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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL DeWIT, Defendant-Appellant.
    First District (1st Division)
    No. 81 — 3019
    Opinion filed March 30, 1984.
    Rehearing denied May 29, 1984.

      Louis B. Garippo, of Chicago (Susan G. Feibus, Thomas A. Moore, Lorna Propes, and Edward H. Mogul, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Paul DeWit, following a jury trial, was found guilty but mentally ill on the charge of murder. He was sentenced to 22 years in the Illinois Department of Corrections. On appeal, defendant raises the following issues: (1) whether the statute permitting a jury to find a defendant who has raised the insanity defense to be guilty but mentally ill (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(j)) is unconstitutional on its face and as applied to defendant; (2) whether the defendant was denied a fair trial by repeated instances of prosecutorial misconduct; and (3) whether the prosecution and the court improperly withheld discovery material from the defense in violation of Supreme Court Rule 412. 87 Ill. 2d R. 412.

Defendant was charged by indictment with the stabbing death of Everett Clark on September 9, 1980. The victim, a 68-year-old drama coach, was found stabbed to death in his studio at the Fine Arts Building, 410 South Michigan Avenue, Chicago, Illinois.

I

At trial, Ann Lang testified on behalf of the State that she was an artist and used a studio next door to Everett Clark’s studio on the 10th floor of the 410 South Michigan building. On September 9, 1980, at approximately 2:15 p.m., Clark stopped by her studio to chat for a few minutes. Later, Lang heard Clark’s voice cry out, “No, Paul, God, no, Paul.” At the time Land did not think anything was wrong since she often heard Clark’s voice during his drama lessons. Lang testified that at about 7:30 that evening, she received a telephone call from Peter Orr, the man with whom Clark shared an apartment. Orr was concerned that Clark had not returned home yet. Lang got the elevator operator to open Clark’s studio. The operator discovered Clark’s body and Lang called the police.

Mayhen Rhodes testified that he is a violin restorer employed by a violin dealer located next door to Clark’s studio. On September 9, 1980, when he was returning from lunch, Rhodes rode the elevator to the tenth floor with Clark. When the elevator doors opened, someone, whom Rhodes took to be a student of Clark’s, approached the elevator and greeted Clark. At trial, Rhodes identified the defendant as the man who greeted Clark. Rhodes testified that he recognized defendant as one of Clark’s students who would sit on a bench outside Clark’s studio waiting for the drama lesson to begin. Rhodes walked down the hall behind Clark and defendant. As Rhodes reached the door of the violin shop, defendant asked Rhodes if he was Clark’s student. Rhodes answered that he was not. A few minutes later, Rhodes was talking to a co-worker when the co-worker called his attention to someone moving across the window ledge outside the tenth floor. Rhodes saw that it was defendant. Rhodes watched defendant move eastward along the ledge until he came to a fire escape. Rhodes testified that the width of the ledge varied from seven to 18 inches.

Testimony by members of the Chicago police department indicated that defendant and several other of the victim’s students with the name “Paul” were questioned in connection with the stabbing. Officer Murphy testified that he interviewed defendant in defendant’s apartment on the afternoon following the murder. Defendant denied knowing Everett Clark. Murphy asked defendant if he would submit to a lineup. Defendant said he would cooperate but he had to attend a night school class that evening and would contact the officers when his class was over. Murphy testified that defendant appeared normal, understood their conversation and gave responsive answers to their questions. Murphy noticed nothing that would indicate that defendant was insane. The police set up surveillance in the lobby of defendant’s building to see if defendant would leave for his night school class. Defendant did not leave the apartment until 8 a.m. the following morning, at which time he was arrested. Murphy also testified that at about 1 a.m. on September 10, Edward Mogul called the police station and said that he had been defendant’s attorney in the past. Mogul said that he had heard news reports that someone named Paul had killed Everett Clark, that his client Paul DeWit had been a student of Clark’s and that DeWit had been acting violently of late.

Detective Hood of the Chicago police department testified that he interviewed defendant following defendant’s arrest. Hood testified that after he told defendant his constitutional rights, defendant confessed to the murder. Defendant said that he had been a student of Clark’s for about four months. Defendant told Hood that he went to Clark’s studio on that day to kill Clark because Clark deserved to die. Defendant said that he got to Clark’s studio at about 1 p.m. and waited for Clark to return. Clark told defendant that he could no longer help defendant in his career. Defendant pushed Clark to the floor and stabbed him with a scissors that defendant had brought from home. Defendant then fled along the window ledge to the fire escape. Defendant also told Hood that he was not insane.

Defendant’s father, Cornelius DeWit, testified that his son was born in 1959. While in high school, his son was involved with drugs and had “quite a few brushes with the law.” Defendant and his family went to several counselling sessions but the sessions were not helpful because defendant would not communicate with his family. After defendant graduated from high school, his father got him a job in an automobile plant as a production worker. Defendant worked there for six months, saved his money and then quit. Defendant moved to Chicago. He told his father that he was modeling and working as a waiter. Defendant continued to visit home weekly.

Mr. DeWit testified that throughout 1979 he thought that defendant had “straightened out,” but in the early part of 1980 he noticed a drastic change. In his father’s opinion, defendant’s appearance changed from well dressed to unkempt and sloppy. Defendant had a very negative view toward life. Defendant’s father described an incident in July 1980, when defendant attempted suicide by carbon monoxide poisoning in the garage of the family home. When he was revived, defendant told his father that nobody loved him, that he feared for his life and that the mafia had a contract out on his life. Defendant left a note which said that his brothers were beating up on him and his mother tried to kill him. Mr. DeWit arranged for defendant to see the family doctor who suggested that defendant see a psychiatrist. Mr. DeWit did not arrange for his son to see a psychiatrist. After that incident, defendant did not visit home again.

On August 10, 1980, the DeWits went to see their son at his apartment. He was not home so they went to the restaurant where-he said he worked. No one at the restaurant had ever heard of defendant. They returned to his apartment building and found defendant. Mr. DeWit confronted defendant with his lie and asked defendant if he worked as a prostitute. Defendant admitted that he did. His parents asked defendant to come home but defendant said he could not because he was going to California. A few days later, Mr. DeWit received a call from defendant. Defendant said that he was in California and that he could not find a job and all his friends were gone. Mr. DeWit characterized defendant as “completely hysterical.” He was crying and said he had no money. Mr. DeWit sent him money.

Mr. DeWit next heard from his son on September 8, 1980. Defendant was calling from the police station. He said he was locked up for getting himself in a fight. When Mr. DeWit bailed his son out, defendant said that he had gotten in a fight because his manager owed him $750,000 under circumstances too difficult to explain.

Defendant’s roommate, Allen Brown, age 42, testified in response to defense counsel’s questions that he had run a call-boy ring and that defendant was one of the prostitutes who worked for Brown. Brown had met defendant in the health club where defendant worked out. Defendant lived with Brown from autumn 1978 to August 1980. Brown testified that when he first met defendant, defendant was a friendly, pleasant person. Around May 1980, however, Brown began to notice a change in defendant’s personality. On several occasions, Brown found defendant crying. Defendant would tell Brown that various people were trying to kill him: his parents, the people at the gym, the mafia and Brown himself. In May 1980, Brown and defendant took a trip to New York. When they returned, defendant told Brown that producers were following him to get him to sign a contract for a movie but he did not want to sign.

Brown noticed that defendant was restless and unable to concentrate. Previously, defendant had shown concern for his appearance, but he began to “let himself go.” Brown testified that in August 1980 he was unable to cope with defendant any longer so he told defendant to go to California. Defendant left for California in mid-August and three days later called Brown. He told Brown that he was at the top of a building and wanted to jump but did not have the nerve. He also said that he wanted to come back. Brown refused to let him. A few days later, defendant came to the apartment and told Brown that he was going to live there. When Brown threatened to call the police, defendant said he would kill Brown if he did. Defendant moved back into the apartment.

One night, Brown returned to the apartment and discovered that both he and defendant were locked out. Brown suggested that they sleep on a patio they had constructed on the fire escape outside their apartment. Defendant jumped off the fire escape and holding on to the railing, started swinging and broke through the window to their apartment. Brown testified that although he told the police at the time that he thought defendant was intoxicated, he now believes that defendant was not intoxicated but was crazy. Shortly after that incident, Brown moved out.

Robert LaMonto testified that he met defendant in 1978, at which time it was apparent to him that defendant was a troubled person and that he “basically lacked direction.” LaMonto tried to give defendant a little guidance. He took defendant to lunch and shopping several times. LaMonto found, however, that defendant wanted to “occupy a large amount of [his] time.” LaMonto told defendant that they could not spend any more time together. Defendant told LaMonto that he was going to California for an acting job and that ended their friendship.

