three feet from defendant, when the robbery was announced; that when he lay down, he was facing toward defendant; that he had previously seen defendant in his store on at least one other occasion; that his attention was focused on defendant because defendant was pointing a gun at him; that the robbery took from 1 to 5 minutes; and that it occurred during open hours and the store was fairly well lighted. Further, Bauer gave a detailed description of defendant to the police, and there is no indication that defendant attempted to hide his identity in any way. For the foregoing reasons, we find the evidence as to Bauer’s identifications properly admitted.

Defendant also argues that during re-cross-examination of Bauer by defense counsel, the judge gave his own version of the witness’ testimony and, by so doing, prejudiced defendant and denied him a fair trial.

It is not an abuse of discretion by the trial court to comment or question witnesses during cross-examination where the rulings complained of seek merely to eliminate confusion and curtail repetition. (People v. Crenshaw (1959), 15 Ill. 2d 458, 155 N.E.2d 599, cert, denied (1959), 359 U.S. 997, 3 L. Ed. 2d 985, 79 S. Ct. 1133.) While it is the responsibility of the trial judge to remain impartial and to not display prejudice or favor toward any party (People v. Williams (1978), 62 Ill. App. 3d 966, 379 N.E.2d 1268), reversible error is committed only where it is shown that the judge has made prejudicial statements, and it is defendant’s burden to show that he has been harmed by the remarks of the judge (People v. Nurse (1975), 34 Ill. App. 3d 42, 339 N.E.2d 328).

Defendant asserts there was prejudicial error in a statement made by the judge while defense counsel was attempting to elicit testimony from Bauer regarding the distance from the cash register to the front aisle and the distance he traveled after he was down on the ground. After asking several questions regarding distance, the court intervened and stated, “No, he did not. He said it was that total amount of distance he had traveled.” Defendant suggests that the court’s statement was prejudicial because it approved one version of the facts rather than allowing the jury to make up its own mind, that the comment bolstered the witness’ credibility, acted as a rebuke to defense counsel, and gave the impression that the judge thought the defense was attempting to trick or confuse the witness.

We believe it clear from the trial transcript that the statement of the judge merely acted to clarify and expedite the questioning of the witness regarding the distance he traveled from the cash register and while on the ground. We find no expression by the court either of an opinion on any facts or of any belief or disbelief in the credibility of the witness.

For the above reasons, the judgment of the circuit court is affirmed.

Affirmed.

MEJDA and WILSON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEWIS BROWN, Defendant-Appellant.
    First District (5th Division)
    No. 80-3003
    Opinion filed May 28, 1982.

      James J. Doherty, Public Defender, of Chicago (Timothy K. McMorrow, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant was convicted in a jury trial of rape and sentenced to 12 years. On appeal, he contends that (1) the trial court erred (a) in allowing the State to use in rebuttal for impeachment purposes' a statement of defendant made to an assistant State’s Attorney (the assistant) and not given to defendant until the day before the assistant was to testify and (b) in admitting evidence of ammunition recovered from defendant’s apartment when he was arrested; (2) he was denied a fair trial by the State’s withholding until trial information concerning recovery of the gun allegedly used during the offense; and (3) the sentence was improperly based on the trial court’s belief that defendant had committed attempt murder. A detailed statement of facts is unnecessary here, inasmuch as the issue of reasonable doubt is not raised, and only those facts bearing directly upon the questions presented will be discussed.

At trial, the victim testified that defendant knocked at her door and asked to use the telephone; that after making a call, he grabbed her by the neck, pulled out a gun, pointed it at her head and pulled the trigger, but the gun did not fire; that he clicked the gun again and put it back into his pocket; that defendant told her not to scream or he would kill her; that on two separate occasions, he pushed her to the couch and raped her; and that, after defendant left, she called and told both her cousin and the police about the occurrence.

Asserting the defense of consent to the alleged offense, defendant testified that he lived with his girl friend in a neighboring apartment in the same building as the victim; that on the night in question, the victim knocked on the door of his apartment; that he and the victim had an argument, and he pushed her back to her apartment; that the victim returned, and he again pushed her back to her apartment where he made a telephone call and then sat next to her on the couch; that they had sexual intercourse twice; and that he had sexual intercourse with the victim five or six times during the previous year.

