author: JUSTICE SULLIVAN

text:
    GEORGE FITZPATRICK, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants.
    First District (5th Division)
    No. 84—1311
    Opinion filed March 1, 1985.

      James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Julie Elena Brown, Assistant Corporation Counsel, of counsel), for appellants.
    Ambrose & Cushing, P.C., of Chicago (Richard A. Michael, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a judgment entered on a jury verdict for plaintiff in a personal injury action.

Plaintiff brought this action against defendants, the city of Chicago (the city), and Officer Theodore Ptak (Ptak), to recover for injuries he sustained during a nighttime accident involving an automobile driven by Isaías Marin which collided with Ptak’s squad car, causing it to strike him. In his complaint, plaintiff alleged, in substance, that his injuries were the proximate result of Officer Ptak’s negligence in improperly parking his vehicle on the shoulder of the highway and failing to adequately illuminate it so as to cause it to be visible to oncoming traffic. In their answer, defendants denied liability and asserted, as an affirmative defense, governmental immunity under sections 2 — 202 and 2 — 109 of the Local Government and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 2 — 202, 2 — 109) (the Tort Immunity Act), which provide, respectively, that “a public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes wilful and wanton negligence” and that “[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.”

There is no dispute that as he was driving northeast on the Stevenson Expressway in Chicago at about 1 a.m. on February 23, 1980, plaintiff caused a minor accident when, in changing lanes, his automobile struck the rear of a car being driven by Leo Jefferson.

At trial, Jefferson testified that when his car — a Buick — came to a stop after the accident, it was partially on the left shoulder and partially on the median strip between the northeast and southwest lanes at a slight northerly angle and directly beside a streetlight, the motor was still running, and the lights were on. After unsuccessfully attempting to move the car — which seemed to be stuck in mud — his brother-in-law and a co-worker walked down the shoulder of the highway to seek assistance. When he first saw the police car approaching from the southwest-bound side of the highway, all of its lights — including the revolving blue dome light — were on; but after driving across the median and parking the squad car two to three feet behind his vehicle, facing southwest and positioned either slightly on the traffic lane or at the edge thereof, the officer turned off all the lights. About 10 minutes later, as he, plaintiff, and Officer Ptak were examining the damage to his car, the vehicle being driven by Marin collided with the front of the squad car, propelling it a few feet backward and causing it to strike plaintiff, who was standing between the Buick and the police car.

The testimony of Jefferson’s wife, Betty, was essentially the same, except she stated that the police car was parked between the median and the shoulder, not on the traffic lane.

Plaintiff’s testimony relating to the accident with Jefferson’s car, the arrival of Officer Ptak, and the location of and lack of lighting on the police vehicle before it was struck was also substantially the same as Jefferson’s, although he maintained that the portion of the highway where the accident occurred was poorly lit in comparison to the area directly southwest, from which oncoming traffic approached.

Officer Ptak testified that he was driving southwest on the Stevenson Expressway when he saw one car parked on the median, another stopped on the opposite side of the highway, and people on the side of the roadway waving to him. He then activated all of the emergency lights on the squad car, drove across the median, and parked facing southwest between the median and the shoulder a few feet behind Jefferson’s car. When he exited the squad car to speak with plaintiff and Jefferson, he left all of the lights on. He was completing his examination of the damage to Jefferson’s car when the second accident occurred. Although he could have traveled further down the expressway to an exit and turned around, driving across the median and parking the car as he did was the most expeditious way to reach the accident scene to ascertain whether anyone had been injured. He also stated that the use of flares at the scene of an accident is discretionary, and that there was no need for them in this situation as the lighting conditions on the highway were good.

Officer Spreyne, a member of the traffic division of the Chicago police department, testified that it was the responsibility of a traffic officer to render aid to motorists, enforce traffic regulations, and investigate accidents. Having been one of the officers who responded to a call of the accident at issue, Spreyne identified photographs taken in his presence at the scene. They showed that all of the lights on Officer Ptak’s squad car were activated, the streetlights were on, and the visibility on the roadway was good. None of the cars involved in the collision had been moved or altered in any way before the photographs were taken. Spreyne also stated that it was not unusual, nor unsafe, to park a police car facing oncoming traffic in situations such as the one here.

The trial court denied defendants’ motion for a directed verdict, ruling as a matter of law that Officer Ptak was not engaged in the execution or enforcement of any law at the time of this occurrence, and the court also refused defendants’ instructions and special interrogatories concerning governmental tort immunity. The jury returned a verdict for plaintiff, defendants’ post-trial motion for judgment n.o.v. was denied, and this appeal followed.

Opinion

Defendants first contend that the trial court should have either (a) directed a verdict in their favor on the basis of the Tort Immunity Act; or, in the alternative, (b) submitted the issue of immunity to the jury. In support thereof, they assert that the evidence was sufficient to establish that at the time of this incident Officer Ptak was enforcing and executing laws relating to the investigation and reporting of traffic accidents, and that under the Tort Immunity Act, he— and therefore the city — was immune from liability for his negligence in the course thereof.

In response, plaintiff first argues that defendants were not entitled to a directed verdict or jury instructions on the issue of immunity, because they failed to properly plead it as an affirmative defense. He maintains that by merely quoting the text of sections 2 — 202 and 2 — 109 of the Tort Immunity Act, without alleging facts demonstrating their applicability to this case, defendants did not comply with Illinois rules of pleading — particularly section 2 — 613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 613(d)) (the Code), which requires that “[t]he facts constituting any affirmative defense *** must be plainly set forth in the answer or reply,” and that they thereby waived governmental immunity as a defense at trial.

With respect to plaintiff’s argument, we note initially that while it is not one of the defenses listed in section 2 — -613(d) of the Code, statutory governmental tort immunity has been recognized as a valid affirmative defense in cases involving allegations of negligence by public employees. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 447 N.E.2d 1358; Vines v. City of Chicago (1982), 110 Ill. App. 3d 1060, 443 N.E.2d 652.) Further, a review of pleadings here reveals that the affirmative defense of governmental immunity is directed to the facts alleged in plaintiff’s complaint; namely, that while acting within the scope of his employment as a policeman, Officer Ptak was guilty of certain specified negligent acts and omissions. Plaintiff has cited no case law, nor have we found any, requiring a defendant to. restate facts already adequately pleaded in the complaint in order to raise an affirmative defense based thereon. Neither do we believe that the language of section 2 — -6Í3(d) was intended to impose such a requirement in circumstances like those in this case. When read in its entirety, that section, as well as others in the Code relating to pleadings, makes clear that the prime function of pleadings is to apprise the opposition of the nature of the claim or defense a party intends to raise at trial (Handelman v. London Time, Ltd. (1984), 124 Ill. App. 3d 318, 464 N.E.2d 710; see also Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(b)) “which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise ***” Rev. Stat. 1981, ch. 110, par. 2 — 613(d)). Although plaintiff intimates that he was surprised by this defense because “there was no reference [to it] until the third day of trial,” the record establishes that it was raised in defendants’ answer to plaintiff’s original complaint more than three years before trial and then again in their answer to his amended complaint, which was filed shortly before trial. In view thereof, we cannot see how plaintiff could have been surprised by this defense.

Moreover, even assuming that the defense as pleaded was factually deficient, we note that no objection was made to it until, as plaintiff has pointed out, the third day of trial when, in a conference in chambers, his counsel argued that defendants had failed to specify what law Officer Ptak was enforcing at the time of this incident. After noting the untimeliness of plaintiff’s argument, the court asked defense counsel what law was involved, to which counsel replied, “traffic laws which pertain to accidents, reporting of accidents.” While plaintiff maintains that this response was not sufficiently specific, we again direct his attention to the Code sections governing pleadings. They variously provide that “[i]f any pleading is insufficient in substance or form the court may order a fuller or more particular statement” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 612(a)); that “[i]f allegations are so wanting in details, that the opposite party should be entitled to a bill of particulars, the pleader shall file and serve a copy of the bill on being served with a notice demanding it. The notice shall point out specifically the defects complained of or the details desired ***” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 607(a)); and that “[a]ll objections to pleadings shall be raised by motion [which] shall point out specifically the details complained of and shall ask for appropriate relief ***” (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615(a)). Having failed to avail himself of these procedures in the trial court, we conclude that plaintiff had waived any objections he may have raised as to the form or substance of the affirmative defense.

Plaintiff next argues that even if defendants’ answer was sufficient to raise governmental immunity under the Tort Immunity Act as an affirmative defense, the evidence was not sufficient to warrant entry of a directed verdict in their favor based on the application thereof or to require the giving of jury instructions relating thereto.

It is well settled in Illinois that “verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

In the instant case, it is uncontroverted that Officer Ptak was driving southwest on the Stevenson Expressway on patrol when he saw one vehicle on the median, another stopped on the shoulder of the northeast-bound lanes, and persons waving to him from the side of the roadway. It is also undisputed that he then activated all of the emergency lights on his squad car, drove across the median, and parked it facing southwest a few feet behind Jefferson’s car — which was facing northeast. Although the testimony is conflicting as to whether he left the lights on or turned them off before exiting the car, it is agreed that he then walked back toward Jefferson’s car, where he spoke with plaintiff and Jefferson about the accident, examined the damage to the latter’s vehicle, and wrote an accident report.