LaMonto testified that in May 1980 he again met defendant at the gym where LaMonto worked out. LaMonto told defendant that they could not socialize outside of the gym. LaMonto testified that as the summer wore on defendant became belligerent toward him and frequently called his apartment. On September 6, 1980, defendant went to LaMonto’s apartment. When LaMonto’s roommate, Brian Riley, told defendant that LaMonto was not home, defendant forced his way into the apartment and attacked Riley. At approximately 11 a.m. on September 8, 1981, defendant again came to LaMonto’s apartment. LaMonto told him to leave, but defendant started coming through the door with a sledge hammer. LaMonto “rushed” him and forced defendant into the hallway of the apartment building. Defendant accused LaMonto, without basis, of cheating defendant out of $750,000. Defendant was very angry and appeared to believe his story. The police arrived and arrested defendant. Defendant told them that LaMonto had stolen money from him, was a mafia killer and tried to kill defendant. LaMonto testified that defendant told him that “nothing matters now. Next time, I’ll be back with a gun.”

Brian Riley, LaMonto’s roommate, testified that when defendant came to the apartment on September 6, Riley told him that LaMonto was not home. Defendant then knocked Riley down and threw apartment furniture at him. Riley testified that defendant appeared highly excited and in a rage. When a neighbor came to the door, defendant fled. Riley testified that the apartment was “in a shambles.”

Chicago police officer Michael O’Brien testified that he responded to a call concerning the fight between defendant and LaMonto on the morning of September 8, 1980. When O’Brien and his partner arrived on the scene they broke up the fight and restrained defendant. O’Brien testified that defendant appeared to be in a rage. Defendant eventually calmed down at which time his appearance and actions became normal. Defendant told the officer that he was LaMonto’s former roommate, that LaMonto had cost him hundreds of thousands of dollars and that he had come to reclaim his personal items.

Officer Karen Dolían testified that she spoke with defendant following his arrest for attacking LaMonto. Defendant asked Dolían general questions about procedure. He then told Dolían that “he had come to the decision that maybe he should kill someone.” Dolían told defendant that murder is always wrong and defendant agreed. Dolían also stated that she did not believe that defendant was insane. She also testified that she spoke to LaMonto and LaMonto told her that he and defendant had been lovers once and defendant was now jealous of LaMonto’s new lover.

Stanley Washington testified that he met defendant at a health club in November 1979. At that time defendant was friendly and nonviolent. By the summer of 1980, however, Washington noticed that defendant was tense, withdrawn, moody, unsociable and had a blank stare.

Dr. James Lewis Cavanaugh, Jr., testified for the defense. He is a psychiatrist specializing in forensic psychiatry and is medical director of the Issac Ray Center. The Issac Ray Center is an out-patient clinic that deals primarily with the evaluation of criminal offenders to determine if they meet the standards of legal insanity and also provides treatment for those offenders found to suffer from a significant mental illness. Dr. Cavanaugh and his staff interviewed defendant’s parents, Allen Brown, Brian Riley and Robert LaMonto. Based on these interviews, Dr. Cavanaugh concluded that beginning in September 1980 defendant was deeply disturbed and was operating on the basis of his delusional preoccupations. As a result, defendant had an increasing inability to use judgment or to appreciate what was real. Dr. Cavanaugh also interviewed defendant on three occasions and found significant defendant’s continued preoccupation with his paranoid ideas and his lack of awareness of how false his ideas were.

Defendant was given a neurological examination and the results were normal, showing that defendant had no organic problems in his brain. Defendant was also given the Minnesota Multifacet Personality Inventory test which indicated that defendant was exaggerating some of his responses in an attempt to appear sicker than he actually was. Next, defendant underwent a psychodiagnostic test called the Schedule of Affective Disorders and Schizophrenia, which indicated that defendant demonstrated a schizophrenic illness of the paranoid type. The test showed that defendant had delusions of possessing the powers of telekinesis, thought broadcast and thought assertion. Defendant was found to suffer from visual hallucinations. Dr. Cavanaugh testified that, in his expert opinion, defendant was unable to appreciate the criminality of his conduct and unable to conform his conduct to the requirements of the law.

Dr. Robert Reifman, a psychiatrist, testified that he reviewed a report on defendant from the Issac Ray Center and concluded that defendant was a paranoid schizophrenic suffering from delusions of persecutions and of grandiosity. In his expert opinion, defendant was suffering from a mental disease which caused him to lack the capacity to conform his conduct to the requirements of the law.

On rebuttal, Dr. Werner Tuteur, a psychiatrist, testified on behalf of the State. He testified that he examined the report from the Issac Ray Center as well as defendant’s police report. He interviewed defendant on March 28 and April 4, 1981, and found defendant’s mental state to be excellent. Defendant was cooperative and described fully the day he committed the murder, including the fact that when he arrived at the Fine Arts Building he went to the roof to investigate a possible escape route along the window ledge which he later used. Dr. Tuteur believed that defendant was “in touch with reality” and was not psychotic. When asked about many of the delusions and false beliefs witnesses had testified that defendant had, defendant denied them. Dr. Tuteur stated that if defendant was suffering from paranoid schizophrenia, his symptoms would have increased while in jail since he had not received any medical treatment. Dr. Tuteur testified that, in his expert opinion, defendant was not suffering from a mental disease on September 9, 1980, and that defendant could appreciate the criminality of his conduct and knew he was “doing something wrong.”

Additionally, several lay witnesses testified for the State. Two assistant State’s Attorneys who had taken defendant’s statement after he was arrested both testified that defendant appeared sane at the time they interviewed him. Pero Hansen, a medical social worker at the Cook County Department of Corrections, testified that he interviewed defendant on February 6, 1981, and that, in his opinion, defendant was not psychotic at that time. Hansen also testified that a person could be schizophrenic and yet not be psychotic.

The trial court instructed the jury on the elements of the offense of murder which the State must prove beyond a reasonable doubt, including the proposition that defendant was sane at the time of the offense. (Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 7.01, 7.02 (2d ed. 1981).) The judge also instructed the jury on the findings necessary to determine that defendant was not guilty by reason of in-

sanity. (IPI Criminal No. 24 — 25.01.) Then, over defendant’s objection, the jury was instructed according to the guilty but mentally ill provisions of section 115 — 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(j)). The court instructed the jury as follows:

“A person is guilty but mentally ill if at the time of the commission of an offense he was not insane but was suffering from a mental illness.
Mental illness means a substantial disorder of thought, mood, or behavior which affected a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” (See Ill. Rev. Stat. 1981, ch. 38, pars. 6 — 2(d), 115 — 4(j).)

The jury found defendant guilty but mentally ill, and defendant was sentenced to 22 years’ imprisonment.

II

Defendant first contends that the guilty but mentally ill verdict authorized by section 115 — 4(j) (Ill. Rev. Stat. 1981, ch. 38, par. 115— 4(j)) is unconstitutional as an ex post facto law when applied to him. (U.S. Const., art. I, sec. 9; Ill. Const. 1970, art. I, sec. 16.) Section 115 — 4(j) became effective on September 17, 1981, just over a year from the date defendant allegedly committed the murder and several days before defendant’s trial began. Defendant argues that the section increases the penalty for his crime and disadvantages him because it diluted his statutory right to an insanity defense.

Defendant relies upon the test for determining an ex post facto law propounded in Weaver v. Graham (1981), 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960. In order to violate the prohibition against an ex post facto law, the law in question must apply to events occurring before its enactment and it must disadvantage the offender affected by it. (Weaver.) The Supreme Court also stated that in determining the constitutionality of the challenged provision one must look to the provision’s terms and not to any special circumstances which would mitigate its effects upon a particular individual.

Defendant argues that the two Illinois cases which have allowed the application of section 115 — 4(j) to offenders whose crimes were committed before the section’s effective date relied upon an analysis of the ex post facto issue rejected in Weaver. (People v. Dalby (1983), 115 Ill. App. 3d 35, 450 N.E.2d 31; People v. Marshall (1983), 114 Ill. App. 3d 217, 448 N.E.2d 969.) The Weaver court determined that a criminal or penal law need not impair a “vested right” to violate the ex post facto prohibition.

In People v. Marshall, the defendant argued that the application of section 115 — 4® to him violated the ex post facto prohibition. The court held that under the definition of ex post facto laws found in Calder v. Bull (1798), 3 U.S. (3 Dall.) 386, 390-91, 1 L. Ed. 648, 650, the application of section 115 — 4(j) to defendant was permissible since the section did not aggravate any offenses committed before its effective date. The court determined that the section merely altered the conditions of defendant’s confinement but did not significantly alter the fundamental nature of the punishment. Such laws, the court concluded, are not ex post facto laws based upon Malloy v. South Carolina (1915), 237 U.S. 180, 59 L. Ed. 905, 35 S. Ct. 507. Although the court did employ the “vested rights” analysis, this analysis was in response to the argument that section 115 — 4(j) was improperly applied as a retroactive law (see United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4), but not in response to the charge that section 115 — 4(j) was unconstitutional as an ex post facto law. (People v. Marshall (1983), 114 Ill. App. 3d 217, 235-36, 448 N.E.2d 969, 981-82.) In People v. Dalby, the court concluded that section 115 — 2 (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 2), which permits the plea of guilty but mentally ill, was not an ex post facto law when applied to a defendant who committed his offense prior to the effective date of the act since the section does not change an offender’s responsibility for his criminal conduct if he is mentally ill yet not legally insane. People v. Dalby (1983), 115 Ill. App. 3d 35, 38, 450 N.E.2d 31, 33.

The State asserts that the statutory definition of insanity which would relieve an offender of criminal responsibility remained the same before and after the enactment of the legislation in question. The legislation’s only effect, the State contends, is to divide guilty defendants into two classes one of which is recommended for psychiatric care.

