author: JUSTICE LORENZ

text:
    LEONARD J. ROBINS, Plaintiff-Appellant, v. ALLAN N. LASKY el al., Defendants-Appellees.
    First District (5th Division)
    No. 82 — 3065
    Opinion filed March 30, 1984.

      Allen H. Schultz, of Chicago (Schultz & Schultz, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Gary A. Grasso, and Joshua G. Vincent, of counsel), for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

In this appeal from an order dismissing his amended complaint against defendants for their alleged legal malpractice, the plaintiff contends that the trial court erred when it ruled that his amended complaint had failed to state a cause of action.

On January 10, 1981, plaintiff filed a verified complaint which alleged that he was an officer, director and stockholder of four retail liquor companies in Cook County, Illinois, and that he had retained the professional services of defendants Allan N. Lasky, Bennett H. Shulman and Norman E. Goldman, all attorneys at law, as well as the partnership of Spivack & Lasky (ultimately succeeded by Spivack, Shulman and Goldman), to represent him in defense of an anticipated tax deficiency assessment to be issued by the Illinois Department of Revenue, whereby plaintiff and his wife could be held personally liable for the corporate tax liabilities of these companies pursuant to section 13V2 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 4521/2). Further, plaintiff allegedly agreed to pay defendants in return for their services.

The verified complaint alleged that on February 8, 1978, defendants Lasky and Shulman advised plaintiff to establish his permanent legal residence in a State other than Illinois, in order to avoid service of process in Illinois in the expected tax litigation; that plaintiff and his wife uprooted their family and moved to Pompano Beach, Florida, at great expense, resulting in great mental, emotional and traumatic distress; and that as a result of this move, plaintiff suffered from a “fugitive complex.”

It further alleged that plaintiff, while still residing in Florida, was served with process in the tax deficiency action at his former business office in Chicago, Illinois; that defendant Goldman’s motion to quash the service of summons on plaintiff was denied; that defendants’ advice to plaintiff to establish a new permanent residence in order to avoid service of process had no legal effect, inasmuch as section 5i of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1977, ch. 120, par. 444i) provided for the appointment of the Secretary of State as an agent for service of process on persons who remove themselves from the State of Illinois or conceal their whereabouts to avoid tax liability under the Act; and that plaintiff had relied upon defendants’ advice, thereby causing him to engage in the useless, futile and costly act of relocation.

Finally, it alleged that on September 2, 1980, plaintiff was advised for the first time, by his newly retained counsel, that the advice given to him by Lasky and Shulman, acting on behalf of the law firm of Spivack & Lasky, was grossly and wantonly negligent due to the provisions of section 5i; and that as a result of this negligent advice, plaintiff sought compensatory and punitive damages.

Subsequently, on February 9, 1981, plaintiff’s newly retained counsel succeeded in having the tax deficiency suit dismissed against plaintiff and his wife, with prejudice.

Defendants’ motion to strike the verified complaint on the grounds that it, inter alia, admitted that plaintiff would and did move to Florida to avoid service of process, was allowed on March 26, 1982. The trial court further granted plaintiff leave to file an amended complaint.

Plaintiff’s unverified amended complaint, filed on May 14, 1982, alleged that defendants had advised plaintiff to establish his legal residence in a State other than Illinois, for a “short period of time,” as the possibility of resolving the alleged tax claims would be enhanced if, during the negotiation period, plaintiff was not served with process.

Defendants moved to dismiss the amended complaint, contending that the plaintiff was bound by the admissions of his prior verified complaint. Further, at the hearing on the motion to dismiss, plaintiff sought to amend paragraph six of his amended complaint by adding a statement that any admissions contained in paragraph five of the verified complaint “were made by mistake or inadvertence.”

Although the trial court indicated that plaintiff’s motion to amend was untimely, its final order dismissed the amended complaint “as further amended,” holding that the additional allegations of mistake and inadvertence were conclusionary, and therefore did not supersede plaintiff’s prior admissions in his verified complaint.

Plaintiff appeals from the trial court’s order granting defendants’ Shulman, Goldman and Spivack, Shulman and Goldman’s motion to dismiss.

Opinion

Plaintiff contends that the trial court erred in dismissing his amended unverified complaint for alleged legal malpractice when it ruled that (1) plaintiff was bound by an admission contained in his original verified complaint, and (2) this admission by plaintiff therefore precluded him from seeking aid of the court to recover damages.

The pertinent portion of plaintiff’s original verified complaint provided:

“5. On to-wit: February 8, 1978, defendant Lasky, together with defendant Shulman, advised plaintiff to establish their permanent legal residence in a state other than Illinois, in order to avoid service of process in Illinois, resulting from the contemplated actions by the Illinois Department of Revenue. Plaintiff was further advised by Lasky, not to return to Illinois unless plaintiff first received specific permission from him; thus causing plaintiff to suffer from a fugitive complex;
6. Plaintiff and his wife *** acting upon the advice of the defendants, moved to Pompano Beach, Florida, ***.”

Plaintiff was subsequently given leave to amend, and filed an unverified amended complaint which read:

“6. Defendants advised plaintiff that the possibility of resolving the alleged tax claims with the Department would be enhanced, if during the negotiating period, plaintiff was not served with process. Thus, on or about February 8, 1978, defendants advised plaintiff to establish his legal residence in a state other than Illinois, for a short period of time, while they would be negotiating to settle the tax matters with the Department. Plaintiff was further advised by said defendants that such conduct by plaintiff would not be illegal or immoral, inasmuch as defendants would file their appearance with the Department, and notify the office of the Illinois Attorney General that they represent plaintiff and his wife.
7. *** plaintiff, acting upon the advice of defendants, moved to Pompano Beach, Florida, ***.”

At the hearing on the motion to dismiss the amended complaint, plaintiff amended paragraph six of the unverified amended complaint by adding the following:

“Defendants did file their appearance with the Department, and did notify the Office of the Illinois Attorney General that they represent plaintiff and his wife. The admissions, if any, contained in plaintiff’s paragraph 5 of the original verified complaint were made by mistake or inadvertence.” (Emphasis added.)

We initially consider plaintiff’s contention that the trial court erred in granting defendants’ motion to dismiss plaintiff’s unverified amended complaint when it ruled that the plaintiff was bound by the admissions contained in his verified complaint.

