author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES A. McKINESS, Defendant-Appellant.
    Second District
    No. 80-814
    Opinion filed March 25, 1982.

      Mary Robinson and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

The defendant, James A. McKiness, was convicted by a jury of theft over $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1), and subsequently was sentenced to 36 months’ probation with a condition thereof that the first 30 days were to be served in the Kane County Correctional Center.

The defendant appeals and presents three issues for review: (1) whether he was denied due process of law in that his sixth and fourteenth amendment (U.S. Const., amends. VI, XIV) rights had been infringed by prosecutorial threats to a potential defense witness thereby causing the witness to refuse to testify; (2) whether he was properly convicted of felony theft where the jury was not given an instruction requiring them to determine if the value of the stolen property, a post-hole digger, was in excess of $150; and (3) that the trial court improperly sentenced him to 36 months’ probation for a Class 3 felony. See Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—2(b)(2).

The facts pertinent to this appeal are summarized as follows. At trial the State’s first witness was Lee Patterson, proprietor of Tri-City Rentals in St. Charles, Illinois. He testified that his business involves renting tools to construction firms and private individuals. On November 30, 1979, at approximately 5 p.m., two men entered his store and inquired about renting a post-hole digger. One of the men was the defendant, James McKiness.

Mr. Patterson explained to the two men how to operate the different post-hole diggers he had for rental. Defendant picked out a two-man post-hole digger because he had operated one before. He asked in whose name the machine would be rented, and the man who was with defendant indicated that the rental contract should be put in his name, which he said was Phil Williams. In defendant’s presence, Mr. Patterson referred to this individual as Phil.

While Mr. Patterson was completing the contract, defendant walked away from the counter and stood by the front door. Mr. Patterson asked the other man for a $40 deposit and some identification, and received from the individual $40 in cash and a traffic ticket bearing the name Phil Williams.

After the contract was completed, Mr. Patterson came out from behind the counter and explained how to operate the machine. The defendant said that he knew how to operate the machine because he had used that type of equipment before. While the men carried the post-hole digger out of the store, Mr. Patterson went to get the auger (drill bit) for the digger. He yelled out “Phil” to the individual who identified himself as such because he did not want the man to forget the auger, and he handed the auger to defendant as the two men were leaving. He closed his store shortly after the men left.

Because the rental period of the contract was for one day, Mr. Patterson became suspicious when the equipment was not returned the next day. The following Monday, Mr. Patterson called the police.

During direct examination, the assistant State’s Attorney questioned Mr. Patterson regarding his opinion as to the fair market value of the post-hole digger. Mr. Patterson testified that his current business includes buying and selling equipment such as the type he rents in his present business, including post-hole diggers. He further testified that, by checking with manufacturers and looking at brochures which listed prices, he formed the opinion that the fair market value of the post-hole digger was $500.

Detective Dan Klinkhamer testified that on December 13, 1979, at approximately 4:40 p.m., he telephoned defendant and advised him that he wished to speak to him in connection with an alleged theft from TriCity Rentals. The defendant voluntarily came to the police department for the interview and, after being advised of his rights, gave an oral and a written statement.

In his oral statement, defendant stated that his brother Tim came to his house and asked him to go to Tri-City Rentals with him to rent a post-hole digger. Defendant told Tim he would go with him after he ran a few errands downtown. Tim informed defendant that he was going to Alabama and had to get the post-hole digger before he left. After defendant ran his errands, the two men went to Tri-City Rentals. Defendant told the police that when he heard the proprietor call his brother Phil, he knew that “we were stealing the post-hole digger.”

Detective John Bogolin, who was also present during the questioning of the defendant, substantially corroborated Detective Klinkhamer’s testimony regarding the contents of the defendant’s oral statement. However, Detective Bogolin noted that, in his written statement, defendant stated that when he heard the proprietor call his brother Phil, “right then I knew that he stole the post-hole digger.”

The defense consisted of the defendant’s testimony. He testified that on November 30, 1979, at around noon, his brother Tim came to his house. After the two men looked at some repairs defendant had done in the kitchen, defendant asked Tim for a ride into town to run some errands. Defendant, his wife and Tim left for town about 45 minutes later in Tim’s company truck. Tim subsequently drove to Tri-City Rentals, arriving between 1:30 and 2 p.m. Defendant and Tim went into the store and walked up to the counter. While the proprietor explained the rental terms to Tim, defendant walked around the store. He looked at the various equipment and did not pay close attention to the conversation at the counter, although he did see Tim take out what looked like a traffic ticket and hand it to the proprietor. After his brother and the proprietor completed the paperwork, the proprietor showed defendant and his brother how to run the machine. After the proprietor showed them how to operate the machine, defendant helped his brother load the machine in the pickup truck which was parked just outside the door. Defendant testified that the first time he heard the proprietor call his brother “Phil” was when he and Tim were getting into the truck to leave. After leaving the store, Tim dropped defendant and his wife off at their house and left with the post-hole digger.

Defendant acknowledged that Tim had mentioned going to Alabama prior to going to Tri-City Rentals. However, he did not know that Tim was going to take the post-hole digger with him. Defendant stated that he had no intent to steal the post-hole digger.

At the conference on jury instructions, the court indicated it would give the State’s tendered instruction on the issues. No objection was made by the defendant. This instruction failed to include that the State must prove that post-hole digger which the defendant controlled without authorization had a value in excess of $150. No issues instruction was tendered by the defendant. Following closing arguments and instructions to the jury, the jury found defendant guilty of theft over $150.

On August 7, 1980, a hearing began on the defendant’s post-trial motion. Along with other contentions, defense counsel also raised an issue concerning Tim McKiness. Counsel noted that Tim had given a statement to the St. Charles police indicating that defendant had nothing to do with the theft. Counsel further stated that on the day of defendant’s trial, Tim McKiness was at the courthouse for his own pretrial conference on theft charges arising out of the same incident. At that time, assistant State’s Attorney James Doyle told Tim McKiness that if Tim testified at his brother’s trial both he and his brother would go to jail but that if he did riot testify both men would stay out of jail.

State’s Attorney Doyle asked for time to investigate defense counsel’s allegations which the court allowed. A subsequent evidentiary hearing was held on the allegations on September 26, 1980. The following testimony was adduced.

Tim McKiness testified that on the day of his brother James’ trial he came to court for his own pretrial conference and to testify on his brother’s behalf. After Tim talked with Walter Donat, the attorney representing him, he did not testify for his brother.

Attorney Walter Donat then testified that on June 5, 1980, he was present in court for Tim McKiness’ pretrial conference, which was also being handled by assistant State’s Attorney James Doyle. At approximately 9:30 or 10 a.m., Donat had a conversation with Doyle regarding Tim and defendant. Doyle asked Donat if Tim McKiness was going to testify at defendant’s trial. Donat said that, to his knowledge, Tim did intend to testify. Doyle then promised that if Tim did so, he would go to jail.

Donat told defendant and Thomas McCulloch, counsel for defendant, of his conversation with Doyle. At McCulloch’s suggestion, Donat returned to Doyle to clarify what the assistant State’s Attorney said and what he meant because McCulloch wished to subpoena him to testify. Donat went back to Doyle and asked him what would happen if Tim testified for the defendant. Donat testified that Doyle replied:

e that he would guarantee him that he would go to jail. And I asked him what he meant. He said that my client was up on at least five or six charges. Two of them were traffic charges, but even if he went — if he would go to trial on all five or six charges and even if he was convicted on only one and even if that one was a traffic charge in front of Judge McCarthy, with my client’s record that would mean that he would go to jail.
I asked what would happen if he did not testify. And Mr. Doyle said that we were back to the status quo negotiation that was up at that time.”

Donat conveyed each of these conversations to Tim McKiness and left the decision whether to testify up to Tim. He advised Tim that it would be prudent not to run the risk if he did not have to and asked McCulloch how badly he needed Tim’s testimony. When McCulloch stated that he thought the State had a weak case and he didn’t think he needed Tim, Donat told Tim that under the circumstances he should probably play it safe. He also told Tim it was his opinion that if he testified in his brother’s behalf, the State would prosecute on all pending charges and sentence him to jail if convicted. No other evidence was presented by the defendant. The State did not introduce any evidence on this issue at the hearing.

After arguments of counsel, the court denied the motion for a new trial stating in part:

“I can’t say that it was, in fact, an act by the State that was improper. Viewed another way, it could be indicated as possibly improper. I don’t view it as improper, based on the testimony that was adduced here.”

The court then proceeded to a sentencing hearing, at which defense counsel noted that the defendant had been found accountable for a crime of which the alleged principal, Tim McKiness, ultimately had been acquitted. The court indicated that it was aware of Tim McKiness’ acquittal, and sentenced defendant to 36 months’ probation with the first 30 days to be spent in Kane County Correction Center.