After a review of the precedent and the arguments of counsel, we are not persuaded the defendant was “disadvantaged” within the meaning of Weaver by the application of section 115 — 4(j) to his offense. The burden on the State to prove beyond a reasonable doubt that a defendant who has raised the defense of insanity is not insane has remained the same both before and after the enactment of section 115 — 4(j). Furthermore, the longstanding definition of insanity under Illinois law recognizes that a person who is suffering from a mental illness which does not substantially impair his capacity to conform his conduct to the requirements of the law, may be held criminally responsible for his actions. People v. Gold (1967), 38 Ill. 2d 510, 232 N.E.2d 702, cert. denied (1968), 392 U.S. 940, 20 L. Ed. 2d 1400, 88 S. Ct. 2317; People v. Peters (1975), 33 Ill. App. 3d 284, 294, 337 N.E.2d 716, 723.

The Marshall court stated that it found no precedent to support the argument that a statute which merely makes the assertion of certain defenses less desirable than they would have been at the time of the offense violated the ex post facto doctrine. Defendant was not deprived of the ability to assert the insanity defense and the defense itself remains unchanged. Moreover, the punishment for his offense was neither increased nor changed in such a way as to disadvantage him. We are not persuaded that the application of section 115 — 4(j) to defendant violated the ex post facto doctrine.

Ill

Defendant next contends that section 115 — 4(j) both on its face and as applied to defendant violated his constitutional right to due process. With respect to his challenge that the section is unconstitutional on its face, defendant contends that the guilty but mentally ill verdict promotes jury confusion and encourages a finding of guilty but mentally ill as a compromise. Defendant argues that the distinction between legal insanity and mental illness is likely to be incomprehensible to the average juror since the definitions overlap and are poorly conceptualized. Consequently, the statute fails to provide adequate standards to enable the jury to reach a just verdict.

The State contends that juries have been making implicit findings of whether a defendant is legally insane or suffering from a mental illness of lesser severity since the insanity defense came into existence. Section 115 — 4(j) has the effect of making such findings explicit. The State further argues that the guilty but mentally ill verdict tends to reduce jury confusion rather than promote it since the instructions given to the jury under section 115 — 40 more accurately reflect and explain Illinois law. The State points out that the common usage of the term “insanity” differs from its precise legal meaning in section 6 — 2(a) (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(a)). The comparison of the requirements between the verdicts of not guilty by reason of insanity and guilty but mentally ill clarifies the meaning of legal insanity and thereby aids the jury in reaching a decision.

It is well established that to survive a challenge of denial of due process a statute may not be so vague that men of common intelligence must necessarily guess at its meaning. (People v. Garrison (1980), 82 Ill. 2d 444, 412 N.E.2d 483, appeal dismissed (1981), 450 U.S. 961, 67 L. Ed. 2d 610, 101 S. Ct. 1475.) A statute must also provide sufficiently definite standards for law enforcement officials and triers of fact so that its application does not depend merely on their private conceptions. (Garrison.) Section 115 — 4(j) expresses its requirements in simple and clear language (see People v. Davis (1966), 35 Ill. 2d 55, 219 N.E.2d 468). Furthermore, the definition of mental illness provides meaningful standards for a jury to make the required findings. People v. Pembrock (1976), 62 Ill. 2d 317, 342 N.E.2d 28.

Defendant has not cited any authority for his position that section 115 — 4(j) is unconstitutional because it provides a “compromise” or “middle ground” for juries to accept. We are not persuaded that the possibility of a compromise verdict is a constitutional infirmity where the jury still must make a determination in the first instance between whether a defendant is guilty or legally insane based upon the evidence at trial. Defendant has also raised a number of policy issues concerning the wisdom of section 115 — 4(j). It is within the authority of the State legislature, however, to make such determinations.

Defendant next contends that as applied to him section 115 — 4(j) violated his constitutional right to due process. Defendant contends that he was not informed that the guilty but mentally ill instruction would be submitted to the jury until the instructions conference. This denied him the opportunity to ask questions on this verdict during voir dire and to solicit opinions on the degree of defendant’s mental illness from his expert witnesses. Defendant points out that on the first day of trial his counsel requested the trial judge to explain the law on insanity to the prospective jurors because they may have been confused by the publicity surrounding the enactment of section 115— 4(j) just seven days before trial. At that time defense counsel also stated that she believed section 115 — 4(j) would not apply to the case and the court made no comments to the contrary. During the instructions conference, defense counsel stated:

“And the fact is that this is the first time the defense has been advised that this [instruction] was even a possibility except informally off the record. And the State’s Attorney and I don’t take what we say off the record seriously. So, really, I anticipated that the State might do this but this defendant has not been apprised that this law would apply to him during the course of his trial.”

It is clear from defense counsel’s statements on the record that she knew sometime before trial had ended that the State might request a section 115 — 4(j) instruction. The record indicates that the court in fact requested the State to submit an instruction under section 115 — 4(j). In People v. Pote (1975), 26 Ill. App. 3d 742, 326 N.E.2d 236, the court found that a defendant was not denied due process because no mention was made of the fact that the State would request a manslaughter instruction in defendant’s trial for murder until the instruction conference. The court reasoned that defense counsel must be deemed to be aware that lesser charges are included in the offense of murder, that counsel was not precluded from presenting a defense of the manslaughter charges, and, that counsel did not request additional time for presentation of his defense once he learned of the instruction. Likewise, in the present case, the defense knew of the enactment of the new law, learned sometime prior to the instruction conference that the State might request the guilty but mentally ill verdict and yet did not request a continuance or that evidence be re-opened by reason of surprise.

Defendant also argues that he was denied due process because the jury was not clearly instructed on the law with respect to guilty but mentally ill verdict. The court instructed the jury quoting from the statute: “A person is guilty but mentally ill if at the time of the commission of an offense he was not insane but was suffering from a mental illness.” The court then instructed the jury on the definition of mental illness quoting section 6 — 2(d) verbatim. We find that this issue has been waived by the defendant’s failure to object to the language of the instructions submitted by the State or to offer an alternative instruction. People v. Springs (1972), 51 Ill. 2d 418, 283 N.E.2d 225, appeal dismissed (1972), 409 U.S. 908, 34 L. Ed. 2d 169, 93 S. Ct. 252.

The instructions given were sufficiently clear to inform the jurors of the findings necessary under the laws applicable to the case. Furthermore, it is established that a defendant is not entitled to an instruction on the consequences of the various verdicts that may be returned in a case involving the insanity defense. People v. Pitts (1982), 104 Ill. App. 3d 451, 432 N.E.2d 1062.

Finally, defendant argues that the confusion of the jury in this case is demonstrated by a written question the jury sent to the trial judge during deliberations. The State contends that, to the contrary, the question demonstrates that the jury understood their verdict choices, would have found defendant guilty if instructions on the mentally ill verdict had not been given, and properly applied the law. We agree. The question read:

“The verdict ‘Guilty of Murder’ is explained by a statement that begins with the sentence: ‘To sustain the charge of murder ***’ and also includes three propositions that must be proved. The jury unanimously agrees that the state has proved all these propositions beyond a reasonable doubt.
The verdict ‘We the jury, find beyond a reasonable doubt that the defendant Paul DeWit committed the murder of Everett Clarke; and that the defendant, Paul DeWit was not legally insane at the time of the murder, but that he was mentally ill’ is explained only by the single sentence ‘A person is guilty but mentally ill if at the time of the commission of an offense he was not insane but was suffering from a mental illness.’
The jury will render a unanimous decision in favor of the second verdict if we can confirm our understanding that this verdict does not contradict the three propositions incorporated in (1) — but essentially adds the qualifications of mental illness.”

Under the circumstances of this case, we are not convinced that the use of the guilty but mentally ill verdict confused the jury or otherwise offended due process for the reasons defendant suggests.

Defendant next contends that section 115 — 4(j) is unconstitutional because it does not serve any legitimate purpose to justify its enactment. Defendant argues that since the Illinois guilty but mentally ill provisions do not mandate treatment for the mentally ill offender, these provisions are no different than provisions already enacted. Under both the pre-existing law and the mentally ill offender provisions, the Department of Corrections has the authority to order psychiatric treatment for convicts and to transfer such convicts to the Department of Mental Health and Developmental Disabilities. (See Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—5.) Defendant asserts that the guilty but mentally ill provisions add nothing to the pre-existing law and, therefore, the only reason justifying their enactment can be to discourage the verdict of not guilty by reason of insanity and to burden a defendant’s choice to assert the insanity defense.

Although defendant does not specify the constitutional basis for this argument, we believe this issue is controlled by a recent supreme court decision which upheld the constitutionality of the plea of guilty but mentally ill under an equal protection challenge. (People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11.) In Kaeding, a defendant challenged section 5 — 2—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6), which provides for the treatment of defendants found guilty but mentally ill under sections 115— 2, 115 — 3, or 115 — 4. The court found that section 5 — 2—6 neither threatens a fundamental right nor is directed toward a suspect class. The court stated that the legislature, “did not intend that either the court or the Department would be required to utilize limited resources, facilities and skilled personnel in treating those defendants *** for whom treatment would not be helpful.” (People v. Kaeding (1983), 98 Ill. 2d 237, 244-45, 456 N.E.2d 11, 16.) The court concluded that the statutory allocation of power over the rehabilitative programs was a rational means of furthering the legislative purposes underlying the Uniform Code of Corrections.