It is a general rule to pleadings that an amendment which is complete in itself, and does not refer to, or adopt, the prior pleadings, ordinarily supersedes it and the prior pleading ceases to be part of the record, being in effect abandoned or withdrawn. (W. P. Iverson & Co. v. Dunham Manufacturing Co. (1958), 18 Ill. App. 2d 404, 425, 152 N.E.2d 615, 625.) In such a case, admissions of a party in the unverified original pleadings may be used as evidentiary admissions, rather than judicial admissions. City National Bank & Trust Co. v. Oberheide Coal Co. (1940), 307 Ill. App. 519, 30 N.E.2d 753.

The case before use, however, is illustrative of an exception to these general rules of pleading and evidence. Where the original pleading is verified it remains part of the record upon the filing of an amended pleading. (People v. Central Manufacturing District Bank (1940), 306 Ill. App. 15, 28 N.E.2d 154.) Thus, the admissions of a party contained in an original verified pleading are judicial admissions and still bind the pleader even after the filing of an amended pleading which supersedes the original. (Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 670, 307 N.E.2d 749, 752.) “Judicial admissions are not evidence at all, but are formal admissions in the pleadings *** which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Precision Extrusions, Inc. v. Stewart (1962), 36 Ill. App. 2d 30, 50, 183 N.E.2d 547, 556.

Plaintiff argues that his unverified amended complaint should supersede his original verified complaint based upon the rule in Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App. 2d 703, 708, 269 N.E.2d 340, where the court stated:

<<*** admissions in a verified pleading still bind the pleader after the filing of an amended pleading which supersedes the original pleading unless the amended pleading discloses that the admissions were made through mistake or inadvertence.” (Emphasis added.)

To illustrate a recent application of the rule in Burdin, plaintiff cites Colgan v. Premier Electrical Construction Co. (1981), 92 Ill. App. 3d 407, 414 N.E.2d 1364, where the binding effect of an admission in a verified answer subsequently superseded by an amended answer is discussed.

In Colgan, the defendant-corporation originally responded to the plaintiff’s complaint via a verified answer, through which it admitted certain allegations contained within the complaint. These allegations included, inter alia, that a letter of assent regarding a collective bargaining agreement was accepted, signed and approved by the parties; that it had not been amended, modified or terminated; and that it was in full force and effect. The defendant was then granted leave to file a verified amended answer, which admitted every allegation previously admitted, but also affirmatively asserted that the letter of assent did not contain the complete agreement of the parties.

The court in Colgan held that defendant-corporation’s verified amended answer did not contradict its original answer, but assuming arguendo that it did, its verified amended answer superseded the original verified answer by clearly demonstrating “the mistaken distinction upon which the original answer was premised.” 92 Ill. App. 3d 407, 412.

In the instant case, plaintiff urges that this court view his amendment to paragraph six of his unverified amended complaint, wherein he sets forth the following language:

“the admissions, if any, contained in plaintiff’s paragraph 5 of the original verified complaint were made by mistake or inadvertence,”

as sufficient enough in its allegation of mistake or inadvertence to come within the Colgan court’s application of the Burdin rule regarding admissions made through mistake or inadvertence. This we refuse to do.

In order to determine what is necessary to properly plead mistake or inadvertence in the making of an admission, we look to earlier Illinois cases where the court was confronted with the same issue. In Blakeslee v. Blakeslee (1914), 265 Ill. 48, 106 N.E. 470, cited by the Burdin court, a court order was necessary before a party could gain relief from an “improvidently made” admission under oath. The court would base this order of relief sought from an admission of fact, upon defendant’s affidavit, wherein it was shown that: (1) the answer was drawn with care and attention, stating upon information and belief, such facts as were not within the defendant’s own knowledge; (2) that he was erroneously informed in regard to it; and (3) that he made oath to the answer, honestly believing such erroneous information. See Maher v. Bull (1864), 39 Ill. 531.

Applying these principles to our facts, it is apparent that neither plaintiff’s unverified amended complaint nor its amended paragraph six sufficiently “discloses” or pleads that the admissions contained within the original verified complaint — ie., that plaintiff moved to Florida “in order to avoid service of process in Illinois” — were made through mistake or inadvertence. It is well established that facts and not legal conclusions should be alleged in pleadings. (Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 401 N.E.2d 1094.) A mere allegation of error or mistake, without setting out facts justifying the allegation, is a conclusion of law and is insufficient. Hamilton v. Scheets (N.D. Ill. 1934), 6 F. Supp. 824.

Finally, we are not persuaded by the plaintiff’s argument that this case presents us with a situation similar to that in Colgan. The allegations of mistake contained in Colgan are in direct contrast with those presented here. The mistake in Colgan, if any, was one inferred by the court based upon allegations of facts, and not the mere legal conclusions that confront us in the instant case.

We therefore view plaintiff’s unverified amended complaint as a lame attempt to abandon his admission that he moved to Florida “in order to avoid service of process in Illinois,” and find the trial court correct in its determination that plaintiff was bound by the judicial admissions of his original verified complaint.

Plaintiff next argues that the trial court improperly considered his prior judicial admission in its determination that he be precluded from seeking the aid of the court to recover damages because he had admitted illegal conduct in his verified complaint. He further contends that the trial court’s dismissal of this action results in the court’s con-donation of defendant’s alleged misconduct in their legal advice to him.

A cause of action should not be dismissed on the pleadings unless it appears that no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave is sought, no cause of action can be stated. (Dinn Oil Co. v. Hanover Insurance Co. (1967), 87 Ill. App. 2d 206, 211-12, 230 N.E.2d 702.) In considering a motion to dismiss, however, “the pleadings are to be construed strictly against the pleader.” (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 421, 430 N.E.2d 976.) A section 45 motion (now section 2 — 615 of the Illinois Code of Civil Procedure) with respect to pleadings admits as true all well-pleaded facts, and attacks only the legal sufficiency of the complaint. Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 359 N.E.2d 171.

To determine whether the plaintiff in the present case had a sufficient cause of action upon which to base his complaint, the trial court applied the holding of Mettes v. Quinn (1980), 89 Ill. App. 3d 77, 411 N.E.2d 549.