Citing Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144, in which the supreme court held that “[t]he immunity granted a public employee [by section 2 — 202] extends only to the act or omission done while in the actual execution or enforcement of a law and not to every act or omission done while on duty as a public employee” (52 Ill. 2d 27, 33, 282 N.E.2d 144, 147), plaintiff posits that even if investigating and writing a report of the first accident could be considered executing or enforcing a law — which he does not concede — since the evidence establishes that Officer Ptak did not know that an accident had occurred until after he parked and exited his car, it logically follows that at the time he parked it in the manner found to be negligent, he was not yet executing or enforcing any laws, but merely performing the routine duties of a policeman assigned to patrol the highway.

Defendant disputes plaintiff’s interpretation of the evidence, arguing that, although Officer Ptak stated that he did not personally observe the first accident, his testimony indicates that upon seeing two cars on opposite sides of the median and people waving to him from the side of the roadway, he became aware that an accident had occurred and immediately proceeded to perform an unbroken series of actions — which necessarily included parking the squad car — to reach the scene of the accident in the most expeditious way possible so as to determine whether anyone was injured and to otherwise enforce and execute the laws relating to the investigation and reporting of traffic accidents.

In Arnolt, plaintiff sued for injuries she sustained while riding in a car which collided with a police vehicle being driven by the defendant police officer. In reversing the trial court’s order dismissing all portions of plaintiff’s complaint sounding in ordinary negligence, the supreme court stated that “the [trial] court based its dismissal order upon the mistaken conclusion that when on duty a police officer is ipso facto engaged ‘in the execution or enforcement of any law.’ ” (52 Ill. 2d 27, 35, 282 N.E.2d 144, 148.) Noting, as an example, that “[a] policeman, while merely cruising in a vehicle in the line of duty, may not be afforded immunity under the Tort Immunity Act in that the factual determination of the situation may indicate that he was not at the time executing or enforcing a law” (emphasis added) (52 Ill. 2d 27, 34, 282 N.E.2d 144, 148), the court held that the question of whether a police officer is engaged in the execution or enforcement of a law is a factual determination which must, in every case, be made in the light of the circumstances involved, and remanded the case for further proceedings on that issue (see also King v. City of Chicago (1978), 66 Ill. App. 3d 356, 384 N.E.2d 22; Anderson v. City of Chi cago (1975), 29 Ill. App. 3d 971, 331 N.E.2d 243).

That is not to say that the determination must always be made by the trier of fact. Under the Pedrick standard, where the evidence is undisputed (see, e.g., Vines v. City of Chicago (1982), 110 Ill. App. 3d 1060, 443 N.E.2d 652) or susceptible to but one possible interpretation (see, e.g., Morris v. City of Chicago (1985), 130 Ill. App. 3d 740; Thompson v. City of Chicago (1984), 128 Ill. App. 3d 59 (Romiti, J., dissenting)), the question may be decided as matter of law. However, where, as here, different inferences may be drawn from the evidence presented, under the holding in Arnolt determination of whether the officer was executing or enforcing any law is one for the trier of fact to make after consideration of the evidence in its totality.

Thus, in summary, while we agree with plaintiff that the evidence, when viewed most favorably for him, does not so overwhelmingly support defendants’ contention that Officer Ptak was engaged in the execution or enforcement of a law so as to necessitate direction of the verdict in their favor on that basis, at the same time we do not believe that it so overwhelmingly favors plaintiff’s contrary position as to warrant what was, in essence, a directed finding that Officer Ptak was not executing or enforcing a law at the time he was allegedly negligent. Having so found, we must remand this case for a new trial so that defendants may have the opportunity to submit this issue to the trier of fact.

Although plaintiff argues that because one of the key instructions tendered by defendants on the issue of immunity was erroneously drafted all instructions on that issue were properly refused by the trial court and that defendants’ special interrogatories were correctly refused for the same reason, it is apparent from a reading of the record that they were refused on the basis of the trial court’s ruling that sections 2 — 202 and 2 — 109 of the Tort Immunity Act were inapplicable to this case. In view of the fact that we have found it necessary to reverse that ruling and remand this cause for a new trial, a determination as to the propriety of those instructions and special interrogatories is not necessary.

For the reasons stated, the judgment is reversed, and this case is remanded for a new trial.

Reversed and remanded.

MEJDA, P.J., and PINCHAM, J., concur.

       Although named as a defendant in plaintiff’s complaint, Marin is not involved in this appeal.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH A. NURSE et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—2498
    Opinion filed March 1, 1985.
    James J. Doherty, Public Defender, of Chicago (Georgeen M. Carson, Assistant Public Defender, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Brian S. Crowley, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Following a jury trial, defendants Joseph A. Nurse and Curtis Johnson were found guilty of armed robbery. Nurse was sentenced to 16 years’ imprisonment; Johnson was sentenced to 12 years. Defendants appeal, contending that: (1) the prosecution’s use of peremptory challenges to systematically exclude black jurors deprived defendants of a constitutionally representative jury, (2) the trial court abused its discretion in denying defendants’ motion for a continuance or mistrial when a necessary witness was unexpectedly unavailable for trial, and (3) the prosecution failed to prove them guilty beyond a reasonable doubt. We affirm.

Following selection of the petit jury, defendants moved for a mistrial, alleging that the State had systematically excluded blacks from the jury by the use of peremptory challenges. The trial court denied the motions, stating that it was required to follow the decisions of this court and of the Illinois Supreme Court which hold that peremptory challenges are not subject to judicial scrutiny. Testimony was then presented at the trial.

Carlos Magana testified at trial. On April 5, 1983, at 3 p.m., while at a currency exchange signing his paycheck, he noticed a man looking at his check from about three feet away. Magana then cashed the check, placed some of the money in his pants and the rest in a hidden pocket in his jacket. Magana then walked three blocks to his home. Upon arriving outside his second-floor apartment, he heard footsteps and saw a man with a gun coming up the stairs. A second man was with him. Magana identified Nurse as the man with the gun and Johnson as the second man. Johnson was also identified in court as the man who watched Magana sign his paycheck. The men demanded Magana’s money and a struggle ensued. During the struggle, Magana’s wife opened the door of the apartment and observed the robbers. Magana shouted at her to close the door and call the police. She complied. Magana then pushed Johnson partially down the stairs. Nurse then pushed Magana down the stairs, followed after him, and tried to take his jacket while Magana was lying on his back on the first-floor landing. Magana rolled off the landing, ran to the back door to enter his apartment and waited for the police, who took him to the hospital, where he was treated for head injuries and released.

Three days later, on April 8, 1983, Magana and his wife were at a laundry when they observed one of the robbers walking down the street. Police were called and Johnson was arrested. Nurse, who was with Johnson at the time and had his face partially concealed with a baseball cap, was not then arrested. Subsequently, at the police station Magana inquired what had become of the man who had been with Johnson. Thereupon, Nurse was arrested and later identified by Magana in a lineup as the other armed robber.

Barbara Magana substantially corroborated her husband’s testimony. She added that one of the men outside the apartment turned and looked at her from one foot away for a few seconds. She identified this man as Johnson. This was also the man she recognized on the street on April 8. She testified that she did not see the face of the other person at the time of the incident.

Defendants called several witnesses to account for their whereabouts the afternoon of the armed robbery. Antoinette Johnson, defendant Johnson’s niece, said she saw Johnson at her apartment just before 3 p.m., at which time he was seeking to borrow money. Thelma Johnson, the defendant’s mother, testified that she arrived home after 4 p.m. that day and found him watching television.

Beatrice Wilson, the former wife of Nurse, testified that he left her apartment in Evanston at about 2 p.m. that day and returned with his friend Sidney Thomas at 3:15 or 3:20 p.m. She stated that the first occasion she told anyone that Nurse was with her at that time was on direct examination. Gwendolyn Green testified that she saw Nurse with Sidney Thomas at the Gray Moon tavern on North Paulina Avenue at about 3:45 p.m. on April 5, 1983. Another friend of Nurse’s, Hayward Rose, testified that Nurse and Thomas were in the Gray Moon at 4 p.m. that day. Green and Rose both acknowledged that the currency exchange where the victim cashed his paycheck was located near the Gray Moon. Thomas testified that he had repeatedly tried to contact the police to tell them that Nurse was with him at the time of the armed robbery, but was unable to reach the officers investigating the case.

During trial on August 30, 1983, the defense requested a continuance or mistrial when it was learned that the officers who first reported to the scene of the armed robbery would not be available to testify. The State responded that one of the officers was on a medical furlough indefinitely and the other was on leave until September 15, 1983. The court denied defendants’ motion, stating that the prosecution was not required to produce witnesses under such circumstances and did so only as an accommodation .. The court also stated that there had been “quite a lot of cross-examination and discussion of the point in issue” and that the jury had therefore been apprised of the dispute.

Following the jury’s verdicts and the impositions of sentences, defendants appeal.

