author: JUSTICE JOHNSON

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. ALEX A. SALERNO, Adm’r of the Estate of Alec S. Salerno, Deceased, et al., Defendants-Appellants.
    First District (4th Division)
    No. 82—2285
    Opinion filed January 26, 1984.
    Michael D. Monico, of Chicago, for appellants.
    Beverly, Pause, Duffy & O’Malley, of Chicago (Frank J. Pause, Robert O. Duffy, Thomas J. Brophy, and Michael W. Rathsack, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendants, Ronald Dugo and Alex A. Salerno, appeal an order of the circuit court which declared that plaintiff, State Farm Mutual Automobile Insurance Company (State Farm), did not owe coverage under an automobile insurance policy to its insured, Herman Kirschbaum, defendant. The only issue presented for review is whether plaintiff’s insurance policy provided coverage for the nonowned tow truck driven by Kirschbaum.

We affirm.

On October 1, 1977, an accident occurred in Melrose Park, Illinois, which involved a tow truck driven by Herman Kirschbaum and owned by All Suburban Towing Service (All Suburban) and an automobile driven by Ronald Dugo. Alex S. Salerno was a passenger in Dugo’s car. At that time, plaintiff had issued to Kirschbaum an automobile insurance policy covering a 1973 Ford pickup truck. The policy provided for coverage of nonowned automobiles and defined automobile as a “four wheel land motor vehicle designed for use principally upon public roads, but automobile shall not include a midget automobile, nor any vehicle while located for use as a residence or premises.”

Dugo filed a complaint against All Suburban, Dennis Schwartz, individually and doing business as All Suburban, Herman Kirschbaum, and the village of Melrose Park. Alex A. Salerno, administrator of the estate of Alex S. Salerno, sued All Suburban, Schwartz, and Kirschbaum. State Farm filed a complaint for declaratory judgment against Dugo, Salerno, Kirschbaum, Schwartz, All Suburban, and the village of Melrose Park. It asked that the court declare that Kirschbaum was not covered by the automobile insurance policy. The village was dismissed from the suit on March 27, 1979. On July 27, 1982, State Farm moved for summary judgment. On September 1, 1982, the trial court ruled in favor of State Farm, finding that it did not owe coverage to Kirschbaum and Schwartz need not furnish a defense to them. Defendants Dugo and Salerno appeal.

Defendants advance several arguments in favor of their position that the tow truck driven by Kirschbaum was covered by the State Farm insurance policy. First, they contend that the two-axle truck with six tires was a four-wheel land motor vehicle as a matter of law and cite several cases from other jurisdictions in support of this theory. The four rear wheels were mounted on a single axle. Two wheels were locked and unable to spin independently; they rotated as one wheel. Thus, defendants reason, the tow truck was in effect a four-wheel motor vehicle, as was the pickup truck, insured under Kirschbaum’s State Farm policy.

Defendant Dugo argues in the alternative that even if the tow truck is not a four-wheel land motor vehicle as a matter of law, conflicting decisions of the courts regarding identical policy provisions establish that those provisions are ambiguous. Ambiguity should be construed against the insurer and in favor of the insured. In the insurance policy, the term “motor vehicle” was used interchangeably with “automobile.” Salerno claims that the use of the word “automobile” in a policy for a pickup truck created an ambiguity.

Defendants also contend that the tow truck was covered because it was not expressly excluded from the policy as were midget automobiles and vehicles used as residences. Dugo claims that the risk of insuring a two-axle truck with six tires is not significantly greater than the risk of insuring a truck with four tires, and Salerno urges that Kirschbaum could reasonably assume that a substitute truck would be covered since it had two axles.

We reject defendants’ arguments. Insurance policies are contracts and the general rules of construction which apply to other contracts also apply to insurance policies. Where the language of the policy is clear and unambiguous, it must be taken in its plain, ordinary and popular sense. (Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 412, 407 N.E.2d 77, 79.) Kirschbaum’s insurance policy-defined automobile as a “four wheel land motor vehicle.” (Emphasis added.) We decline to read into this definition the notion that “wheel” must be distinguished from "tire.”

We have examined the cases cited by defendants in support of their theory that a vehicle with six tires on two axles is a four-wheel-land-motor vehicle. In Hochgurtel v. San Felippo (1977), 78 Wis. 2d 70, 253 N.W.2d 526, the insurance company admitted that a sod truck that had six tires had only four wheels from a technical and industrial standpoint. In Hardware Mutual Casualty Co. v. Curry (1959), 21 Ill. App. 2d 343, 157 N.E.2d 793, the issue was whether a truck was a land motor vehicle and thus within the definition of automobile in an insurance policy. In Seaboard Fire & Marine Insurance Co. v. Gibbs (4th Cir. 1968), 392 F.2d 793, the court, interpreting South Carolina law, decided that a truck with six wheels was within the definition of a four-wheel-land-motor vehicle, but also noted that the truck could have been used with four wheels. In Robbins v. State Farm Mutual Automobile Insurance Co. (1980), 68 Ohio App. 2d 172, 428 N.E.2d 464, the court decided that a bus with six tires was a four-wheel-land-motor vehicle. These cases do not persuade us that the tow truck driven by Kirschbaum which had two tires on its front axle and four tires on its rear axle was a four-wheel-land-motor vehicle. The tow truck was a six-wheel-land-motor vehicle. We hold that the trial court correctly ruled that the tow truck was not covered by Kirschbaum’s insurance policy because it was not a four-wheel-land-motor vehicle.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI and ROMITI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT SUDZUS, Defendant-Appellant.
    First District (5th Division)
    No. 82—2870
    Opinion filed January 27, 1984.
    Michael James Frost, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Eddie A. Stephens, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendant Albert Sudzus appeals from a conviction of making a materially false statement on an application for a certificate of title to a motor vehicle. Defendant raises three issues on review. First, he contends that he was not proved guilty beyond a reasonable doubt. Second, he asserts that the trial court erred in refusing to admit certain evidence. Third, he contends that the trial court erred in inquiring whether defendant kept a record of sale of the vehicle for which he later obtained the certificate of title. For the reasons which follow, we affirm the judgment of the trial court.

On March 2, 1982, an information was filed which charged that defendant “knowingly made a material false statement on an application for an Illinois Certificate of Title for a 1969 Corvette motor vehicle ***, namely that he was the owner of said vehicle and that he had lost the original title,” in violation of section 4 — 105(a)(6) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 V2, par. 4 — 105(a)(6)). The case was tried by the court sitting without a jury. The parties stipulated to the following facts at the bench trial. On April 5, 1978, defendant purchased a 1969 Corvette automobile. On October 1, 1980, defendant sold the same vehicle to Bernard J. Cane, who in turn sold the vehicle to Betty Lucente on April 21, 1981. On July 27, 1981, the vehicle was stolen and recovered by the Chicago police the following day, whereupon it was towed to the Chicago Police Department Pound No. Three. At that time police investigation determined that the records of the Illinois Secretary of State indicated that defendant still maintained title to the vehicle. The police sent a form letter to defendant stating that they had a vehicle which the records indicated he owned. On August 17, 1981, defendant applied for a duplicate title to the automobile, stating on the application that the original title had been lost. A duplicate title was issued to defendant on September 15, 1981. Defendant was unable to obtain possession of the vehicle because an insurance company had obtained a salvage title and already removed the vehicle. Defendant was interviewed by the police on September 17, 1981, at which time he surrendered the certificate of title and otherwise cooperated "with the police investigation. Defendant was arrested on December 10, 1981. After presenting the stipulation, the prosecution rested.

The defendant testified in his own behalf and stated that he owns a towing service and has completed about three years of college. Around July 28, 1981, he received a letter from the Chicago Police Department Automotive Pound which stated that unless defendant retrieved “his” car from the automobile pound he would be charged towing and storage costs on a per diem basis. Defendant went to the pound and was told that he could not get the car without producing the title. Defendant was able to observe the car at this time. He described it as wrecked and “burned to the ground. It was just *** a mess, a pile of junk.”

Defendant further testified that an officer at the pound stated that defendant was the owner of record. Defendant stated that he was concerned about the accruing charges because he knew of cases in which the charges were as high as $500 or $600. Defendant testified that his motivation was that he was worried that he would be held liable and that he wanted to remove the car from the pound or sign it over to the city of Chicago. Defendant thereafter obtained an application for a duplicate title certificate and had it filled out and typed. In the space provided for the reason for the new certificate, defendant indicated that he wrote “Lost.” The court sustained the prosecution’s objection to a question designed to elicit defendant’s opinion of the value of the car.

On cross-examination defendant testified that he did not tell the officer at the pound that the automobile was not his and that he did not reveal that he had sold the car some months previously.

At the conclusion of cross-examination, defense counsel waived redirect examination. The court then posed several inquiries to the defendant. One of these was whether defendant kept any records of the sale of the car. Defendant stated that he had not maintained any such records. After hearing arguments of counsel, the trial court found defendant guilty as charged.

Opinion

The first issue for review is whether the defendant was proved guilty beyond a reasonable doubt. We note that, although defendant has not questioned the sufficiency of the charging instrument, the information charged that defendant “knowingly” made a material false statement on the title application. The emphasized language seems superfluous in light of the holding in People v. Delay (1979), 70 Ill. App. 3d 712, 714-16, 388 N.E.2d 1316. The court there discussed the legislative intent in enacting section 4 — 105 and concluded that the legislature did not intend to require “intent nor any other criminal mental state *** to impose liability ***.” (70 Ill. App. 3d 712, 715.) Despite this discrepancy in the requirements of the statute and the language employed in the information, we find no prejudice to defendant in that the additional language only made the prosecution’s burden more difficult.