In Mettes, the plaintiff (Mary Mettes) alleged that defendant Quinn, her attorney, had breached his fiduciary duty to her when he advised her to satisfy a settlement that she had made with Adele Hoffman. Hoffman had alleged that she had given $220,000 to Mettes and another party for “safekeeping.” When Mettes later refused to return the money, Hoffman filed suit against Mettes for its return, but the parties subsequently reached a settlement. Mettes, who was unaware that Hoffman had marked all the currency before giving it to her, satisfied the settlement using the same marked currency. In her suit against Quinn, Mettes alleged that Quinn knew, or should have known, that his advice would subject her to charges of fraud sufficient to set aside the favorable agreement. Her complaint was subsequently dismissed by the trial court for failure to state a cause of action.

The appellate court in Mettes, citing a long series of precedents which established the rule that “courts will not aid a fraudfeasor who invokes the court’s jurisdiction to profit from his own fraud by recovering damages,” affirmed the lower court’s decision. (89 Ill. App. 3d 77, 80.) See also Tovar v. Paxton Community Memorial Hospital (1975), 29 Ill. App. 3d 218, 330 N.E.2d 247; Bonnier v. Chicago Burlington & Quincy R.R. Co. (1953), 351 Ill. App. 34, 113 N.E.2d 615, rev’d on other grounds (1954), 2 Ill. 2d 606, 119 N.E.2d 254, cert. denied (1954), 348 U.S. 830, 99 L. Ed. 655, 75 S. Ct. 53; Kessinger v. Standard Oil Co. (1925), 245 Ill. App. 376.

We agree with the trial court’s application of Mettes to the instant case, and give no credence to plaintiff’s arguments that Mettes is inapplicable because it (1) involved the commission of the crime of embezzlement; and (2) the alleged negligent advice in the present case originated with the defendants, and not with plaintiff as was the case in Mettes.

Through his original verified complaint, plaintiff here admits to the act of relocation to Florida in order to avoid service in Ilinois. He now pleads impossibility of evasion of process due to the provisions of section 5i, and presents himself to this court as a naive businessman who followed “negligent” legal advice and became financially and emotionally damaged.

We find plaintiff’s conduct here similar to the conduct of the client in Mettes. Both parties involved voluntarily elected to follow advice intended to extricate themselves from a questionable situation. Both parties came to this court with “unclean hands,” seeking relief from their wrongful conduct.

We pass no judgment on the advice given by the defendants, as our refusal to aid the plaintiff here is a decision based upon his admitted attempt to evade the law.

In view of our findings we need not consider defendants’ additional arguments. We therefore find no error committed by the court below in dismissing this complaint with prejudice.

For the reasons expressed above, we affirm the decision of the circuit court dismissing plaintiff’s complaint.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    JAMES E. NUELLEN, Plaintiff-Appellant, v. JAMES LAWSON, Defendant-Appellee.
    First District (4th Division)
    No. 83 — 673
    Opinion filed March 29, 1984.

      James Nuellen, of Cicero, for appellant, pro se.

    Frank M. Howard, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, James Nuellen, appeals an order of the circuit court of Cook County dismissing his complaint for attorney fees claimed due from defendant, James Lawson. The sole issue presented for review is whether attorney fees incurred in the course of a proceeding to enforce an award of child support are dischargeable in bankruptcy.

We reverse and remand.

On August 20, 1982, plaintiff filed a complaint against defendant alleging the following: (1) on September 9, 1981, plaintiff filed a petition for a rule to show cause why defendant should not be held in contempt of court for failure to pay child support to his ex-wife, Kathleen Lawson; (2) on February 8, 1982, the trial court ordered defendant to pay to plaintiff attorney fees of $900, at $100 per month or $25 per week; and (3) to date, defendant has refused to pay.

Defendant moved to dismiss the complaint on the grounds that the debt had been discharged in bankruptcy. In an affidavit, defendant asserted that he had given notice to plaintiff that he had until May 10, 1982, to file objections as one of his creditors in the bankruptcy proceedings. On February 14, 1983, the trial court granted defendant’s motion and plaintiff’s complaint was dismissed. Plaintiff appeals.

The purpose of the Bankruptcy Act is “to convert the assets of the bankrupt into cash for distribution among creditors and then to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” (Williams v. United States Fidelity & Guaranty Co. (1915), 236 U.S. 549, 554-55, 59 L. Ed. 713, 716, 35 S. Ct. 289, 290.) Congress modernized the bankruptcy law by enacting the Bankruptcy Act of 1978 (11 U.S.C.A. sec. 101 et seq. (1979)) (hereinafter the Act). The Act provides for certain exemptions to the general rule of discharge. Section 523(a)(5) provides that an individual debtor is not discharged from any debt “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that — (A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support; ***.” 11 U.S.C.A. sec. 523(a)(5) (1979).

The precise issue presented here for review is whether attorney fees incurred to enforce an order of child support and payable by the bankrupt directly to the attorney are exceptions to discharge under section 523(a)(5).

Prior to the 1978 Act, under Illinois law, attorney fees awarded in a divorce action were in the nature of alimony and were not dischargeable in bankruptcy. (Morrey v. Morrey (1974), 24 Ill. App. 3d 77, 79, 320 N.E.2d 503, 505.) Under the new bankruptcy statute, whether a debt is nondischargeable as being in the nature of alimony, maintenance or support is a matter of Federal, not State law. State law may be used to develop Federal standards or to ascertain the incidents or nature of the debt to determine whether it fits within the exception. Federal and State courts have concurrent jurisdiction to determine whether debts are nondischargeable under section 523(a)(5) of the Act. (In re Marriage of Lytle (1982), 105 Ill. App. 3d 1095, 1099, 435 N.E.2d 522, 526.) The court must look to the substance of the obligation to determine whether it is in the nature of alimony or maintenance, or whether it constitutes a division of property. Among the factors the court must consider is whether the obligation relates to the support of children. In re Abitua (N.D. Ill. 1982), 18 Bankr. 674, 676.

In the instant case, the attorney fees clearly relate to the support of children. Plaintiff represented defendant’s former wife in her attempt to enforce a prior order of child support. If the court had not assessed fees against defendant and plaintiff's client had to pay the fees, it is reasonable to infer that she might have had less funds for their children’s support. Thus, we conclude that attorney fees incurred in the course of a proceeding to enforce an award of child support are not dis-chargeable in bankruptcy.