Opinion

We first consider defendant’s contention that the trial court improperly allowed in evidence on rebuttal a statement of defendant which had been barred in the State’s case in chief. In particular, he refers to a statement he made to the assistant after being arrested and advised of his rights, to the effect that he threw a gun out of his apartment window before the police arrived. He maintains that contrary to the discovery rule (73 Ill. 2d R. 412(a)), testimony as to the statement was improperly admitted on rebuttal because defense counsel was not informed of it until the day before the assistant was to testify and because the substance of the statement was not brought out until the State’s cross-examination of defendant. It is our belief, however, that the trial court acted within its discretion in admitting the statement as rebuttal evidence of a prior inconsistent statement which impeached defendant’s direct testimony.

The record reveals that on direct examination, defendant denied pointing a gun at the victim, and his counsel avoided reference to any conversation defendant may have had with the assistant. However, he did question defendant about a gun as follows:

“[Defense Counsel]: At the time of your arrest did you have any guns inside your apartment?
[Defendant]: No.
[Defense Counsel]: At any time on [the night in question]— you’ve seen the gun introduced in the trial today?
[Defendant]: Yes.
Q: At any time during that night did you take that gun and point it at anyone?
A: No.
Q: Did you take that gun and point it at [the victim]?
A: No.”

Thereafter, defendant was cross-examined concerning his statement to the assistant and stated that he did not recall having a gun and throwing it out the window. The State then moved to allow in rebuttal the assistant’s testimony as to defendant’s statement about the gun. After defendant’s objection was overruled, there was a stipulation as to what the assistant’s testimony would have been concerning the statement.

The basis of defendant’s contention is that the absolute exclusion of his statement was the proper sanction because of the State’s violation of the discovery rule. In support thereof, he relies primarily upon People v. Thompson (1974), 18 Ill. App. 3d 613,310 N.E.2d 504, and People v. Miles (1980), 82 Ill. App. 3d 922, 403 N.E.2d 587.

In Thompson, defendant filed a pretrial motion to produce a confession under section 114 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 10). The State responded that defendant had made no statement concerning his participation in the crime. At trial, however, the State informed the court that it wished to present a confession of defendant, and it was ruled that the statement would be admitted only for impeachment'if defendant testified. Thereafter, the State presented a rebuttal witness who testified as to the contents of defendant’s oral statement. This testimony was exculpatory but inconsistent with defendant’s testimony at trial. In reversing the conviction, the court held that section 114 — 10 of the Code of Criminal Procedure of 1963 requires the production prior to trial of the confession of an accused and that, if the State failed to so tender it to the defense, the confession was inadmissible unless the court was satisfied that the State was unaware of such confession and could not have learned of it prior to trial in the exercise of due diligence.

In the present case, however, it is apparent that the statement in question was not a confession which is “ ‘a voluntary acknowledgement of guilt after the perpetration of an offense, and it does not embrace mere statements or declarations of independent facts from which guilt may be inferred.’ ” (People v. Hanson (1977), 44 Ill. App. 3d 977, 984, 359 N.E.2d 188,194, quoting People v. Stanton (1959), 16 Ill. 2d 459, 466,158 N.E.2d 47, 51.) Here, section 114 — 10 does not apply since defendant’s statement that he threw a gun out of his window was not an acknowledgement of guilt for the crime of rape but was, at most, a declaration of an independent fact from which guilt could be inferred.