Nonetheless, our review of the evidence convinces us that the prosecution has met its burden in this case. Defendant admitted that he had transferred the title certificate when he sold the vehicle some months before applying for the duplicate title certificate. This establishes his knowledge of the falsity of the statement. The false statement must also be “material” under the statute to sustain a conviction. In our view, a false statement that the certificate of title has been lost, when in fact the vehicle has been sold, is a material statement. Defendant’s arguments concerning his lack of motive are irrelevant; the statute proscribes the act which he admitted doing. In summary, we find the evidence sufficient to sustain defendant’s conviction. See generally People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733; compare People v. Einoder (1980), 82 Ill. App. 3d 1079, 403 N.E.2d 641.

The next issue for review is whether the trial court erred in sustaining the prosecution’s objection to defendant’s testifying to the value of the automobile. The evidence sought to be introduced was not, however, relevant to any matter at issue and the trial court properly exercised its discretion in refusing to admit it. See People v. Jones (1982), 108 Ill. App. 3d 880, 884-85, 439 N.E.2d 1011.

The defendant finally contends that the trial court erred in asking defendant whether he kept a record of the sale of the automobile. Viewing the colloquy between the court and the defendant as a whole, we find no prejudice to defendant. Defendant admitted that he had transferred the title to another party but had not kept any record of the transaction. Whether or not defendant had transferred a title certificate was certainly relevant to a determination of the falsity of his statement that the certificate had been lost. While other matters of inquiry may have been irrelevant, the record does not demonstrate that they influenced the trial court’s decision. (See People v. Conwell (1978), 64 Ill. App. 3d 995, 1003, 382 N.E.2d 64.) Accordingly, we find no basis for reversal.

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

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT BUCKNER, Defendant-Appellant.
    First District (5th Division)
    No. 83—119
    Opinion filed January 27, 1984.
    Rehearing denied February 28, 1984.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Mark L. Lefevour, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of two counts of armed robbery and one count of aggravated kidnaping and sentenced to 19 years. On appeal, he contends that (1) the admission of hearsay evidence deprived him of his sixth amendment right to confront witnesses; and (2) the trial court (a) abused its discretion in admitting rebuttal evidence on collateral matters, and (b) erred in giving a deadlock instruction.

At trial, Lavergne Harris testified that she and her boyfriend, Sebastian Robinson, were sitting in his car in Douglas Park at approximately 10:30 p.m. on March 5, 1981, when two men approached the car. One of them, whom she identified as defendant, pointed a gun at them through the window, ordered Robinson to get out of the car, and pushed him into the back seat. Defendant got into the front seat with her, and the second man (identified through subsequent testimony as Anthony Evans) who also had a gun, got into the back seat with Robinson. Evans then reached over the seat, ripped her blouse open, and said he was going to rape her; she was raped and forced to perform a deviate sexual act three times, once by defendant and twice by Evans. She had a clear view of defendant’s face for 15 minutes while he raped her. Thereafter, defendant placed Robinson in the front seat, ordered her to sit in the back with Evans, and drove out of the park. Harris further testified that as they drove, Evans took her watch and, while they were stopped at a red light, defendant opened the door and yelled to someone that they would meet “over there.” Defendant then drove into a nearby alley, ordered Robinson out of the car, and forced him into the trunk. A third man joined the group (identified in subsequent testimony as Alfred Martin) and they continued driving. Later, while stopped at a light, Robinson managed to escape from the trunk, after which defendant stopped in an alley, took the two guns out of the car, and hid them somewhere. They then drove for approximately 20 more minutes before defendant stopped and forced her to get out of the car with him. As they were standing near the car, defendant was distracted by an argument between Evans and Martin over her watch, and she was able to escape. She found two officers in the vicinity, and they took her home after she told them what had happened. She and members of her family then went out to search for Robinson and met the same officers, who drove her to another location where she saw Evans and Martin near Robinson’s car, but defendant was not with them. She told the officers “that’s two of them, but, there is another one.” Later, as she walked down a nearby passageway between two houses, she saw officers approaching with defendant and identified him as the third man involved. Harris acknowledged that she and Robinson had been parked in Douglas Park for one hour before the incident occurred, but denied that they had engaged in sexual intercourse at that time. She also stated that although she was in defendant’s presence for approximately two hours, she did not try to escape during that time.

Officer Zuelke testified that he and his partner were searching for and saw Robinson’s car in an alley. When they drove to the other end of the alley to intercept it, the two vehicles collided. Evans and Martin got out of the car and were apprehended; Martin was wounded in the arm at that time. Zuelke testified that when Harris arrived, she said “that’s them,” and he acknowledged that he did not see defendant at the scene.

Officer Guisinger testified that he arrived at the scene shortly after Evans and Martin were apprehended and heard Harris say “that’s the two; there’s one more, and the one that’s got the shotgun.” He then approached Martin and, after speaking to him, went to a house a short distance from the scene and arrested defendant. As they removed him from the house, Harris arrived and identified him as the third man involved. Guisinger admitted that police reports did not reflect Harris’ statement that a third man was involved.

The testimony of Sebastian Robinson corroborated that of Harris, but he added that during the attack in the park, defendant opened the car door several times and, each time he did so, the dome light came on and he had a clear view of defendant’s face. Robinson further stated that when they stopped in the alley, defendant forced him out of the car and took his shoes and a jacket which had a ring and some change in the pocket. Defendant ordered him to get into the trunk and, when he refused, struck him in the temple with the gun. When he (Robinson) then entered the trunk, the light was on and he had another clear view of defendant’s face as he closed the trunk. After escaping, he called the police and was taken to a hospital for treatment of a cut on his head. The next morning he identified defendant in a lineup. Robinson denied having sexual intercourse with Harris while in the park.

It was stipulated that, when apprehended, Martin had Harris’ watch in his possession and Evans had Robinson’s ring; that tests performed on Harris were positive for the presence of sperm in the vagina; and that tests performed on the underwear worn by the three offenders at the time of their arrest did not reveal the presence of sperm.

Stephanie Buckner, defendant’s wife, testified that defendant came home from work at 4 p.m. on the date of the offense and did not leave the house thereafter. They had a dinner of pork chops and rice which she prepared, and he spent the rest of the evening in their bedroom watching television. She joined him there at approximately 9 p.m. and fell asleep while watching the news. She did not awaken until the police came to their bedroom door in the early morning hours. On cross-examination, Mrs. Buckner admitted that she could not remember what she cooked for dinner the night before or the week before the incident in question, explaining that because she rarely cooked she remembered what she prepared that night; that her parents and two nieces were also in the house that evening; that defendant did not leave the house between 6 and 8 p.m. to attend night classes; and that Martin was her nephew.

Defendant testified that he was employed at Cook & Riley on the date in question, and returned from work at approximately 4 p.m. He had dinner at 7 p.m. and spent the rest of the evening watching television. He denied telling police investigators and an assistant State’s Attorney that he went to night school from 6 to 8 p.m. that night, and further denied committing the offenses charged.

Mary Jean O’Malley testified in rebuttal that she provides acccounting services for Cook & Riley, and that a search of its business records revealed that defendant was not employed by that company in 1981.

Assistant State’s Attorney Rathe, also testifying in rebuttal, stated that he interviewed defendant at 9:30 a.m. on March 6, 1981. After being informed of his rights, defendant stated that he attended night school classes from 6 to 8 p.m. on March 5. Rathe acknowledged that the statement was not recorded, and that he had no notes pertaining thereto.

Opinion

Defendant first contends that his right to confront witnesses against him was denied by the State’s introduction of hearsay testimony which raised the implication that he was identified by an accomplice. The testimony referred to occurred during the State’s examination of Officer Guisinger:

“Q. Officer, after you talked to [Harris], did you then go over and talk to Alfred Martin?
A. Yes, sir.
* * *
Q. What did you say to him?
A. I said where is he and who is he.
Q. After that, where did you go?
A. We went to 1317 South Homan, in the rear.
* * *
Q. What was your purpose of going there?
A. To arrest Vincent Buckner.”

Defendant concedes that since the substance of the conversation with Martin was not revealed, the exchange was not technically within the definition of hearsay; i.e., “testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value on the credibility of the out-of-court asserter.” (Emphasis added.) (People v. Rogers (1980), 81 Ill. 2d 571, 577, 411 N.E.2d 223, 226.) Nevertheless, he argues that this technical distinction is meaningless where the inference to be drawn is clear, and was forcefully brought home to the jury by the prosecutor’s closing argument during which, after twice repeating the substance of Guisinger’s testimony, he inquired of the jury, “Do you think that’s a coincidence?”

The State initially responds that defendant has waived any error in connection with this testimony by his failure to object at trial or to raise the issue in his post-trial motion. As a general rule, such omissions act as a waiver, even of constitutional questions (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856), with regard to issues such as the admissibility of testimony (People v. Williams (1977), 52 Ill. App. 3d 81, 367 N.E.2d 167) or improper argument by the prosecutor (People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739). Moreover, to be effective, a post-trial motion must set forth with adequate specificity the errors relied upon (People v. Lawson (1980), 86 Ill. App. 3d 376, 407 N.E.2d 899). Errors are not preserved by general allegations (People v. Smylie (1981), 103 Ill. App. 3d 679, 431 N.E.2d 1130) or by mere reference to constitutional principles without relating them to any particular aspect of the trial proceedings (People v. Burns (1981), 99 Ill. App. 3d 42, 424 N.E.2d 1298). Of course, under the “plain error” exception set forth in Supreme Court Rule 615(a), this court may consider errors otherwise waived. (87 Ill. 2d R. 615(a).) However, that exception is a limited one (People v. Pickett), “not *** a general savings clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court” (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227, 231) and should be invoked only where the evidence is so closely balanced that it might be said that the jury’s verdict may have resulted therefrom (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233) or the error is of such magnitude that fundamental fairness was denied (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331).