This conclusion is in harmony with the general principle applied by the bankruptcy court for the Northern District of Illinois that where attorney fees awarded in a divorce proceeding are in the nature of alimony, maintenance or support, they are not dischargeable in bankruptcy. (See Richards v. Loncar (N.D. Ill. 1981), 14 Bankr. 276; In re Tilmon (N.D. Ill. 1981), 9 Bankr. 979; In re Wells (N.D. Ill. 1981), 8 Bankr. 189; In re Pelikant (N.D. Ill. 1980), 5 Bankr. 404.) We note that the bankruptcy court has held that attorney fees are not dischargeable even though they are paid directly to the attorney rather than to the spouse. Richards v. Loncar (N.D. Ill. 1981), 14 Bankr. 276, 279; In re Wells (N.D. Ill. 1981), 8 Bankr. 189, 193; In re Pelikant (N.D. Ill. 1980), 5 Bankr. 404, 408; see 11 U.S.C.A. sec. 523(aX5XA) (1979).

For the foregoing reasons, the judgment of the trial court is reversed and the cause remanded with instructions that the complaint be reinstated.

Reversed and remanded.

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


author: JUSTICE McGLOON

text:
    LEILA PHARR, Adm’r of the Estate of Bessie Levy, Deceased, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, Defendant-Appellee.
    First District (1st Division)
    No. 83 — 100
    Opinion filed March 30, 1984.

      Ronald Kirk Goulding and Victor H. Goulding, both of Chicago, for appellant.
    Edmund J. Burke, Gary W. Bozick, and Kenneth E. Garstka, all of Hoffman, Burke & Bozick, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff Leila Pharr appeals from orders directing a verdict in favor of defendant Chicago Transit Authority and denying her motion for a new trial. On appeal, plaintiff contends (1) the evidence presented questions of fact which precluded the entry of the directed verdict; (2) the trial court erred in denying plaintiff’s motion for substitution of judges; and (3) the trial court erred in denying plaintiff’s motion to reopen her case to call another eyewitness.

We reverse and remand.

On January 18, 1977, plaintiff Leila Pharr, administrator of the estate of Bessie Levy, filed a wrongful death action against defendant Chicago Transit Authority (C.T.A.). The complaint alleged that defendant negligently discharged its duty to plaintiff’s decedent, a passenger, in that it caused her to fall while alighting from a bus, thereby causing injuries resulting in death. The incident occurred on January 22, 1976, at about 1 p.m.

Plaintiff’s witness Arnold Bell witnessed the occurrence. He testified that while he was walking from the south to the north side of Marquette Road, a C.T.A. bus traveling westbound on Marquette passed him. The bus stopped at the northwest corner of Hamilton and Marquette. The corner was not a designated bus stop. As Bell reached the north side of Marquette, he observed a young boy exiting the rear door of the bus. Plaintiff’s decedent then began alighting. She had one foot on the pavement and the other on the bus step when the bus began to move forward. Decedent was thrown to the ground. The bus proceeded west on Marquette. The pavement where the passengers alighted was dry.

On cross-examination, Bell testified he could not see the rear doors of the bus when it stopped. The first time he told anyone of the manner in which decedent fell was in May 1981, when he spoke to plaintiff’s attorney. The day after the accident, he was contacted by a Chicago police officer, but did not tell the officer that the bus began to move before the decedent alighted. He further testified that he did not know what caused the woman to fall. Bell’s deposition was admitted into evidence. In his deposition, Bell also stated he did not know the cause of decedent’s fall.

Officer James Carlos investigated the accident. He testified that he was unable to talk to the deceased because of her injuries. Bloodstains on the road were three feet seven inches from the curb on Marquette Road. He also spoke with a C.T.A. supervisor who identified the bus which was in the area at the time the accident occurred. The corner on which the accident happened was not a designated bus stop. On cross-examination, Carlos testified he spoke with Arnold Bell the day after the accident and included Bell’s statement in his report. Bell told him that as the bus drove away from the corner, he saw a person lying on the pavement and a youth standing nearby. If Bell had said the woman fell as she was getting off the bus, Carlos would have put that in his report. On redirect examination, Carlos stated he never spoke with Bell again. Bell never stated that he did not see the deceased fall. Bell was never asked to provide a written statement.

At the close of plaintiff’s case, the trial court granted defendant’s motion for a directed verdict. The trial court based its ruling on Bell’s demeanor, plaintiff’s lack of evidence that the C.T.A. was involved, and the conflict between Bell’s trial testimony and his statements made to police and during his deposition.

After judgment on the directed verdict was entered, plaintiff filed a motion for substitution of judges based on the trial judge’s previous position as an attorney for the C.T.A. Plaintiff also filed a motion for a new trial. Both motions were denied.

On appeal, plaintiff first contends the trial court erred in granting the motion for a directed verdict. She maintains that Bell’s testimony evidenced a breach of duty by defendant, that the breach of duty caused decedent’s injury, and at the very least, the evidence presented a question which could not be decided on a motion for a directed verdict.

Plaintiff alleged in the complaint that defendant negligently operated the bus, failed to keep a sufficient lookout and ascertain whether plaintiff’s decedent had reached a place of safety and moved the bus as decedent was alighting. Indeed, a common carrier must exercise the highest degree of care to its passengers, and the passenger-carrier relationship does not terminate until the passenger has had a reasonable opportunity to reach a place of safety. (Loving v. Yellow Cab Co. (1975), 33 Ill. App. 3d 154, 337 N.E.2d 428.) Bell’s testimony regarding the events preceding decedent’s fall would possibly establish a breach of defendant’s duty to its passenger. If believed by the jury, the evidence would show that the deceased had not reached a place of safety when the bus began to move. Defendant has argued that Bell’s testimony was inconsistent and was in fact contradicted by Officer Carlos. Also, the trial court based its ruling in part on these factors. However, it is the function of the jury to weigh the contradictory evidence and to judge the credibility of witnesses. (Lode v. Mercanio (1979), 77 Ill. App. 3d 150, 395 N.E.2d 1014.) Such matters may not be decided on a motion for a directed verdict. Frisch Contracting Service Corp. v. Northern Illinois Gas Co. (1981), 93 Ill. App. 3d 799, 417 N.E.2d 1070.