For similar reasons, we believe Miles to be inapposite. There, the issue involved compliance with discovery requirements in providing defendant with a police report. The report referred to by the State reflected defendant’s statement that she stabbed the victim during an argument, but a police officer testified on cross-examination that defendant said she “killed the m-f_because he was stupid.” That statement was repeated by another officer on rebuttal for the State. It was held that the State’s failure to comply with the disclosure requirements of Supreme Court Rule 412(a) (ii) (73 Ill. 2d R. 412(a) (ii)) and of section 114 — 10(a) and (c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 10(a), (c)) denied defendant a fair trial. The court noted that Rule 412(a) (ii) requires the State to disclose all statements of the accused known to it and that compliance with the discovery rule and section 114 — 10 is mandatory. The court also noted that defendant’s statement that she “killed the m_f_because he was stupid” was “radically different” from the substance of the statement in the police report. (82 Ill. App. 3d 922, 927,403 N.E.2d 587,592.) Thus, the State’s response failed to satisfy the supreme court rule, since the portion of the statement most prejudicial to defendant was not disclosed, nor was a list provided of specific witnesses to the statement, as required by the rule and the statute. The court also pointed out that the exercise of due diligence by the State would have brought the statement to its attention and that it is the State’s duty to ensure the proper flow of information. Finally, in rejecting the State’s contention that the statement was proper rebuttal to defendant’s denial of it, the Miles court held that the State could not take advantage of its own discovery violation through use of rebuttal testimony, since that violation precipitated defendant’s denial.

We believe Miles is distinguishable, however, because it involved failure to disclose an oral confession prior to trial, which as we have noted is not the issue before us. Moreover, the statement here lacks the inflammatory quality of the statement in Miles, and the jury was exposed to it only once and then by way of a stipulation. Finally, defendant in Miles contended that guilt was not proved beyond a reasonable doubt; whereas, no such contention is made here, and we believe that the strong evidence of defendant’s guilt further attenuates any prejudice that may have resulted from the statement in question. Thus, even if the trial court erred with respect to the admission of the statement, reversal would not be warranted in view of the evidence clearly establishing defendant’s guilt. See People v. Scott (1972), 52 Ill. 2d 432, 288 N.E.2d 478, cert, denied (1973), 410 U.S. 941, 35 L. Ed. 2d 607, 93 S. Ct. 1406; People v. Willis (1976), 43 Ill. App. 3d 535, 357 N.E.2d 576.

For additional reasons, we believe it was not error to admit the statement of defendant on rebutal as, first of all, it was properly impeaching. Although it is impermissible to cross-examine a witness on irrelevant or collateral matters for the purpose of contradiction, cross-examination which is limited to matters brought out on direct examination is proper. (People v. Matthews (1959), 18 Ill. 2d 164,163 N.E.2d 469; People v. Sisti (1967), 87 Ill. App. 2d 107, 230 N.E.2d 500.) Here, defendant on direct examination denied that he had any guns in his apartment or that he pointed the gun introduced in evidence at anyone, including the victim. On cross-examination, he was asked about the statement he made to the assistant concerning a gun he threw out of his apartment window minutes before the police arrived to arrest him. Thus, in our view, the State’s question was restricted to a matter brought out on direct examination, and the statement to the assistant allowed as rebuttal evidence was similarly confined.

Secondly, we are of the belief that the sanction imposed by the trial court for the State’s failure to disclose defendant’s statement was appropriate under the circumstances. Supreme Court Rule 412(a) (ii) requires the State upon written motion of defense counsel to disclose any written or recorded statement and the substance of any oral statement of the accused and a list of witnesses to such statements. (73 Ill. 2d R. 412(a)(ii).) Compliance with this rule is mandatory for the purpose of avoiding surprise, unfairness, and inadequate preparation to the defendant and is excused only if the State was unaware of the existence of the statement prior to trial and could not have become aware of it in the exercise of due diligence. (People v. Boucher (1978), 62 Ill. App. 3d 436,379 N.E.2d 339.) It does not follow, however, that noncompliance necessarily requires the exclusion of the undisclosed evidence, since trial courts have broad discretion in fashioning sanctions for violations of discovery (People v. Lewis (1981), 95 Ill. App. 3d 82, 419 N.E.2d 641), and a noncompliance with discovery does not necessitate reversal absent a showing of prejudice to defendant (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203). In this regard, Supreme Court Rule 415(g) (i) (73 Ill. 2d R. 415(g) (i)) provides:

“If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.”

It has been held that sanctions for discovery violations must be proportionate to the magnitude of the violation (People v. Forsythe (1980), 84 Ill. App. 3d 643, 406 N.E.2d 58; also see People v. Watson (1979), 76 Ill. App. 3d 931, 395 N.E.2d 682); that the imposition of such sanctions must not encroach upon a fair trial (People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274); that the purpose of discovery sanctions is to compel compliance but not to punish a party for oversight or errors of an attorney (People v. Anderson (1980), 80 Ill. App. 3d 1018,400 N.E.2d 675); and that sanctions should be designed to increase the evidence available to all parties (People v. Jackson (1977), 48 Ill. App. 3d 769, 363 N.E.2d 392).