IV

Defendant next contends that he was denied a fair trial by the cumulative instances of prosecutorial misconduct. Defendant argues that the prosecutor repeatedly implied during witness examination that the defense had manufactured the insanity defense. This alleged improper cross-examination consisted of questions of each defense witness as to when the witness was first contacted by defense attorney Edward Mogul and whether Mogul had arranged an interview for that person at the Issac Ray Center. Defendant argues that these comments were especially prejudicial because defendant’s medical experts testified that they reviewed reports of these interviews prior to reaching a decision on defendant’s sanity. The State contends that it could fairly bring out at trial the fact that the defense psychiatrists had not made an independent investigation of defendant’s background, but rather had relied on information made available by defendant’s attorney. We have reviewed these questions and determine that they were not improper. The State could fairly appraise the jury of the sources of information on defendant’s life that formed a basis of the psychiatrists’ opinions.

Defendant also contends that during closing argument the State allegedly accused defense attorney Mogul of manufacturing the insanity defense. Defendant complains about several comments, particularly the following colloquy:

“I submit to you that beginning with the appearance of Mr. Mogul at the police station on September 11th following through with the letter to Mr. Mogul from Dr. Jensen, following through all the way to today, that the defendant in keeping with his profession had been acting in a play directed by Mr. Mogul.
MISS PROPES: Objection, your Honor.
THE COURT: Sustained.
MR. KAPLAN: With the supporting casts that you have heard, LoMonto, Brown, Riley and Washington. It’s ironic that Everett Clark’s body was found on the stage.”

The State argues that it did not accuse the defense of trickery or of manufacturing the insanity defense. The State contends that this case is similar to People v. Stewart (1973), 12 Ill. App. 3d 226, 297 N.E.2d 391, where the court held that a prosecution comment that three defense witnesses “ “*** were well coached, those witnesses testified to the same thing’ ” (12 Ill. App. 3d 226, 231, 297 N.E.2d 391, 394), was permissible because the prosecutor said nothing about trickery or impropriety on the part of the defense counsel.

We note that the trial court sustained defendant’s objections to the comments at issue and on several occasions instructed the jury to disregard them. Where the court sustains an objection and instructs the jury to disregard a remark, usually the error is corrected and the prejudicial effect cured. (People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200, 1206.) Improper remarks, however, will constitute reversible error where they result in substantial prejudice to the defendant. (Baptist.) Although the comments quoted above are highly improper and reprehensible, we are not persuaded that under the facts and circumstances of this case they substantially prejudiced defendant. There was evidence from which the jury could conclude that defendant was sane beyond a reasonable doubt. He fled from the scene of the crime, he lied to the police to avoid participating in a lineup, and several lay and expert witnesses testified to defendant’s sanity. The prosecutor’s statements, though improper, do not warrant reversal in this case. People v. Ford (1983), 118 Ill. App. 3d 59, 454 N.E.2d 1095.

Defendant also objects to a line of questioning by the prosecutor which defendant contends improperly made an issue of the fact that defendant’s trial attorney, Lorna Propes, was a former assistant State’s Attorney and had prosecuted cases where the defense was insanity. Propes cross-examined a State expert witness using the transcript of the expert’s testimony in another trial. The defense then made a motion in limine to prohibit the State from revealing that Propes had prosecuted the trial and that the defense was insanity. The court denied the motion and on redirect the State brought out these facts. Although the reference to Propes’ former employment were irrelevant, they were made in response to matters brought out by the defense and are, therefore, excusable. See People v. Moore (1969), 42 Ill. 2d 73, 79, 246 N.E.2d 299, 303, modified (1972), 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562.

Defendant contends that the prosecutor on several occasions continued a line of questioning after the court had sustained a defense

objection to it. The State contends that in the case which the defendant relies upon (People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924), the prosecutor had repeated questions after a sustained objection on 20 occasions unlike the three instances complained of in this case. We have reviewed the record and determine that the instances were not prejudicial to defendant. Defendant strongly argues that he was prejudiced when the prosecutor persisted in asking Officer O’Brien if he believed that the argument between LaMonto and defendant was basically a domestic argument between roommates after an objection to that question had been sustained. We note that the defense had already brought out the fact that the defendant told Officer O’Brien that he was LaMonto’s former roommate. In light of that testimony, the improper questioning did not decrease the credibility of LaMonto.

Next, defendant contends that the prosecutor attempted to arouse the prejudice of the jury by twice stating that a finding of not guilty by reason of insanity would be equivalent to letting defendant go free. Defense objections to both remarks were sustained and the jury was instructed to disregard the remarks. Under similar circumstances the supreme court, in People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203, held there was no reversible error.

We have reviewed the prosecutorial misconduct of which defendant complains and are not persuaded that its cumulative effect denied defendant a fair trial. The trial court sustained objections to the improper remarks and in many instances instructed the jury to disregard them. There was ample evidence on which the jury could find that defendant was guilty but mentally ill beyond a reasonable doubt. The instances of prosecutorial misconduct did not constitute a material factor in defendant’s conviction nor result in substantial prejudice to him. People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.

V

The final issue raised on appeal concerns defendant’s right to view certain records kept by the Chicago police department known as “street files.” Defendant contends that after he was sentenced he learned that the police department had “street files” in many criminal cases but did not reveal the existence of these files or the information contained therein to the prosecution or the defense. Defendant filed both a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72), and a mandatory injunction seeking any information contained in the “street files” on defendant. Pursuant to a subpoena, the records were submitted to the trial court and reviewed by the court in camera. After reviewing the records, the trial court concluded that they lacked probative value to the defense, denied the section 72 petition, and refused to tender the records to the defense. Defendant contends that the refusal to tender these files to defendant violated Supreme Court Rule 412 since defense counsel and not the court is the proper party to determine whether the information contained therein is material to the defense.

The State argues that the procedure of in camera inspection is authorized by Supreme Court Rule 415(f) (87 Ill. 2d R. 415(f)). Further, the State contends that the issue of the “street files” is not properly before this court. We find, however, that we need not determine the jurisdictional issue. Subsequent to oral argument on this case, the parties informed this court that there were, in fact, no “street files” concerning defendant. The records reviewed in camera by the trial court consisted merely of police reports, copies of which were made available to the defense prior to trial. The trial court did not abuse its discretion in reviewing the subpoenaed records in camera. 87 Ill. 2d R. 415(f).

For the foregoing reasons, defendant’s conviction is affirmed.

Judgment affirmed.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STAMOS

license: Public Domain

text:
    JACK A. SAMPSON et al., Plaintiffs-Appellees, v. JOHN C. AMBROSE, Defendant-Appellant.
    First District (2nd Division)
    No. 82 — 2705
    Opinion filed April 17, 1984.
    Rehearing denied May 8, 1984.

      Ambrose & Cushing, P.C., of Chicago (John C. Ambrose, of counsel), for appellant, pro se.

    Sundheim, Stall & Girardi, of Chicago (Douglas M. Martin, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs Jack A. Sampson and Ruth Sampson sued defendant John C. Ambrose for the balance due plus interest on an installment note executed by defendant Ambrose. Defendant raised the defense of usury. Following a hearing, the trial court found for plaintiffs in the amount of $6,507.70. Defendant, who is an attorney, appeals pro se.

After the notice of appeal was filed, plaintiffs moved to dismiss on the grounds that the appeal was untimely filed. The motion was accompanied by a copy of the half-sheet which indicated that judgment had been entered for plaintiffs on July 22, 1982. The notice of appeal was filed on August 25, 1982, 34 days after final judgment. Thus the appeal was untimely filed.

In response to the motion to dismiss, defendant argued that he was unable to ascertain the judgment date from the half-sheet because the court file had been removed or misplaced for the 30 days following July 22. On the basis of defendant’s representations, we denied the motion to dismiss and assumed jurisdiction of the appeal. We now find that the motion to dismiss was improvidently denied.

Assuming that the court file was “missing” as defendant asserts, this did not relieve defendant of his obligation to check the court’s minute book to ascertain the date of judgment. In the instant case, the minute book indicated that final judgment was entered on July 21, 1982. Had defendant ascertained this fact and scheduled the filing of his notice of appeal accordingly, his appeal would have been timely filed. Defendant points out that the judgment date was July 22 rather than July 21 as indicated in the minute book. We do not see how this minor discrepancy relieved defendant of his obligation to ascertain the record judgment date or excused his late filing of this appeal.

We note that in the record on appeal an alteration was made on the half-sheet as follows: a pen has been used to change the stamped judgment date from July 22, a Thursday, to July 25, which was a Sunday! This alteration gave the appearance that this appeal was timely filed. Defendant, as an “officer of the court,” disavows any responsibility for the altered half-sheet entry.