Plaintiff also alleged that defendant violated certain State and municipal laws. Specifically, she alleged violations of section 11 — 803 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95V2, par. 11— 803) and Chicago, Ill., Municipal Code sec. 27 — 260 (1983), which provide, in part, that no person shall move the stopped vehicle until such movement can be made with reasonable safety. She also alleged a violation of section 27 — 276(b) of the municipal code (Chicago, Ill. Municipal Code sec. 27 — 276(b) (1983)), which prohibits the driver of the bus to unload passengers in any area other than the designated bus stop. Plaintiff presented evidence that defendant violated each of these laws. A violation of the statute or ordinance designed for protection of the public is prima facie evidence of negligence, and the plaintiff may recover if he shows the violation is the proximate cause of the injury. Proximate cause is a factual issue to be decided by the jury where reasonable men might arrive at a different conclusion. (Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 363 N.E.2d 378.) In view of the evidence presented here, we find the matter should have been resolved by the jury.

A motion for a directed verdict should be granted only when all the evidence, viewed most favorable to the nonmovant, so overwhelmingly favors the movant that no other verdict could properly stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) We conclude that there was sufficient evidence of negligence to prevent the entry of a directed verdict.

Second, plaintiff contends the trial judge should have recused himself or granted the motion for substitution of judges made after judgment was entered. She maintains recusal or substitution was warranted because the judge formerly represented the C.T.A. in various actions.

In People v. Sangster (1976), 43 Ill. App. 3d 937, 360 N.E.2d 783, it was held that a trial judge was not required to recuse himself even though he had previously represented defendant in another case. The court held that neither Supreme Court Rule 61(c)(4) (87 Ill. 2d R. 61(c)(4)), requiring conduct free from the appearance of impropriety, nor Supreme Court Rule 67 (87 Ill. 2d R. 67), requiring disqualification for conflicts of interest, was violated because the judge had not represented defendant in any proceeding related to that over which he presided. In the case at bar, there were no allegations that the trial judge participated in proceedings related to this case, and thus recusal and substitution were not warranted in this case.

Because of our decision, we need not address the final issue raised by plaintiff.

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

Judgment reversed; cause remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JULIO VELEZ, Defendant-Appellant.
    First District (1st Division)
    No. 82 — 1400
    Opinion filed March 30, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Jean E. McEwen, of Schiff, Hardin & Waite, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Following a bench trial, defendant Julio Velez was found guilty of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9(1)), and sentenced to 40 years in prison. On appeal, defendant raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the State’s failure to turn over certain information prior to trial denied him due process of law; and (3) whether he knowingly and intelligently waived his right to a jury trial. For the reasons set forth below, we affirm defendant’s conviction.

The charge against defendant arose out of the shooting death of Thaddeus Papierz on June 21, 1981, at a Polish army veteran’s home in Chicago. The victim worked and resided at the home. At trial, the State presented several witnesses, among whom was 78-year-old Tadeusz Karwatowicz, a resident and employee of the veteran’s home. Karwatowicz testified that on the night of the incident a party was held on the first floor of the home. Shortly after midnight, he was on the second floor of the home watching the stairwell, while the victim was attending to his duties on the first floor. Karwatowicz then saw two young men walk up the stairs to the second floor. Due to poor eyesight, he could not positively identify either of the men at trial, but was able to describe them. He stated that the taller of the two men was a Latino, had dark hair about six inches long, and wore a red bandana on his head.

Karwatowicz further testified that the two men looked inside the washroom on the second floor, causing the victim to walk upstairs from the first floor and ask what they wanted. Although Karwatowicz was unable to follow much of the conversation, he stated the victim apparently asked the two men to leave the premises. Karwatowicz testified the victim then turned to him and requested he unlock the office on the second floor and call the police. As he started to do so, a struggle began between the victim and the taller man. He heard three shots and saw the victim fall to the floor. Karwatowicz could not determine which of the intruders, who were close to each other, actually fired the shots. The two men then fled.

Ramon Lopez, who was 11 years old at the time of the incident, testified that he attended the party at the veteran’s home on the night of the incident. During the course of the evening he went outside to his father’s truck to listen to music and later reentered the home just as the victim was fatally shot. He observed three men, two at the top of the stairs and the third on the stairs, and saw one of the men at the top of the stairs fire a gun. He stated that the man who fired the gun had a dark complexion, dark hair and wore a red bandana around his head and a sleeveless sweater. He noticed a tattoo on the upper part of the arm in which he held the gun. Two or three shots were fired, after which he ran.

Pedro Renta, Jr., testified that on the night of the incident he and his wife were sitting on the front porch of their home with two men known to him as “Kong” and “Fat Boy.” He identified Kong as the defendant, but did not know the real name of Fat Boy. Subsequently, a person unknown to Renta approached the porch looking for a man called “Pappo” who had been with Renta earlier that evening. Renta testified he went to the veteran’s home with defendant and Fat Boy to look for Pappo. The three men went inside the home and proceeded to the second floor, where they used a washroom. Defendant then remained on the second floor while Renta and Fat Boy walked down to the first floor. Renta stated that on their way downstairs they were passed by the victim who was on his way up to the second floor. The victim approached defendant and said something to him which he could not hear. The victim then spoke with another man and handed him some keys. As the second man went to open a door, defendant produced a gun and held it to the victim’s temple. The victim grabbed defendant’s right wrist and a struggle for the gun began. Defendant pushed the victim and then fired four shots at him. Renta and Fat Boy ran out of the building, followed by defendant.

Renta additionally testified that upon leaving the home, defendant handed him the gun, wrapped in a red bandana, and told him to hide both items. He initially hid the gun and bandana in his home, and later in an alley. Renta stated that when police subsequently came to his home he showed them where he hid the two items. He identified defendant as the person who fired the shots, both from a photographic array at the police station and at a preliminary hearing. Renta testified that on the night the shooting occurred, defendant wore a sleeveless tee-shirt and had tattoos on the upper portion of both arms; on his left arm was a crown indicating a gang known as the Imperial Gangsters, while on his right arm appeared the name “Kong.” Renta stated that at the time of the incident defendant’s hair was about shoulder length, while at the preliminary hearing it was cut much shorter. At the time of the shooting, he had known defendant for approximately two weeks.