Our research reveals no case specifically holding that statements untimely provided, such as the one here, may not be used on rebuttal to impeach defendant’s testimony. Nonetheless, defendant claims that because his defense was consent and the outcome of the case depended largely upon the credibility of the victim’s testimony relative to his, introduction of the statement damages his credibility. We believe, however, that any prejudice resulting from this statement was insubstantial. The testimony of the victim was clear and consistent and was by itself sufficient to establish defendant’s guilt (see People v. Secret (1978), 72 Ill. 2d 371,381 N.E.2d 285), and it was corroborated by that of her cousin and of a police officer to the effect that she complained promptly of being raped (see People v. Edmond (1979), 76 Ill. App. 3d 540,395 N.E.2d 106). It was further supported by evidence of her physical condition following the incident. The responding police officer testified that he found the victim highly excited, crying and trembling, and that her tongue was lacerated.

Defendant’s credibility, by contrast, was weakened by other testimony. When defendant was arrested, he stated that he had been in bed all evening and had not seen the victim, but at trial he testified to being in her apartment and having sexual intercourse with her. Defendant also claimed that after the police broke down his door, he ran into the hallway from his bedroom; however, Officer O’Brien testified that when the police broke in, defendant was sitting in a chair. Furthermore, defendant told the arresting officers that he had been in bed for several hours, yet he was wearing work boots that were fully laced up at the time of his arrest. Finally, defendant testified that he did not hear the police breaking down his door with a sledgehammer, but Officer O’Brien testified that he heard footsteps in the apartment during the five minutes it took to break down the door. Thus, it is apparent that defendant’s credibility did not depend upon the isolated prior inconsistent statement concerning the gun and that his guilt was clearly established through all the facts and circumstances in evidence.

Defendant also maintains that he was unfairly surprised by the admission of his statement. While courts should not speculate as to whether a defendant was unfairly surprised by a discovery violation (see People v. Williams (1981), 96 Ill. App. 3d 250,421 N.E.2d 248), in the case before us speculation is unnecessary. Not only did defendant fail to request a continuance to interview the assistant State’s Attorney after learning the statement would be used in rebuttal, but he also does not now indicate what he would have accomplished with a continuance. Defendant also suggested at trial that the assistant’s testimony be admitted by stipulation, thereby foregoing the opportunity to cross-examine her. Surprise is not shown where an accused fails to take advantage of an opportunity to interview a witness and to seek a continuance for preparation purposes (People v. Clements (1980), 80 Ill. App. 3d 821, 400 N.E.2d 483; People v. Dees (1977), 46 Ill. App. 3d 1010, 361 N.E.2d 1126; also see People v. Cowherd (1980), 80 Ill. App. 3d 346, 399 N.E.2d 672 (holding that it was the nature of the evidence of defendant’s oral confession rather than the surprise to defendant which damaged his case and that little advantage would have been gained by defendant had he been advised of such statement earlier).) Moreover, in view of our finding that defendant suffered no unfair prejudice from the nondisclosure of the statement, the assertion of surprise does not warrant reversal.

Finally, we think the situation presented here is analogous to that in Harris v. New York (1971), 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643. In Harris, it was held that a statement whose trustworthiness satisfies legal standards may be used for impeachment purposes to attack the credibility of a defendant’s trial testimony, even though such statement is inadmissible against a defendant in the State’s case-in-chief for failure to comply with the procedural safeguards of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Moreover, it has been held in this State that statements voluntarily made by a defendant at a coroner’s inquest may be used for impeachment at a trial for murder irrespective of the sufficiency of Miranda warnings (People v. Byers (1972), 50 Ill. 2d 210, 278 N.E.2d 65), although it is improper to impeach a defendant through the use of an unlawfully obtained confession (People v. Luna (1967), 37 Ill. 2d 299, 226 N.E.2d 586).