The defendant first contends on appeal that the alleged threats to his brother, Tim, which caused him not to testify, deprived defendant of his right to a fair trial, as guaranteed by the sixth amendment (U.S. Const., amend. VI), thereby violating his due process rights guaranteed through the fourteenth amendment. (U.S. Const., amend. XIV.) The defendant argues that he was deprived of this right by the statements of assistant State’s Attorney Doyle that he would guarantee that Tim would go to jail if he testified on his brother’s behalf. The State argues principally that at the time of the conversations between Doyle and Donat there were ongoing plea negotiations regarding Tim McKiness and that the prosecutor’s comments were not threats to influence the witness’ decision to testify but warnings that the State’s position on plea bargaining could change if additional evidence became available. The State also contends that it is obvious that a prosecutor cannot “guarantee” the witness would go to jail, that there is no showing that the witness was a crucial witness, and that the defendant, subsequent to the comments of the prosecutor, took no steps to subpoena the witness or raise the question before the court during the trial.

The right of a defendant to present witnesses in his own behalf in order to establish a defense is a fundamental element of due process of law. (Washington v. Texas (1967), 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 1022, 87 S. Ct. 1920, 1923.) In this regard the Supreme Court, in a later case more factually relevant to the case at bar, has had occasion to address this issue. In Webb v. Texas (1972), 409 U.S. 95,34 L. Ed. 2d 330, 93 S. Ct. 351, the trial judge singled out the sole defense witness for a lecture on perjury. The Supreme Court noted that the judge had not stopped at a warning against perjury but that his remarks implied that he expected the witness to lie. “[I]n light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a free and voluntary choice whether or not to testify.” (409 U.S. 95, 98, 34 L. Ed. 2d 330, 333, 93 S. Ct. 351, 353.) The court concluded that, under the circumstances, the judge’s comments drove the witness off the stand and thus deprived the defendant of due process of law under the fourteenth amendment. 409 U.S. 95, 98, 34 L. Ed. 2d 330, 333, 93 S. Ct. 351, 353-54.

Illinois courts also have held that a defendant may be denied due process of law if he is denied the right to summon witnesses in his behalf (People v. Avery (1978), 61 Ill. App. 3d 327, 377 N.E.2d 1271), where prosecuting authorities cause a witness to leave the jurisdiction (People v. Williams (1968), 40 Ill. 2d 367, 240 N.E.2d 580), or where law enforcement officials induce a defendant to refrain from putting on witnesses by promises that “everything would be fine.” (People v. Graham (1977), 48 Ill. App. 3d 689, 363 N.E.2d 124.) It also has been held that it is not improper for a prosecuting attorney to advise prospective witnesses of the penalties for perjury even though its effect may dissuade a witness from testifying. (People v. Eubank (1970), 46 Ill. 2d 383, 263 N.E.2d 869, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1657, rehearing denied (1971), 403 U.S. 940, 29 L. Ed. 2d 720, 91 S. Ct. 2246.) However, there appears to be no Illinois case which has addressed the precise problem presented to us in a similar factual context.

Other State jurisdictions and Federal courts also have held that it is fundamental to due process of law that a defendant be allowed to present all witnesses and evidence in his defense. In People v. Shapiro (1980), 50 N.Y.2d 747, 409 N.E.2d 897, the prosecutor issued repeated and unequivocal warnings to three defense witnesses the sense of which was that they would be prosecuted for perjury if their testimony was favorable to the defendant. All three decided to invoke their privilege against self-incrimination and did not testify. The court held that warnings by the prosecutor against perjury “must not be emphasized to the point where they are transformed instead into instruments of intimidation.” (50 N.Y.2d 747, 762, 409 N.E.2d 897, 905.) Similarly, in State v. Brown (Mo. App. 1976), 543 S.W.2d 56, a warning which was given a defense witness by the prosecutor and which carried the implication that the State had enough evidence to prosecute the witness but would do so only if he testified coerced the witness not to testify thereby depriving defendant from presenting a witness crucial to his defense in violation of his right of due process. See also Campbell v. State (1977), 37 Md. App. 89, 376 A.2d 866.

Numerous Federal cases also háve held that various types of governmental interference with a prospective witness can deprive a defendant of his constitutional right to secure and present his own witnesses to establish a defense. E.g., United States v. Goodwin (5th Cir. 1980), 625 F.2d 693 (defense witnesses intimidated by prosecutor and prison officials); United States v. Hammond (5th Cir. 1979), 598 F.2d 1008 (defense witness threatened with retaliation in other pending cases against him by FBI agent); United States v. Henricksen (5th Cir. 1977), 564 F.2d 197 (defense witness intimidated by terms of his plea bargain in another case); United States v. Morrison (3d Cir. 1976), 535 F.2d 223 (defense witness repeatedly warned by prosecutor of threatened prosecution if she testified); and United States v. Thomas (6th Cir. 1973), 488 F.2d 334 (defense witness told by secret service agent during recess of trial that he would be prosecuted for a felony if he testified).

The State seeks to distinguish the instant case by the fact that the prosecutor was already involved in plea bargaining with Tim McKiness and therefore there was no threat to initiate or reopen prosecution. However, the unrebutted testimony of attorney Donat was that the prosecutor unequivocally stated that if Tim McKiness testified he (Doyle) would guarantee McKiness would go to jail and Doyle would go to trial on all charges pending against McKiness. Doyle also implied that plea negotiations would end if McKiness testified. Certainly, ongoing plea negotiations may be affected or altered by a subsequent change in circumstances which may later arise. Nevertheless, under the particular circumstances present in the record before us, which stands uncontradicted, we find that the prosecutor’s comments were improper and calculated to intimidate the witness and to prevent him from testifying. They went beyond the legitimate bounds of advising the prospective witness of the penalties for perjury or the voicing- of disbelief of a prospective witness’ contemplated testimony. While we do not attempt to delineate herein the parameters of a prosecutor’s comments when confronted with a similar factual situation, we do hold that the statements made under the circumstances before us are clearly improper.

Finding these comments improper, however, does not resolve the entire issue before us under the rather unusual facts of this case. Subsequent to the prosecutor’s comments, attorney Donat informed defendant’s attorney of the comments, and they discussed the risk McKiness was running if he testified and the strength of the case against the defendant. Defendant’s attorney informed Donat that the State had a very weak case against the defendant and he didn’t think they needed McKiness. No subpoena was issued for McKiness’ testimony, no further effort was made by defendant to secure that testimony, nor was the trial judge apprised of this situation during the trial. The comments of the prosecutor were first brought to the attention of the trial court in the post-trial hearings. The State contends that the lateness in bringing this to the attention of the trial court and the failure to subpoena the prospective witness do not warrant a reversal of defendant’s conviction.

The Federal courts of appeals in three circuits have held that a due process violation caused by substantial governmental interference with a defense witness’ free and unhampered choice to testify does not require a finding of prejudice to the defendant in order to reverse a conviction. (United States v. Hammond (5th Cir. 1979), 598 F.2d 1008; United States v. Morrison (3rd Cir. 1976), 535 F.2d 223; United States v. Thomas (6th Cir. 1973), 488 F.2d 334.) They hold that this type of due process violation is harmful per se. In Webb v. Texas (1972), 409 U.S. 95, 34 L. Ed. 2d, 330, 93 S. Ct. 351, which found a due process violation of this type was caused by the remarks of the trial judge, the majority opinion reversed the conviction without discussion of its prejudice under all the facts of that case. However, two justices dissented on the basis that the comments of the trial judge, though improper, should not mandate summary reversal without sufficient facts to demonstrate the depth of prejudice. (409 U.S. 95, 98-99, 34 L. Ed. 2d 330, 334, 93 S. Ct. 351, 354 (Blackmun and Rehnquist, JJ., dissenting).) Significantly, in all the Federal cases cited immediately above, the improper comments to the witness were brought to the attention of the trial court during the course of the trial. Likewise, in the three above-mentioned State cases (People v. Shapiro (1980), 50 N.Y.2d 747, 409 N.E.2d 897; Campbell v. State (1977), 37 Md. App. 89, 376 A.2d 866; State v. Brown (Mo. App. 1976), 543 S.W.2d 56), the trial judge was informed of the improper prosecutorial conduct toward the witness during the trial.

In Illinois, we have found no direct precedent which is controlling. Generally, a defendant is entitled to a reversal only if he can show prejudice or that he was denied a fair trial. (People v. Warmack (1980), 83 Ill. 2d 112, 129, 413 N.E.2d 1254; People v. Lipp (1978), 63 Ill. App. 3d 1034, 1036, 380 N.E.2d 1007.) Issues not raised at trial or in a post-trial motion, both constitutional and nonconstitutional are waived. People v. Lykins (1979), 77 Ill. 2d 35, 38, 394 N.E.2d 1182, cert. denied (1980), 445 U.S. 952, 63 L. Ed. 2d 787, 100 S. Ct. 1602.

In People v. Eubank (1970), 46 Ill. 2d 383, 263 N.E.2d 869, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1657, wherein our supreme court dealt with the issue of allegations of intimidation of a prospective defense witness raised initially in defendant’s motion for new trial, the court held that the trial court was not in error in denying defendant’s motion for new trial based upon the disputed testimony of the witness and the prosecution witnesses on the nature of the alleged threats. Of further importance was the court’s statement that “[t]he record establishes that Silvani [the prospective witness] was present at the court largely throughout the trial and was thus available as a witness for either the defense or the State.” 46 Ill. 2d 383, 393, 263 N.E.2d 869, 875.