Chicago police officer Jose Martinez testified that on July 26, 1981, an unidentified woman telephoned and spoke with him and his partner. Martinez was not permitted to relate the content of this conversation due to a defense objection which was sustained. Martinez stated that following this conversation, officers obtained an arrest warrant for defendant and proceeded to his home where defendant was found hiding under a bed and was thereafter arrested.

Defendant, at trial, exhibited his arms and tattoos to the trial judge. Additional evidence in the State’s case was received by stipulation. It was stipulated that the cause of death was multiple gunshot wounds and that the medical examiner had recovered three .32-caliber bullets from the body of the victim. These bullets were taken to the police laboratory, as was another spent .32-caliber bullet recovered from the scene of the shooting. It was determined that all four bullets were fired from the .32 Colt revolver that defendant gave to Renta. No fingerprints were found on the gun.

Also received into evidence was an oral statement defendant gave police following his arrest in which he admitted going to the veteran’s home on the night of the incident, but denied shooting the victim. In the statement, defendant indicated that only Renta and Fat Boy walked up to the second floor of the home, and that he remained on the first floor and ran when he heard shots. Defendant further stated that although he had a gun with him earlier that day, he did not have it when he went to the veteran’s home at night.

Based on the foregoing evidence, the trial court found defendant guilty of murder. Defendant’s motion for a new trial was denied.

I

On appeal, defendant initially urges that he was not proved guilty beyond a reasonable doubt. Specifically, he contends the trial court erred in not discounting the testimony of Pedro Renta, Jr., because Renta was an accomplice and his testimony was impeached by other witnesses. We reject this argument.

It is well established that in a bench trial the credibility of witnesses and weight to be afforded their testimony are determined by the trier of fact since he is in a position to observe the witnesses. (People v. Son (1982), 111 Ill. App. 3d 273, 279, 443 N.E.2d 1115; People v. White (1978), 69 Ill. App. 3d 830, 840, 387 N.E.2d 728, cert. denied (1980), 444 U.S. 1090, 62 L. Ed. 2d 778, 100 S. Ct. 1054.) The finding of the trial court will not be disturbed on review unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Berger (1982), 109 Ill. App. 3d 1054, 1069, 441 N.E.2d 915.) The testimony of even one witness, if positive and credible, is sufficient to convict, even though it is contradicted by the accused. People v. Jones (1976), 42 Ill. App. 3d 353, 362, 356 N.E.2d 114.

In the case at bar, the evidence is not so improbable as to raise a reasonable doubt of defendant’s guilt. First, the record establishes that Renta testified he saw defendant fatally shoot the victim and he provided a description of defendant’s physical characteristics. He positively identified defendant as the killer at trial, from a photographic array at the police station and at a preliminary hearing. Renta’s testimony received corroboration from witnesses Ramon Lopez and Tadeusz Karwatowicz. For example, a tattoo described by Renta was also seen by Lopez and was shown to exist when defendant exhibited his tattoos to the court. Lopez further corroborated Renta’s testimony that defendant was on the second floor, that another man was near him on the stairs and that a third man was further down the stairway. Both Lopez and Karwatowicz also recalled observing the red bandana described by Renta.

We note that defendant cites People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291, a case involving a completely uncorroborated accomplice witness. Defendant’s reliance on Wilson is misplaced, first because, as established above, Renta’s testimony was not entirely uncorroborated. Secondly, contrary to defendant’s assertion, the evidence does not establish that Renta was an accomplice; there are no facts indicating he did anything before or during the shooting to aid or abet defendant in the act of killing the victim. (Ill. Rev. Stat. 1981, ch. 38, pars. 5 — 1, 5 — 2.) Moreover, this court has held that the testimony of an accomplice, standing alone, is sufficient to support a conviction, provided that such testimony is clear and convincing. People v. Nathaniel (1981), 103 Ill. App. 3d 610, 431 N.E.2d 1080.

Defendant further contends that Renta’s testimony lacked credibility because he was impeached when a police officer, called as a defense witness, testified that at the police station he gave Renta Miranda warnings. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.) At trial, Renta stated he never received Miranda warnings. Such impeachment, however, was on a purely collateral matter, and it was up to the trial judge to evaluate it in terms of the entire testimony presented at trial. (People v. White (1978), 69 Ill. App. 3d 830, 840, 387 N.E.2d 728, cert. denied (1980), 444 U.S. 1090, 62 L. Ed. 2d 778, 100 S. Ct. 1054.) The same holds true with regard to defendant’s allegation that Renta’s testimony varied as to his position on the staircase leading to the second floor. Although Renta apparently was unsure of exactly where he stood on the stairway, this was but one factor going to his credibility, and was to be weighed by the trial court.

We have reviewed the remaining allegations of inconsistency raised by defendant in regard to Renta’s testimony and conclude they do not merit reversal of this cause. Defendant admitted being present at the shooting and was positively identified as the killer by Renta. Much of Renta’s testimony was corroborated by Lopez and, to a lesser extent, by Karwatowicz. The credibility of the witnesses was evaluated by the trial judge, who was able to scrutinize their demeanor. We find no reason to substitute our judgment for that of the trial judge.

II

Defendant next argues he was denied due process of law because the State failed to disclose until after trial certain police memoranda, now referred to as “street files,” in violation of Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. The State maintains it had no knowledge of these memoranda until after trial because they apparently were superseded by more detailed police reports and were therefore not in the case file. The State further contends, and we agree, that the evidence in question was not favorable or material to the issue of defendant’s guilt and, therefore, no due process violation occurred.

In Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, the Supreme Court held that a violation of due process occurs when a prosecutor, regardless of motive, suppresses evidence material to the question of the accused’s guilt or innocence after there has been a specific request for its production. To establish a Brady violation, the defendant must show (1) that the evidence was favorable to him, (2) that the prosecutor failed to disclose the evidence in response to a specific request, and (3) that the evidence was material. (People v. Post (1982), 109 Ill. App. 3d 482, 489, 440 N.E.2d 631.) With regard to the requirement of materiality, this court has stated that materiality under jBrady means evidence that would tend to raise a reasonable doubt of defendant’s guilt. (People v. Ojeda (1980), 91 Ill. App. 3d 723, 728, 414 N.E.2d 1156.) For the evidence to be “material” in the Brady context, it is not enough that it might have helped the defense. (People v. Kosik (1982), 110 Ill. App. 3d 930, 940, 443 N.E.2d 238; People v. Williams (1980), 91 Ill. App. 3d 631, 634, 414 N.E.2d 1235.) Rather, at the very least, to be considered material, the evidence must reasonably be expected to affect the outcome of the case. People v. Penland (1978), 64 Ill. App. 3d 656, 661, 381 N.E.2d 840.