Similarly, a trial court may, as an appropriate discovery sanction, exclude evidence from the State’s case-in-chief. (People v. Musgray (1976), 37 Ill. App. 3d 48, 344 N.E.2d 708; Ill. Ann. Stat., ch. 110A, par. 415(g)(i), Committee Comments, at 709 (Smith-Hurd 1976).) Thus, just as Miranda requires that procedural safeguards be observed in order to secure the fifth amendment’s privilege against self-incrimination, so also may the State be precluded from presenting evidence in its case in chief which is improperly withheld during discovery, for the ultimate purpose of such sanction is similarly inspired by the guarantees of a fair trial. (See People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274.) On the other hand, in Walder v. United States (1954), 347 U.S. 62, 65, 98 L. Ed. 503, 507, 74 S. Ct. 354, 356, defendant’s assertion on direct examination that he had never possessed narcotics opened the door, for purposes of attacking his credibility, to evidence of heroin unlawfully seized in an earlier proceeding. The court stated:

“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. * * * [Tjhere is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.”

In the present case, the total exclusion of defendant’s voluntary statement to the assistant would permit him to shield himself against exposure to the possibility at trial that his statements were contradictory or untrue. Such result obstructs the jury’s search for truth and defeats the ends of discovery. (See People v. Caliendo (1980), 84 Ill. App. 3d 987, 405 N.E.2d 1133.) We conclude, therefore, that the trial court did not abuse its discretion with respect to the sanction imposed.

Defendant next posits that the trial court improperly admitted several shotgun shells and .38-caliber bullets seized from his apartment. He maintains that they were irrelevant to the crime charged since there was no evidence he had used them or any weapon capable of firing them during the alleged offense; consequently, they prejudiced him before the jury by making him appear to be “an evil man with several weapons.” We disagree.

Defendant bases his position on People v. Suerth (1981), 97 Ill. App. 3d 1005, 423 N.E.2d 1185, but we believe that case is distinguishable. In Suerth, a conviction for involuntary manslaughter and armed violence was reversed, inter alia, because of the introduction of a shotgun which was seized at the time of the arrest but not used to commit the crime. The court held that error occurred when the jury viewed the shotgun and when the prosecutor “paraded” it before them. (97 Ill. App. 3d 1005,1013, 423 N.E.2d 1185, 1192.) Here, by contrast, the State made no such inflammatory display of ammunition. Moreover, defense counsel stated that he did not object to the evidence being given to the jury for viewing. Defendant’s reliance on Suerth is therefore misplaced, and we conclude that there was no prejudicial error in the admission of the ammunition.

Defendant further contends that the State’s failure to reveal until trial the true circumstances concerning the recovery of the gun used in the alleged offense denied him a fair trial. In this regard, the State responded to defendant’s motion for discovery by submitting, inter alia, the report of Officer Steve Horkovy, which stated in substance that Horkovy personally recovered the gun from an alley near the 18th District police station following an anonymous telephone call.. However, at trial Horkovy testified that the gun was brought to the station by an unidentified middle-aged black woman, address unknown, who said she recovered the gun from the grounds of the apartment building where defendant and the victim lived. Defendant maintains that he was hindered in the preparation of his defense since he could have searched for this woman if he had learned prior to trial how the evidence was recovered and could have expanded upon the fact that the evidence was moved from its original location by the woman.

Although defendant objected to this testimony and moved for a mistrial, it appears he has waived this issue for review since he failed to request a continuance at trial in order to search for the witness. (See People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321.) Assuming no waiver, however, we find the contention to be without merit. First of all, defendant’s reliance on Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, is unavailing. There, it was held that suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution. Here, the record does not indicate that the evidence concerning recovery of the gun, as related by Harkovy, was suppressed by the State prior to trial, nor can it reasonably be supposed that the evidence was favorable to the defendant. Whether the gun was found by the officer himself or by the woman in question has little bearing upon the guilt or innocence of defendant for the crime of rape. Cf. People v. Wilken (1980), 89 Ill. App. 3d 1124, 412 N.E.2d 1071.