In the instant case, it is our view that defendant has waived this issue for purposes of review. No objection was made to admission of the testimony, and his mere assertion in the post-trial motion that he was “denied due process” and “did not receive a fair trial,” without reference to anything which occurred during the trial to support those assertions, was insufficient to preserve the issue. Furthermore, we do not believe that the evidence was so closely balanced as to mandate consideration of this issue under the plain error exception. Defendant does not contend that the evidence against him was insufficient to establish guilt beyond a reasonable doubt, and we note that the two complaining witnesses positively identified him within hours of the crime as well as at trial, after ample opportunity to observe him. Harris was in his presence for two hours, during 15 minutes of which she looked directly into his face while in close proximity to him, and Robinson was in his presence for 40 to 45 minutes and had several occasions to view his face under good lighting conditions. While defendant and his wife presented an alibi defense, defendant’s credibility as a witness was undermined by proof of false and prior inconsistent statements with regard to some details of his testimony. Thus, we cannot say that the verdict would have been otherwise had that portion of Guisinger’s testimony been excluded or had the prosecutor’s remarks not been made. See People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

In addition, we do not believe that the error here, if any, was of such magnitude that fundamental fairness was denied. We held that the issue was waived under similar circumstances in People v. Williams (1977), 52 Ill. App. 3d 81, 367 N.E.2d 167, wherein an officer testified that he spoke to an accomplice in order to get information about others involved in the crimes charged, and that immediately after speaking to him he arrested the defendant. We further stated in Williams that such testimony was admissible in any event, even though the jury could reasonably infer therefrom that the accomplice implicated the defendant, since the substance of the conversation was not revealed, and an officer may properly testify concerning investigatory procedures. That rule has been upheld in cases where no waiver occurred. See, e.g., People v. Jackson (1979), 72 Ill. App. 3d 231, 390 N.E.2d 47; People v. Coleman (1974), 17 Ill. App. 3d 421, 308 N.E.2d 364.

Defendant argues that similar testimony and remarks were recently held to be plain error in People v. Campbell (1983), 115 Ill. App. 3d 631, 450 N.E.2d 1318, and that reversal is therefore mandated in the instant case. We have considered Campbell and find it distinguishable, noting initially that in Campbell, unlike here, the court found on the record before it that it could not say the error complained of did not contribute to the jury’s verdict. Furthermore, in Campbell, the prosecutor elicited the substance of the out-of-court conversation, and in argument informed the jury that an accomplice had identified defendant, which was a clear violation of the defendants rights under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. In addition, while the defendant in Campbell had failed to include the issue in his post-trial motion, he had made repeated objections both to the admissibility of the evidence and to the prosecutor’s remarks. Those objections were sustained by the trial court, but the prosecutor flagrantly ignored the trial court’s rulings as well as explicit admonitions to cease that line of argument.

Defendant asserts, however, that the distinction between Campbell and the instant case is meaningless, because the inference which arises from eliciting the fact that a conversation took place is as damaging to him as disclosure of the substance thereof and should therefore be considered a violation of his rights under Bruton. Nevertheless, cases have repeatedly drawn the distinction and held that Bruton is inapplicable where the substance of the conversation is not elicited (see, e.g., People v. Williams), and we are not inclined to depart from the established rule.

We do not intend to express herein approval of the prosecutor’s conduct in this case. The testimony was properly admissible to explain why defendant was arrested, despite the inference of participation which could be drawn therefrom, but it was improper to emphasize that inference by repetition of the testimony during closing argument. While the prosecutor avoided drawing the specific inference for the jury, he came dangerously close to the remarks which required reversal in Campbell. Therefore, lest the State misinterpret our holding here as condoning the type of “prosecutorial brinksmanship” denounced in People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, we reiterate that we are confronted with a question of waiver in the instant case, and hold merely that while the remarks were improper, the evidence is not so closely balanced nor the violation of such magnitude that consideration thereof is required under Supreme Court Rule 615(a).

Defendant next contends that he was denied a fair trial by the admission of rebuttal evidence on collateral matters. During direct examination, defendant and his wife testified that he arrived home from work at 4 p.m. on the date in question, and defendant added the detail that he was employed at Cook & Riley. Both witnesses also testified that he did not leave the house during the entire evening and, on cross-examination, defendant denied ever having made a statement to the contrary. In rebuttal, the State produced evidence that defendant was not employed by Cook & Riley at that time, and that shortly after his arrest he told investigators that he attended night school from 6 to 8 p.m. It is defendant’s position that this rebuttal testimony was improper because the incident occurred at 10:30 p.m.; therefore, he posits, where he was prior to 4 p.m. and between 6 and 8 p.m. is collateral to the substantive issues and its introduction was highly prejudicial to him.

Once again, we note that defendant neither objected to the admissibility of this testimony at trial nor raised the question in his post-trial motion, and the issue therefore must be deemed waived. Furthermore, assuming arguendo that the question was not waived, it is our view that the above testimony was properly admitted.

The decision whether to admit rebuttal testimony to explain, contradict, or disprove evidence presented by the accused is within the sound discretion of the trial court, and its determination will not be reversed absent a clear abuse of that discretion. (People v. Williams (1981), 96 Ill. App. 3d 958, 422 N.E.2d 199.) Such testimony is generally deemed inadmissible where it serves merely to contradict as to a collateral matter, i.e., one irrelevant to the substantive issues. (See, e.g., People v. McGhee (1974), 20 Ill. App. 3d 915, 314 N.E.2d 313.) Defendant asserts that the testimony here was irrelevant to the issue of whether he committed the offenses charged; however, it is established that when a defendant elects to testify in his own behalf, his credibility is placed in issue in the same manner as any other witness (People v. Clark (1977), 55 Ill. App. 3d 379, 370 N.E.2d 1111), and when a defendant introduces an issue in his direct examination, though collateral to the facts which the State must prove in its case, his statement may be attacked both on cross-examination and through rebuttal witnesses (see, e.g., People v. Clark; People v. Teller (1977), 45 Ill. App. 3d 410, 359 N.E.2d 803; People v. Johnson (1973), 11 Ill. App. 3d 745, 297 N.E.2d 683), and prior statements, to the extent they are inconsistent with his direct testimony offered at trial, may be introduced for the purpose of impeaching his credibility so long as a proper foundation therefor has been laid (People v. Richardson (1978), 61 Ill. App. 3d 718, 377 N.E.2d 1235). Here, because defendant stated during direct examination that he worked for Cook & Riley on the date in question, the State was entitled to show that his testimony was incorrect. (See People v. Brown (1976), 41 Ill. App. 3d 641, 354 N.E.2d 602.) Similarly, his direct testimony that he never left the house that evening and was at home eating dinner at 7 p.m. was properly shown to be inconsistent with a prior statement that he was away from home between 6 and 8 p.m. Defendant was given an opportunity during cross-examination to explain the inconsistency, but chose instead to deny ever having made the statement. Therefore, the trial court properly permitted the State to show that the statement was in fact made.

Finally, defendant contends that the trial court erred in instructing the jury that it was required to reach a verdict on all five charges, arguing that (a) the decision to give a deadlock instruction was premature where the jury had not indicated that it was deadlocked, (b) the instruction given was improper because it failed to answer the jury’s question and did not conform to the standards set forth in People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, and (c) the instruction should have been in writing.

After deliberating for five hours, the jury sent the following note to the trial judge:

“We have come to a verdict on three counts, but are still hung up on two others. If we can’t come to a conclusion on these two counts, what happens to the three we have agreed upon.”

The court responded orally:

“[T]he Court instructs the jury as follows: there are four [sic] charges pending against this defendant. You were given ten verdict forms. You were instructed to reach a verdict with reference to each and every one of those matters and the Court instructs you that you are to retire and reach a verdict on all five matters. That is the answer to the question and you will retire to the jury room for the purpose of reaching a verdict on all five matters.”

The jury deliberated two more hours, then returned with verdicts of guilty on two counts of armed robbery and one count of aggravated kidnaping. However, it was unable to reach agreement on two charges — rape and deviate sexual assault. When polled, the majority of jurors felt that no agreement thereon could be reached through further deliberation, and the trial court therefore found that the jury was deadlocked as to the remaining charges. Judgment was entered on the three guilty verdicts, and the State’s motion for nolle prosequi was granted.

It is our view that the trial court’s communication to the jury was not given as a deadlock instruction but as an answer to the jury’s question, and was akin to a direction to continue deliberating which we have found appropriate in other cases. (See, e.g., People v. Rollins (1982), 108 Ill. App. 3d 480, 438 N.E.2d 1322 (jury returned verdict on one of three charges and was informed by the court that it was required to return verdicts on remaining charges); People v. Evans (1979), 80 Ill. App. 3d 444, 399 N.E.2d 1333 (jury twice instructed to continue deliberations when it indicated that it was deadlocked).) Thus, the trial court did not determine that the jury was deadlocked, and did not intend to give a deadlock instruction. Therefore, although the question remains whether the substance of the communication was proper, we cannot say that the trial court erred in determining that a deadlock instruction was necessary, since none was given or intended to be given.

Defendant also asserts that the trial court’s statement was improper because it did not in fact respond to the jury’s question. He maintains that because no answer was given, we should consider the court’s statement as the equivalent of the “stony silence” in the face of questions, which was criticized as coercive in People v. Prim. However, we note that when the question was first received, the following colloquy took place:

“COURT: The Court, after due consideration, will advise the jury that if they reach a verdict on the three counts, the Court will accept the verdicts as reached in the three counts and will not keep the jury hung up on the other two counts.
DEFENSE COUNSEL: I object.
COURT: On what basis?
DEFENSE COUNSEL: They have to reach a verdict on each and every count.
COURT: Then *** they will be instructed to reach a verdict - the three counts remain, but, they are still required to reach a verdict on the other two counts.
DEFENSE COUNSEL: That it’s [sic] my understanding, your Honor, that you are ruling that the jury will be instructed now - well, I’d like to backtrack a little Judge. The first question is, should the Court respond to this question at all.”