Subsequent to Brady, the Supreme Court dealt with the instance of material being withheld which was not specifically requested, but which was the subject of a general request for exculpatory material in United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392. The court in Agurs concluded:

“The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.” 427 U.S. 97, 112-13, 49 L. Ed. 2d 342, 354-55, 96 S. Ct. 2392, 2401-02.

In the instant case, the discovery motion filed by defendant was such a general request as dealt with in the Agurs case. Even assuming, however, that the present case involves a specific request for information as in Brady, we find that defendant has failed to show favorableness and materiality as required for a Brady violation. We reject defendant’s first allegation that evidence material and favorable to his case was suppressed because the street file indicated a lineup was held in which defendant appeared, but was not identified by either Tadeusz Karwatowicz or Ramon Lopez. As noted previously, both witnesses admittedly were unable to identify defendant at trial. It is hardly helpful to defendant’s case that two witnesses who candidly admitted at all times that they could not positively identify the killer were in fact unable to identify him in the lineup. Defendant has not demonstrated how such evidence would have been favorable to him.

We reach the same conclusion concerning defendant’s allegation that he was not made aware, until after trial, that the police had heard certain information secondhand which originated from an FBI informant. This informant is mentioned in the street file. Specifically, a notation in the file disclosed that an officer had heard from an FBI informant that defendant and two others were at the scene of the shooting and committed the murder. Defendant merely speculates that he might have been able to use the information in some manner. Such speculation does not establish materiality or favorableness in the Brady context.

With regard to the foregoing point, we note that at trial evidence was adduced indicating that an unidentified woman had called the police and that following this call a warrant for defendant’s arrest was obtained. The content of this conversation was not disclosed at trial because defendant’s hearsay objection was sustained. However, defense counsel, having become cognizant that at least one unnamed informant was involved in the case, did not pursue the matter in any way. Consequently, we fail to comprehend how a piece of nearly identical information from the street file could be said to be favorable to defendant.

Defendant next posits that the street file contained information concerning witnesses Roberto Resto, Sylvia Flores and Pedro Hernandez. As to Hernandez, defendant argues the file disclosed that he may have been the person known as “Popeye.” This argument must fail in light of the fact that the State’s answer to defendant’s discovery motion includes the names and addresses of all three witnesses, as well as numerous other individuals present at the scene of the shooting, and was provided to defense counsel prior to trial. The record further discloses that other reports furnished to the defense before trial provided information about Hernandez and his possible link to “Popeye.” Moreover, attached to defendant’s post-trial motion were the transcripts of interviews defense counsel conducted with both Mrs. Flores and Hernandez following trial. Defendant cannot now allege prejudice in not receiving a specific piece of information about a witness when, prior to trial, defendant had the witness’ name and could have obtained the information by interviewing the witness. People v. Greer (1980), 79 Ill. 2d 103, 120, 402 N.E.2d 203.

We also reject defendant’s allegation that his conviction must be reversed because the State’s failure to disclose the information in the street files violated Supreme Court Rule 412(c) (73 Ill. 2d R. 412(c)), which pertains to discovery and codifies Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. This court has held that noncompliance with discovery requirements does not require reversal absent a showing of prejudice. (People v. Dunklin (1982), 104 Ill. App. 3d 685, 688, 432 N.E.2d 1323.) A defendant’s attempt to raise a claim of prejudice must be founded on more than “mere conjecture.” (People v. Lewis (1975), 60 Ill. 2d 152, 158, 330 N.E.2d 857.) Given our foregoing discussion of the street files, we find no showing of prejudice to defendant.

We additionally note that attached to defendant’s motion for a new trial based on newly discovered evidence was the affidavit of his brother, Juan “Spooky” Velez. In that affidavit, defendant’s brother alleged that he was erroneously identified by Ramon Lopez as the person who fired the fatal shots. There is nothing, however, in the street files to support the allegation set forth in the affidavit. Defendant’s allegation now on appeal that the lack of any such notation shows an attempted hiding of this information by the State is groundless. Furthermore, the name of defendant’s brother was listed on the pretrial list of witnesses furnished to defendant and therefore defense counsel could have learned of such information prior to trial.

Moreover, to warrant a new trial based on new evidence, defendant has the burden of rebutting the presumption that the verdict is correct and to show that there has been no lack of diligence (People v. Miller (1980), 79 Ill. 2d 454, 404 N.E.2d 199), and be of such a conclusive character that it will probably change the result on retrial (People v. Dunklin (1982), 104 Ill. App. 3d 685, 432 N.E.2d 1323). Here, defendant did not show that the evidence could not have been discovered prior to trial by the exercise of due diligence. Further, even if we were to believe the allegations contained in the affidavit, which the trial judge did not, it was not shown that such evidence would probably change the outcome on retrial. Consequently, we affirm the denial of defendant’s motion for a new trial.

Ill

Defendant’s final contention is that he did not knowingly and understandingly waive his right to a trial by jury. Defendant challenges neither the adequacy of the admonishments given, nor his understanding of them. Rather, he urges only that the failure of the State to supply information contained in the previously mentioned street files rendered his jury waiver less than knowingly and understandingly made.

We find no impropriety regarding defendant’s jury waiver. In view of our holding above that no material evidence favorable to defendant was contained in the street files, we are of the opinion that nothing could have tainted his decision to waive the jury. We further note the record establishes that prior to trial the court fully admonished defendant of his right to a jury and of the consequences in giving up that right. Defendant stated that he understood these rights, wished to waive them and voluntarily signed a jury waiver. Under these circumstances, we conclude that defendant knowingly and intelligently waived his right to a trial by jury. People v. Beathea (1974), 24 Ill. App. 3d 460, 467, 321 N.E.2d 458.