Opinion

Defendants’ first contention on appeal is that the prosecution’s systematic exclusion of blacks by peremptory challenges deprived defendants of a constitutionally representative jury. Specifically, they assert that they were denied equal protection and that they were denied their sixth amendment right to a jury drawn from a fair cross-section of the population, as enunciated in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692.

Defendants in support of their motion for a mistrial stated that nine of the 40 potential jurors were black and were excluded from the jury by the State’s peremptory challenges. The State responded that one white juror was also challenged and that the victim was Mexican and the defense had excluded potential jurors of Mexican descent.

The Illinois supreme court has heretofore expressly held that excluding blacks by the use of peremptory challenges is not a violation of equal protection. (People v. Gaines (1985), 105 Ill. 2d 79; People v. Davis (1983), 95 Ill. 2d 1, 447 N.E.2d 353.) In addition, reversal is not required under the sixth amendment when peremptory challenges are used to exclude black jurors in an individual case. (Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692; People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202; People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.) Accordingly, when only the alleged exclusion of blacks in a particular case is presented, there is no violation of defendants’ rights, because it is an essential part of our trial by jury system that both sides in a case may exercise such peremptory challenges as they deem advisable. People v. Payne (1983), 99 Ill. 2d 135, 457 N.E.2d 1202; People v. Williams (1983), 97 Ill. 2d 252, 454 N.E.2d 220.

In People v. Mack (1985), 105 Ill. 2d 103, 122, the court again held that no constitutional violation is presented by the use of peremptory challenges in such circumstances, stating:

“Regardless of the many emotional arguments on this question that have been raised in this court and in our appellate court, there is just no evidence that blacks are systematically and purposefully excluded from serving on juries in Cook County where the defendants are black. *** The defendant has demonstrated no need to jeopardize the vitality of a very essential tool of our adversary system, the peremptory challenge, by attaching restrictions and conditions to its use.”

Defendants draw our attention to a recent decision of the United States Court of Appeals for the Second Circuit, McCray v. Abrams (2d Cir. 1984), 750 F.2d 1113, in which the court affirmed a district court decision (McCray v. Abrams (E.D.N.Y. 1983), 576 F. Supp. 1244) and held that a prima facie violation of a black criminal defendant’s sixth amendment rights had been established when the State used its peremptory challenges to exclude black and Hispanic prospective jurors on the basis of their group affiliation. The McCray court in a two-to-one decision reasoned that if there is the sixth amendment requirement that the venire represents a fair cross-section of the community, it must logically be because it is important that the defendants have the chance that the petit jury will be similarly constituted. It concluded, “We thus agree that the Sixth Amendment does not require any action to ensure that the representative character of the venire be carried over to the petit jury; we think the Amendment simply prohibits the state’s systematic elimination of the possibility of such a carry-over.” Notwithstanding McCray, the doctrine of stare decisis compels us to adhere to the holdings of our own State supreme court. Decisions of lower Federal courts are not binding on State courts. City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 368 N.E.2d 891; People ex rel. Illinois Federation of Teachers v. Lindberg (1975), 60 Ill. 2d 266, 326 N.E.2d 749; People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431, cert, denied (1971), 404 U.S. 873, 30 L. Ed. 2d 116, 92 S. Ct. 121.

Defendants acknowledge in their brief that the Illinois Supreme Court’s decisions, especially People v. Payne, control this case. Their brief states, “We raise this issue with the hope that Payne will not remain forever the law in the State of Illinois. We urge Illinois Courts to follow the lead of other jurisdictions which prohibit racial discrimination at the jury selection stage and set up procedures to allow the defendant to rebut the presumption of constitutionality which clings to peremptory challenges.” It is well settled that the appellate court may not overrule or modify decisions of the supreme court. (Beagley v. Andel (1978), 58 Ill. App. 3d 588, 374 N.E.2d 929; Belden Manufacturing Co. v. Chicago Threaded Fasteners, Inc. (1967), 84 Ill. App. 2d 336, 228 N.E.2d 532.) It is beyond this court’s power as an intermediate court of review to allow defendants’ argument to prevail when direct supreme court authority to the contrary exists.

Defendants’ second contention is that the trial court abused its discretion in denying their motion for a continuance or mistrial after the two police officers who responded to the scene of the crime were unexpectedly unavailable for trial. Their brief asserts, “The testimony of these officers unexpectedly became crucial when the victim, Carlos Magana inexplicably testified that he never gave police a description of the two men who robbed him.”

Defendants’ request for a continuance or mistrial was made during trial on August 30, 1983, when it was learned that the officers were not available for trial. Defense counsel asserted that calling one of these officers would be critical since the victim inexplicably testified that he never gave police a description of the robbers on the day of the crime. The State responded that one of the officers was on a medical furlough indefinitely and the other was on leave until September 15, 1983. The prosecutor stated that he had tried to accommodate counsel by phoning the police department to inquire about the officers but that it was not his responsibility to obtain defense witnesses who are unavailable. The court denied defendants’ motion and stated that the State was not required to produce witnesses under such circumstances and did so only as an accommodation. The court added that there had been considerable cross-examination and discussion of the point in issue and that the jury had therefore been apprised of the dispute.

The record discloses that the victim on cross-examination testified that he just told the police “they were black guys” and didn’t give them any description, and that later he talked to some detectives and gave them a description, “certain heights,” “certain complexion,” and “didn’t tell him the color of hair.” He further testified, “I just tell him how they look like. They were two black guys,” and he told them what they were wearing, but did not remember ever giving any height or weight or any description of their facial hair or anything like that.

The decision whether or not to allow a continuance to obtain a witness is within the discretionary powers of the trial court, and such decision will not be disturbed on appeal without a showing of a clear abuse of discretion. (People v. Bryant (1983), 115 Ill. App. 3d 215, 450 N.E.2d 744.) Similarly, the trial court is to exercise sound discretion in deciding whether a mistrial should be declared, and that power is to be used with the greatest caution, and for very plain and obvious causes. (People v. Phillips (1974), 29 Ill. App. 3d 529, 331 N.E.2d 163.) When a continuance is sought to obtain the presence of a witness, there must be a showing of a diligent effort to have the witness present and where such facts are not demonstrated, the motion for a continuance is properly denied. (People v. Polk (1979), 70 Ill. App. 3d 903, 388 N.E.2d 864.) When reviewing the exercise of discretion in the denial of such a continuance, this court must determine whether the testimony is material and could have affected the outcome of the case. (People v. Rivera (1978), 64 Ill. App. 3d 49, 380 N.E.2d 1018.) It also must be noted that the absence of a witness whose testimony would corroborate only collateral aspects of the defendant’s testimony is not sufficient justification for a continuance. People v. Bryant (1983), 115 Ill. App. 3d 215, 450 N.E.2d 744.

Here, the unavailability of the police officers did not amount to the urgent circumstances or the plain and obvious cause required for a mistrial. As the court pointed out, the jury was apprised of the disputed identification through the victim’s testimony on cross-examination. In reference to the continuance, no showing was made that the defendants made a diligent request or other effort to obtain the presence of the police officers. More importantly, defendants never demonstrated that the outcome of the case would be affected by the testimony of either of the officers. Although the victim did testify that he did not give a description to police at the scene, he said he later gave detectives a description of the robbers. This is quite plausible in light of his testimony on direct examination that when police arrived at the scene, they took him to the emergency room where he was treated for head injuries. Furthermore, the victim also made a positive identification of each of the defendants in court. Therefore, even if the defense could have elicited testimony from the officers that the victim either did or did not offer a description at the scene, or on the way to the emergency room, this would still be merely a collateral matter, since he subsequently identified both defendants in court. Under the facts and circumstances of this case, denial of defendants’ motion for a mistrial or continuance to obtain a witness was not an abuse of discretion.

Defendants’ final contention is that they were not proved guilty beyond a reasonable doubt. However, a reviewing court will not disturb a jury’s determination of guilt unless the evidence is so improbable as to raise a reasonable doubt of guilt; the positive and credible testimony of a single witness is sufficient to support a conviction notwithstanding contrary evidence by the accused. (People v. Bibbs (1981), 101 Ill. App. 3d 892, 428 N.E.2d 965.) It is not required that the time for observation be of a prolonged nature. (People v. Reed (1980), 80 Ill. App. 3d 771, 400 N.E.2d 688.) With reference to defendants’ alibi testimony, the court may not disregard unimpeached alibi testimony, but it must also consider the bias or interest, if any, of the witnesses, and it is not under any obligation to believe alibi testimony over the positive identification of the accused. People v. Crawford (1980), 90 Ill. App. 3d 888, 414 N.E.2d 25.

Here, both defendants were identified in court by the victim. He had previously identified Johnson on the street and Nurse in a lineup. The victim’s wife also identified defendant Johnson in court. The victim had a substantial opportunity to observe the two robbers while they were struggling with him for his money on the stairs outside of his apartment. In addition, he also observed the robber he identified as Johnson at the currency exchange where the victim went to cash his paycheck. The victim’s wife also had a substantial opportunity to observe one of the robbers when she opened the door of her apartment and saw her husband being robbed at gunpoint. She testified that, although she did not see the faces of both men, the one whom she identified as Johnson turned and looked directly at her for several seconds. Therefore, the identification of defendants by the victim and his wife was sufficient to convict defendants of armed robbery. The alibi testimony the defendants presented could be properly discounted by the jury as biased, since Johnson’s alibi was presented by his niece and his mother and Nurse’s alibi was presented by his ex-wife Beatrice Wilson and his good friend Sidney Thomas. We find from a review of the record that the evidence was not so implausible or improbable as to raise a reasonable doubt of defendants’ guilt.