The trial court stated that a response was necessary, and that the jury would be instructed that it must reach agreement on all charges submitted to it. Defense counsel objected on the ground that the jury needed ho further instruction because it had been informed of its duty and the statement proposed was therefore merely repetitive. Counsel did not propose an alternative instruction, but continued to insist that no response at all be given.

It appears that the trial court initially proposed to give the answer which it is now argued should have been given, but did not do so when defendant objected. Defendant is therefore in no position to contend here that his objection should have been ignored. Furthermore, the trial court was correct in concluding that it could not remain silent. Since defendant objected to a straightforward answer, it adopted the alternative suggested by defense counsel during the colloquy following his objection; i.e., inform the jury of its duty to reach a verdict on all charges.

Defendant maintains, nevertheless, that the answer as given was coercive, and reversal is therefore required. He posits that the jury was in effect given an exhortation to agree, and the communication should have contained a balancing admonition that a juror who is in the minority should not yield his conscientious convictions merely to achieve unanimity.

We disagree with this characterization of the trial court’s statement; however, even if the language therein might be deemed an exhortation to reach agreement, we do not believe that defendant was prejudiced thereby, and reversal is therefore not required. (See People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359; People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) It is obvious that the jury was not “coerced into agreement”; at the time it asked the question, it had already reached agreement on three charges but was unable to do so on two others. After receiving the trial court’s answer and deliberating for an additional two hours, it returned verdicts on three charges but indicated that no agreement could be reached on the remaining two. Since the prejudice feared in exhortations to agree did not occur, any error in the trial court’s response must be deemed harmless. See People v. Preston.

We also reject defendant’s contention that reversal is required because the communication was oral rather than written. We have stated that not all directions to the jury should be considered instructions which, under Supreme Court Rules, must be submitted to them in writing (People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319) and believe that it was not necessary in the instant case to respond to the question in writing. Oral directions to continue deliberating and even deadlock instructions are commonly given and have been upheld consistently on review. (See, e.g., People v, Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359 (oral deadlock instruction); People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601 (oral deadlock instruction); People v. Rollins (1982), 108 Ill. App. 3d 480, 438 N.E.2d 1322 (oral direction to return a verdict on remaining charges); People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161 (oral deadlock instruction).) Moreover, defendant did not request at the time that the answer be given in writing, and made no objection to the oral direction then or during the two hours in which the jury continued its deliberation. The question was raised for the first time in his post-trial motion, long after the trial court could have corrected any problem by reducing its answer to written form and presenting it to the jury.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

      In a separate bench trial, Evans was found guilty and sentenced to concurrent terms of 10 years for rape, deviate sexual assault, armed robbery, and aggravated kidnaping and seven years for aggravated battery. He has not appealed.

      Martin was not indicted with defendant and Evans, and the record does not reveal whether charges were brought against him.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER LAMACKI, Defendant-Appellant.
    First District (2nd Division)
    No. 82—521
    Opinion filed January 31, 1984.

      Steven Clark and Kenneth Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Harry H. Semrow, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Walter Lamacki (defendant) was charged by information with rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 3) and two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). On the State’s motion, the two counts of armed violence were dismissed. On February 18, 1982, following a jury trial, defendant was found guilty of rape and deviate sexual assault. Defendant’s motions for a new trial and his motion for relief notwithstanding the verdict were denied. Following a hearing in mitigation and aggravation, defendant was sentenced to serve two concurrent terms of 20 years in the Illinois Department of Corrections.

On appeal, defendant assigns as error: (1) the trial court’s failure to suppress the identification testimony of complainant based upon allegedly “suggestive” photographic and lineup identification procedures; (2) the trial court’s refusal to admit into evidence three “mug books” allegedly containing defendant’s picture and a police “sketch” derived from a description of the assailant provided by complainant; (3) certain prosecutorial remarks made during closing argument; (4) the State’s failure to prove defendant guilty beyond a reasonable doubt; and (5) the trial court’s abuse of discretion in sentencing defendant to two concurrent 20-year terms of imprisonment.

Defendant was arrested on July 15, 1981, and charged with the July 14, 1981, rape and deviate sexual assault of complainant. The evidence elicited at the three pretrial hearings pursuant to defendant’s motions to suppress complainant’s identification testimony reflects the following:

On July 14, 1981, at about 10 p.m., the 25-year-old complainant was returning home from the White Hen Pantry store located at the corner of Flossmoor and Pulaski streets in Country Club Hills, Illinois, when she was accosted by a man carrying a knife. She was raped and forced to perform an act of deviate sexual conduct. Following her attack, complainant returned home and telephoned the Country Club Hills police station. When the police arrived, complainant gave to them a general description of her attacker. On July 15, 1981, at about 10 a.m., complainant went to the Country Club Hills police station. While at the station, Police Sergeant William Schultz (Sergeant Schultz) showed complainant three “mug books” containing “hundreds and hundreds” of pictures. According to Sergeant Schultz, the books should have included two sets of photographs (front view and profile) of defendant. Complainant was unable to identify her attacker in the “mug books.” However, she did provide a detailed description of her assailant to a police artist who made a “composite” of the assailant from an “identification kit.” Complainant described her assailant as “five-eight or six-two, Caucasian” with shoulder length blonde hair, a moustache and a beard. She also stated that her attacker had “Wally” tatooed on his lower arm, although she could not recall which arm. Complainant testified at trial that she thought her assailant had a full “blondish” or “reddish” beard.

Sergeant Schultz testified at the suppression hearings to the following:

On July 15, 1981, at about 3 p.m., he discussed this rape incident with another police person. As a result of this discussion the officers were of the impression that they knew a man who “fit the composite” drawn by the police artist from complainant’s description. Although complainant was “dissatisfied” and questioned the accuracy of the “composite,” the police officers believed that defendant fit the description and the composite. At about 3:30 p.m. that same day, Sergeant Schultz and a second officer went to defendant’s condominium at 4110 West 102d Place in Country Club Hills, about 2 k blocks southwest of the White Hen Pantry store near which the instant crime took place. Sergeant Schultz and defendant “had a conversation” following which defendant was “transported” in a police vehicle to the Country Club Hills police station.

At the time defendant was taken to the police station, Sergeant Schultz did not consider him to be “in custody.” A “polaroid” photograph of defendant was taken by Sergeant Schultz at the police station and at about 4:30 p.m. he took this photograph, along with eight others of different men, to complainant’s home. He did not tell complainant that he believed her assailant’s photograph was among the nine. She looked at each individual photograph and when “she came to [defendant’s] photograph she set it down on the table and said, ‘That’s him.’ ” Sergeant Schultz returned to the police station and at about 5 p.m. on July 15,1981, placed defendant under arrest.

John A. McGuire, one of defendant’s attorneys throughout the pretrial stage of the prosecution, testified at the suppression hearing held on November 25,1981, to the following:

On July 17, 1981 (it appears from McGuire’s testimony that he was in fact referring to the events which occurred on July 15, 1981), he received a telephone call from defendant who told McGuire that he was “locked up in Country Club Hills.” Defendant asked McGuire to represent him. At about 6 p.m. that day, McGuire telephoned the Country Club Hills Police Department and spoke with Sergeant Schultz. Sergeant Schultz told McGuire that defendant “was incarcerated and that he was charged with rape, and that they were going to conduct a lineup.” McGuire told Sergeant Schultz that he “wished that he would not talk to defendant” and “asked him to delay any line-up until [McGuire] got there.” McGuire acknowledged that Sergeant Schultz “may” have told him a lineup would be conducted at 6:30 p.m. Sergeant Schultz later testified that he in fact told McGuire that a physical lineup was going to be held at 6:30 and he asked McGuire “if he wanted to be present.” McGuire responded, “I will be there.”

A lineup was conducted at about 6:45 p.m.; McGuire arrived at the police station at approximately 7:15 or 7:30 p.m.

In the lineup defendant elected to stand at the far left. He was dressed in the same clothes he had worn when Sergeant Schultz took the “polaroid” photograph which Schultz showed to complainant two hours earlier. Defendant was dressed in a T-shirt with an emblem containing the phrase “A Friend In Weed.” No other man in the lineup wore a similar T-shirt although others did wear “pull-over” T-shirts. One other man in the lineup had a visible tatoo on his arm.

Two hours after complainant identified defendant from his “polaroid” photograph as the man who attacked her, she also identified him in the lineup. Although complainant had described her attacker as a man with a “full” beard, Sergeant Schultz described defendant’s facial appearance on July 15, 1981, the day following the instant crime, as a “moustache that comes down below his lower lip and a slight goatee *** kind of like a Van Dyke goatee on his chin.”

After the lineup was conducted and defendant had been identified by complainant, he was advised of his Miranda rights. Defendant acknowledged that he understood these rights and agreed to talk with Sergeant Schultz and an assistant State’s Attorney who was present. After a few questions were asked, however, defendant refused to answer further questions until he spoke with his lawyer.

In argument on his pretrial motion to suppress complainant’s identification testimony, defendant asserted that because the lineup was conducted in the absence of his counsel and he was questioned further after the police were asked by defense counsel to delay such activity, defendant was denied his right to the assistance of counsel during a “critical stage” of a criminal prosecution; that the use of a “polaroid” photograph, which was over-sized in comparison to the other photographs viewed by complainant, was “highly suggestive” and, therefore, prejudicial to defendant; and that the lineup procedure, in which defendant wore the same clothing he wore in the photograph shown to complainant by Sergeant Schultz about two hours prior to the lineup, was “highly suggestive and prejudicial.”