Furthermore, it is apparent that the officer’s testimony was prejudicial to the State, rather than to defendant. The officer admitted testifying to a different set of facts than was contained in the report given to defendant and to his failure to file a corrected report. In light of the extensive cross-examination of Horkovy with respect to recovery of the weapon, we believe that any possible discovery violation by the State in this matter was harmless error (see People v. Olson (1978), 59 Ill. App. 3d 643,375 N.E.2d 533), and we note also that this impeaching testimony was used to advantage by defendant in closing argument. Moreover, we think it speculative for defendant to assert that the woman could be located based on the officer’s general description of her and that he could have “more fully prepared and exploited” the discrepancy in the officer’s testimony than was done at trial. Prejudice from an alleged discovery violation “can not be demonstrated merely by speculation or conjecture.” (People v. Wilken (1980), 89 Ill. App. 3d 1124, 1128-29, 412 N.E.2d 1071, 1074.) We conclude, therefore, that defendant was not denied a fair trial on the grounds asserted.

Finally, defendant contends that he was improperly sentenced for attempt murder on the basis of the trial court’s belief that defendant would have been tried for murder had the gun used during the incident not misfired. In this regard, the trial court stated at the sentencing hearing: “[Y]ou clicked the gun twice and it misfired and you could be up here for murder rather than rape.” The first part of the statement — that the gun was clicked twice and misfired — reflects accurate consideration of the evidence in sentencing defendant. The second part of the statement was, in our view, an extemporaneous remark expressing shock as to the nature of defendant’s conduct, and the phrasing of the remark in hypothetical terms indicates to us that the trial court, in sentencing defendant, did not as contended by defendant consider that he had committed attempt murder.

For the reasons stated, the conviction and sentence are affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

       Defendant was charged by information with rape and armed violence, but the latter count was nolle prossed prior to trial.


author: JUSTICE HEIPLE

text:
    THE DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee and Cross-Appellant, v. NEW CENTURY ENGINEERING AND DEVELOPMENT CORPORATION et al., Defendants-Appellants and Cross-Appellees.
    Third District
    No. 81-547
    Opinion filed April 16,1982.
    Rehearing denied July 1,1982.
    John F. McClure, Arthur L. Klein, Morton M. Steinberg, and Adele Rapport, all of Arnstein, Gluck & Lehr, of Chicago, for appellants.
    Tyrone C. Fahner, Attorney General, of Joliet (Wayne R. Johnson, Thomas R. Wilson, and Raymond Meader, Assistant Attorneys General, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The instant appeal evolves from an eminent domain proceeding. In 1973, the Department of Transportation of the State of Illinois filed a petition to condemn 7.55 acres of land owned by New Century Engineering and Development Corporation and subject to a mortgage held by James Talcott, Inc. The State desired immediate acquisition of the property. Rather than awaiting a jury determination of land valuation, the State pursued a quick-take procedure, moving for immediate vesting pursuant to section 2.1 of the Illinois Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 2.1). The trial judge found that the State had authority to exercise the right of eminent domain, despite defendant’s objection, and made a preliminary finding which assessed just compensation, for the property at $325,000. The State made a deposit of the required amount and took possession of the property. In a joint petition for withdrawal of funds, New Century was permitted to withdraw $137,500 and mortgagee Talcott was permitted to withdraw $187,500.

Eight years later, the condemnation action was finally tried before a jury; a value of $171,535 was ascribed to the property. That amount was a full $153,465 short of the preliminary valuation of $325,000. On application to the court, defendants New Century and Talcott were held jointly and severally liable for $137,500 and defendant Talcott solely liable for the additional amount of the excess withdrawn, $15,965. The State’s request for interest on the refund was denied.

Defendant Talcott appeals that, as a mortgagee, it should not be required to make any refund, but if any, its refund should be limited to $15,965. The State appeals the denial of their request for interest.

Our initial inquiry is whether there is joint and several liability between interested parties for refund of the total amount by which the preliminary finding of just compensation exceeded the final jury determination, regardless of the portion each party withdrew from the preliminary award. Stated another way, where an owner and mortgagee lawfully withdraw for their own use different amounts from the State’s preliminary fund for compensation, does the law require that each party be a guarantor for the amount withdrawn by the other if a refund is later required?

Two provisions of the Illinois Eminent Domain Act are applicable to our inquiry.