We also note that the notice of appeal is not time stamped. Rather, it bears a handwritten “certification” that the notice of appeal was filed on August 25, 1982; it is signed by someone purporting to be a supervisor in the circuit court clerk’s office. This handwritten certification is an extra-official recital which cannot be considered as part of the record. (Jones v. City of Carterville (1950), 340 Ill. App. 330, 335, 91 N.E.2d 604.) The half-sheet, however, is a part of the official court record in cases such as this which are tried in the Municipal Department of the circuit court of Cook County. (Cir. Ct. General Order No. 6.5; Berzana v. Mezyk (1980), 86 Ill. App. 3d 824, 826, 408 N.E.2d 412.) In the instant case, the half-sheet indicates that the notice of appeal was filed on August 25,1982.

Despite the foregoing irregularities in the record on appeal, we find simply that this appeal was untimely filed. Accordingly, this appeal is dismissed.

Dismissed.

HARTMAN, P.J., and DOWNING, J., concur.


author: JUSTICE ROMITI

text:
    LAMONT WILBURN, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (4th Division)
    No. 81 — 2634
    Opinion filed April 19, 1984.

      Stanley Garber, of Chicago (Robert R. Retke and Frank W. Nagorka, of counsel), for appellants.
    Steinberg & Burtker, Ltd., of Chicago (Richard Grossman, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff brought a personal injury action against the city of Chicago and two of its employees, William Sink and Leon Koerber. Prior to submission of the case to the jury the circuit court directed a verdict in favor of Koerber. The jury returned a verdict against the city but failed to sign a verdict form as to Sink. The circuit court entered judgment against the city on the verdict. The city, contending that the jury’s failure to sign a verdict against the employee amounted to a finding of not guilty as to the employee, moved for a judgment n.o.v. since its liability was dependent on that of its employee. The trial court denied the motion, and the city then appealed from the judgment entered against it.

We dismiss the appeal for want of jurisdiction.

Plaintiff, Lamont Wilburn, brought a suit against two police officers, William Sink and Leon Koerber, and against the city of Chicago, as their employer, claiming both compensatory and punitive damages for injuries sustained when he was shot by the police. The first count was at common law for wilful and wanton misconduct; the second was for violation of the Civil Rights Act. (42 U.S.C. sec. 1983 (1976).) At trial the court directed a verdict for Koerber. It also dismissed the civil rights claim as to the city. Count I as to Sink and the city and count II as to Sink went to the jury. Three verdict forms were submitted by the plaintiff. Only one of these is in the record, but it appears that one of the verdict forms found for the plaintiff and against both defendants and awarded compensatory and punitive damages, one found for the plaintiff and against the city and awarded compensatory and punitive damages, and the third found for the plaintiff and against Sink for compensatory and punitive damages. Defendant likewise submitted three verdict forms. These also are not in the record, but it appears that one was against plaintiff and for both defendants, one was against plaintiff and for the city, and the third was against plaintiff and for Sink. The jury was instructed that the city could only act through its agents, and closing arguments by both sides only concerned Sink’s conduct and not that of the city. Nevertheless, the jury signed only one verdict form finding the city liable for $25,000 compensatory damages and no punitive damages. It did not return a verdict as to Sink. The trial court then entered judgment against the city. Thereupon the city filed its motion for judgment n.o.v., which the trial court denied.

In his petition for rehearing plaintiff contends for the first time that we do not have jurisdiction to hear this appeal because the judgment entered by the trial court did not dispose of the entire proceeding and did not contain the express written finding, required by Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), that there was no just reason for delaying enforcement or appeal. Although neither party has previously brought this matter to our attention we are of course bound to dismiss an appeal in which we lack jurisdiction however the matter may have come to our attention. New Alpha Progressive Baptist Church v. Elks 1596 Building Corp. (1978), 59 Ill. App. 3d 426, 375 N.E.2d 1037.

Supreme Court Rule 304(a) provides:

“(a) Judgments As to Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (87 Ill. 2d R. 304(a).)

In this cause plaintiff’s action, as presented to the jury, was against two defendants, the city of Chicago and William Sink. However the trial court entered judgment as follows:

“This day again come the parties to this suit by their attorneys respectively and the jury heretofore impaneled herein for the trial of this cause, also come.
Whereupon the said jury now here after hearing all the evidence adduced, and the arguments of counsel and instructions
of the court, retire to the jury room to consider of their verdict. Which verdict is as follows, to wit:
We, the jury, find for the plaintiff, Lament Wilburn, and against the defendant, City of Chicago, and assess the plaintiff’s damages in the sum of $25,000.00 (TWENTY-FIVE THOUSAND DOLLARS) Compensatory damages., -0- Punitive Damages.’
Therefore, it is considered by the court that the plaintiff, Lament Wilburn, do have and recover of and from the defendant, City of Chicago, its said damages of $25,000 in form as aforesaid by the jury, assessed together with its costs and charges in this behalf expended and have execution therefor.”

On appeal the city has contended that the jury’s failure to return a verdict against William Sink constituted a finding of no liability against that defendant. Plaintiff initially contended that we should hold that the jury intended to make a finding against Sink as well as against the city. But as can be seen from the judgment order quoted above the court never entered any judgment as to Sink. It is well established in Illinois that a finding of a jury does not constitute a verdict until received and accepted by the trial court and entered of record. (Schmidt v. Chicago City Ry. Co. (1909), 239 Ill. 494, 88 N.E. 275.) An appeal from a verdict of a jury will not lie; there must be a judgment entered on the verdict before there can be a review of that verdict. (Oppenheimer v. U.S. Carbon & Ribbon Manufacturing Co. (1963), 43 Ill. App. 2d 451, 193 N.E.2d 868; 6 C. Nichols, Illinois Civil Practice sec. 5959 (rev. ed. 1975).) Thus, because the trial court never entered judgment on the jury’s finding with respect to William Sink, without regard to what finding their failure to enter a verdict would be construed to be, the judgment the court did enter pertained to fewer than all the parties. And because no express written finding was made that there was no just reason for delaying enforcement or appeal the judgment that the court did enter was not appealable.

The opinion heretofore filed in this cause is withdrawn, and the appeal is dismissed for want of jurisdiction.

Prior opinion withdrawn; appeal dismissed for want of jurisdiction.

JOHNSON and JIGANTI, JJ., concur.


author: JUSTICE WILSON

text:
      In re MARRIAGE OF TOBY S. SHERWIN, Petitioner and Counterrespondent-Appellee, and THEODORE R. SHERWIN, Respondent and Counter-petitioner-Appellant.
    First District (5th Division)
    No. 83 — 1991
    Opinion filed March 30, 1984.
    Rehearing denied May 15, 1984.

      Rinella and Rinella, Ltd., of Chicago (Theodore R. Sherwin, pro se, and David B. Carlson, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Jerome Berkson and Howard A. London, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

This is an appeal from an interlocutory order denying respondent’s petition for a preliminary mandatory injunction directing petitioner to return light fixtures and certain items of furniture she had removed from the marital domicile a few days prior to filing a petition for dissolution of marriage. The issues presented for review are: (1) whether a sufficient evidentiary hearing was held on respondent’s petition; and (2) whether it was an abuse of discretion for the trial court to deny the issuance of a preliminary mandatory injunction. For the reasons that follow, we affirm the judgment of the trial court.

On May 10, 1983, upon returning home from work, respondent discovered that petitioner had removed from the marital domicile substantially all of the household furniture, decorative objects of art, paintings, crystal, sterling silver place settings, area rugs, bathroom and kitchen linens, pots, pans, food, liquor, cleaning materials, lamps, light fixtures (including track lighting), shelving, shower curtain and various sundries. Photographs of the apartment taken subsequent to May 10, 1983, indicate that respondent was left with a straight-back chair, an end table, three folding chairs, a portable television with stand, an armoire, a breakfront, a bed, piano with bench, a desk, wall unit bookshelves with drawers, a floor lamp, a table lamp, overhead kitchen lighting, a kitchen table with four chairs, kitchen appliances, all window blinds and miscellaneous paintings and art objects.

In his response and counterclaim to the petition for dissolution of marriage filed on May 18, 1983, respondent prayed for a preliminary mandatory injunction directing petitioner to return all of the items removed from the apartment on May 10. In support of his request for injunctive relief, respondent alleged, inter alia, that: (1) petitioner’s wrongful removal of furnishings and other property from the marital domicile “rendered the apartment practically uninhabitable except as a place to sleep and bathe,” and unsuitable for entertaining; (2) the oil paintings and bronzes which were wrongfully removed are unique and irreplaceable and cannot be compensated for by money damages; and (3) the furniture, hall lighting, track lighting, dining room fixture and three area rugs “were all specially designed and created for use at [the] apartment.”