In the case at bar, the prospective witness was available to the defendant throughout the trial. The record further reveals that, at the time of the prosecutor’s comments, defendant’s counsel contemplated subpoening attorney Donat concerning those comments, yet this was only done for the post-trial motion. Additionally, whether the prospective witness was a crucial one for the defendant is in serious doubt from this record. He was not on defendant’s list of witnesses, defendant’s counsel chose not to call him as his assessment was that the State had a weak case, and there was no offer of proof by defendant as to what the witness would have stated. These factors coupled with the failure to bring the witness and the circumstances of the prosecutor’s comments before the court during the trial, constitute a waiver of any due process argument which theoretically may have evolved from the improper comments of the prosecuting attorney.

Had defendant brought the prospective witness before the court during the trial, the trial court could have dealt with the situation at that time which may have led to the witness testifying or a mistrial being declared. We do not believe that as a matter of trial strategy, the defendant can refuse to call the witness, fail to inform the court of the prosecutor’s conduct, and await the outcome of the trial before raising this issue. Under the particular circumstances of this case, the defendant has waived any claim of error he may have for the improper comments of the prosecutor by the failure to call the witness at trial and to show any alleged prejudice.

Defendant’s second argument on appeal is that because the court did not instruct the jury to make a finding as to the value of the post-hole digger, nor specifically instruct the jury that a value in excess of $150 was an element of the offense in the issues instruction, his conviction should be reduced to a misdemeanor theft. The State counters that defendant has waived this issue by failing to object to the State’s proposed issues instruction at the conference on jury instructions or to tender a proper instruction himself. The issues instruction tendered by the State and given by the court did not refer to the element of value. The guilty verdict form did include the finding “Guilty of Theft over $150.00.”

The disposition of this issue is controlled by our supreme court’s decision in People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027, wherein it was held that a felony theft conviction need not be summarily reversed when the jury is not instructed to find whether the value of the property exceeds $150 and no objection was raised at the conference on jury instructions or any instruction offered by defendant on this element. In determining whether the failure to object to the State’s instruction fell within a limited exception to the waiver rule contained in Supreme Court Rule 451(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c)) which permits the review of substantial defects in instructions if the interests of justice require, the court stated:

“Although the jury ought to be instructed to find whether the value of the stolen property exceeds $150 wherever felony theft is charged, particularly where value is disputed, the evidence here is overwhelming and uncontradicted in each case that the value of the stolen property greatly exceeded $150. In these circumstances it seems inconceivable that defendants could have suffered any prejudice. People v. Beller (1979), 74 Ill. 2d 514, 525.” 82 Ill. 2d 177, 182, 415 N.E.2d 1027, 1030.

In the case at bar, no objection was made by defendant at the conference on jury instructions to the State’s issues instruction which omitted the element of value, nor did defendant tender an instruction on value. Although he did raise this issue in his post-trial motion for a new trial, the failure to object at the conference on jury instructions is sufficient to waive the issue on appeal. (See People v. Underwood (1978), 72 Ill. 2d 124, 129-30, 378 N.E.2d 513.) The reason for the rule was stated in Underwood, quoting from Onderisin v. Elgin, Joliet & Eastern Ry. Co. (1959), 20 Ill. App. 2d 73, 77-78, 155 N.E.2d 338, as follows:

“ ‘The purpose of the conference is to afford counsel an opportunity to object to or correct erroneous instructions. As officers of the court, counsel have a duty to cooperate with the trial judge to the end that the jury may be properly instructed. Enlightened trial practice does not permit counsel under the guise of trial strategy to sit idly by and permit instructions to be given the jury without specific objection and then be given the advantage of predicating error thereon by using the error for the first time in a post-trial motion.’ ” (72 Ill. 2d 124,129-30.)

Also, even though defendant did object to the foundation laid for the testimony that the post-hole digger was worth $500, the objection was overruled, defendant has not appealed that ruling, and the testimony of value was undisputed at trial. The jury also specifically returned a guilty verdict of theft over $150. Under these circumstances, we find that the defendant waived the asserted error in the jury instruction by his failure to object and that the case also does not qualify for the Rule 451(c) exception to the waiver rule. We further find, as the court did in Tannenbaum, that the facts here involved are dissimilar to those present in People v. Dell (1972), 52 Ill. 2d 393, 288 N.E.2d 459, cited by the defendant.

Finally, as the State has conceded that the sentence to a probationary term of 36 months for a Class 3 felony exceeded the statutory limits (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—2(b)(2)), we reduce the term of probation to 30 months as requested by the defendant.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed as modified by the reduction of the probation term to 30 months.

Affirmed as modified.

LINDBERG and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK GARDNER, Defendant-Appellant.
    Fifth District
    No. 80-434
    Opinion filed February 2, 1982.

      Mary Robinson and Marilyn Martin, both of State Appellate Defender’s Office, of Elgin, and Kathleen Hamill, law student, for appellant.
    Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of Mt. Vernon, and David J. Mullett, research assistant, for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Following a jury trial in the Circuit Court of Williamson County, the defendant was convicted of burglary and theft. He was sentenced to a maximum extended term of 14 years’ imprisonment for burglary and two years for theft, the sentences to run concurrently. An appeal of both convictions and sentences has been perfected to this court, where the defendant presents the following arguments: (1) this court should not have allowed him to be represented by the office of the State Appellate Defender, which also represented a co-defendant in his appeal; (2) he was denied his statutory right to a speedy trial; (3) the trial court should have suppressed certain physical evidence which was admitted at trial; (4) the trial court erred in excluding a letter written by a co-defendant to his wife; (5) he was improperly cross-examined at trial about certain prior convictions; and (6) several errors were committed at his sentencing hearing. Although the defendant does not challenge the sufficiency of the evidence upon which he was convicted, a brief statement of that evidence is necessary to the extent that it illuminates the issues argued.

Between 10 p.m. on June 21, 1979, and 4 a.m. the following day several items, including guns, ammunition and stereo equipment were taken from the Williamson County home of Carbondale police officer Peter Emmitt. In the mid-morning of June 22, Murphysboro police discovered Richard Nitz in possession of a revolver belonging to Emmitt. Nitz and defendant Gardner were arrested on possessory weapons offenses, and Nitz’ pickup truck was taken to the Murphysboro police station. After obtaining a search warrant, Murphysboro authorities found, in the bed of Nitz’ truck, some of the property which had been taken from the Emmitt residence.

Nitz and Gardner were incarcerated in the Jackson County jail while they awaited trial on the weapons offenses. During this period of incarceration, they received a copy of an information which had been filed in Williamson County on June 25, 1979, charging them with the Emmitt burglary. After the conclusion of the Jackson County prosecutions, Nitz and Gardner were transferred to the Williamson County jail.

In May of 1980, Richard Nitz entered a plea of guilty to burglary and theft, based on the offenses committed at the Emmitt residence. Pursuant to plea negotiations, Nitz received a sentence of four years’ imprisonment in exchange for his agreement to testify, at defendant Gardner’s trial, that Gardner entered Emmitt’s home and removed some of the property which was ultimately recovered from Nitz’ truck.

Defendant Gardner’s case came to trial in July of 1980. Richard Nitz was the State’s chief witness against him. Nitz stated that, at about 12:30 a.m. on June 22, he, Gardner and a woman named Cheri King left Carbondale in King’s car. Gardner told King to drive to an area known as Crab Orchard Estates, with which Nitz claimed he was unfamiliar. At about 1 a.m., they arrived at Emmitt’s house. Gardner went inside, and came out with a television set, which he loaded into King’s car. Nitz and King then joined Gardner in removing items from the house and loading them into the car.

When their task was completed, the three went to Cheri King’s house and deposited the stolen property. Nitz testified that he and Gardner returned to a parking lot in Carbondale, where, from 3 until 7:30 a.m., they worked on Gardner’s disabled truck. At that time, Gardner drove Nitz’ truck to John A. Logan College, where he dropped Nitz off for classes. According to Nitz, when Gardner returned to pick him up several hours later, Cheri King was with him, and the stolen property was in the bed of Nitz’ truck.

Nitz drove the three to Jim Jackson’s Shell Station in Murphysboro. Jackson testified that, at 9 a.m., Gardner had telephoned him to offer to sell him some guns and stereo equipment. An investigator for Gardner’s former trial counsel was introduced to say that Jackson told him that Nitz, not Gardner, had telephoned. Jackson did not remember answering any of the investigator’s questions about the case. After receiving the call, Jackson alerted the Murphysboro police about the possibility of stolen property, and they set up surveillance.