Accordingly, the jury’s determination will not be disturbed. For the foregoing reasons, defendants’ convictions and sentences for armed robbery are affirmed.

The People’s request that they be awarded a fee of $75 for defending this appeal and conducting oral argument is allowed, and the award is incorporated in the judgment herein. People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: PRESIDING JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN L. WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 83—733
    Opinion filed March 11, 1985.

      James J. Doherty, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, David A. Cuomo and Robert A. Alvarado, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, defendant John L. Williams was convicted of three counts of murder and aggravated arson. Defendant was sentenced to a term of natural life imprisonment for murder. On appeal, defendant argues: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in not allowing defendant to introduce into evidence the alleged confession of Michael Cuniff; (3) the trial court erred in not granting defendant a continuance to try to locate Cuniff; (4) the trial court erred in quashing defendant’s subpoena for Cuniff’s psychiatric records; (5) the trial court’s finding that police did not tape conversations between themselves and two witnesses was against the manifest weight of the evidence and denied defendant access to important discovery; (6) the trial court erred in excluding testimony as to the possible destruction of evidence; (7) the trial court erred in restricting the cross-examination of David Saunders; (8) the trial court erred in admitting evidence which was unduly prejudicial; (9) defendant was denied a fair trial through improper argument by the prosecutor; (10) the trial court erred in entering convictions on three counts of murder based on a single act of aggravated arson; (11) defendant’s conviction for aggravated arson must be vacated; and (12) the trial court erred in imposing a sentence of natural life imprisonment. ■

We affirm.

John DeJonge testified he considered defendant to be “like a brother, one of my good friends.” On the evening of January 20, 1981, the witness was sitting in a car with defendant and a mutual friend, Wayne Mills. Defendant stated “he wanted to go light a fire.” The three went to a complex of apartments in Hanover Park. Defendant had previously lived in the complex. They cruised around the parking lot and left. They left because there were about 50 people in the lot. They returned to the complex about 15 minutes later. The lot was empty of pedestrians. They parked the car next to a building that eventually burned. Defendant got out of the car and went into the building. He was in the building for about 30 seconds. Defendant returned to the car. They left and passed the building about 20 minutes later. At that time, the witness saw thick black smoke pour out of the windows. Defendant was asked whether he started the fire and defendant replied, “Yeah.” Later, defendant told the witness not to talk about the fire because defendant “did not want to get blamed for something he didn’t do.”

On cross-examination, the witness stated he knew a person who lived in the complex who had previously lived with defendant. The witness knew that person sold marijuana. The witness denied they went to the complex to buy marijuana. The witness denied telling either a policeman or an attorney that they went to the complex to buy marijuana.

Defendant did not carry a container or anything else when he entered the building. Defendant did not hurry when he returned from the building to the car. The witness had previously heard defendant say he had robbed a bank. To the best of the witness’ knowledge, defendant had never robbed a bank.

Wayne Mills testified both defendant and John DeJonge were his friends. He, DeJonge and defendant were driving in the witness’ car on January 20, 1981. They went to a gas station. The witness believed defendant pumped gas into the car and went inside the station to pay for the gas. The witness did not see defendant obtain a container. The witness heard defendant state, “Let’s go smoke out some Spies.” The witness stated defendant said, “Come on, let’s go burn a building, torch a fire or something like that!” They drove to the apartment complex, and parked the car about 10 feet from the door. Defendant went into the building and stayed less than a minute. Defendant returned to the car and said, “Let’s go.”

The next day, the witness asked defendant whether he was bothered that three people died in the fire. The defendant shrugged his shoulders and said that the only thing he regretted was that he had not had the chance to have sex with the teenage girl who died in the fire. The witness believed a large number of Latinos lived in the complex.

On cross-examination, the witness stated the defendant did not carry a container into or out of the building. Defendant did not smell like gasoline. The witness drank beer and smoked marijuana on the evening in question.

David Saunders testified he was a friend of defendant. At about 10 a.m. on January 21, 1981, defendant, Wayne Mills and John De-Jonge came to his home. Defendant told the witness there was something defendant wanted to show him. They drove to the burned building. Defendant pointed to the building and stated, “I did that.” The witness expressed his disbelief and defendant insisted that it was true. Defendant, Mills and DeJonge made jokes about defendant’s being a baby killer. Later, defendant gave the witness a newspaper article about the fire.

About a week later, the witness reported what he had heard to the Streamwood police department. The witness received several telephone calls from defendant while defendant was in jail. Defendant threatened the witness and told the witness not to incriminate him.

On cross-examination, the witness stated he had a case pending against him in Streamwood when he reported the conversations he heard. However, the witness denied he called to help himself in the case against him. He did not believe he could have been sent to prison for the charges against him.

On redirect examination, the witness stated the charge pending against him was criminal damage to property. The witness pleaded guilty, paid a restitution of $75 and was placed on supervision for a year. The witness stated he talked to defendant’s mother and did not give her correct information because he did not want her to know he informed on defendant.

On recross, the witness stated he lied to defendant, saying he had not informed on him. Defendant told the witness he thought the witness was “messing with” defendant’s girlfriend. Defendant threatened the witness with violence if defendant found it to be true.

Saunders, Mills and DeJonge each testified defendant told them he started the fire by throwing a lighted rag into a storage room.

Rojald Russell testified he is a fire investigator. He was hired to determine the cause and origin of the instant fire. He inspected the premises and concluded the fire was deliberately set. He believed between one and five gallons of a liquid accelerant was used. Accelerant was placed in the lower level storage area, in hallways and stairways. The witness believed the fire was started in the ground level storage room. The witness found the charred remains of a cardboard box with remnants of charred rags scattered in and around it. The box was about four or five feet from the outside door of the storage room.

Hanover Park police officer Vern Koenen testified he investigated the instant fire and interrogated defendant. Defendant denied any connection with the fire. He admitted being in the parking lot of the complex. He liked to watch the Hispanics “with their lights and candles *** their heads turn like a bunch of cows watching you go through.” Defendant stated that he did not particularly dislike Hispanics “but they could all go back where they came from.”

Carpentersville police officer Robert Wiggins testified he executed an arrest warrant on defendant. The officer went to the residence where defendant’s girlfriend was babysitting. The officer found defendant hiding under a baby’s crib.

John DeJonge was recalled as a court witness. He testified he previously talked to defense attorneys. He told the attorneys that defendant had previously said he committed crimes he had not in fact committed. He also told the attorneys he, defendant and Mills were at the complex to buy marijuana. Finally, the witness stated he understood the term “burn some Spies” meant to rob people. He had never heard the term “smoke some Spies.”

Diane DeJonge, John DeJonge’s mother, testified defendant lived in their home for a few months. Defendant often said he had committed or was about to commit crimes. The witness never knew defendant to commit the crimes he mentioned. Defendant’s sister and mother also testified to instances where defendant talked about crimes which he did not commit.

Daniel Machowiak testified he was at a party on the evening of the fire. Michael Cuniff was at the party. Cuniff made homosexual overtures to the guests. The witness and James Gustafson left to get gasoline and beer. At the request of the host, they took Cuniff with them. Cuniff rode in the back of a pickup truck. After they put gasoline in the truck, they dropped Cuniff off about two or three miles from the complex in Hanover Park. Then they got some beer for the party. On the way back to the party, about one-half hour later, they noticed Cuniff walking within a block of the complex. They picked him up, and Cuniff asked to be taken to a pool hall. When they passed the complex, Cuniff banged on the roof of the truck and yelled, “Fire.” The witness did not see any fire at the time. After they dropped Cuniff at the pool hall, they returned to the party. As they passed the complex, they saw the building on fire. They related the situation to the people at the party. The police were called. The witness and Gustafson went to the police station and made reports.

On cross-examination, the witness testified his report indicated Cuniff had said “Look at the fire” as they passed the complex.

James Gustafson testified Cuniff was “acting like he was drunk, and was snorting glue, and was on drugs definitely.” When they picked him up in the truck, Cuniff was “out of it. He was walking sideways and everything.”

On cross-examination, the witness stated he had heard of Cuniff about a year before the instant fire. He “heard his wife making statements about him in court. *** He started a fire into [sic] an apartment building in Hanover Park.” The statement the witness made to police immediately after the fire did not mention any statement made by Cuniff.

Leo Siciliano, a Hanover Park police officer, testified he saw Michael Cuniff on the night of the fire. He had been arrested on outstanding warrants. The witness noticed Cuniff’s clothing “had a smell of some type of flammable substance to them.”

On cross-examination, Siciliano stated he had previous contact with Cuniff. Cuniff always smelled of a flammable substance, namely, glue. Cuniff’s clothes were analyzed. When the lab report came back, Cuniff was still in custody. He was never charged with the instant arson.