After argument, the trial court denied defendant’s pretrial motions, finding that “the failure of defendant’s lawyer to appear at the time he apparently agreed to appear cannot be considered as a denial of the right to counsel”; that defendant was apprised of his Miranda warnings; and that the court could not “conclude that there was anything suggestive or impermissible” about the photographic identification or the physical lineup identification.

When defendant’s trial began on February 11, 1982, he renewed his motion to suppress complainant’s identification testimony. Defendant’s motion was again denied.

The complainant (a black woman) testified to the following:

On July 14, 1980, she lived in Country Club Hills with her fiance and her children. As she returned home from shopping at the Wliite Hen store, she walked westward on the north side of Flossmoor Road. A “guy” jumped out of some bushes and yelled, “Nigger, me and you tonight, I’m going to rape you.” She started to run back toward the Wliite Hen because she had seen a uniformed policeman in the store and a Country Club Hills police car outside the store. As she ran, however, the man came up behind her, tripped her and she fell.

The man threatened her with a knife, put his arm around her neck and “pulled her off the road” to a garden area about 50 feet from the street. The assailant repeatedly said: “Me and you, I’m going to rape you tonight. The niggers do it all the time.” She was forced to disrobe and the assailant “straddled” her. He told her to “suck his penis.” When she refused, he “grabbed the top of [her] head and forced her to suck it.” He unbuckled his pants and pushed them down. He forced his penis into her mouth. He then “put his penis into [her] vagina and he ejaculated.”

The assailant then told complainant she could dress and leave. As she left, he followed her for a short distance. The assailant asked her name and she replied “Betty.” Complainant asked her attacker if he knew her; he responded that he knew her from “the store.” As complainant reached the corner of Flossmoor and Cypress, the assailant said he was going the other way and he left.

Complainant identified defendant in court as her assailant. She stated that the garden area to which defendant “pulled her” was lit by the lights of the White Hen store, the street lights and a light on a building near the garden area. She was also able to see his face as he stood under a street light when he followed her to the corner of Flossmoor and Cypress after the attack. She recalled that as he grabbed her initially she saw a tatoo on his lower arm, but she could not recall which arm it was or the design. Complainant recognized defendant as a man she “caught a glimpse” of in the White Hen store when she was at the cash register shortly before she was attacked.

Following the attack, complainant returned home and telephoned the police. When the police arrived, she described her assailant. She refused to accompany the police to the hospital until someone was available to tend her children. When her fiance returned home about 1:30 a.m. the next morning, July 15, 1981, he took her to South Suburban Hospital. Prior to going to the hospital, she showered and changed clothes but “didn’t take a douche.”

At the hospital complainant was examined by Dr. William Hughes. He testified that he performed a “general medical examination” and obtained specimens required by the “Rape Examination Kit” (sometimes referred to as a “Vitullo Evidence Kit”). Such specimens include swabs from various areas of the victim’s body including the vaginal area and the mouth. In addition, samples of complainant’s blood and pubic hair were collected. Dr. Hughes observed no “gross abnormalities, bruises or scratches” on complainant’s body.

Patricia Hamby (Hamby), a forensic scientist employed by the Illinois Department of Law Enforcement in Joliet, testified as an expert to test results of the blood type and body-fluid characteristics of defendant and complainant. From her findings Hamby concluded that defendant’s blood type and body-fluid characteristics were not particularly unusual but were representative of 12% of the Caucasian male population.

Hamby examined People’s Group exhibit No. 2 (complainant’s leotards, a red belt and a pair of slacks) and stated that when tested “there were chemical reactions suggesting the presence of semen but [Hamby] could not confirm” this and the test was “inconclusive.” People’s exhibit No. 1 — A (a white panty worn by complainant the night she was attacked) was examined by Hamby and she stated that here “semen was identified.” The seminal material was further examined and found to be “consistent with the seminal material from a non-secretor” which corresponded with those characteristics found in defendant.

The trial court denied defendant’s motion to strike Hamby’s testimony concerning laboratory tests which she did not herself perform.

Defendant presented two alibi witnesses, David Puikis and Duane Thomas Terrell.

David Puikis testified that on July 14, 1981, he was at his home at 15507 Ridgeway, Markham, Illinois. He was hosting a “card” party for about 15 to 20 people. Defendant arrived at the party between 10 p.m. and 11 p.m. and remained for “a couple of hours.” Puikis was unable to remember whether defendant was bearded that night, and during cross-examination Puikis admitted that he was “probably pretty well inebriated” and because he was not “paying attention,” he could not say “definitely” what time defendant arrived or left.

Duane Thomas Terrell testified that he knew defendant for about one year but had only “seen” him on four occasions. Terrell lived across the street from Puikis’ house and arrived at the party at about 9:30 p.m. Although he did not recall if defendant arrived at the party alone, Terrell stated that he was “positive” that defendant arrived at 10 p.m. During cross-examination Terrell admitted that he “estimated” defendant’s time of arrival as 10 p.m. and that on July 15, 1981, the day after the crime, he had told a police officer that defendant arrived at the party between 10 p.m. and 11 p.m. Terrell stated that defendant did not wear a beard on the night of July 14, 1981, but he was unable to recall how defendant was dressed.

The last defense witness was Adam Kabala, the owner of the White Hen Pantry store near where the instant crime occurred. He stated that he saw defendant in the store “a couple of times” on July 14, 1981, and although he was in need of a shave he did not have a full beard. Kabala also stated that he did see a police officer in his store that evening but did not know if the officer and defendant were present at the same time.

The trial court denied defendant’s motion to admit into evidence the three “mug books” which complainant had reviewed and the police composite sketch derived from her description of her assailant. Closing arguments were made and the jury instructed. After approximately three hours of deliberation, the jury found defendant guilty of rape and deviate sexual assault.

A presentence report was ordered by the court. On February 26, 1982, after defendant’s motions for a new trial and for relief notwithstanding the verdict were denied, a hearing in mitigation and aggravation was held. Defendant was then sentenced to serve two concurrent 20-year terms of imprisonment. Defendant appeals his conviction and his sentence.

I

Initially, defendant contends that the trial court erred in failing to suppress complainant’s identification testimony. Defendant urges that the identification was based upon “highly suggestive” photographic and lineup procedures which amounted to a denial of due process. Defendant argues that (1) the initial identification was made “from a batch of nine photographs” shown to complainant when defendant was already in police custody and a lineup could have been held; (2) the use of a “polaroid” photograph of defendant which was larger and “newer” than the other photographs in the array was “highly suggestive”; and (3) during the subsequent lineup, defendant was wearing the same clothes he wore when his photograph was taken and was shown to complainant two hours before the lineup.

It is well established in Illinois that the determination as to whether a pretrial confrontation in a specific instance is “ ‘so unnecessarily suggestive and conducive to irreparable mistaken identification that [the accused] was denied due process *** depends on the totality of the circumstances surrounding it' [citation], and defendant bears the burden of proving that such a confrontation resulted in a denial of due process [citations]. In order to sustain this burden, the totality of the circumstances must not only demonstrate suggestiveness [citations], but also show a substantial likelihood of misidentification ***.” People v. Rosa (1981), 93 Ill. App. 3d 1010, 1014, 418 N.E.2d 124.

It has been held that there is “no constitutional impediment to the use of photographs *** despite the recognition that there is a risk of misidentification when the procedures are improperly employed.” (People v. Kubat (1983), 94 Ill. 2d 437, 471, 447 N.E.2d 247.) If the suspect is in custody, however, and a lineup is “otherwise feasible,” our supreme court has “generally disapproved of the use of photographs as a basis of identification, absent extenuating circumstances justifying their use.” People v. Kubat (1983), 94 Ill. 2d 437, 471, 447 N.E.2d 247.

Defendant in the instant case contends that no extenuating circumstances here existed which justified the use of the photographic identification procedure. He urges that because he was “in custody” and a lineup was feasible, the use of what he terms a “highly suggestive” polaroid photograph was unwarranted. Although the photographs in question have not been made a part of the record on appeal, we note that courts in Illinois have held that the use of different photographs in the same array (i.e., “polaroid” and standard “mug shots”) “does not automatically render a photo suggestive: ***. Different need not be equated with suggestive.” People v. Bryant (1983), 94 Ill. 2d 514, 520, 447 N.E.2d 301.

In any event, even evidence which results from an unnecessarily suggestive identification may be admissible at trial if it is reliable. (People v. Rosa (1981), 93 Ill. App. 3d 1010, 1015, 418 N.E.2d 124.) “Reliability is the most important factor in determining the admissibility of identification testimony.” (Emphasis added.) (People v. Kubat (1983), 94 Ill. 2d 437, 473, 447 N.E.2d 247.) The reliability of the identification involves an evaluation of the following factors:

“ ‘[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and length of time between the crime and the confrontation.’ ” People v. Rosa (1981), 93 Ill. App. 3d 1010, 1015, 418 N.E.2d 124.

The evidence here indicates that complainant had ample opportunity to view the defendant under “lighted” conditions during and immediately after the crime. Complainant’s testimony was uncontradicted that they stopped and spoke to each other “under a street light” at the corner of Flossmoor and Cypress streets. Although complainant’s initial description of her assailant differed somewhat from that of defendant’s actual characteristics, her identification of him on the day following her attack was certain and unwavering.

The trial court ruled that the photographic array and lineup from which complainant identified defendant was not so suggestive as to warrant suppression of complainant’s identification testimony. From our review of the totality of circumstances we conclude that defendant failed to establish that the procedures employed by the police in this case denied him due process. The trial court did not, in our opinion, err in denying defendant’s pretrial motion to suppress complainant’s identification testimony.