When they arrived, at 11 a.m., Nitz and Gardner went into the station’s office, Nitz holding the revolver. Nitz handed the gun to Gardner, who offered it to Jackson. After Jackson said that he was not interested in it, Gardner returned the revolver to Nitz, and stated that he wanted to show Jackson a shotgun. Nitz and Gardner then started to return to the truck, and were arrested by Murphysboro authorities. Cheri King, who did not enter the office of the service station, did not testify at Gardner’s trial.

Defendant Gardner took the stand and presented an alibi defense. He testified that between 10 p.m. on June 21 and 4:15 a.m. on June 22, he was with Richard Nitz at several locations in and around Carbondale. According to Gardner, much of this time was consumed in towing or working on his disabled truck. Defense witness Johna Batson, who was a bartender at the King’s Inn Lounge in Carbondale, stated that Gardner was at the King’s Inn with a friend known to her as “Josh” between 10 p.m. and midnight on June 21 and between 1:40 a.m. and 2:20 p.m. on June 22.

Gardner testified that Nitz was with him until 4:15 a.m., when Nitz left in his own truck, presumably to go to John A. Logan College. Nitz rejoined Gardner in Carbondale at about 9 a.m., with Cheri King as a passenger in his truck, and the three went to Jackson’s Shell. In Gardner’s version of the events, he never called Jim Jackson that morning, he did not offer any property to Jackson, and he was in the process of obtaining the keys to the station’s wrecker to tow his own truck when he was arrested. Gardner also stated that he had never seen any of the stolen property either in the passenger compartment or in the bed of Nitz’ truck before his arrest. However, a print of Gardner’s right ring finger was taken from a turntable dustcover belonging to Peter Emmitt, recovered from Nitz’ truck, and claimed by Gardner at trial to have never previously been seen by him.

The first issue which must be addressed in this case concerns conflicting representation. Gardner’s counsel, from the office of the State Appellate Defender, states that this court should have allowed that office to withdraw as Gardner’s counsel on appeal, because Richard Nitz was represented by counsel from that office in his appeal from his guilty plea. The People respond that this court’s earlier denial of the motion to withdraw as counsel bars further litigation of this issue, that the issues raised on appeal by Nitz and Gardner do not demonstrate antagonistic defenses in this court, that the filing of an opinion in Nitz’ case before the motion to withdraw was made in Gardner’s case removed any possible conflict, and that the transfer of Gardner’s case to a district office of the State Appellate Defender which did not represent Nitz cures any problems raised by conflicting defenses.

In People v. Rogers (1981), 101 Ill. App. 3d 614, 428 N.E.2d 547, this court considered the approach which should be taken when co-defendants are represented by attorneys of the office of the State Appellate Defender, whether from the same or different district offices. It was stated that, while the standards for determining the existence of a conflict should be less rigorous for appellate counsel than for trial counsel, the guidelines of People v. Nelson (1980), 82 Ill. 2d 67, 411 N.E.2d 261, are nonetheless relevant to such an inquiry. A precise standard for this type of issue was not pronounced in Rogers, for the court found no inconsistency in the positions taken in Rogers’ appeal and that of his co-defendant. In our opinion, a similar situation obtains in this case.

Richard Nitz’ appeal addressed the single issue of whether he had waived his right to a speedy trial by pleading guilty to the Emmitt burglary. As the People correctly note, this position does not affect the presentation of Gardner’s appeal. In a similar manner, most of the arguments in Gardner’s brief are concerned with errors in his trial that are completely unrelated to Nitz’ case. Gardner does not argue that he was not proven guilty beyond a reasonable doubt, and therefore he makes no direct attack on the credibility of Richard Nitz.

The two arguments made by Gardner which refer to Nitz are that Gardner’s sentence was disproportionate to that imposed on Nitz, and that the trial court should have admitted into evidence to impeach Nitz a letter from Nitz to his wife. As we held in Rogers, the first argument presents no conflict because Gardner’s assertion that his sentence was excessive does not concede the propriety of Nitz’ sentence. Moreover, Nitz’ sentence was not challenged on appeal.

Gardner’s counsel urges that the challenge to the trial court’s ruling on the Nitz letter creates a conflict of interest because (1) an attorney is obligated not to disclose a secret of a client in order to benefit himself or a third person (79 Ill. 2d R. 4 — 101), and (2) Nitz attacked his plea agreement on appeal. Because defense counsel made no reference to a duty to protect clients’ confidences until the reply brief, we will consider only the latter of those contentions. Ill. Rev. Stat. 1979, ch. 110A, par. 341(g); People v. Borges (1980), 88 Ill. App. 3d 912, 410 N.E.2d 1076.

As we indicated above, Nitz’ appeal consisted solely of an attempt to assert the bar of the speedy-trial rule. He did not raise any claim that he did not commit the crimes to which he entered a plea of guilty. Thus, even assuming that the desired introduction of the Nitz letter is characterized as a direct attack on Nitz’ credibility, Gardner’s position on that issue does not in any way undermine Nitz’ appeal, and vice versa. We find nothing in either case which would act to inhibit the presentation of a vigorous defense on behalf of Gardner or Nitz. Therefore, we confirm our previous order denying the office of the State Appellate Defender leave to withdraw as counsel for defendant Gardner.

Next, it is claimed that the defendant was denied a speedy trial, as required by section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a)). Since he was held by authorities in both Williamson and Jackson counties prior to his trial for the Emmitt burglary, the threshold question is when the 120-day period began to run for purposes of the Williamson County prosecution. The defendant argues that that period commenced on June 28,1979, when a Williamson County arrest warrant was delivered to him in the Jackson County jail by jail personnel. The trial court held that the time began to run on August 22,1979, when Gardner and Nitz were brought, pursuant to a writ of habeas corpus ad prosequendum, to the Williamson County jail, where they spent the evening before their first appearance the following day. Both men were returned to Jackson County after that appearance. The People contend that either the trial court’s ruling was correct or Williamson County did not take custody of the defendant until September 20, 1979, when the Jackson County proceedings concluded.

In support of his theory that his receipt of the Williamson County arrest warrant acted to commence the 120-day speedy-trial period, the defendant points to People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242. There, the defendant was first charged with a Champaign County crime, then was arrested in DeWitt County on other charges. He later escaped from DeWitt County, and was eventually apprehended in Champaign County by F.B.I. agents acting under the authority of a Federal fugitive from justice warrant obtained by DeWitt County. While in the Champaign County jail, the defendant was arrested on the Champaign County warrant, taken before a magistrate and served with a copy of the original Champaign County complaint. The supreme court held that the defendant was “in custody” of Champaign County from the date of the service of the Champaign County arrest warrant. The 120-day period did not begin on a later date when DeWitt County, having finished with the defendant, turned him back over to Champaign County in order to allow the latter county to proceed against him.

The defendant argues that the fact that the service of the arrest warrant, and not the later transfer of custody, was significant in Fosdick means that the service of the arrest warrant should commence the 120-day period in this case as well. However, in Fosdick, the defendant was served with the Champaign County warrant while he was in Champaign County. Cases which involve a warrant issued by a noncustodial county and delivered in a custodial county have followed a different rule.

For example, in People v. Clark (1968), 104 Ill. App. 2d 12, 244 N.E.2d 842, the defendant was arrested in Rock Island County on January 14,1967, and the following day was turned over to Peoria County, where he was under a previous indictment. Rock Island County authorities obtained an indictment and bench warrant against the defendant on February 17,1967, but a copy of the warrant was not sent to the Peoria sheriff until March 27. The defendant was returned to Rock Island County on April 19. In holding that the defendant entered into the custody of Rock Island County for the purposes of the speedy trial statute on the last date, the court enunciated the following rule:

“Where, as here, a defendant is in custody awaiting trial in one county and there is a charge pending against him in another county, we believe he cannot be deemed to be in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he is then either returned to, or held in custody for, the second county.” 104 Ill. App. 2d 12, 20, 244 N.E.2d 842, 846.

The defendant asserts that his case is distinguishable from Clark, because, in Clark, no charges were pending against the defendant in Rock Island County when he was turned over to Peoria authorities, and because the Rock Island warrant was never served on the defendant but was only delivered to the Peoria sheriff. We do not see the absence of charges in Clark as a factor which makes that case inapplicable here, for, if anything, the arrest of Clark in Rock Island County renders his case stronger than that presented here, since Gardner was arrested in the custodial county, and not in Williamson County, which prosecuted him last.

It must be conceded that in this case, unlike Clark, the defendant was personally served with a copy of the arrest warrant, even though the “return of service” portion of that warrant was not filled in. As noted by the defendant, several other cases which have followed Clark have involved warrants which were never served on the defendant in the custodial county. (People v. Akins (1971), 132 Ill. App. 2d 1033, 270 N.E.2d 107; People v. Mikrut (1969), 117 Ill. App. 2d 444, 253 N.E.2d 556.) However, in People v. Karr (1979), 68 Ill. App. 3d 1040, 386 N.E.2d 927, the court followed Clark even though the defendant had received an “informal” photocopy of a criminal complaint and warrant while he was incarcerated. We can find no significant difference between Gardner’s receipt of the Williamson County warrant and the “informal” service of similar documents in Karr. Thus, the service of the Williamson County arrest warrant does not remove this case from the rule of Clark.