Susan Jones testified that on January 30, 1981, she was babysitting. Defendant was her boyfriend at the time. She took defendant with her to her babysittihg job.-Defendant went to get ice cream. Policemen came to the door while defendant was out. As soon as defendant returned to the apartment, he was arrested. David Saunders asked her on dates several times. She called Saunders the day after defendant was arrested. Saunders asked her for a date on that occasion.

Lucretia Ehrke testified that at the time of the fire, she lived next to the building that burned. She saw three teenage boys walk by her second-floor window. Just then she heard an explosion. The boys kept walking as if they did not hear the explosion. At that time she saw the fire at the complex.

She saw the teenagers about 20 minutes later. One of the boys had changed from blue jeans to white pants. She could not really see the boys’ faces. Policemen showed her pictures, but she could not identify the boys she had seen. She stated she never saw defendant before.

Initially, defendant contends the evidence at trial did not establish his guilt beyond a reasonable doubt.

It is the function of the jury to determine whether the prosecution has met its burden of proof, and a reviewing court will reverse a guilty verdict only if the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt as to the guilt of the defendant. (People v. Winfield (1983), 113 Ill. App. 3d 818, 829, 447 N.E.2d 1029.) The speculation that another person committed the offense does not necessarily raise a reasonable doubt as to the guilt of the accused even if that speculation is supported by some circumstantial evidence. See People v. Despain (1981), 102 Ill. App. 3d 1063, 1067-68, 430 N.E.2d 228.

In the case at bar, the jury heard of repeated admissions defendant made that he started the fire. Those admissions were corroborated by the testimony of John DeJonge and Wayne Mills, which indicated defendant’s intention to commit the arson before the fire was started and which placed defendant at the exact place of origin of the fire at the time the fire began. Furthermore, the testimony of Ronald Russell that he found the charred remains of a cardboard box with the remnants of rags strewn about corroborated defendant’s statements that he began the fire by throwing a lighted rag in a box in the storage room.

Defendant stresses various inconsistencies in the testimony, that defendant could not have committed the crime in the 30 seconds De-Jonge and Mills testified defendant was in the building, and that defendant did not carry a container into or out of the building. It is important to note that minor inconsistencies in the testimony go only to the weight of the evidence and not to its sufficiency. (People v. Spencer (1983), 119 Ill. App. 3d 971, 980, 457 N.E.2d 473.) Furthermore, the jury is not required to give all testimony equal weight and may place greater reliance on certain testimony. (See People v. McElroy (1980), 81 Ill. App. 3d 1067, 1071, 401 N.E.2d 1069.) Therefore, we conclude that evaluating the evidence presented to the jury could have properly found defendant guilty beyond a reasonable doubt.

Next, defendant argues the trial court erred in granting the State’s motion in limine excluding all statements made by Michael Cuniff.

During the hearing on the State’s motion defense counsel stated, “We anticipate introducing at trial *** a statement from one Michael Cuniff made to one James Gustafson that he in fact had started the fire ***.” After the trial court granted the State’s motion, defense counsel requested to make an offer of proof regarding the testimony of Gustafson. The prosecutor suggested it would be more appropriate for the offer to be made during trial. Defense counsel indicated that he would make the offer at trial. However, no such offer was presented. A police report indicated an anonymous caller stated, “He had just picked up Michael J. Cuniff hitchhiking on Rt. 20, and in their conversation Michael J. Cuniff stated he had just attempted to start a fire at [the complex] but didn’t know if he was [sic] successful.” Another police report in the record indicates a high school student told the police officer that Laura Gustafson told the student that her brother, Jim Gustafson, had picked up a hitchhiker who admitted starting the fire.

Initially, we note that the record in the case at bar does not positively establish there was any admission made by Michael Cuniff. The only indication of any incriminating statement made by Cuniff was the declaration made by defense counsel and two unsubstantiated police reports, neither of which even quoted the person to whom the admission was allegedly made. Furthermore, defense counsel’s assertion that Cuniff confessed to Gustafson is refuted by the fact that Gustafson’s report to the police, made immediately after his contact with Cuniff, made absolutely no mention of any statement by Cuniff. Finally, defense counsel failed to make his promised offer of proof when Gustafson testified. Therefore, there was not any threshold showing that a “confession” ever existed. In any event, we find that even assuming Cuniff made an admission to Gustafson, the statement is inadmissible under the facts of the instant case.

The Illinois Supreme Court has declared “[t]he general rule is that a third party’s extrajudicial declarations, not made under oath, that he committed a crime are purely hearsay and are inadmissible, even though they are declarations against interest.” (People v. Tate (1981), 87 Ill. 2d 134, 143, 429 N.E.2d 470.) The court in Tate, citing Chambers v. Mississippi (1973), 410 U.S. 284, 301-02, 35 L. Ed. 2d 297, 312, 93 S. Ct. 1038, 1048-49, indicated that such a statement may be admissible if the following four indices of trustworthiness are present: (1) the declaration was spontaneous and occurred shortly after the crime; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and a declaration against interest; and (4) there was an adequate opportunity for cross-examination of the declarant. (People v. Tate (1981), 87 Ill. 2d 134, 143-44.) In Tate, the court held an extrajudicial statement was inadmissible even though the declarant was- at trial and was available for cross-examination, because other indices of reliability were not present.

In People v. Bonilla (1983), 117 Ill. App. 3d 1041, 453 N.E.2d 1322, we held that a confession made to police by a party other than defendant was inadmissible. In Bonilla, defendant was convicted of murder and arson. A resident of the building came out of the building smelling of smoke and in possession of matches. We held that the declarant’s confession to police was inadmissible because the statement was not made to a close acquaintance, the declarant was not at court for cross-examination, and the statement was corroborated “only [by] the flimsiest circumstances.” 117 Ill. App. 3d 1041, 1043.

Similarly, in the case at bar, Cuniff’s alleged admission was made to a person who was not a close acquaintance of his, he was not available for cross-examination, and his statement lacks substantial corroboration. The only facts that corroborate the confession by Cuniff are that he was near the scene of the crime at approximately the time the crime was committed, and he noticed the existence of the fire when his companions did not. Therefore, we conclude the trial court did not err in granting the State’s motion to exclude any hearsay declarations made by Michael Cuniff.

Next, defendant argues the trial court erred in denying his request for a continuance “of several months” to locate Cuniff after the court held Cuniff’s hearsay declarations were inadmissible.

The decision to grant or deny a motion for a continuance is left to the discretion of the trial court. (People v. Bryant (1983), 115 Ill. App. 3d 215, 221, 450 N.E.2d 744.) The trial court can look to defendant’s diligence or lack thereof in assessing his motion for a continuance. People v. Olbrot (1982), 106 Ill. App. 3d 367, 374, 435 N.E.2d 1242.

In the case at bar, the defendant had submitted the name of Michael Cuniff as a potential witness almost a year prior to trial. Nine months after defendant submitted his list of potential witnesses, defendant moved for a continuance to find Cuniff. The trial court granted defendant a continuance of approximately one month. After a ruling on the State’s motion in limine, the trial court denied defendant’s motion for a continuance because defendant had a reasonable opportunity to find Cuniff and because the case had been pending for more than a year. Under the circumstances in the case at bar, we conclude the trial court did not abuse its discretion in denying defendant's second motion for a continuance.

Next, defendant argues the trial court erred in quashing defendant’s subpoena duces tecum for Michael Cuniff’s treatment records from Elgin Mental Health Center.

Mental health records are privileged against judicial disclosure. (Ill. Rev. Stat. 1981, ch. 911/2, par. 810.) The statute further states that any interested party may request an in camera inspection of the records. (Ill. Rev. Stat. 1981, ch. 91Vz, par. 810(b).) There is no indication defendant requested such a confidential inspection of the records.

Courts have determined that the privilege must yield when the records are necessary for meaningful cross-examination of an important prosecution witness. (See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Di Maso (1981), 100 Ill. App. 3d 338, 426 N.E.2d 972.) However, in the case at bar Cuniff was not a prosecution witness. Therefore, there is no conflict between the privilege and the confrontation clause. Furthermore, the record does not show any articulable basis upon which to indicate the records are even relevant to the instant prosecution. There is nothing in the record to verify that defendant’s subpoena is anything more than a “fishing expedition,” where defendant seeks to disclose confidential and privileged records upon the speculation that they are relevant. Under these circumstances, the trial court did not err in quashing defendant’s subpoena duces tecum.

Next, defendant argues the finding by the trial court that the police did not record their conversations with certain witnesses was against the manifest weight of the evidence and deprived defendant access to important discovery. Defendant filed a motion to dismiss or in the alternative to suppress the testimony of certain witnesses. An evidentiary hearing was held on defendant’s motion.

David Saunders testified he had a discussion with police officers concerning the fire. Officer Koenen asked the witness whether he consented to be tape-recorded. The witness consented, and Officer Siciliano took a tape recorder from his briefcase. Siciliano talked into the recorder, played it back and turned it back on. The witness believed the tape recorder was on throughout the discussion.

On cross-examination, the witness testified he never heard his conversation with the police played back.