Defendant also contends that the identification testimony should have been suppressed because he was denied his right to the presence of counsel at the lineup. At that time defendant had been arrested, given Miranda warnings and had contacted his attorney who advised police that he “intended” to be present at the lineup.

When the lineup was being conducted, no formal charges had yet been filed against defendant. The State asserts that it had not yet “committed itself to prosecute” defendant and no adversary judicial proceedings had been initiated. The State contends, therefore, that defendant’s right to counsel had not yet attached.

“It has been established that the right to counsel attaches to ‘lineups conducted after the initiation of adversary judicial criminal proceedings against an accused by whatever means.’ [Citation.] A defendant does not have a constitutional right to counsel at a pre-indictment lineup unless adversary proceedings have been initiated such as by formal charge, preliminary hearing, indictment, information or arraignment. [Citation.] The right of counsel does not arise merely because when the lineup was held, defendant was in custody ***.” People v. Logan (1983), 117 Ill. App. 3d 753, 759, 453 N.E.2d 1317, citing Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.

In Logan a lineup was held despite defendant’s alleged request that such lineup be delayed until his attorney arrived. In the case at bar a lineup was likewise conducted despite the request of defendant’s attorney that the lineup be delayed until he arrived. At the time this lineup was conducted, however, no adversary judicial proceedings had been initiated against defendant. We agree, therefore, that defendant’s right to have counsel present during the lineup had not yet attached.

II

Defendant next contends that the trial court erred in refusing to admit into evidence a police “sketch” derived from a description of the assailant provided by complainant and three “mug books” which, according to Sergeant Schultz, “should have” contained defendant’s photograph. Defendant argues that this action by the trial court prevented the jury from judging the credibility of complainant’s identification testimony “in a realistic light” and thereby prejudiced the defense.

At trial, Sergeant Schultz testified that the “mug books” should have contained two sets (frontal and profile views) of defendant’s photographs, but he could not say with certainty that they were in fact present in those books.

Defendant contends that whether his photographs were contained in the “mug books” is a question to be determined by the jury. Defendant’s purpose, however, appears to be an attempt to have the “mug books” admitted to allow the jury to judge the credibility of complainant’s identification testimony At trial, complainant stated that, after reviewing the photographs in these books, she was unable to identify her assailant. The trial court ruled the mug books inadmissible because the evidence was “not certain nor definitive on the question of whether or not at the time complainant viewed the ‘mug books' *** the photograph of [defendant] was either in once or twice.” The admission of these books, the court explained, “would be extremely prejudicial and inflammatory and adverse to defendant.”

“Whether evidence proffered by a defendant is relevant is a question addressed to the sound discretion of the trial court.” (People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304.) The trial court may reject evidence which it determines to be “of little probative value because of its remoteness, uncertainty, or conjectural nature.” People v. Boyd (1980), 81 Ill. App. 3d 259, 263, 401 N.E.2d 304.

Our review of the record persuades us that in this instance the trial court did not abuse its discretion in rejecting the “mug books.”

Defendant also alleges error in the trial court’s failure to admit into evidence the police artist’s sketch derived from complainant’s description of the suspect and the use of an “identification kit.” Complainant stated at trial that she was not “satisfied” with the sketch and said that it did not look like her attacker or defendant. Defendant’s stated purpose in offering the sketch was to impeach complainant’s alleged “inconsistent description.”

It is well established that “a witness may be impeached by extrinsic proof that he made a statement out of court inconsistent with his in court testimony. The prior statement has to be inconsistent ***.” (Emphasis added.) E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 801.9 (1979).

Defendant maintains that because it was inconsistent with complainant’s identification testimony at trial, the sketch was relevant and admissible. A review of the record, however, indicates that complainant did not at any time consider the sketch to accurately represent her attacker. Her original description of her assailant and her subsequent identification testimony was not inconsistent with her prior expression of dissatisfaction with the police artist’s sketch. The trial court, therefore, properly excluded the police artist’s sketch.

Ill

Defendant next assigns as error certain remarks uttered by the prosecution during closing argument. Defendant contends that the remarks relating to the testimony of the State’s expert witness, Patricia Hamby, were so prejudicial as to deny him a fair trial. The allegedly prejudicial remarks complained of were not, however, specified in defendant's written post-trial motion for a new trial, nor did defendant submit to the court any oral post-trial motion.

The general rule followed by Illinois courts is that “failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review.” (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) This waiver rule applies to constitutional, as well as nonconstitutional questions. (People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) The central purpose of the waiver doctrine is to allow the trial court an opportunity to correct any alleged error. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 720, 431 N.E.2d 1154.) Courts of review, however, as a matter of grace in a case involving deprivation of life or liberty in which the evidence appears closely balanced, may take notice of errors appearing upon the record “ '*** which deprived accused of substantial means of enjoying a fair and impartial trial, although no [alleged errors] were preserved or the [alleged errors are] imperfectly presented.’ ” People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856.

In the instant case Patricia Hamby, a forensic scientist, testified as an expert. Following a highly technical description of general blood types and body-fluid categories, Hamby stated her opinion as to defendant’s and complainant’s blood types. Hamby opined that test results comparing defendant’s blood type and body-fluid characteristics with seminal material deposited on complainant’s panty during her July 14, 1981, attack indicated that such seminal material was consistent with defendant’s characteristics. She stated further, however, that similar characteristics are present in “approximately 12 percent of the male Caucasian population.”

Defendant assigned error to the following prosecutorial remarks based on Hamby’s testimony:

“She [Ms. Hamby] told you *** that Mr. Lamacki is one of the twelve percent, one person who constitutes twelve percent of the white population who could have deposited that semen in her body.
She told you that semen, left in the vaginal area of [complainant], and in the panties worn by [complainant] on July 14th 1981, could have come from only twelve percept [sic] of the population that could have committed these acts. But, then you have to go further. What part of that twelve percent of the male, white population, happens to live two blocks from the scene of the crime? What part of that twelve percent of the male, white population, was in the White Hen Pantry at 10:00 o’clock that evening? Go further.
What part of that twelve percent of the white population who could have raped [complainant], was picked out of a photo-line-up the next day?
Go further than that? What part of that twelve percent was also identified in a physical line-up? Only one part of that twelve percent, that’s him. Walter Lamacki. That is the one that raped [complainant].
Look at the facts, and the evidence that you have heard. Again, there is only a twelve percent of this population that could have committed this crime, only twelve percent. Start looking into the evidence, and narrow that twelve percent.” (Emphasis added.)
Defendant argues that these remarks clearly indicate that “the State’s Attorney deliberately misstated the evidence.”

It has been held that “[f]or improper comments by the prosecutor *** to be sufficient to merit reversal they must be of a substantial magnitude when viewed in light of the entire record and argument” and must “result in substantial prejudice to the accused.” (People v. Cukojevie (1981), 103 Ill. App. 3d 711, 723, 431 N.E.2d 1154.) Where the alleged improper comments do not constitute a material factor in defendant’s conviction or are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed. People v. Cukojevie (1981), 103 Ill. App. 3d 711, 723, 431 N.E.2d 1154.

Although we agree that the prosecutor’s remarks might better not have been made, our review of the entire record in the case at bar compels our conclusion that such remarks were not so prejudicial as to constitute reversible error.

IV

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt. Defendant asserts that complainant’s identification testimony was “highly suspect” and that the scientific evidence introduced by the State was “nearly worthless.”

“A court of review will not reverse [a jury] finding unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to raise reasonable doubt of guilt.” (People v. Stepney (1977), 46 Ill. App. 3d 328, 330, 360 N.E.2d 1206.) “It is well settled that a positive identification by even one witness, who had a good opportunity to observe an accused in terms of length of time, proximity and lighting conditions is sufficient to sustain a verdict of guilty.” People v. Stepney (1977), 46 Ill. App. 3d 328, 330, 360 N.E.2d l206.

Defendant urges that “inconsistencies” and “conflicts in testimony” at trial raise reasonable doubt of his guilt.

Illinois courts have held that “minor inconsistencies in a rape complainant’s testimony do not constitute grounds for reversal. *** ‘***[M]inor variances in testimony may occur, and if so, such variances constitute mere discrepancies going only to credibility.’ ” People v. Rankin (1979), 73 Ill. App. 3d 661, 664, 392 N.E.2d 288.

Defendant has not demonstrated the existence in this record of evidence sufficient to raise a reasonable doubt of his guilt. Such minor inconsistencies in complainant’s testimony as are noted and such minor conflicts which may exist between complainant’s testimony and that of other witnesses relate only to the weight to be accorded such testimony. It appears that the jury rejected the testimony of defendant’s alibi witnesses and found complainant’s testimony more credible. There was in our opinion sufficient evidence, if believed by the jury to support its verdict.

V

Finally, defendant contends that the trial court erred in sentencing him to two concurrent 20-year terms of imprisonment.

Defendant urges in his brief that, in view of the fact that complainant “suffered no physical harm” during the attack and because of his potential for rehabilitation, as indicated by his expressed desire to learn a trade while imprisoned, such a severe sentence was not warranted and should be reduced. At the sentencing hearing, defendant urged that he be sentenced to the minimum sentence of six years.

The State argues that complainant escaped “physical injury” only because of her acquiescence to defendant’s threats made with a knife. The State urges that the “acts performed were vicious and spiteful” and that “the occurrence of physical injury is not required in aggravation in order to impose a sentence greater than the minimum.”