The defendant states that Karr should not be followed here, because the second county in that case took no action to prosecute the defendant after the service of its warrant, while proceedings were had in Williamson County after Gardner received the warrant, but before the Jackson County prosecution had terminated. Yet, a closer reading of Karr reveals that the absence of proceedings in the second county was not a factor relied upon in the court’s decision. (68 Ill. App. 3d 1040, 1047, 386 N.E.2d 927, 932.) Moreover, the court in People v. Evans (1979), 75 Ill. App. 3d 949, 394 N.E.2d 710, suggested in dicta that defendant is not in the custody of the second county until the termination of the proceedings in the custodial county, even if the defendant is brought to the second county for appearances pursuant to writs of habeas corpus ad prosequendum, as he was here. According to Karr and Evans, the defendant’s appearance in Williamson County does not mean that he was in the custody of Williamson County any earlier than the termination of the Jackson County prosecution.

Nor does People v. Kerley (1979), 72 Ill. App. 3d 916, 391 N.E.2d 225, furnish the defendant any support. Kerley was arrested and housed in the Cook County jail on March 28, 1977. Two days later, Du Page County authorities lodged a detainer against him at the jail. On April 7, the defendant entered guilty pleas to several of the Cook County charges and the remainder of those charges were dismissed. He was sentenced to serve 30 days in the Cook County jail, with credit for time served. Kerley was released from that jail on April 22, on which date he was served with a complaint and warrant by Du Page County authorities and brought to the Du Page County jail.

The defendant cites Kerley as authority for the proposition that the date of physical transfer to the second county does not automatically determine the initiation of the 120-day period, and the Kerley court did state that that period began to run on April 7, 1977, and not on April 22. But, this result was reached by strict application of the Clark rule, which states that the defendant is in the custody of the second county after the termination of the proceedings in the custodial county. In Kerley, the Cook County prosecution concluded on April 7, 1977, when the defendant entered a plea of guilty and was sentenced. Because those proceedings had ended, and because Du Page County had placed a detainer prior to April 7, there was therefore no obstacle to trying the defendant in Du Page County.

Instead of bolstering the defendant’s position, Kerley is only additional authority for the proposition that, once the proceedings in the custodial county have concluded, the 120-day rule begins to run against a second county when the defendant is returned to, or held for, the second county. Since a Williamson County warrant was served on this defendant in Jackson County prior to the termination of the Jackson County proceedings, we are of the opinion that Gardner was being held for Williamson County as soon as the Jackson County prosecution had concluded. The 120-day rule thus began in this case on September 20, 1979.

Under our interpretation of the speedy-trial rule, defendant’s 120-day period would have expired on January 18, 1980. But, on January 11, the defendant filed a motion for new counsel, and, as noted by the People, all delays between that date and the July 1980 trial may be attributed to the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(f).) Therefore, the defendant has not been denied his statutory right to a speedy trial.

The defendant additionally takes issue with the trial court’s denial of his motion to suppress, as products of an illegal search, certain items taken, pursuant to a search warrant, from the bed of Nitz’ truck. On November 30,1979, Nitz and Gardner filed a joint suppression motion. It alleged simply that Nitz’ truck had been searched illegally and that certain items had been seized. In April 1980, the court granted the State’s motion to dismiss the motion to suppress as to Gardner, for he had alleged nothing which would give rise to an expectation of privacy in Nitz’ truck. Gardner was granted leave to file a new suppression motion, which he did on July 1, 1980. In this motion, Gardner stated that he had been a passenger in Nitz’ truck and that he was charged with having possession of the property which was seized from Nitz’ truck.

When the motion was heard on July 7, 1980, the court stated that, according to the motion, Gardner was only a passenger in Nitz’ truck and therefore Gardner had no reasonable expectation of privacy which could have been violated by the search and seizure. Nonetheless, Gardner was permitted to present any facts which could establish such a privacy interest.

Gardner testified that his connections with Nitz’ truck, beyond his presence as a passenger, were two-fold. First, he had assisted in the construction of the camper top on the bed of the truck and had supplied some of the wood, paint and carpeting which had been used in that top. Second, Gardner had kept several items in the bed of the truck, including a mattress which belonged to his wife, and an ice chest, fishing pole and stereo speaker which were his. Of these possessions, only the stereo speaker was seized by the Murphysboro police and not returned to the defendant by July 7.

Following this testimony from Gardner, the trial court denied the motion to suppress, stating that nothing had been shown which would raise Gardner’s expectations of privacy above those of an ordinary passenger in the truck. The defendant asserts that, in making this finding, the trial court incorrectly relied upon Gardner’s lack of a property interest in the truck or the allegedly stolen goods and thus failed to follow the principles contained in Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.

In Rakas, two passengers in an automobile objected to a search of the vehicle, which yielded a box of rifle shells in the locked glove compartment and a sawed-off rifle under the front passenger seat. The Supreme Court stated that the “capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.” 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430, citing Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507.

The court deemed it significant that the two passengers, as here, did not claim ownership of the car or of the evidence seized. Also important was that “they made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers. Like the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.” (439 U.S. 128, 148-49, 58 L. Ed. 2d 387, 404, 99 S. Ct. 421, 433.) The evidence in Rakas was therefore insufficient to permit either passenger to challenge the legality of the search of the automobile.

Defendant Gardner argues that his expectations of privacy in the bed of Nitz’ truck are greater than those of the passengers in Rakas because (1) he helped construct the camper top, (2) he stored his personal possessions in the bed, (3) Nitz’ wife was the mother of Gardner’s wife and the two families lived next door to each other, and (4) the modified truck bed was suitable for limited residential purposes and is distinguishable from a standard passenger automobile.

In reviewing this motion to suppress, we cannot disturb the trial court’s ruling unless it was manifestly erroneous. (People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513.) The defendant’s testimony does not give rise to manifest error by the trial court. To begin with, his claims of contribution to the construction of the camper can only be described as vague. In his own terms, we know only that he contributed “some” labor, money, and supplies to the truck. Such a nebulous statement of assistance does not cast doubt on the trial court’s rejection of defendant’s position.

But even if we accept the arguments that work on a vehicle, storage of nonevidentiary property in it, and an in-law relationship with the vehicle’s owner are significant factors in creating a privacy interest therein, we think that the nature of the vehicle belies defendant’s expectations of privacy. As described in testimony and as depicted in photographic exhibits, the “camper” portion of the truck was not directly accessible from the passenger compartment. In this respect, the camper was like the trunk of a normal automobile, in which a passenger typically has no legitimate expectation of privacy. (Rakas, 439 U.S. 128, 148-49, 58 L. Ed. 2d 387, 404, 99 S. Ct. 421, 433.) Yet, while a trunk is not generally open to observation, the front wall of the camper contained two windows, through which a passerby could peer, unobstructed by blinds, shades or drapes. The camper top does not appear to have any windows on its side walls, and we have no information before us pertaining to any window or door on the rear of the camper.

The defendant characterizes the camper’s two front windows as “covered with an opaque or semi-opaque substance.” No matter how one describes these windows, the fact remains that one can easily see from the bed of the truck through a window to the rear-view mirror mounted on the driver’s door. Thus, the area which was searched combines the physical inaccessibility of a trunk with some degree of the visual accessibility of a passenger compartment. This combination of attributes is fatal to defendant’s expectations of privacy, especially since he did not claim any ownership interest in the truck or the seized evidence. (See also People v. Beroukas (1981), 98 Ill. App. 3d 990, 425 N.E.2d 5.) Nor do the additional factors enumerated by the defendant indicate that the trial court’s ruling was manifestly erroneous. The court correctly applied the law as described in Rakas, and we affirm the denial of defendant’s motion on the ground that the defendant did not show the existence of any fourth amendment rights which could have been violated by the search and seizure.

As a further assignment of error, the defendant asserts that the trial court should have allowed defense counsel to cross-examine Richard Nitz about a letter which Nitz wrote to his wife while he was in the Jackson County jail. That letter began with the following paragraph:

“All right, Im going to tell you ‘everything’ from the time I left the house, till the time I was arrested. I didn’t want to do this because once I do the jailer or whoever reads the letters before they send them off, they’re gonna take this letter to the State’s Attorney!”

The letter gave a different version of Nitz’ whereabouts on June 21 and 22, 1979, than that given by him at Gardner’s trial. Nitz wrote it in late June or early July 1979, and it was received by his wife. Mrs. Nitz took the letter to attorney Gerald Reed, who represented both Nitz and Gardner at that time, to aid the preparation of her husband’s defense. Nitz never authorized her to show the letter to Reed, and, in the letter, told her:

“You know more about it now than Jerry [Reed] does. I didnt tell Jerry the whole story because he said he wasn’t for sure whether or not he was going to represent us. I told it all to you so you can, for yourself, check it out so you know that Im not being to you about it.”