John DeJonge testified he had a discussion with Officers Koenen and Siciliano concerning the fire. He talked to them about 15 minutes. Thereafter, the witness’ mother was brought into the room. One of the officers asked the witness whether he would repeat his statement so it could be recorded. The officer then took out a tape recorder and placed it on the table in front of the witness.

On cross-examination, the witness stated he never' heard the tape played back.

Diane DeJonge, John’s mother, testified she was with her son at a police station. He was being questioned by Officers Koenen and Siciliano. One of the officers brought in a tape recorder, and one officer asked whether John would allow the discussion to be recorded. Thereafter, the officer turned on the recorder.

Wayne Mills testified he talked to Officers Koenen and Siciliano about a week after the fire. The witness did not see any tape recorder, and the officers did not mention any tape recorder or that their conversation was being recorded.

Officer Vern Koenen testified he did not tape the interviews with John DeJonge and David Saunders. He had never heard of any such tape recordings and he did not believe any ever existed. Officer Leo Siciliano also testified neither he nor Officer Koenen recorded any of the interviews with Mills, DeJonge or Saunders.

After argument by counsel, the trial court concluded that he was not convinced that recordings were in fact made by the officers. The judge based his decision on the “emphatic” testimony of the officers, the inability of the other witnesses to actually observe the operation of a recording device, and the fact that no witness heard a recording replayed.

The testimony presented to the trial court was conflicting. It is the responsibility of the trial judge as a finder of fact to weigh the credibility of the witnesses and resolve that conflict. (See People v. Lucien (1982), 109 Ill. App. 3d 412, 440 N.E.2d 899, cert, denied (1983), 459 U.S. 1219, 75 L. Ed. 459, 103 S. Ct. 1223.) In the case at bar, we cannot say the finding made by the trial judge was contrary to the manifest weight of the evidence in light of the unequivocal testimony of Officers Koenen and Siciliano.

Furthermore, defendant had not established how he would have been prejudiced by any failure of the police to keep and tender any recordings of the interviews. Defendant has not shown any significant inconsistency between the testimony of the police officers and the other witnesses with regard to the interviews involved. Therefore, the trial court did not err in finding that recordings of the interviews were not made.

Next, defendant argues the trial court erred in granting the State’s motion in limine to exclude testimony as to the existence of tape recordings.

The admission of evidence to impeach the credibility of a witness on a collateral issue is within the discretion of the trial court. (People v. Renslow (1981), 98 Ill. App. 3d 288, 293-94, 423 N.E.2d 1360.) A reviewing court will not disturb the decision of the trial court unless there is an abuse of discretion. People v. Allison (1983), 115 Ill. App. 3d 1038, 452 N.E.2d 148.

In the case at bar, defendant has not shown the primary relevance of the existence of the recordings. Defendant has not shown any significant variance between the testimony of the officers and the interviewed witnesses. Therefore, any impeachment regarding the existence of recordings would be collateral. We find that the trial court did not abuse its discretion in excluding the proffered testimony.

Next, defendant argues the trial court erred in restricting the cross-examination of David Saunders with regard to the charges pending against him in Streamwood. Defendant complains that he was restricted in questioning Saunders about whether he could have received a year’s imprisonment for the criminal-damage-to-property charge and his refusal to talk to defense counsel prior to trial.

Defendant did question Saunders about the potential punishment for the charge against him. Saunders simply answered he did not believe he could be sent to prison for the offense. We believe the jury was adequately informed of the charges against Saunders and any bias Saunders may have had as a result of those charges. Furthermore, prosecution witnesses are not obligated to talk to defense counsel prior to trial, and it is not an abuse of discretion to exclude cross-examination regarding a witness’ refusal to talk to defense counsel. (People v. Peter (1973), 55 Ill. 2d 443, 451, 303 N.E.2d 398, cert, denied (1974), 417 U.S. 920, 41 L. Ed. 2d 225, 94 S. Ct. 2627.) We find no error here.

Next, defendant argues the trial court erred in allowing unduly prejudicial evidence against defendant. Specifically, defendant complains of the racist remarks made by defendant about Hispanics, his statements that he only regretted not being able to have had sex with the teenage girl before she died, and the references to the “baby-killer” jokes.

We believe these matters were relevant to the issues at bar, and were properly before the jury. The racist references establish a possible motive for defendant’s commission of the crime and will not be rendered inadmissible simply because they are prejudicial. (See People v. Foster (1979), 76 Ill. 2d 365, 374, 392 N.E.2d 6.) Furthermore, defendant’s statements about the teenage girl and his reaction to the “baby-killer” jokes constitute probative admissions and as such were admissible. See People v. Alexander (1982), 93 Ill. 2d 73, 79, 442 N.E.2d 887.

Next, defendant argues he was prejudiced by improper comments by the prosecutors during closing argument. Defendant cites numerous instances of alleged improper statements. However, we note that defendant failed to object to all but two of the statements of which he now complains. Therefore, the alleged errors are waived for appellate review. (People v. Bartall (1983), 98 Ill. 2d 294, 317, 456 N.E.2d 59.) Furthermore, the trial court sustained defendant’s objections to the remaining allegedly objectionable statements. Because the trial court sustained defendant’s objections and because the court instructed the jury that closing arguments do not constitute evidence, we find that defendant was not substantially prejudiced by the allegedly improper statements by the prosecutors. See People v. Reese (1984), 121 Ill. App. 3d 977, 983, 460 N.E.2d 446.

Next, defendant argues the trial court erred in entering judgment on three counts of murder. Defendant contends that because he was only charged with the commission of a single act of arson he may not be convicted of multiple murders based on that single act.

Defendant cites People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. King holds that a defendant cannot be convicted of multiple crimes against a victim which are all based on a single physical act, and when there is identity of proof for all the offenses. (66 Ill. 2d 551, 566.) However, the courts in Illinois have now recognized that multiple crimes can arise out of a single act where separate individuals are victims of that single physical act. See People v. Mercado (1983), 119 Ill. App. 3d 461, 463, 456 N.E.2d 331, and cases therein cited.

In the case at bar, the parties stipulated that three separate vietims died from the instant fire. Therefore, we conclude defendant was properly convicted of three separate counts of murder.

Next, defendant argues his conviction for aggravated arson must be vacated because it is the predicate felony for the felony murder counts.

After the sentencing hearing, the trial court sentenced defendant to natural life imprisonment. The court did not impose a sentence for aggravated arson. In People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223, defendant appealed both the death sentence imposed on three counts of murder and his conviction of three counts of armed violence based on murder. The supreme court held:

“Although three guilty verdicts were returned against the defendant for the offense of armed violence, no sentences were imposed on those verdicts. The final judgment in a criminal case is the sentence, and, in the absence of the imposition of a sentence, an appeal cannot be entertained.” (102 Ill. 2d 23, 51.)

Because in the instant case the trial court did not impose sentence on the offense of aggravated arson, we cannot adjudicate the propriety of the aggravated arson conviction.

Next, defendant argues the trial court erred in imposing a sentence of natural life imprisonment.

The relevant statute provides (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1):

“(a) A sentence of imprisonment for a felony shall be a determinant sentence set by the court under this Section, according to the following limitations:
(1) for murder, *** (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty *** the court may sentence the defendant to a term of natural life imprisonment, or (c) if the defendant *** is found guilty of murdering more than one victim, the court shall sentence the defendant to a term of natural life imprisonment ***.”

Because we have determined that defendant was properly convicted of murdering more than one person, the trial court was mandated to impose a natural life sentence under sections 5 — 8—1(a)(1) and (c). (People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059.) Furthermore, because the trial judge noted the crime of setting a fire to an apartment building filled with sleeping residents was “rather brutal,” the trial court may have had discretion to sentence defendant to natural life based on sections 5 — 8—1(a)(1) and (b). We find no error here.

Finally, the State argues the trial court should have imposed three concurrent sentences of life imprisonment and requests we correct the mittimus accordingly. However, the Stata is not allowed to contest the propriety of the sentence on defendant’s appeal. People v. Kent (1976), 40 Ill. App. 3d 256, 265-66, 350 N.E.2d 890.

For these reasons, the convictions and sentence appealed from are affirmed.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE KARNS

text:
      In re R.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. R.D., Respondent-Appellant.
    Fifth District
    No. 5—83—0340
    Opinion filed March 14, 1985.

      Randy E. Blue and John R. Abell, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Karen L. Stallman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Respondent, a minor, was charged with sexual abuse of a child by a family member in violation of section 11 — 11.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 11.1). On petition by the State, R.D. was adjudged delinquent in a juvenile court proceeding in St. Clair County and was sentenced to two years’ probation.

The complainant in the case was R.D.’s six-year-old sister, Angie. She testified that on the evening of April 5, 1983, her brothers, E.J. and the respondent, were babysitting her and her sister, Anna. After the boys put Anna to bed, R.D. instructed Angie to go to his bed. She complied and removed her clothing at his further instruction. With the aid of male and female dolls, Angie described the alleged sexual act through demonstration. She was not penetrated, but R.D. ejaculated a “yellow” substance after rubbing his penis between her legs from behind. Upon her mother’s arrival, Angie told her that R.D. had “screwed” her.