On February 26, 1982, a hearing in mitigation and aggravation was conducted. At such hearing the court stated to the defendant: “The fact that you are on probation greatly affects my judgment The court farther stated that “to assess the minimum would be a flagrant disregard for the sanctity and the right of the victim to walk the streets of a south suburban community ***.” The court characterized defendant’s crime as an offense “that cries out for punishment” and “must be discouraged.”

It is well established in Hlinois that, absent an abuse of discretion, courts of review “will not substitute [their] judgment for that of the trial court merely because [they] would have balanced the appropriate factors differently if the task of sentencing had been [theirs].” People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541.

The trial court, in our opinion, sought to “balance the appropriate factors” in sentencing the defendant. The sentence imposed was well within the 6- to 30-year limit authorized by statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3).) Under these circumstances, we cannot conclude that the trial court abused its discretion.

For the foregoing reasons, we affirm the jury’s verdict and the sentence imposed by the trial court.

Affirmed.

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

      An “identification kit” consists of slides of various parts of the face from which a composite likeness of an offender is derived rather than an artist’s free hand drawing of an offender.

      Complainant was also shown a photograph of defendant’s tatoo. She later stated, however, that she identified defendant “from his face.”

      The State argues that defendant’s objections to complainant’s identification testimony is waived by defendant’s failure to specifically preserve that issue in his written post-trial motion. (People v. Edwards (1978), 74 Ill. 2d 1, 4, 388 N.E.2d 944.) Although defendant’s post-trial motion alleged “general” error and may be subject to waiver, we will address the merits of defendant’s contention.

      The record does not reveal the nature of defendant’s 1979 conviction for “assault.” Although at the sentencing hearing the prosecution argued that defendant was on probation for “aggravated assault,” we are unable to determine from the record the validity of the prosecution’s argument. The record reflects only that on the date of the instant offenses, defendant was on probation for “assault.”


text:
    THE PEOPLE ex rel. E. ALLEN BERNARDI, Illinois Director of Labor, Plaintiff-Appellant, v. JAMES E. MORAN, Defendant-Appellee.
    First District (4th Division)
    No. 82—1998
    Opinion filed January 26, 1984.

      Neil F. Hartigan, Attorney General, of Springfield (Georgene M. Wilson, Assistant Attorney General, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE JOHNSON

delivered £he opinion of the court:

Plaintiff filed a suit to recover the overpayment of unemployment compensation benefits from the defendant, James E. Moran. On appeal from an order of the circuit court of Cook County granting defendant’s motion for a directed verdict, the State contends (1) that the trial court erred by not admitting the records of the Department of Labor and allowing the defendant to collaterally attack a final administrative decision; (2) that the cause should have been remanded to the Department of Labor; and (3) that the defendant abrogated his only defense through an admission on the witness stand. The defendant did not file a brief, but we find that this does not prevent resolution of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Plaintiff’s complaint alleged that a written notice of a hearing to reconsider a prior determination of eligibility for unemployment compensation benefits was served on defendant; that pursuant to that hearing, the Department of Labor entered a reconsidered determination that defendant was not eligible for benefits paid to him during certain weeks in 1978 and 1979; and that plaintiff now asks for judgment against defendant in the sum of $2,417 for overpayment. Attached to the complaint was a copy of the Department of Labor’s notice of hearing and notice of reconsidered determination, which had been mailed to defendant.

At trial, defendant was called by the State as an adverse witness. He testified that it was possible he could have received wages as an employee of the city of Chicago during the weeks from March 10 through March 31, 1979, and from April 7 through April 21, 1979, but that he was uncertain of whether he did or not. He said he did not remember receiving a notice from the Department of Labor claiming a refund of money paid to him, nor could he recall attending a hearing involving unemployment insurance overpayments. He admitted that he received something in the mail which stated he owed $2,417 for unemployment insurance benefits and an appeal on his behalf was taken orally by a relative who is an attorney. He thereafter denied ever receiving a notice that he owed the money.

The State then called Martha Luntz, a special investigations hearing sections manager, who testified that defendant was sent a notice to attend a hearing regarding the Department of Labor’s claim of $2,417 for unemployment insurance overpayments; that defendant attended the hearing; and that the decision entered pursuant to that hearing was not appealed by defendant. She stated she had access to the records of the Department of Labor and had examined its files, but said the records were kept by the benefit payments control section. She also said she was not the hearing officer in defendant’s case, but that she knew of her own personal knowledge that a fraud investigation had been conducted.

Thereafter, the State rested and defense counsel made a motion for a directed verdict, which the trial court granted.

The State contends the trial court erred by directing a verdict for defendant because the determination of the Department of Labor was admissible into evidence as a record maintained by a public official, or, in the alternative, it was admissible as a business record pursuant to Supreme Court Rule 236(a) (87 Ill. 2d R. 236(a)). It has been repeatedly held that records kept by a public officer, dealing with his official activities and either required by statute or reasonably necessary for the performance of the duties of the office, are admissible to prove the matters recorded. Production in court by the custodian thereof is sufficient proof of the authenticity of the records. Bell v. Bankers Life & Casualty Co. (1945), 327 Ill. App. 321, 329, 64 N.E.2d 204, 208; see also People ex rel. Wenzel v. Chicago & North Western Ry. Co. (1963), 28 Ill. 2d 205,190 N.E.2d 780.

Here, the defendant failed to seek a departmental redetermination and judicial review; therefore, the notice of reconsidered determination issued by the Department of Labor stands as a fact unchallengeable in the trial court. (See Department of Mental Health v. Beil (1976), 44 Ill. App. 3d 402, 357 N.E.2d 875.) The only issue is whether the State met the foundation requirements for the introduction into evidence of a record maintained by a public official. The admissibility of public records depends on custody and authenticity and is not governed by handwriting or the original entry rule. See Bell.

Here, there is no question that the records of the Department of Labor are public records. Therefore, defendant’s file was a public record which must necessarily be compiled in the performance of the Department’s duties. Accordingly, in order to admit the file into evidence, the Department of Labor was required to establish custody of the file. The proper foundation for custody was provided in the testimony of an Illinois Department of Labor employee, Ms. Martha Luntz. Ms. Luntz testified that she was employed by the Department of Labor and that she had read and examined the defendant’s file in her professional capacity. It is not fatal to the admissibility of this public record that the witness, Ms. Luntz, did not personally prepare defendant’s file. (See People ex rel. Person v. Miller (1977), 56 Ill. App. 3d 450, 371 N.E.2d 1012.) Her testimony established that she had sufficient custodial control over the records.

We hold that the State presented proper foundation testimony to prove that the determination was a record of the Department of Labor and that the trial court erred by sustaining defendant’s motion for a directed verdict at the close of the State’s case.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded.

Reversed and remanded.

LINN, P.J., and JIGANTI, J., concur.


text:
    RONALD BREWER, Plaintiff-Appellant, v. ALTON MOORE, DefendantAppellee.
    First District (2nd Division)
    No. 82—2184
    Opinion filed January 31, 1984.
    Brody, Gore & Fineberg, Ltd., of Chicago (John M. Mack and Grace Wein, of counsel), for appellant.

      Beverly, Pause, Duffy & O’Malley, of Chicago (James R. Patterson and Samuel T. Klaskin, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Ronald Brewer (Brewer), appeals from the trial court’s denial on July 28, 1982, of his January 10, 1979, section 72 petition for relief from judgment (formerly Ill. Rev. Stat. 1979, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). This petition requested the trial court to vacate its order of January 11, 1977, dismissing plaintiff’s complaint “with prejudice” as a sanction for noncompliance with discovery.

On June 11, 1976, Brewer filed a complaint (No. 76 L 10746) against defendant, Alton Moore (Moore), in the circuit court of Cook County for personal injuries allegedly sustained in a July 2, 1974, automobile accident. In August 1976 Moore filed his appearance and answer and propounded interrogatories to Brewer. In September 1976 Moore, pursuant to Supreme Court Rule 201(k) (58 Ill. 2d R. 201(k)), made written demand for the answers to interrogatories. In October 1976 Moore moved to dismiss the complaint for Brewer’s failure to answer interrogatories. By agreement, hearing on the motion was continued several times. Brewer’s attorney advised Moore’s attorney that answers to the interrogatories were not forthcoming because Brewer had apparently moved and his attorney was unable to locate him. On December 27, 1976, Moore filed a second motion to dismiss again based on Brewer’s failure to answer interrogatories. On January 11, 1977, the hearing date set for Moore’s motion, Brewer’s attorney telephoned Moore’s attorney. Upon being advised by Moore’s counsel that he would not agree to a further continuance, Brewer’s counsel informed Moore’s counsel that he could not appear at the hearing due to a scheduling conflict. He requested that any order of dismissal entered include language providing that if Brewer was located within 30 days the case would be reinstated, and if he was located within one year, the case could be refiled. Brewer’s counsel also requested Moore’s counsel to forward to him a copy of the order when entered.

On January 11, 1977, Moore’s counsel drafted an order, signed by the court, which read in relevant part:

“This cause coming on to be heard on defendant’s motion to dismiss plaintiff’s cause of action for failure to answer interrogatories; and plaintiff’s failure to comply with Supreme Court Rule 201(k); and plaintiffs failure to obey court ordered continuances to permit answering of said interrogatories. All parties having notice and plaintiffs counsel advising in open court that the plaintiffs [sic] have failed to follow their case and have failed to advise their counsel of their whereabouts upon moving and the court being fully advised in the premises,
IT IS HEREBY ORDERED that this entire cause of action is dismissed with prejudice for plaintiff’s failure to answer interrogatories; comply with Supreme Court Rule 201(k) and failure to comply with previous continuances to answer interrogatories. This court further sees no just reason to delay the appeal of this order.” (Emphasis added.)