On May 25, 1983, in response to respondent’s emergency motion, the trial court entered a temporary restraining order (TRO) “restraining and enjoining [petitioner] from in any manner, directly or indirectly transferring, selling, encumbering, concealing or otherwise disposing of any of the property removed by her,” and scheduled the hearing on respondent’s petition for preliminary injunctive relief for June 3, 1983. Following several continuances and extensions of the TRO, a hearing was held on respondent’s petition on July 7, 1983, after which the court ruled that it had jurisdiction to enter a preliminary mandatory injunction if the facts warranted, and extended the TRO, pending further order of the court or final resolution of the case. In light of its jurisdictional ruling, the court allowed the parties an opportunity to continue out-of-court discussions regarding interim possession of the disputed property before proceeding on the request for a mandatory injunction. The parties agreed to further discussions and the hearing was thus continued to July 13, 1983. On that date, respondent indicated to the court that the parties had agreed to exchange certain decorative items; however, the return of household furniture and lighting remained in dispute. In response, petitioner argued that the court was without jurisdiction to determine possession of the remaining items because those items were either acquired after marriage or were subject to claims of gift or inheritance. Thus, a determination should be reserved for the final resolution of distribution of the marital property. The trial court replied:

“Well, I am not going to get into the issue of whose property is whose. But it seems to me that anything that was affixed, and that is track lighting and things of that kind, ought to be put back. And *** the furnishings ought to be divided in such a way as both of them can live in a reasonable amount of comfort. And put an end to this.”

In arguing against return of any items, petitioner stated that the agreement reached by the parties which was presently before the court should be conclusive of interim possession; that the fixtures were purchased by petitioner during the marriage with her own money; and that photographs taken of the apartment demonstrate that it is fully furnished. Thereafter, the trial court viewed photographs of the apartment submitted by both parties which depicted its status both before and after May 10, 1983, and was advised that petitioner had already affixed the track lighting to her new apartment. The trial court then asked respondent why he did not simply purchase some new fixtures, put them up, rent some furniture, and then request compensation upon final resolution of the case. In this regard, the court further stated:

“There are other things other than specific performance, Mr. Sherwin. And you can get compensation for expenditures that you have made. And if she has hung those fixtures someplace else and to have her tear them down and to reinstall them in the place that they were, if I do that, you understand that in the event that the Court — if the trial Court awards them to you, you are either going to have to buy them from her at the cost that she names — .”

Respondent declined this suggestion and arguments continued as to who had paid for which items. When the trial court ruled that the controversy was “not a matter for the Court of law,” the following colloquy ensued:

“RESPONDENT: It was last time.
COURT: And I [had] not seen the photographs of the premises. And now that I have seen it, I’m sorry that I said that.
RESPONDENT: And the photograph shows that this is pretty barren.
COURT: You will have to take this to the trial Court. *** And let the trial judge do it.
RESPONDENT: Last time you were going to do it. And you said that you would.
COURT: Now that I’m better informed, I realize what I said last time was imprudent and I changed my mind.
* * *
And having seen the photographs, the evidence, the photographic evidence of the apartment, and of the items in dispute, it is the ruling of this Court that this matter be reserved for resolution by the trial Judge.”

Thereafter, following arguments on petitioner’s motion for temporary maintenance, respondent requested permission to make an offer of proof as to the condition of the apartment. The trial court denied the request, but allowed the photographs of the apartment to be admitted into evidence. Respondent’s timely appeal from the trial court’s denial of his petition for injunctive relief followed.

Opinion

We shall first address respondent’s contention that the trial court abused its discretion in refusing to conduct an evidentiary hearing on his petition for a preliminary mandatory injunction.

After reviewing the record, we cannot see how the arguments heard on July 13, 1983, could be reasonably characterized as anything other than an evidentiary hearing on respondent’s petition. Both parties argued extensively on the merits of the petition and both admitted into evidence photographs of the apartment taken before and after removal of the disputed items. Upon reviewing the photos, the trial court apparently concluded that it was not “uninhabitable” and that respondent had an adequate remedy at law. Admittedly, the trial court’s statement, after viewing the photos, that a hearing would not be held suggested that the previous argument and admission of evidence were elements of some other type of proceeding. However, in our opinion, the trial court underestimated what it had theretofore accomplished. Respondent further argues that he was improperly denied the opportunity to make an offer of proof as to the contents of the apartment photographs. Yet, in his reply brief, respondent argues against the merits of his own offer of proof when he states:

“It is an old Chinese proverb that one picture is worth more than ten thousand words. This is true in the case at bar. The comparison of the photographs of the condition of the apartment before and after May 10, 1983, are vivid visual evidence of the irreparable injury occasioned by PETITIONER’S act.”

We concur with respondent’s analysis that the photographs are self-explanatory and, accordingly, we find that any further explanation of them would have been superfluous. Moreover, we do not find that proposed expert testimony regarding the extent of damage done to the apartment by the removal of various items was necessary to the trial court’s interlocutory determination. Thus, we conclude that the arguments by both counsels and the admission into evidence of photographs depicting the condition of the apartment before and after removal of the disputed items constituted a sufficient hearing on respondent’s petition for injunctive relief.

We turn next to respondent’s contention that it was an abuse of discretion for the trial court to have denied the issuance of a preliminary mandatory injunction. Respondent argues that a preliminary mandatory injunction was necessary to maintain the status quo, and to discourage potential litigants from making “a wholesale removal and looting of marital homes and apartments on the eve of litigation.”

The primary purpose of a preliminary injunction is to preserve the status quo until there can be a final hearing on the merits. In this regard, the term “status quo” has been consistently defined by the courts as “ ‘the last actual, peaceful, non-contested status which preceded the pending controversy.’ ” (Deisenroth v. Dodge (1953), 350 Ill. App. 20, 23, 111 N.E.2d 575.) Generally, preservation is accomplished by keeping everything at rest. However, in certain circumstances, a state of rest may be fatal to the plaintiff’s rights. In such cases, a mandatory injunction may be necessary. (Brooks v. La Salle National Bank (1973), 11 Ill. App. 3d 791, 799, 298 N.E.2d 262.) Because injunctive relief is an exceptional remedy, it is not granted as a matter of course. (Sheridan v. Park National Bank (1981), 97 Ill. App. 3d 589, 591, 422 N.E.2d 1130.) Instead, courts must exercise extreme caution and grant such relief only after the plaintiff has established the existence of a certain and clearly ascertainable legal right, irreparable harm and an inadequate remedy at law. (Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 980, 391 N.E.2d 489.) Furthermore, where complete relief may be afforded plaintiff upon a final hearing, he is not entitled to a preliminary injunction which is mandatory in nature. Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 142, 423 N.E.2d 1253.

In the present case, respondent argues that a mandatory injunction is necessary to preserve the status quo, which he defines as the condition of the apartment prior to the petitioner’s unilateral removal of the furnishings on May 10, 1983. We agree with respondent’s argument as to that which constitutes the relevant status quo in this case. However, disruption to the status quo by itself does not mandate the issuance of injunctive relief. Plaintiff must also establish the existence of a certain and ascertainable legal right, irreparable injury and an inadequate remedy at law. (Distaola v. Department of Registration & Education (1979), 72 Ill. App. 3d 977, 980, 391 N.E.2d 489.) In our opinion, respondent has failed to establish any of the essential prerequisites.

First, until a final determination is made by the trial court regarding the division of the disputed personal property pursuant to the petition for dissolution of marriage, respondent can claim no clear, ascertainable legal right to the exclusive possession of that property. (See Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503.) At the present time, each party has an equal possessory right (see Clark v. Covington (1982), 107 Ill. App. 3d 845, 847, 438 N.E.2d 628), which is not sufficient to grant a mandatory injunction.

Second, respondent’s claim that he is irreparably injured by the loss of use of the furnishings is unpersuasive. Admittedly, the apartment is not now furnished in the manner to which respondent had been accustomed, but it cannot be reasonably described as “uninhabitable.” The photographs indicate that respondent has a bed, bedside lamp, end table, armoire, breakfront, folding chairs, straight-back chair, television set with stand, piano with bench, desk, floor lamp, kitchen table with chairs, kitchen appliances, overhead kitchen light and all window blinds. Moreover, pursuant to court order, both parties are restrained and enjoined from in any way disposing of items removed from the apartment pending final resolution of the controversy. Thus, respondent is protected from the interim loss of any unique art objects or furnishings which petitioner has in her possession.

Third, respondent has an adequate remedy at law. As the trial court indicated, he can either rent or purchase any furnishings or lighting that he deems necessary, and then seek monetary compensation from the trial court in the final distribution of assets. Similarly, he can seek compensation for any repairs to the walls and ceilings necessitated by petitioner’s removal of various paintings and lights. In regard to these alleged damages, we note that the evidence indicates that petitioner did not actually cause any additional damage to the walls and ceilings. Instead, she merely exposed those holes that were already there. Certainly, the inevitable removal of undisputed premarital paintings would have eventually exposed' many of those same nail holes. With respect to the exposed electrical wires, replacement light fixtures would easily remedy the problem.

In light of the aforementioned discussion, we find that respondent’s reliance on Scholz v. Barbee (1951), 344 Ill. App. 630, 101 N.E.2d 845, Deisenroth v. Dodge (1953), 350 Ill. App. 20, 111 N.E.2d 575, and Brooks v. La Salle National Bank (1973), 11 Ill. App. 3d 791, 298 N.E.2d 262, is misplaced. In Scholz, plaintiffs and defendants owned an apartment building as joint tenants. The defendants forcibly took possession of part of the premises formerly used jointly as a washroom, and a temporary mandatory injunction was issued requiring the defendants to let the plaintiffs jointly use the room. In upholding the injunction, the reviewing court emphasized that plaintiffs had no adequate remedy at law and might have suffered irreparable injury if the injunction had not issued. As discussed, these factors were not established in the present case. In Deisenroth, the court granted a temporary mandatory injunction directing defendants to remove a barricade erected by them across a right-of-way. 'In arriving at its decisión, the court recognized the necessity for a mandatory injunction when to do otherwise would be fatal to plaintiffs rights. In the present case, denial of a mandatory injunction would not jeopardize respondent’s property rights. Finally, in Brooks, injunctive relief was granted where defendant-lessor exercised self-help and wrongfully took possession of personal property belonging to plaintiff-lessee. In upholding the decision, the reviewing court concluded that plaintiff had established irreparable injury and that the remedy at law was inadequate. Again, these factors were not established in the present case.