The respondent denied the occurrence. He testified that he and his brother lay in bed with the little girls to calm them down, and that he spanked both of them when they wouldn’t go to sleep. He testified that Angie came out of the bedroom wanting to watch “Soap” and began crying when he told her to go to bed and spanked her. She was still crying from this incident when their mother returned home.

Laura Lindberg, a registered nurse, was called by the State. She testified that she examined Angie on the afternoon of April 5, 1983, upon a report of sexual abuse. She observed that Angie had a vaginal discharge and a somewhat stretched vaginal opening for her age. Over objection, Ms. Lindberg related what Angie told her about the evening before. In summary, Angie said that R.D. ordered her to bed with physical threats, that when he told her to remove her panties she asked him if they were “going to do what we’ve done before,” and that he rubbed his penis “back and forth and back and forth” between her rectum and her vagina. Angie also said that the same thing had occurred “a lot of times” in the past.

Officer Mark Cronovich investigated the abuse report. He testified that when he interviewed Angie she related the same basic facts to him as she had to an officer who had taken an earlier written statement. Cronovich was not permitted to testify further concerning Angie’s interview.

Conrad Williams, an investigator for the Department of Children and Family Services, interviewed Angie on the morning of April 5. Over respondent’s continuing objection, Mr. Williams related the substance of his interview with Angie concerning the alleged abuse incident. Angie told him that the evening before, R.D. was babysitting the younger children and that he had Angie get in his bed, take off her pajama bottoms and panties, and then “screwed” her. He did not interview her further or inquire into the specific meaning behind Angie’s use of the term “screw.”

R.D. appeals from the adjudication of delinquency asserting that the admission of the hearsay testimony of Lindberg and Williams constituted reversible error.

Section 115 — 10 of the Criminal Code of 1963 provides:

“In a prosecution for a sexual act perpetrated upon a child under the age of 12, including but not limited to prosecution for violation of Sections 11 — 1 through 11 — 5 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.” (Ill. Rev. Stat., 1982 Supp., ch. 38, par. 115-10.)

R.D.’s first contention is that the statute unconstitutionally deprived him of due process. We find this argument totally lacking in merit. The gist of respondent’s empty challenge is that the corroborative complaint exception codified in section 115 — 10 was formulated solely for cases where consent is an issue. Because consent is never at issue in child sexual abuse cases, argues respondent, there is no need for corroborative hearsay testimony that a complaint was made, and therefore the statutory hearsay exception is fundamentally unfair. Our search of the law has yielded no support for this argument. The policy behind the corroborative complaint exception is not limited in the manner described by defendant. In People v. Fuelner (1982), 104 Ill. App. 3d 340, 432 N.E.2d 986, the court aptly explained the basis for the rule, as clarified in People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25:

“The basis for the corroborative statement exception is that it is entirely natural that a rape victim would have spoken out regarding the rape, and the fact that she did not do so would be evidence of the fact that nothing occurred. [Citation.] Consequently, if proof of a complaint was not permitted, the trier of fact might assume that no complaint was made. To forestall this assumption, the prosecution is allowed to show that the alleged victim was not silent but made a complaint. [Citation.]” (People v. Fuelner (1982), 104 Ill. App. 3d 340, 349-50, 432 N.E.2d 986, 993-94.)

Moreover, the statute is a codification of existing law firmly entrenched since Damen, and we cannot say that it was incorrectly applied in the instant case.

Secondly, R.D. argues that the scope of the statutory exception was impermissibly exceeded when Lindberg and Williams were permitted to offer details of the alleged sexual activity described by Angie. We agree that the court should have excluded the descriptive testimony and confined the hearsay statements to simple corroboration of the child’s complaint. However, no prejudicial error occurred, because the facts introduced in the testimony of Lindberg and Williams were established by the testimony of Angie, who was present in court and subjected to cross-examination. People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164; People v. Leggans (1980), 80 Ill. App. 3d 51, 399 N.E.2d 349.

Respondent insists that the erroneous admission of the hearsay statements cannot be considered harmless because the court placed heavy emphasis on the corroborative testimony in its decision. This position is untenable, as the record yields sufficient, competent evidence establishing R.D.’s guilt beyond a reasonable doubt, and reversal is therefore not required. People v. Chianakas (1983), 114 Ill. App. 3d 496, 448 N.E.2d 620.

Affirmed.

JONES, P.J., and KASSERMAN, J., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACOB BRAMLETT, Defendant-Appellant.
    Fifth District
    No. 5—83—0091
    Opinion filed March 1, 1985.
    Randy E. Blue and Patricia M. Sarter, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William A. Schuwerk, State’s Attorney, of Chester (Robert J. Biderman and Kevin T. McClain, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Jacob Bramlett, was charged by information with the offense of murder. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1).) Defendant was found guilty as charged by a jury in the circuit court of Randolph County and was sentenced to a term of imprisonment of 50 to 100 years. On appeal, defendant contends (1) that the circuit court improperly refused to allow a defense witness to testify as to whether that witness would believe the sworn testimony of the State’s chief witness and (2) that the prosecutor’s comments during closing argument deprived defendant of a fair trial.

Because defendant does not challenge the sufficiency of the evidence against him, a complete recitation of the facts adduced at trial is unnecessary, and we will detail below as necessary only those facts related to the issues raised by defendant. We first address defendant’s contention that the circuit court improperly refused to allow a defense witness to testify as to whether that witness would believe the sworn testimony of the State’s chief witness.

Defendant’s ex-wife, Anna Bramlett, testified that defendant had admitted killing the victim. In order to impeach her testimony, defendant called a witness, Vera Cross, to testify as to the bad general reputation of Ms. Bramlett for truth and veracity in the community. The relevant portions of the report of proceedings containing Mrs. Cross’ testimony are as follows:

“Q. [Defense Counsel] Do you know Anna Bramlett.
A. Yes, I know her.
Q. And how long have you known Anna Bramlett?
A. Oh, I’d say about 6 to 7 years.
Q. Are you familiar with Anna Bramlett’s reputation for being truthful among the persons and neighbors in Ava?
A. Well, she’s not a truthful person.
[State’s Attorney]: Objection, Judge.
The Court: All right.
Q. Please answer my question.
The Court: Objection is sustained and the jury is instructed to disregard the last answer of the witness. Proceed.
Q. Are you familiar with Anna Bramlett’s reputation for being truthful among the persons, friends, and neighbors she socializes with in Ava?
A. Well, she’s—
Q. Are you familiar with that reputation, Mrs. Cross?
A. Yes, I’ve heard of it, you know, her reputation.
Q. What is her reputation? Would you please tell the jury.
A. Well, I had a conflict with her—
[State’s Attorney]: Objection, Judge, of any conversation.
Q. Please, Mrs. Cross, just answer my questions asked. You stated that you are familiar with her reputation for being a truthful person. Would you please tell the jury what her reputation is for being truthful.
A. Well, she don’t have a very good reputation for being truthful.
A. Would you believe Anna Bramlett—
[State’s Attorney]: Objection, Judge, anything she might believe.
The Court: Objection sustained.”
Defense counsel then made the following offer of proof:
“Q. Mrs. Cross, if Anna Bramlett were to testify under oath, would you believe her testimony?
A. No, sir, I wouldn’t.”
On cross-examination of Mrs. Cross, the following colloquy transpired: “Q. [State’s Attorney] I take it your opinion, in the community you heard conversations about Anna Bramlett. Is that correct?
A. Yes.
Q. Who’s the last person that you heard talking about Anna Bramlett?
A. The last person?
Q. Yeah.
A. Juanita Baker.
Q. Juanita Baker, and that was a conversation about her truth and veracity, about her being truthful?
A. Well, she was beat up by her.
Q. Just answer the question.
A. No.
Q. No. Well, that’s what we are trying to pin down here. Who is the last person you talked to, or were in the presence of conversation concerning Anna Bramlett’s reputation for being truthful? Would you tell the jury who the last person was that you heard discussing her truthfulness.
A. No, I can’t remember who it was.
Q. Can’t remember who it was?
A. No.
Q. Can you remember when it was?
A. Well, it was right after I was beat up by her.
[State’s Attorney]: Judge, I ask that be stricken. That has nothing to do—
A. Oh, I don’t remember.
[Defense Counsel]: Your Honor, she is responding to his questions.
The Court: We will leave it stand. Overruled.
Q. [State’s Attorney] So you don’t remember—
A. No.
Q. Who, and you don’t remember when?
A. No because—
Q. Well, you don’t?
A. I don’t remember, no.
[State’s Attorney]: Okay. I have nothing further, Judge.”