On January 27, 1977, after receiving several requests, Moore’s attorney mailed to Brewer’s attorney a copy of the order. Immediately upon receipt of the order Brewer’s attorney that same day mailed a notice of motion to vacate the order of dismissal, or to modify it to reflect the dismissal to be “voluntary” or “for want of prosecution.”

At the February 3, 1977, hearing on Brewer’s motion to vacate or to amend the January 11 order of dismissal, Brewer’s attorney advised the court that the dismissal order prepared and submitted by Moore’s counsel contained misleading and untrue statements. Brewer’s counsel explained that, contrary to the wording of the order, he was not “in open court” on January 11 and he had not then “advised” the court that Mr. Brewer “failed to follow his case.” Also, the order’s recitation that Brewer failed “to obey court ordered continuances to permit answering of said interrogatories” was untrue; no previous order of court so provided, and no order had been entered requiring answers to the interrogatories on a date certain.

The court granted Brewer’s motion in an order providing, in part, “that the order of January 11, 1977 be modified to read that this cause was dismissed for want of prosecution. The defendant objects to this modification of this order as contrary to the law and evidence and the court overrules these objections.”

On March 3, 1977, Brewer, pursuant to the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 24a), filed a second action (No. 77 L 5130) in the circuit court of Cook County involving the same facts and parties. Moore moved to dismiss the second action alleging it had been filed more than two years after the July 2, 1974, automobile accident and that the refiling under section 24 of the Limitations Act was barred because dismissal of the first action was not “voluntary” but rather was an “involuntary” dismissal entered “with prejudice” as a sanction for Brewer’s failure to comply with discovery.

The trial court denied Moore’s motion to dismiss the second case but certified the matter for appeal to the appellate court pursuant to Supreme Court Rule 308 (58 Ill. 2d R. 308). This court granted Moore’s application for leave to appeal. In that appeal (Brewer v. Moore (1978), 67 Ill. App. 3d 487, 487, 385 N.E.2d 73, 74) we found the “sole issue” to be “whether the dismissal of plaintiff’s initial complaint acted as a bar to the refiling of a new action pursuant to section 24 of the Limitations Act.” We held:

“The supreme court in Keilholz v. Chicago & Northwestern Ry. Co. (1974), 59 Ill. 2d 34, 319 N.E.2d 46, held that the dismissal of an action for failure to comply with discovery is not a dismissal for want of prosecution, but rather it is an involuntary dismissal which bars refiling under section 24 [of the Limitations Act]. (See also Heizman v. City of Chicago (1st Dist. 1974), 23 Ill. App. 3d 835, 320 N.E.2d 121.) In the case at bar the original dismissal order was entered as a sanction under Supreme Court Rule 219 (Ill. Rev. Stat. 1975, ch. 110A, par. 219) for failure to answer interrogatories and comply with court orders. It is obvious from the record that the trial court modified the original dismissal order so as to use the magic words ‘want of prosecution’ and thereby bring the dismissal under the provisions of section 24.
* * *
We find that the initial action was dismissed as a sanction for failure to comply with court orders, and that the dismissal acts as a bar to refiling under section 24. Therefore, we reverse the order of the circuit court of Cook County.” 67 Ill. App. 3d 487, 489, 385 N.E.2d 75.

On January 10, 1979, 15 days after the filing of our opinion dismissing Brewer’s second ease (No. 77 L 5130), he filed in the trial court a timely section 72 petition, with supporting affidavits, requesting the trial court to vacate its January 11, 1977, order of dismissal entered in his first case (No. 76 L 10746). Brewer’s section 72 petition contended: the order entered on January 11, 1977, does not “truly or accurately” relate the relevant circumstances of the case nor the agreement reached between the attorneys regarding wording of that order; Brewer’s attorney had lost contact with Brewer after the case was referred to him by Brewer’s initial attorneys and repeated efforts to locate Brewer were finally successful and contact had been reestablished shortly after the court’s order of January 11, 1977; and that Moore’s attorney had misled the court in his drafting of the January 11 order of dismissal.

Moore filed a motion to strike and dismiss the section 72 petition, alleging that it contained.no new facts as required by law, and that the petition was an effort to “re-litigate” the same issues already determined by the appellate court.

On July 28, 1982, the trial court denied Brewer’s section 72 petition, holding in part:

“The petition contains no new matters which arose before or after this court’s decision in January and February, 1977; or if it does, same could and should have been presented in January or February, 1977.
The matters arising out of both cases were before the Appellate Court. It is clear that the Court considered the entire record and determined Plaintiff was not entitled to any relief including that which he seeks here.
The mandate of the Appellate Court binds this Court and requires this Court to turn down any back door after the fact attack on either the decision or reasoning of the Appellate Court.”

Brewer appeals from the above order of July 28,1982.

The statutory provisions for relief from judgments (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401, formerly Ill. Rev. Stat. 1979, ch. 110, par. 72) provides a procedure whereby final orders, judgments and decrees may be vacated after 30 days. The following requirements must be shown by a petitioner before relief is granted:

“(1) the existence of a meritorious defense or claim [citations];
(2) due diligence in presenting this defense or claim in the original action [citation];
(3) that through no fault or negligence of his own an error of fact or a valid defense or claim was not made to appear to the trial court at the time the challenged judgment, order or decree was entered [citation]; and
(4) due diligence in filing the petition for section 72 relief [citations].
The petitioner must set forth specific factual allegations supporting each of the above elements [citations] and must prove his right to the relief, sought by a preponderance of the evidence [citation].” (Mitchell v. Seidler (1979), 68 Ill. App. 3d 478, 482, 386 N.E.2d 284, 286.)

“The petition invokes the equitable powers of the court as justice and fairness require and should be considered in the light of equitable principles.” Manning v. Meier (1983), 114 Ill. App. 3d 835, 838, 449 N.E.2d 560, 562.

In the instant case we believe the trial court erred in denying Brewer’s section 72 petition. In its order the trial court found “the mandate of the appellate court binds this court and requires this court” to deny Brewer’s petition. Our previous opinion in this case, however, addressed only the issue of a trial court’s authority to modify an order of dismissal entered as a sanction for noncompliance with discovery, so as to allow a refiling of the lawsuit pursuant to the Limitations Act. Our opinion neither contemplated nor considered the issues raised by the section 72 petition subsequently filed by Brewer. “[T]he requirements and purposes of the Limitations Act are clearly distinct from those of section 72 of the Civil Practice Act.” (Saeed v. Bank of Ravenswood (1981), 101 Ill. App. 3d 20, 28, 427 N.E.2d 858, 864.) Thus, our prior opinion was not to be construed to “bind” the trial court’s ruling on Brewer’s section 72 petition.

In our view the trial court erred also in finding that Brewer’s section 72 petition presented “no new matters.” The new matters to be brought to a court’s attention in a section 72 petition are those facts “not appearing on the record which, if known to the court at the time judgment was entered, would have prevented its rendition.” (Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 989, 403 N.E.2d 615, 616.) As we have previously noted, shortly after the January 11, 1977, dismissal order was entered, Brewer moved the court to vacate or amend the order based on facts which, according to Brewer, were not known to the court at the time it entered the order; to wit, the inaccuracies and untruths contained in the language of the order; that Brewer’s failure to answer interrogatories was due to Brewer’s counsel having lost contact with Brewer and the purported agreement between the attorneys regarding the wording of the order and the refiling of the lawsuit. The trial court, when first advised of these facts in February 1977, did in fact modify the January 11, 1977, order. Thus, we find Brewer’s section 72 petition did present “new facts” not known to the court in January 1977 when the order was entered.

Among the circumstances to be examined in adjudging a section 72 petition is whether “a party has procured an unconscionable advantage through the extraordinary use of a court process.” (Hiram Walker Distributing Co. v. Williams (1981), 99 Ill. App. 3d 878, 881, 426 N.E.2d 8, 10.) The conduct of opposing counsel is a relevant factor to be considered.

“One of the guiding principles in the administration of section 72 relief is that the petition invokes the equitable powers of the court, which should prevent enforcement of a judgment when it would be unfair, unjust, or unconscionable. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613; Ellman v. De Ruiter (1952), 412 Ill. 285, 292.) We note that in both these cases the unfair conduct of counsel was a factor in the court’s determination that section 72 relief was warranted. As the court stated in Elfman, ‘ “Something more than the morals of a medieval market may reasonably be expected in the conduct of litigation.” ’ 27 Ill. 2d 609, 615, quoting Jansma Transport, Inc. v. Torino Baking Co. (1960), 27 Ill. App. 2d 347, 354.” Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 285, 433 N.E.2d 253, 258.

We are compelled to conclude that Moore’s attorney did not act in good faith when he drafted the January 11, 1977, order of dismissal wherein he included language which: dismissed Brewer’s lawsuit “with prejudice”; indicated Brewer’s attorney had made certain admissions “in open court” when the attorney was not in fact present; incorrectly noted Brewer’s “failure to obey court ordered continuances” and made the dismissal order final and appealable. Such conduct, as well as the failure of Moore’s counsel, until more than two weeks had passed and several requests by Brewer’s counsel to provide him with a copy of the order went unanswered, cannot be condoned.

Although at oral argument before this court Moore’s attorney stated he had never acceded to the request of Brewer’s attorney that the order of dismissal recognize plaintiff’s right to refile the lawsuit, we cannot, in view of Brewer’s attorney’s immediate action to vacate the order, believe that Brewer’s attorney was cognizant of, or agreed to, inclusion of the language noted above. Although we are duly concerned with unnecessary delays in the judicial process, we deem even more significant our quest for justice.

We believe that under all of the circumstances of this case justice and good conscience require vacature of the trial court’s January 11, 1977, order of dismissal.

For the reasons herein stated, the trial court’s order denying Brewer’s section 72 petition is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

STAMOS and DOWNING, JJ., concur.