About a month before his trial, Gardner asked Reed if he had Nitz’ letter in his files Gardner had learned of the contents of the letter from his wife, Mrs. Nitz’ daughter, who had read it when Mrs. Nitz first received it. Gardner requested the letter, and, on July 8, 1980, Reed obtained permission from Mrs. Nitz to give a copy of the letter to Gardner, which he did. Mrs. Nitz came to Reed’s office and took possession of the original letter.

When Richard Nitz testified at Gardner’s trial, Gardner’s attorney attempted to impeach him by using the photocopied letter. The State objected and an in camera conference was called, where both Nitz and his wife expressed opposition to the disclosure of the document. The trial court prohibited the use of the letter, stating that its disclosure would violate the marital and attorney-client privileges and that Gardner had never mentioned the letter in his answers to the State’s requests for discovery. It was also questioned whether use of the copy, instead of the original retained by Mrs. Nitz, would be proper. The defendant has preserved his objections to the ruling, and, in this court, contests all of the possible reasons in support of the decision. We need only consider one of those reasons.

A confidential letter written from one spouse to another is privileged (Ill. Rev. Stat. 1979, ch. 38, par. 155 — 1; People v. Simpson (1977), 68 Ill. 2d 276, 369 N.E.2d 1248) and may not be used at trial over the assertion of the privilege by a party to it. There is no doubt that the excluded letter was written by Nitz to his wife, who was married to him at the time of communication, as well as during Gardner’s trial. And, despite Gardner’s claim that Nitz desired his letter to fall into the hands of jail personnel, we think that Nitz’ fears of possible interception and his use of endearing language prove that he intended this message as confidential. Thus, the letter has met the initial requirements of the marital privilege.

That privilege may be lost in several ways. For example, if a third person learns of the contents of the letter by interception, or through loss or misdelivery of the letter by its custodian, that person may give testimony about the contents of the communication. Or, if the holder of the privilege intentionally reveals those contents to a third person, he has relinquished the privilege. (Simpson, 68 Ill. 2d 276, 279, 369 N.E.2d 1248, 1251.) Neither exception applies here because nothing indicates that a third party ever learned the substance of Nitz’ letter before it was received by Mrs. Nitz.

It may be argued that Mrs. Nitz destroyed her husband’s right to assert the privilege by showing the letter to Mrs. Gardner, Reed and defendant Gardner. In fact, such a rule is followed in other jurisdictions. (See 81 Am. Jur. 2d Witnesses §157 (1976).) But, in Illinois the privilege is not lost even if “the delivery or disclosure of the letter be due to the betrayal or connivance of the spouse to whom the message is directed.” (McCormick, Evidence §82, at 168 (2d ed. 1972), quoted in Simpson, 68 Ill. 2d 276, 279, 369 N.E.2d 1248, 1251.) As the trial court ruled, then, the marital privilege attached to the Nitz letter, and it was not lost by interception, by Nitz’ revelation of its contents or, as actually happened, by Mrs. Nitz’ disclosure of the letter. Richard Nitz, who consistently asserted the privilege, was entitled to rely upon it, and the trial court was correct in preventing use of the letter.

As noted above, the defendant was prosecuted in Jackson County before his case came to trial in Williamson County. In the Circuit Court of Jackson County, he and Richard Nitz were charged with unlawful use of weapons and possession of weapons without valid firearm owner’s identification cards. Gardner was acquitted of the first of these charges and was convicted of the latter charge. In response to direct examination at the burglary trial, Gardner mentioned the outcome of the Jackson County proceedings.

The Williamson County prosecutor then asked Gardner whether he had been found not guilty of unlawful possession of weapons and whether he could not have been found guilty of the I.D. card offense without being in possession of a weapon. The defendant answered both questions in the affirmative. The prosecutor then asked him to repeat the offenses of which he had been convicted earlier, and the counties in which those offenses occurred.

In this appeal, the defendant challenges the propriety of the prosecutor’s impeachment of him. He asserts that, in all of the questions discussed in the preceding paragraph, the prosecutor was allowed “to probe and expand the details of the prior offenses in the guise of impeachment.” He also argues that the question pertaining to the possession of a weapon as a prerequisite for the Jackson County conviction was an improper attempt to prove the elements of the burglary by showing that Gardner was in possession of weapons belonging to Peter Emmitt.

Defense counsel did not object at trial to any of the allegedly offensive questions, nor was any reference made to this matter in defendant’s original or amended written motion for a new trial. By failing to do so, he has not preserved the issues concerning the improper form of the cross-examination. (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) However, defendant also argues that the Jackson County conviction should not have been used in any manner to impeach him, because that conviction was reversed on appeal, after he had been tried and sentenced. Due to the nature of this contention, it is of course not barred by the waiver rule.

The defendant urges that a conviction later reversed for insufficient evidence, as his was, should be treated as void, like an uncounseled felony conviction, and should not be usable for impeachment purposes, according to Loper v. Beto (1972), 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014. This argument is incorrect for three reasons. First, Loper was based on the retroactivity of the right to counsel as expressed in Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792. It is asserted that a conviction reversed for failure to prove the defendant’s guilt beyond a reasonable doubt is as invalid as a conviction obtained in violation of Gideon, because the reasonable doubt standard has due process implications. But, if we accept this argument, then any error great enough to require reversal would automatically necessitate a new trial in every later case in which the reversed conviction was used, on the theory that the defendant was denied due process in the case which resulted in reversal. Yet, all subsequently reversed convictions, even some reversed on constitutional grounds, do not entitle a defendant to a new trial in later cases where he was impeached by such a conviction (People v. Miller (1975), 27 Ill. App. 3d 788, 327 N.E.2d 253), and absent any authority that the rule of Loper was meant to apply to a case reversed for insufficient evidence, we will not so apply it.

Second, it is a general rule that the State may cross-examine a defendant on his past criminal activities which he has himself mentioned in response to direct examination. (People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 292 N.E.2d 387; People v. Miller (1976), 39 Ill. App. 3d 714, 349 N.E.2d 103.) In Loper, the uncounseled felony convictions which were complained of were brought out for the first time in cross-examination. There is nothing in the language of Loper which states that a defendant may not open the door to cross-examination concerning uncounseled felony convictions by referring to them on direct examination. Thus, even if we agreed that a conviction based on insufficient evidence is to be treated like one obtained without the opportunity for counsel, we must still hold that no error was committed by the State’s reference to the Jackson County conviction, since there is no doubt that the defendant mentioned that offense before the prosecution did.

Third, the defendant in this case was also impeached by evidence of other convictions, and thus the evidence of the subsequently reversed conviction was cumulative (People v. Miller (1975), 27 Ill. App. 3d 788, 327 N.E.2d 253), unlike in Loper, where the defendant attacked all of the convictions which were used to impeach him.

Defendant’s final group of arguments pertains to the sentencing hearing and the sentence imposed upon him. He asserts that error was committed because (1) the trial court considered the subsequently reversed weapons conviction as a factor in aggravation, (2) he was sentenced without benefit of a current presentence report, (3) the trial court considered that he had received compensation for committing the offense in the form of the proceeds of the theft, (4) his sentence is disproportionate to that given Richard Nitz, (5) his counsel failed to present all information relevant to the statutory mitigating factors, and (6) he should have been given full credit for all time spent in jail since his arrest in Jackson County. Given our disposition of this case, we need discuss only one of these arguments.

In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the supreme court held that the receipt of proceeds from a burglary or theft should not be considered as an aggravating factor under section 5 — 5—3.2(a) (2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(a)(2)) when imposing sentence. The defendant argues that the trial court did view his receipt of proceeds from the Emmitt burglary as an aggravating factor. The People respond that the trial court “was simply reading aloud as he scanned the list of aggravating factors contained in the sentencing statute,” when he referred to compensation for committing the offense, and that he never actually considered defendant’s receipt of proceeds.

As the defendant correctly points out, if the trial judge merely read the factors aloud, then why was reference made to aggravating factors (1), (2), (3) and (7), but not to (4), (5) and (6), which certainly did not apply to him? The record demonstrates that the trial court did improperly consider the defendant’s receipt of proceeds, and this cause must be remanded for resentencing according to Conover. Given the maximum extended term imposed on the defendant for the burglary we do not believe this to be harmless error (compare People v. Hicks (1981), 101 Ill. App. 3d 238, 427 N.E.2d 1328), but this statement should not be interpreted to mean that, on remand, such a sentence is necessarily inappropriate.

For the reasons presented above, we affirm defendant’s convictions for burglary and theft, vacate defendant’s sentences and remand this cause to the Circuit Court of Williamson County for resentencing.

Affirmed in part, vacated in part, remanded.

JONES and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE HARTMAN STAMOS, P. J.,

text:
      In re MARRIAGE OF JANE A. THEEKE, Petitioner-Appellee, and JON A. THEEKE, Respondent-Appellant.
    First District (2nd Division)
    Nos. 80-398, 80-2647 cons.
    Opinion filed December 22, 1981.
    Modified on denial of rehearing April 13, 1982.