In addition, we find respondent’s attempt to broaden the definition of “irreparable injury” by relying on General Electric Co. v. Local 997 United Automobile Workers of America (1955), 8 Ill. App. 2d 154, 130 N.E.2d 758, equally unpersuasive. The situation in General Electric Co. concerned mass picketing and improper conduct in connection with a strike which the trial court enjoined. In upholding the injunction, the appellate court quoted a definition of “irreparable injury” which moved away from the impossibility of monetary damages and focused on the frequently recurring nature of the injury which rendered it incapable of reasonable redress in a court of law. (8 Ill. App. 2d 154, 165.) We fail to see how this definition aids respondent’s position, especially when the pivotal distinction between General Electric Co. and the present case is that in the former, the remedy at law was inadequate; in the latter, it is not.

In summary, we hold that the trial court properly denied respondent’s petition for injunctive relief. In rendering this decision, we wish to emphasize that it is not to be construed as indirect approval of petitioner’s self-help actions. Instead, it is rendered in recognition of the extraordinary nature of mandatory injunctive relief and its remedial, rather than punitive, function. Certainly, if the essential prerequisites had been established, the trial court could have properly granted a preliminary mandatory injunction.

For the foregoing reasons, we affirm the order of the trial court denying injunctive relief and remand the cause for further proceedings.

Affirmed.

MEJDA, P.J., and LORENZ, J., concur.


author: JUSTICE JIGANTI

text:
      In re ESTATE OF ELIJAH MUHAMMAD, Deceased (Marie Muhammad Farrahkan et al., Petitioners-Appellees v. The First Pacific Bank of Chicago, Respondent and Third-Party Plaintiff-Appellant and Cross-Appellee (The Nation of Islam et al., Third-Party Defendants-Appellees and Cross-Appellants)).
    First District (4th Division)
    Nos. 82 — 600, 82 — 2321 cons.
    Opinion filed March 22, 1984.
    Rehearing denied May 24, 1984.

      Jenner & Block, Seki, Jarvis & Lynch, and Seyfarth, Shaw, Fairweather & Geraldson, all of Chicago, for appellant.
    Cook Partners and LaFontant, Wilkins & Ware, both of Chicago, for appellees.
    Neil F. Hartigan, Attorney General, of Springfield, for amicus curiae.

   JUSTICE JIGANTI

delivered the opinion of the court:

Elijah Muhammad, the leader and Supreme Minister of an organization known as the Nation of Islam (the Nation), died in 1975 and was survived by a number of legitimate and illegitimate children. At the time of Elijah Muhammad’s death, over $3 million remained in certain bank accounts at the First Pacific Bank of Chicago (the Bank). Based upon representations which shall be referred to later in this opinion, the Bank believed that the funds in the account belonged to the Nation. Following Elijah Muhammad’s death, the Bank closed the accounts and transferred the funds into new accounts opened by the Nation, under which Wallace Muhammad, Elijah Muhammad’s successor as leader of the Nation, was a signatory. The propriety of the Bank’s transfer of funds to the Nation forms the backdrop for all of the issues raised in this appeal.

Elijah Muhammad’s estate subsequently went into probate. A number of his legitimate and illegitimate children (the Estate) filed a recovery citation proceeding on behalf of the estate against the Bank, asserting that the funds which had been transferred to the Nation were Elijah Muhammad’s individual accounts and were therefore a part of his estate. Thereafter, the Bank filed a third-party claim against the Nation and nine of its affiliates (hereinafter referred to collectively as the Nation). The Bank maintained that if it was ultimately found liable to the Estate, the Nation was unjustly enriched by the transfer of funds and the Bank was therefore entitled to restitution.

The trial court entered judgment in favor of the Estate in the recovery citation proceeding. The Bank now appeals from that judgment. In the third-party proceeding, the trial court ruled in favor of the Bank but granted only a portion of the relief sought. The Bank also appeals from this ruling, and the Nation cross-appeals.

The record and briefs in this case are extensive and reveal a veritable litany of facts and events pertinent to the issues raised by the parties. For the purpose of clarity, we shall address the relevant facts in conjunction with each issue. The central issue on appeal is raised by the Bank. The substance of the Bank’s argument is that, even if Elijah Muhammad was found to be the contractual and legal owner of the accounts, the court was required to determine whether the equitable and beneficial ownership of the accounts rested in someone other than Elijah Muhammad, namely, the Nation. The Bank does not concede that the trial court properly found Elijah Muhammad to be the contractual owner of the accounts and thus also raises the issue of contractual ownership on appeal. A number of additional and peripheral issues have been raised by the parties and shall be discussed later in this opinion.

The Bank and the Nation first argue that, as a matter of law, the trial court improperly refused to admit or consider evidence of equitable ownership. The Bank and the Nation further maintain that, because the Nation was allegedly the equitable owner of the accounts, the Bank properly transferred the funds to the Nation. In contrast, the Estate contends that the court was bound to look exclusively to the contractual or legal ownership of the accounts as evidenced by the contract between the Bank and the depositor. Consequently, the Estate argues that because Elijah Muhammad was allegedly the accounts’ contractual owner, the trial court properly found that the Bank’s transfer of funds to the Nation was unlawful. Thus, before considering the factual question of the actual identity of the accounts’ contractual or equitable owners, we must decide one threshold question of law: whether the court was required to consider relevant evidence of equitable ownership.

As a general rule, the relationship between a bank and its depositor is one of creditor and debtor. (See generally 5 Michie, Banks and Banking sec. 79, at 216 (1950); Union Stock Yards National Bank v. Gillespie (1890), 137 U.S. 411, 422, 34 L. Ed. 724, 728, 11 S. Ct. 118, 122.) The Estate’s position is that this contractual relationship applies for all purposes and that the court may not inquire as to whether the beneficial ownership of an account lies in one other than the contractual depositor. Following our review of the case law in this area, we disagree with the Estate’s contention.

For over a century the United States Supreme Court has ruled that courts may exercise their equitable powers to determine the beneficial or equitable ownership of a bank account. In Central National Bank v. Connecticut Mutual Life Insurance Co. (1881), 104 U.S. 54, 66, 26 L. Ed. 693, 699, the court stated: “But although the relation between the bank and its depositor is that merely of debtor and creditor, and the balance due on the account is only a debt, yet the question is always open, To whom in equity does it beneficially belong?” (Accord, Union Stock Yards National Bank v. Gillespie (1890), 137 U.S. 411, 422, 34 L. Ed. 724, 728, 11 S. Ct. 118, 122.) Both of the Supreme Court decisions cited above further lead us to believe that when a bank has either actual or constructive notice that the beneficial ownership of an account lies outside the legal title, the bank may not deal with the account’s contractual owner to the detriment of the equitable owner. Thus, evidence of equitable ownership must be considered by the court because the rights of an equitable owner may control over those of an account’s contractual owner when the bank has been put on notice regarding the existence of an equitable owner. See also 5 Michie, Banks and Banking sec. 79, at 217 (1950) (“*** the true ownership of a deposit may be proved to be in another than the person in whose name it is made”).

In Hanna v. Drovers’ National Bank (1901), 194 Ill. 252, 257, the Illinois Supreme Court accepted the above reasoning and stated: “It may be conceded that, as a general rule, it is the duty of a banker to pay money on deposit with it to the party in whose name it is deposited; but where it has notice of the fact that the fund belongs to another, it may refuse to pay it to the depositor and be compelled to pay it to the real owner.” Furthermore, when the issue of equitable ownership arises, relevant evidence may include facts surrounding the creation and history of the account (see In re Estate of Cronholm (1962), 38 Ill. App. 2d 141, 186 N.E.2d 534; 5 Michie, Banks and Banking sec. 369b, at 346-47 (1950)), as well as facts reflecting the intent of the depositor and the source of the funds (see People ex rel. Nelson v. Bank of Harvey (1934), 275 Ill. App. 415).