Section 2.4 provides in part:

“[A]ny party interested in the property may apply to the court for authority to withdraw for his own use his share (or any part thereof) of the amount preliminary found by the court to be just compensation, and deposited by the petitioner »*»,*•» the court may authorize the withdrawal requested, or such part thereof as shall be proper, but upon the condition that the party making such withdrawal shall refund * * * any portion of the amount so withdrawn which shall exceed the amount finally ascertained in the proceeding to be just compensation * * * owing to such party.” Ill. Rev. Stat. 1971, ch. 47, par. 2.4.

Section 2.7 provides:

“If the amount withdrawn from deposit by any interested party under the provision of Section 2.4 of this Act exceeds the amount finally adjudged to be just compensation (or damages, costs, expenses, and attorney fees) due to such party, the court shall order such party to refund such excess to the clerk of the court, and if refund is not made within a reasonable time fixed by the court, shall enter judgment for such excess in favor of the petitioner and against such party.” Ill. Rev. Stat. 1971, ch. 47, par. 2.7.

We do not believe that the law imposes the relationship of guarantor on parties in this situation. The interest of each is separate and distinct. The relationship of guarantor arises from an agreement between two parties with consideration forming the basis for the added liability assumed by the guarantor. New Century and Talcott never entered such an agreement. Merely by filing a joint petition for withdrawal of funds, separate amounts in their separate names, we do not believe that each party assumed liability for the withdrawal of the other. The statute does not impose such liability. This court will not now impose it.

The State elected to proceed under the quick-take provisions of the Eminent Domain Act. The State did not oppose the withdrawal of separate funds by the owner New Century and by the mortgagee Talcott. The record reveals that the petition clearly designated the interest each party had in the condemned land; separate withdrawals were sought by each. Of the $325,000 available for withdrawal, New Century sought and received $137,500. Although within the same document, Talcott separately sought and received $187,500.

In referring to entitlement to the condemnation proceeds, the statute uses the term “interested party” rather than “owner.” Thus, it is evident that the drafters contemplated that multiple persons could apply for withdrawal. Section 2.4, as quoted above, provides that a condition of each party’s withdrawal is that “the party making such withdrawal shall refund * * * any portion of the amount so withdrawn which shall exceed the amount finally ascertained 6 * * to be just compensation * * * owing to such party.” All parties concede that Talcott, as mortgagee, is entitled to priority over New Century with respect to the entire condemnation proceeds. (City of Chicago v. Salinger (1943), 384 Ill. 515.) Talcott was entitled to retain the full $171,535 awarded by the jury. Talcott withdrew only $187,500. Thus, Talcott must refund ány portion of the amount withdrawn ($187,500) which exceeds the amount finally ascertained to be just condemnation ($171,535). The difference between those amounts is $15,965, and that is the amount that Talcott must refund to the State.

The next issue for our consideration is whether the State may recover interest on Talcott’s refund of $15,965. The trial judge denied the State’s motion for interest. We agree.

In Illinois interest is purely a creature of statute. As a general rule interest was not recoverable at common law, and cannot arise without statutory authority. (23 Ill. L. & Prac. Interest §11 (1979).) Neither the Eminent Domain Act nor the Illinois Interest Act (Ill. Rev. Stat. 1979, ch. 74, par. 1 et seq.) authorizes the payment of interest to the condemnor on the excess deposit if the final award is less than the preliminary award. The Eminent Domain Act provides only that a condemnee is entitled to interest if the final award is more than the preliminary award. (Ill. Rev. Stat. 1971, ch. 48, par. 2.6.) The same act provides for the situation presented by the instant case: if the final award is less than the preliminary award, then the difference between those two amounts shall be refunded to the condemnor. (Ill. Rev. Stat. 1971, ch. 48, par. 2.7.) The act makes no provision for interest in this situation; the act mandates refund alone to the condemnor. Thus, the trial court was correct to deny the State’s motion for interest on the refund.

For the reasons herein stated, we reverse that portion of the trial court’s order which held New Century and Talcott jointly and severally liable for refund to the State of $137,500; we affirm that portion of the order which held Talcott liable for refund to the State of $15,965; we affirm the trial court’s denial of interest on the refund.

Reversed in part; affirmed in part.

ALLOY and STOUDER, JJ., concur.