      STAMOS, P. J., concurring in part and dissenting in part.
    Paul R. Jenen, of Wheeling, for appellant.
    Scott & Fulkerson, of Chicago (Alan L. Fulkerson, of counsel), for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

After 16 years of marriage, Jon and Jane Theeke (hereinafter “Jon” and “Jane” for ease in identification) obtained a divorce in October 1979. Jane was awarded custody of their three children, Jonny, age 14, and twins, Jennifer and Janiece, ages 9. Jane was also awarded exclusive possession of the marital home for a period of 10 years and 60% of the net proceeds from the sale of the home. The other significant marital asset, Jon’s profit-sharing plan, was divided equally between the parties. Jon appeals the award of child custody, the division of marital property and the award of attorney fees.

The issues with which we are presented are whether: (1) the trial court committed error in making certain evidentiary rulings; (2) the award of child custody to Jane was against the manifest weight of the evidence; (3) the division of marital property and child support was against the manifest weight of the evidence; and (4) Jon was improperly ordered to contribute to Jane’s attorney fees.

During the trial on the issue of child custody, Janiece and Jennifer testified, in camera, that they preferred to live with their mother. They believed that Jon and Jane both loved them; both parents helped them with their homework and attended Parent Teacher Night; Jane did the cooking, laundry, shopping and house cleaning, although sometimes Jon cooked; and when something bothered them, they usually talked it over with their mother. Jon spoke to them about custody on several occasions. Once he told them, “If you live with your mom, I may have another family and I may not want you anymore.” They got along with their brother, Jonny, and desired to continue living with him.

Jonny also testified in camera. He believed both parents loved him. He preferred to live with his father. He got along with his sisters except for an occasional fight. He loved his sisters and wanted to continue living with them. He did not know whether it would be hard for his sisters to live with his father.

At trial, Dr. Monte J. Meldman, a certified psychiatrist and the author of four books, testified on Jane’s behalf. He interviewed her in August 1978, and subsequently had her perform a psychological test known as the Minnesota Multi-Phasing Inventory. The test indicated that Jane had no abnormal psychological problems and had a good ability to manage things.

James Hess testified that he was principal of Central School, and that he had known the Theekes for about five years. Both parents were actively involved in a number of school activities.

Betty Hauer testified that she was employed as a case worker by Cook County. Her duties required her to visit the home, interview the parents and make recommendations as to child custody based on her observations. She considers a number of factors in determining which parent is best able to serve the interests of the children, including the manner in which the parent handles the divorce-custody matter with the children. Based on her interviews with the Theeke family and their neighbors, she concluded though both Theekes were loving parents, Jane was better qualified for running the household and taking care of the children’s everyday needs.

Jane testified that she believed she was fit to have custody of the children because she had always been responsible for their care. Jon was incapable of adequately taking care of the children because of the demanding nature of his job.

Raymond Russo, coach of Jonny’s baseball team, testified in Jon’s behalf. He knew the Theekes through their involvement in Little League Baseball. Jane attended about 10% of Jonny’s baseball games and practices until 1979 when the girls began playing on a team. The paternal grandparents, Leona and Patrick Theeke testified that if their son was awarded custody of his children, they would immediately retire and move so that they could help take care of the children. Leona acknowledged that Jane was a loving mother and would be a fine custodial parent.

Jon testified that he loved his children and believed that he was more capable of bringing up the children than Jane. He had not treated his girls any differently than he treated Jonny.

At the conclusion of the trial, the court found that both parents were fit to have custody of the children, but that it was in the best interests of the three children for custody to be awarded exclusively to their mother.

The following evidence was heard at trial on marital property distribution. Jon averred that his monthly expenses added up to a total of $1,140. His sole indebtedness amounted to $5,539. His gross earnings were $26,225 in 1978 and $29,050 in 1979. Jane testified that she obtained her real estate broker’s license in 1973. In 1974, she made between $9,000 and $10,000. In 1975 she earned between $13,000 and $14,000 and in 1976 she made between $16,000 and $18,000. The money she earned she spent to help support the family. She and the three children have current monthly expenses of approximately $2,000. Her business related debts total $5,923. On the final day of the trial Jane was employed by Safeguard Business Systems and was receiving a loan of $1,900 per month which was to continue for a six month period of time. In the event that she was terminated prior to the end of the six-month period, the total loan amount received during that period of time would be forgiven. If her employment extended past six months, she was to repay the salary advanced her. The only marital assets of significant value were the family’s home, having a net worth of $70,250 and Jon’s Sears Roebuck Profit & Savings Plan, having a value-of $11,300.

The, court awarded Jane and the three children the exclusive right to use and possess the marital home for a period not to exceed 10 years at which time the twins would have reached the age of majority. The net proceeds derived from the sale of the home in the future was to be divided, with 60% to go to Jane and 40% to Jon. Jon was ordered to pay child support equal to 35% of his net take-home pay, but not less than $602 per month. The pension profit-sharing plan was split equally between Jon and Jane, each being awarded $5,600. Jon was given visitation rights every other weekend from Saturday morning until Sunday evening.

Neil Robin, Jane’s initial attorney, testified that he had expended 90 court hours and 65 office hours in handling this matter. A substantial amount of his time resulted from Jon’s repeated failure to comply with court orders. The court awarded him a fee of $12,688, representing $90 per hour for court time and $65 per hour for office time, of which Jon was ordered to pay $7,688. The court also ordered Jon to pay Jane’s attorney fees of $2,378 for the defense of the appeal.

I

Jon argues first that the trial court erred in its refusal to allow Jonny to testify in open court in order to rebut Jane’s testimony that Jon could not adequately supervise the children while working at his present job, and Hauer’s testimony that Jane was better equipped for custody of the children, relying on Crownover v. Crownover (1975), 33 Ill. App. 3d 327, 337 N.E.2d 56. Crownover, however, affirmed the case law holding that a child’s testimony may be taken by the court either from the witness stand, or in chambers, in the court’s discretion. (33 Ill. App. 3d 327, 329; see also Ill. Rev. Stat. 1979, ch. 40, par. 604(a).) In addition, Crownover held that there is no absolute right to present the testimony of a child in a custody proceeding. (33 Ill. App. 3d 327, 330.) In the instant case the court in its discretion decided to elicit Jonny’s testimony during an in camera interview rather than on the stand, observing “how much should ” # ” [Jonny] be subjected to by way of an adversary court proceeding between two parents he dearly loves.” The in camera proceedings were taken by a court reporter and a transcript was made part of the record. We have examined the testimony given by all three children, in the presence of court and counsel, and find that the rebuttal testimony sought by Jon was already substantially elicited on direct examination and would have been repetitious. Under these circumstances, it was well within the court’s discretion to determine that Jonny should not be subject to such a proceeding. See also Frees v. Frees (1968), 99 Ill. App. 2d 213, 240 N.E.2d 274.

Jon contends further that the trial court improperly heard evidence outside the record on the question of child custody. On February 7,1980, during a hearing on a post-trial motion, the court stated that it would not reverse its position on the child custody issue, because, in part, Robette Levy of the Court Consultation Service had recommended that custody be given to Jane. Jon concedes that there is nothing in the record to indicate that the conversation with Levy occurred prior to its decision concerning child custody on December 10, 1979. Since a trial court is presumed not to have considered improper evidence in reaching a decision, Jon argues that the conversation with Levy was reversible error even if it occurred after the trial court’s initial custody ruling, citing Williams v. Williams (1955), 8 Ill. App. 2d 1, 7, 130 N.E.2d 291. In Williams, the trial court had requested the Cook County Bureau of Public Welfare to make a confidential investigation of the respective homes of the parties, the results of which were not made available to counsel for either party. Unlike the circumstances in the instant case, however, the court there considered the resulting reports in making its final decision. 8 Ill. App. 2d 1, 3, 7.

Furthermore, in Dayan v. Dayan (1967), 86 Ill. App. 2d 358, 360, 361, 229 N.E.2d 568, the appellate court held that although a number of cases have held that it is “improper for a judge * * ** to base a decision on reports or evidence that are not * * * in the record,” citing Williams, consideration of an incompetent report is not reversible error where “the evidence amply supports the award of custody of the three younger children to the mother.” Similarly, in Katzer v. Katzer (1978), 61 Ill. App. 3d 299, 309, 378 N.E.2d 316, the court held that admission of a confidential report prepared by Cook County Department of Supportive Services constituted harmless error in light of the other evidence which supported the custodial award entered by the trial court. In this case, as in Dayan and Katzer, there is overwhelming evidence to support the award of the children to the mother with or without the opinion of Levy, which, at all events, appears to have been heard after the decision was rendered.

Jon next contends that the trial court improperly elicited the recommendation of the attorney for the children, Robert Wilcher, as to custody; that Wilcher’s role in the trial was that of an advocate rather than that of a guardian ad litem; and that he had no power to make a recommendation with respect to the question of child custody. His obligation was to represent the interests of the children with respect to support, custody and visitation. (Ill. Rev. Stat. 1979, eh. 40, par. 506.) The only “recommendations” shown by the record to have actually been advanced, however, were asserted during his closing argument. At that time the trial court permitted counsel for each party to make a “recommendation” on the child custody issue. In addition, Wilcher’s closing argument was based solely on the evidence presented during the trial and properly focused the court’s attention on the children’s best interests.