The Estate nonetheless contends, without addressing or attempting to distinguish the cases cited above, that this court is bound by Landretto v. First Trust & Savings Bank (1928), 333 Ill. 442, 448, 164 N.E. 836, 839, wherein the Illinois Supreme Court stated: “The right to draw and the duty to pay checks against the account rests upon contract. It does not depend upon the ownership of the fund.” In Landretto, a husband and wife possessed a joint bank account from which the husband withdrew all of the funds. The wife, a joint depositor and authorized signatory of the account, sued the bank and claimed that because she had earned all of the money in the account, the bank improperly permitted the husband to withdraw the funds. The court held that the bank was not liable for paying the funds to the husband, who was the other joint depositor and authorized signatory. The court never considered or ruled upon the issue of equitable ownership but simply found that if a bank pays funds to one of two joint depositors, the bank will not be liable. The Landretto holding concerning joint bank accounts is presently codified in section 2(a) of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1981, ch. 76, par. 2(a)). The instant case does not address Landretto’s narrow issue of a bank’s role in relation to actions taken by a checking account’s joint owners; rather, it concerns the propriety of the Bank’s payment of funds to an alleged equitable owner (the Nation) rather than to an alleged contractual owner (the Estate). We conclude that Landretto does not vary or contradict the legal principle set out above that if a bank has notice of an equitable owner of an account, it may be required to pay funds on deposit to the account’s equitable rather than contractual owner. We therefore find that the trial court in the instant case was required to consider relevant evidence of the equitable ownership of the accounts at question.

The Estate contends that even if the court was bound to consider evidence of equitable ownership, the trial court properly did so in this case prior to reaching its decision. The record discloses, however, that throughout the trial, the trial court repeatedly stated that Landretto controlled the court’s decision and that the source of the funds in the account and thus the beneficial ownership of the account were of no consequence. On at least five occasions the trial judge specifically cited the Landretto case in ruling upon the admissibility of certain evidence and testimony, finding that the beneficial ownership and the source of the funds were not relevant to the issues in the recovery citation proceeding. The court also repeatedly found that the contractual relationship between the Bank and its depositor was the sole factor to be considered in determining who was entitled to the funds in the accounts. Indeed, the focus of the entire trial was the identity of the contractual depositor as defined by the contract documents and other extrinsic evidence which clarified the provisions of the documents and the events surrounding the creation of the contractual relationship. The case was tried purely as a case of contractual ownership, although evidence of beneficial ownership was allowed to a certain extent for purposes of the third-party restitution action between the Nation and the Bank. The court stated, however, that between the Estate and the Bank, the ownership and source of the funds were irrelevant.

Based upon our previous discussion of equitable and beneficial ownership, we believe the trial court erroneously found that equitable ownership was not a pertinent issue in this case. Although evidence was admitted on this issue for other purposes, the court never considered evidence which arguably determined whether the Bank or the Estate was the equitable owner of the accounts. Because we have found that the rights of an equitable owner may be superior to those of an account’s legal owner, we think that the parties were entitled to have the trial court specifically consider the issue of equitable ownership. The issue may be determinative of the entitlement to the funds in the accounts and, for this reason, we reverse and remand the action between the Bank and the Estate to the trial court for a new trial.

We offer no opinion here concerning the contractual ownership of the accounts because we believe that the issues of contractual and equitable ownership are intertwined to such an extent that they should be considered together by the trial court after all relevant evidence has been presented. Furthermore, because the third-party restitution action between the Nation and the Bank hinges upon the outcome of the recovery citation trial, we reverse and remand that action as well.

Both the Bank and Estate have argued that if this court determines that equitable ownership must be considered, there is sufficient evidence in the record for the appellate court to determine the issue and that it is therefore unnecessary to remand the case to the trial court for further proceedings. Both parties cite this court to extensive amounts of evidence, testimony and offers of proof which each party contends conclusively and overwhelmingly establishes itself as the accounts’ equitable owner. We believe that the weighing of this evidence, as well as the admissibility of additional evidence offered as proof of equitable ownership, are matters to be decided by the trial court sitting as the trier of fact. The trial judge has the opportunity to assess the credibility of witnesses and weigh the evidence, and is in a better position than an appellate court faced with a cold record to consider an issue which has not yet been specifically litigated and decided. At this point we cannot speculate as to what the evidence would reveal once the case centers upon the issue of the equitable rather than the contractual ownership of the accounts. We therefore find it necessary to reverse and remand this cause to the trial court for a determination of the equitable ownership of the accounts. Because the remaining issues on appeal raise questions that may recur at the trial level, we shall consider them as well so as to facilitate the trial court proceedings on remand.

The Bank next argues that it can in no event be held liable for conversion in the recovery citation proceeding because the Estate had the burden of proving all of the elements of conversion and did not do so. Under the recovery citation statute in Elinois, a citation to recover assets may be filed by anyone “interested in the estate” against one who is believed to have “concealed, converted or embezzled or [has] possession” of assets belonging to the Estate. (Ill. Rev. Stat. 1981, ch. 110½, par. 16 — 1(a).) The Bank correctly observes that, at the time the recovery citation proceeding was filed by the Estate, the Bank had already transferred the funds to the Nation and therefore did not have “possession” of the funds. Furthermore, the Estate has never alleged or argued that the Bank “embezzled” or “concealed” the funds in the accounts. Thus, under the statute, it was incumbent upon the Estate to prove that the Bank had “converted” funds belonging to the Estate in order to prevail in the recovery citation proceeding.

A party claiming a conversion must show: (1) an unauthorized and wrongful assumption of control, dominion, or ownership by a person over the personalty of another; (2) his right in the property; (3) his right to the immediate possession of the property, absolute and unconditional; and (4) a demand for possession thereof. (Farns Associates Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 395 N.E.2d 1103; People ex rel. Carey v. Lincoln Towing Service, Inc. (1977), 54 Ill. App. 3d 61, 369 N.E.2d 94.) Our examination of these four elements leads us to conclude that whether the Estate has made out a case for conversion under the recovery citation statute will be largely dependent upon the trial court’s determination of the issues of equitable and contractual ownership upon remand. The Estate contends that this is “substantially more than a mere conversion case” and that “the niceties of the law of conversion *** have no relevance whatever” to a recovery citation proceeding such as that at issue here. However, the Estate cites no authority, and indeed we have found none, that the legislature intended the elements of conversion to be examined under a different standard when a cause of action alleging conversion is stated under the recovery citation statute. The statute specifically provides that a recovery citation proceeding may only be brought against one who is believed to have “concealed, converted or embezzled or [has] possession” of assets belonging to the Estate. (Ill. Rev. Stat. 1981, ch. lKWa, par. 16 — 1(a).) In order to be entitled to the relief sought, we believe that the petitioner in a recovery citation proceeding must demonstrate that the respondent actually concealed, converted, embezzled or has possession of estate assets. We further think that those terms must be accorded their ordinary legal definitions absent a contrary expression of intent from the legislature. Therefore, when this case is remanded on the issue of equitable ownership, it will be necessary for the trial court to assess whether the Estate has proved each of the four elements of conversion and is thus entitled to relief under the recovery citation statute.

Four separate estoppel arguments have also been raised on appeal by the Bank and the Estate. First, the Estate contends that the Bank is estopped from asserting that the funds belonged to anyone other than Elijah Muhammad individually because the Bank allegedly treated the accounts as Elijah Muhammad’s individual accounts for the entire period of their existence. Second, the Bank asserts that the Estate is estopped from arguing that the transfer of funds was wrongful because Elijah Muhammad and the persons who dealt with the Bank on his behalf allegedly represented that the funds belonged to the Nation. Third, the Bank maintains that the legitimate children of Elijah Muhammad are estopped from challenging the transfer of funds because they signed a letter representing that the funds belonged to the Nation and because they remained silent for four years before disputing the validity of the transaction. Finally, the Bank contends that the illegitimate children of Elijah Muhammad are estopped from taking part in the recovery citation proceeding because they had no legally recognized interest in the accounts at the time of the alleged conversion.

Estoppel is ordinarily a question of fact. (Forest v. Forest (1973), 9 Ill. App. 3d 111, 291 N.E.2d 880.) The party who asserts the existence of estoppel has the burden of proving it, and the proof must be clear, precise and unequivocal. (City of Chicago v. Nielsen (1976), 38 Ill. App. 3d 941, 349 N.E.2d 532.) We believe that the first three estoppel arguments raised by the parties are purely factual matters which we believe the trial court should consider on remand when it has before it all pertinent evidence of equitable and contractual ownership of the accounts. The fourth argument, raised by the Bank in relation to the illegitimate heirs, presents a question of law which is not properly before this court now. The Bank has never before raised this issue in its pleadings or at trial. If properly raised at the new trial on remand, the matter may be considered by the trial court; however, it would be inappropriate for this court to make a final determination on the issue at this time.

The Estate also asserts on appeal that the Nation is a “theocratic religious and racial concept” rather than “an organization cognizable by the law” to which the funds could have been legally transferred. However, we shall not address either the ramifications or the merits of this argument because the Estate clearly admitted in its verified answer to the Bank’s verified amended affirmative defenses that “[t]he Nation of Islam is a religious organization.” Once a statement of fact has been admitted in a party’s pleadings it is binding upon the party making it, and it makes it unnecessary for the opposing party to introduce evidence in support thereof because it has the effect of withdrawing the fact from issue. First National Bank v. Sousanes (1981), 96 Ill. App. 3d 1047, 422 N.E.2d 188.

For the reasons herein stated, the action between the Bank and the Estate and the third-party action between the Bank and the Nation are reversed and remanded for new trials.

LINN, P.J., and ROMITI, J., concur.

      As we shall discuss later, we believe it would be premature to decide whether the trial court properly found the Estate to be the contractual owner of the accounts. We are therefore offering no opinion here as to the identity of the accounts’ contractual or equitable owners.