It is the settled law of Illinois that as part of an impeachment witness’ testimony, another witness may testify that such witness has a bad general reputation for truth and veracity. (Frye v. Bank of Illinois (1849), 11 Ill. 367.) Furthermore, the impeachment witness may state whether he or she would believe the other witness under oath; however, it must be clear that the belief or disbelief of the other witness if he or she were to testify under oath is based on the impeachment witness’ knowledge of the other witness’ general reputation for truth and veracity. (People v. Lehner (1927), 326 Ill. 216, 157 N.E. 211; Laclede Bank v. Keeler (1884), 109 Ill. 385; Eason v. Chapman (1858), 21 Ill. 33; Frye v. Bank of Illinois (1849), 11 Ill. 367; Burke v. Zwick (1939), 299 Ill. App. 558, 20 N.E.2d 912.) In order to satisfy this condition, the interrogatory put to the impeachment witness must require such witness to indicate that his or her opinion is based on his or her knowledge of the other witness’ general reputation for truth and veracity. (People v. Lehner (1927), 326 Ill. 216, 221, 157 N.E. 211, 214 (“Based on that reputation”); Laclede Bank v. Keeler (1884), 109 Ill. 385, 390 (“from such knowledge”); Frye v. Bank of Illinois (1849), 11 Ill. 367, 379 (“from that reputation”); Burke v. Zwick (1939), 299 Ill. App. 558, 560, 20 N.E.2d 912, 913 (“from that reputation”).) Neither the question asked by defense counsel on direct examination nor the question used in defense counsel’s offer of proof contains such a limitation. Instead, Mrs. Cross was asked only whether she would believe Ms. Bramlett under oath. Thus, the trial court properly sustained the State’s objection to the question.

Defendant’s other contention is that the prosecutor’s comments during closing argument deprived defendant of a fair trial. In rebuttal during closing arguments the prosecutor made the following statements:

“[State’s Attorney]: *** Now, you know it’s an old defense trick to put everybody on trial but the defendant. We are going to put Anna Bramlett on trial. We are going to put [the victim’s] father, Ben Skurat, on trial. Those people aren’t on trial. There’s only one person on trial in this courtroom, and that’s the defendant.”

Defendant contends that these remarks constitute reversible error.

At the outset we note that defense counsel failed to object to the prosecutor’s comments. Any error resulting from the allegedly prejudicial remarks is waived by such failure unless the comments are so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. (People v. Owens (1984), 102 Ill. 2d 88, 104, 464 N.E.2d 261, 268.) With regard to the above-quoted comments, we conclude that not only were neither of the above conditions attained, but that the comments are free of error.

Defendant relies on People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41, to support his contention. There the court stated: “Unless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper.” (97 Ill. 2d 487, 497, 455 N.E.2d 41, 45.) The comments of the prosecutor in the case at bar, when taken in context, do not rise to the conduct found impermissible in Emerson. In fact, comments similar to those made by the prosecutor in the instant case have been held to be within the bounds of proper argument. See People v. Griggs (1977), 51 Ill. App. 3d 224, 226, 366 N.E.2d 581, 583.

For these reasons, we affirm the judgment of the circuit court of Randolph County.

Affirmed.

JONES, P.J., and EARNS, J., concur.


text:
      In re FORT CHARTRES AND IVY LANDING DRAINAGE AND LEVEE DISTRICT (Commissioners of Fort Chartres and Ivy Landing Drainage and Levee District, Petitioners-Appellee, v. Lilburn Doiron et at., Objectors-Appellants).
    Fifth District
    No. 5—84—0031
    Opinion filed February 28, 1985.
    Nehrt, Sachtleben, Fisher & Smith, of Chester (David R. Smith, of counsel), for appellants.
    Michael V. Frierdich and Arthur W. Morris, both of Frierdich and Buser, of Columbia, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Twelve landowners have appealed from an order entered on September 16, 1981, by the circuit court of Monroe County. The appellant landowners are: Lilburn Doiron, William G. Laurent, Morris Webb, Loren Brown and McKinley Brown as trustees of the Cora L. Ohms Trust No. 1, George DuFrenne, Mary L. Bise, Elmer Nevois, Addie Owen, Weldy Laurent, August Allard, and Claud J. Watters. The order appealed from dismissed the landowners’ objections to the district’s petition filed pursuant to the Illinois Drainage Code (Ill. Rev. Stat. 1983, ch. 42, par. 1 — 1 et seq.) for authority to levy an annual maintenance assessment. The order also granted the district the authority to change its method of assessment and to base the annual maintenance assessment on the value of the property within the drainage district as reflected in the current assessment books prepared by the county assessors of Monroe and Randolph counties.

On October 4, 1978, the district filed a petition in the circuit court of Monroe County seeking an increase in the district’s annual maintenance assessment. The petition also sought court authorization to change the method of assessment and base the annual maintenance assessment on the value of the property within the drainage district as reflected in the current assessment books prepared by the county assessors of Monroe and Randolph counties. In an order entered that same day, the circuit court set the petition for hearing at 9 a.m. on November 6, 1978. Notice of the hearing was given in the appropriate manner. For some reason which does not appear of record, no hearing was held on November 6, 1978. The matter was reset for hearing at 10 a.m. on September 10, 1981; and prior to the time set for hearing, objections were filed. On the day of the hearing, the district filed a motion to dismiss those objections on the grounds that the objections were premature. After hearing the arguments of counsel for both the district and the objectors, the circuit court granted the district’s motion and dismissed the objections. The circuit court also ordered that the method of assessment be changed as requested. The objectors filed a timely post-trial motion which was denied by the circuit court in an order entered on December 12, 1983. The objectors subsequently perfected this appeal.

Whenever the commissioners of a drainage district determine that it is necessary to levy an annual maintenance assessment for the performance of maintenance work within the district or to increase an existing annual maintenance assessment, the commissioners shall file a petition in the circuit court for the county in which the district is organized for the authority to levy or increase the assessment. (Ill. Rev. Stat. 1983, ch. 42, par. 4 — 19.) The contents of the petition are governed by statute which provides in pertinent part:

“The petition shall contain the following (or so much thereof as may be applicable): (a) a general description of any work or changes proposed to be undertaken; (b) a general description of any equipment proposed to be purchased, acquired, leased, maintained or operated; (c) a statement showing the necessity for or advisability of the levy of the assessment or the exercise of such powers; (d) such plans, profiles or specifications as may be necessary; (e) a description of any lands, rights-of-way or other property which they deem it necessary to acquire for such work; (f) an estimate of costs, including an estimate of any increase or decrease in costs occasioned by any proposed change; (g) the amount of the assessment proposed to be levied, if any; (h) a statement that the benefits to the lands and other property in the district from the proposed work or the exercise of the power or powers proposed exceed the cost to such lands and other property; (i) a request for authority to exercise such powers and to do the acts proposed; (j) a request for authority to levy the proposed assessment; and (k) any other matters which the commissioners may deem pertinent.” (111. Rev. Stat. 1983, ch. 42, par. 4 — 19.)

The district filed such a petition in this case, requesting the authority to increase the annual maintenance assessment and to change its method of assessment. The petition was set for hearing as required by statute (Ill. Rev. Stat. 1983, ch. 42, par. 4 — 20), and the notice of hearing required by statute was given (Ill. Rev. Stat. 1983, ch. 42, pars. 4 — 21, 4 — 22). Section 4 — 23 of the Illinois Drainage Code authorizes any landowner within the district to file an objection to such a petition at any time prior to the time set for the hearing. The objections filed by the landowners herein were apparently so intended.

Although the petition filed by the district had sought an increase in the annual maintenance assessment, at the hearing on that petition the district withdrew its request for such an increase and sought only an authorization for the requested change in method of assessment. The district argues that once its request for an increase in the annual maintenance assessment was withdrawn, there remained nothing to which the landowners could object. We do not agree. The district included in its petition a request for authority to change its method of assessment and base the existing annual maintenance assessment on the value of the property within the drainage district as reflected in the current assessment books prepared by the county assessors of Monroe and Randolph counties. The objectors as landowners in the district are entitled to file any objections to such petition as they desire.

The district contends that it did not require court authorization to change its method of assessment and that any objections thereto could be made only pursuant to section 5 — 20 of the Illinois Drainage Code (Ill. Rev. Stat. 1983, ch. 42, par. 5 — 20) at the time of the yearly levy for the annual maintenance assessment. For these reasons the district claims the landowners’ objections were premature. The flaw in the district’s argument is that it overlooks the language of section 5 — 19 of the Illinois Drainage Code which provides that “the annual maintenance assessment roll *** shall continue as an annual charge against the lands and other property included therein until increased, reduced, appealed or otherwise changed or a new annual maintenance assessment levied in lieu thereof, as provided in this Act.” (Ill. Rev. Stat. 1983, ch. 42, par. 5 — 19.) The effect of the district’s requested change in method of assessment is to adopt as the annual maintenance assessment roll the assessment books prepared by the county assessors of Monroe and Randolph counties. That change may be accomplished only by the filing of a petition under section 4 — 19 of the Illinois Drainage Code and the giving of statutory notice. The Drainage Code contemplates that objections may be filed to such petition. (Ill. Rev. Stat. 1983, ch. 42, par. 4 — 23.) The commissioners have no authority to impose any liability on the landowners within the district except upon a hearing before the court, and the landowners as such have the right to be heard at every stage of the proceedings. (Corcoran v. Mud Creek Drainage District (1929), 336 Ill. 211, 220-21, 168 N.E. 509, 513.) Consequently, the circuit court erred by dismissing the landowners’ objections to the district’s petition.

Accordingly, we vacate the order of the circuit court dismissing the landowners’ objections and granting the district the authority to change its method of assessment. This cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded.

JONES, P.J., and WELCH, J., concur.