It is argued next that the trial court erred in refusing to hear evidence of the financial circumstances of the parties prior to ruling on the issue of child custody. Jon maintains that he was wrongfully denied the opportunity to demonstrate that Jane was a spendthrift. Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (hereinafter Act) (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)) prescribes the award of custody after taking into consideration “all relevant factors,” and a list of six factors to be examined. Relative financial circumstances of the parties is not included on that list. Respondent cites no cases which hold that prior to the award of custody, the financial situations of the parents must be considered by the trial court as a matter of law. Lucado v. Lacado (1954), 1 Ill. App. 2d 548, 118 N.E.2d 40, cited by Jon, is of no support or application to the proposed rule. It was well within the discretion of the trial court not to hear the evidence related to financial circumstances at that time.

Jon next claims that the trial court abused its discretion in awarding child custody to Jane. All the children indicated that they loved their mother. Both Jennifer and Janiece expressed a preference to live with her. Jon’s mother testified that, in her opinion, Jane was a good and loving mother. Hauer, the case worker, testified that Jon had discussed custody with the children on many occasions in violation of a court order enjoining such communications. Jon informed her that he did not regard housekeeping, laundry or dishwashing responsibilities as part of his role. Hauer concluded on the basis of her interviews with the Theekes and their neighbors that it would be in the best interests of the children for custody to be awarded to Jane. There is strong evidence in the record that Jon loved his children and would have been a fit parent; however, on balance, the trial court held that it would be best for custody to be granted to Jane. The trial court’s determination was abundantly supported by the record.

II

Jon urges next that the trial court abused its discretion under section 503(c) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) by distributing insufficient marital property to himself. He maintains that he was the chief financial contributor to the marital assets of the parties, yet Jane is to receive 60% of the proceeds from the sale of the marital home. Jane responds that the division of property was fair because she made substantial contributions to the family during the 16-year marriage. She raised three children, maintained the marital home, prepared meals and later contributed financially.

The fact that Jon contributed more financially than Jane does not necessarily entitle him to a greater distribution of the marital property. (In re Marriage of Stralow (1981), 95 Ill. App. 3d 235, 419 N.E.2d 1227.) To be considered in this regard is the court order requiring Jane to pay all mortgage payments, real estate taxes, insurance, maintenance and upkeep for the period of time she occupies the home, thereby increasing the equity of both parties in this marital asset and safeguarding its potential as an appreciating asset. (In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555.) The court order awarding Jane 60% of the net proceeds from the sale of the marital home, and 50% of Jon’s profit and savings plan also was a proper exercise of judicial discretion in light of the disparate future earning capacity of the respective parties. Jane’s net monthly pay at her provisional job was approximately $1,310 in contrast with Jon’s net pay of $1,720. The Act requires an equitable distribution of marital property, not mathematical precision. (In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.) In addition, Jane’s future net earning capacity is more uncertain than Jon’s because her employment had a probationary period of six months.

Complaint is made concerning the trial court’s failure to consider Jon’s own attorney fees as a factor in considering the relative financial positions of the parties; however, since Jon failed to present evidence of the amount of attorney fees he incurred, he cannot now raise the issue on appeal for the first time (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417), and has effectively waived his right to appeal this issue by not presenting such evidence at the trial level.

Ill

The argument next presented is that the award of child support equal to 35% of Jon’s net income was an abuse of discretion. He argues that with the $602 per month child support check, Jane’s monthly disposable net income exceeds her expenses by $454, whereas Jon’s net income will be $22 short of his total expenses. This argument is based upon the false premise that no State or Federal taxes will be taken out of Jane’s gross paycheck. If taxes are included in the analyses, Jane’s monthly income including child support falls $135 short of her monthly expenses. The trial court did not abuse its discretion in ordering that Jon pay 35% of his net income for child support.

Claiming that possession of the marital home by Jane should have been considered as additional child support, Jon cites Lamp v. Lamp (1979), 73 Ill. App. 3d 713, 392 N.E.2d 349, aff'd (1980), 81 Ill. 2d 364, 410 N.E.2d 31, and Barlow v. Barlow (1978), 56 Ill. App. 3d 629, 372 N.E.2d 422, and asserts that the amount of child support should have been reduced proportionately. In neither Lamp nor Barlow, however, did the spouse awarded possession become exclusively obligated to pay mortgage installments, real estate taxes, insurance, maintenance and upkeep, as in the case sub judice. We find no error in the treatment of this issue by the trial court.

IV

Error is identified by Jon in the trial court’s award of attorney fees allegedly because of Jon’s vexatious behavior. Jon cites In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 938, 405 N.E.2d 1099, holding “the sole criterion for assessing fees is the relative financial resources of the parties” and concludes that vexation and harassment are not relevant considerations in assessing fees under section 508 of the Act. Examination of the instant record in this respect, however, finds no support for this contention. The trial court merely alluded to the fact that it did not overlook the unnecessarily drawn-out procedure which took place, without assigning any responsibility for it to either party. The trial court here considered evidence relative to the financial circumstances of the parties, their respective employment compensation, debts, expenses and household necessaries and found that the burden of costs should not fall upon Jane, which would exhaust her resources, but should be shared by Jon in requiring him to pay a part of her attorney fees. In doing so, it properly noted that inability to pay does not require financial destitution. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 600, 400 N.E.2d 56; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 582, 373 N.E.2d 576.) Jane’s earlier part-time employment and probationary employment at the time of hearing does not provide a sufficient basis upon which to find equality in earning power with that of her husband, a college graduate employed by the same company since 1967 with steady increases in compensation. In view of all the evidence, we cannot say that this award was an abuse of discretion. Robinson v. Robinson (1981), 100 Ill. App. 3d 437, 450, 429 N.E.2d 183; In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 651, 420 N.E.2d 555.

It is also contended by Jon that the award of attorney fees to Jane was excessive. Neil Robin, one of her attorneys, sought $75 per hour for office time and $150 per hour for court time in accordance with his retainer agreement. The trial court reduced the attorney fees to be awarded to $90 per court hour and $65 per office hour, in explicit recognition of the financial resources of the parties. In view of this reduction, the order was not excessive, particularly when Robin’s considerable experience on domestic relations matters is contemplated. Also to be noted is the continuing series of challenges of almost every issue raised in this case. Although the issues were not complex, it may be said that they were fervently disputed at every turn. (Cf. Christian v. Christian (1979), 69 Ill. App. 3d 450, 459-60, 387 N.E.2d 1254; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576; Schwartz v. Schwartz (1976), 38 Ill. App. 3d 959, 966, 349 N.E.2d 567.) Furthermore, the hourly rate awarded compares favorably with the customary charges made in the community for such services. See Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 419 N.E.2d 924.

Jon maintains that the trial court erred in awarding attorney fees for the defense of Jane’s appeals, asserting that it was without authority to grant attorney fees for the defense of an appeal once a notice of appeal has been filed. It appears that a portion of the fees awarded were for services related to the defense of an appeal which had been dismissed, docket No. 80-573, and a portion to the pending appeal, docket Nos. 80-398 and 80-2647, consolidated. An award of attorney fees for services already rendered in defense of an appeal is permitted by law. (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)(3); In re Sharp (1978), 65 Ill. App. 3d 945, 950, 382 N.E.2d 1279.) As to attorney fees awarded for prospective services to be rendered in defense of a pending appeal, it has been held recently in In re Marriage of McBride (1981), 102 Ill. App. 3d 84, 87-88, 429 N.E.2d 867, In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 466, 426 N.E.2d 1087, and In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 1061, 419 N.E.2d 598, that a trial court possesses jurisdiction to consider this issue after notice of appeal has been filed and while the appeal is pending as collateral and supplemental to the appeal and may be allowed where a basis therefor has been established in the record. Although we have held otherwise in In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 712-14, 415 N.E.2d 1196 (judgment vacated by the Illinois Supreme Court on March 29, 1982, for mootness), where we said that a trial court lacks authority to make such an award after appellate jurisdiction has attached, we depart from that position in light of more recent case authorities cited above and find that as to fees for prospective services rendered, the order of the trial court must be affirmed.

Affirmed.

STAMOS and PERLIN, JJ., concur.

STAMOS, P. J.,

concurring in part and dissenting in part:

I concur in the majority’s disposition of the appeal; however, I respectfully dissent from that part of the modified opinion regarding the awarding of attorney fees for prospective services to be rendered in the defense of the appeal. My reasons are reflected in the opinion I authored in In re Marriage of Wright (1980), 92 Ill. App. 3d 708,712-14, 415 N.E.2d 1196 (judgment vacated by the Illinois Supreme Court for mootness).

       During a colloquy between court and Jon’s counsel on the post-trial motion, the latter stated, in part, “• ° • I am not saying this Court improperly talked to Bobette Levy until subsequent to this Court’s final decision.”