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

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: PRESIDING JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE KROGH (Impleaded), Defendant-Appellant.
    First District (3rd Division)
    No. 82 — 1402
    Opinion filed March 30, 1984.

      James W. Reilley and Barry E. Witlin, both 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.
   PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant, Eugene Krogh, was convicted of the delivery of a controlled substance (Ill. Rev. Stat. 1979, ch. 56V2, par. 1401(a)(2)) and sentenced to the Illinois Department of Correetions for a period of six years. A codefendant who was tried in a bench trial begun simultaneously with defendant’s jury trial is not a party to this appeal. On appeal, defendant argues that the court erred in denying his motion to quash his arrest, in restricting his cross-examination of a State’s witness and in refusing to grant a mistrial after a State’s witness commented on defendant’s immediate post-arrest silence and that the court abused its discretion in preventing him from questioning two State’s witnesses about his signed consent to search his automobile. We affirm.

Prior to trial, defendant moved to quash his arrest and to suppress his statements. At the hearing on defendant’s motion to quash, Agent Danny Pierce of the Illinois Department of Law Enforcement testified that on May 8, 1980, he was assigned to a backup and surveillance unit for a “drug buy.” The purchase of 12 ounces of cocaine for $14,400 was to take place around 1:30 p.m. in a forest preserve parking lot near the intersection of Route 72 and Barrington Road. Pierce knew that a maroon Toronado might be the vehicle involved. Pierce was stationed at a Shell gas station on the southeast corner of Route 72 and Barrington Road.

At approximately 1:30 p.m. Pierce observed a brown Chevy going south on Barrington Road. Pierce saw the Chevy slow down, though there was no traffic immediately ahead of it. A couple of minutes later, Peirce saw the Chevy go north on Barrington Road and turn into the forest preserve parking lot. Agent Grady, who was stationed in the forest preserve parking lot, informed Pierce by radio that while in the parking lot the driver of the brown Chevy emptied his ashtray and observed all the people and vehicles in the lot. Pierce saw the Chevy leave the forest preserve parking lot, go north on Barrington Road and pull into the gas station where Pierce was stationed. The driver, whom Pierce identified as defendant, got out of his car, walked to the men’s room and attempted, unsuccessfully, to open the door. He then returned to his car and stayed there for a few minutes. Defendant then got out of his car, walked to a place about 10 feet from Barrington Road in the driveway of the gas station and looked north at the traffic coming south. Then, defendant raised both his arms up, with his elbows bent and his fingers spread and waved his arms while nodding his head up and down. As defendant was waving, the driver of a maroon Toronado that was passing looked toward defendant, nodded his head and raised his left hand upward, then turned into the forest preserve parking lot. Immediately after the Toronado passed, defendant got into his car, drove to the parking lot of an implement company building located directly across from the forest preserve parking lot, and went inside the building. When another agent gave the prearranged signal indicating either that it was time to arrest the driver of the Toronado, the codefendant, or that the delivery had taken place, Agent Thomas Petersik, who was in charge of the investigation, advised agents to arrest defendant, and they did. Petersik testified that in his experience it is very seldom that only one person is involved in the sale of a large quantity of drugs. The court found, on the basis of Petersik’s experience and defendant’s conduct, that probable cause existed to arrest defendant, and the court denied defendant’s motion to quash his arrest.

After another hearing, the court denied defendant’s motion to suppress his statements, on the basis that defendant had received adequate Miranda warnings and had waived his rights under Miranda. The court granted defendant’s motion in limine to exclude the introduction of, or reference to, items recovered from defendant’s vehicle.

At trial, the evidence showed the same sequence of the events of May 8, 1980. In addition, Agents Petersik and DeFranco testified that after defendant was advised of his rights, defendant told them that he was the lookout, he was to receive a percentage of the $14,000 and that it was his “stuff.” Defendant also signed a waiver of rights form. However, the agents did not get a written statement from defendant. The jury found defendant guilty of delivery of a controlled substance.

Defendant first argues that the court erred in denying his motion to quash his arrest because the agents did not have probable cause to arrest him. Defendant maintains that while his activities may have been suspicious, the fact that the agents had no prior knowledge of him or of any involvement by him, and the fact that the agents’ past dealings with the codefendant either involved no other people or else people other than defendant mitigate against the conclusion that the agents had probable cause to arrest him. We believe that defendant’s argument is meritless.

The determination of whether probable cause for an arrest exists in a specific instance depends on the totality of the facts and circumstances known to the officers when the arrest is made. (People v. Summers (1981), 100 Ill. App. 3d 170, 174, 426 N.E.2d 937, 940.) Probable cause is present if a reasonable and prudent person in possession of the knowledge which has come to the arresting officers would believe that the person to be arrested had committed a crime. (100 Ill. App. 3d 170, 174, 426 N.E.2d 937, 940.) The investigating officer may rely upon his knowledge and experience and the reasonable inferences drawn from observed facts. (People v. Stamps (1982), 108 Ill. App. 3d 280, 287, 438 N.E.2d 1282, 1289-90.) Probable cause for an arrest may be estabEshed on the basis of all the information possessed by the officers working in concert. People v. Johnson (1982), 104 Ill. App. 3d 572, 576, 432 N.E.2d 1232, 1237.

Here, the agents initially had the knowledge, based on their experience, that drug buys such as the one scheduled for the afternoon of May 8, 1980, seldom involve only one person. We do not believe that to support a finding of probable cause the agents needed knowledge that defendant in particular might be involved in the scheduled transaction. Aware that someone else might be involved, the agents observed defendant in the area where a drug buy was soon scheduled to take place. Defendant’s driving and his actions in the forest preserve parking lot were somewhat suspicious. Then, the agents observed defendant give an obvious signal to the driver of a vehicle they were expecting and remain in the area while the deal took place. We believe that the observations and experience of the agents involved in the investigation here would warrant a reasonable person in believing that an offense had been committed and that defendant had committed the offense. Thus, we conclude that the trial court did not err in denying defendant’s motion to quash his arrest.

Next, defendant argues that the court erred in restricting his cross-examination of Agent Fieroh regarding a drug purchase from the codefendant which did not involve defendant. Defendant’s offer of proof revealed that Fieroh had purchased cocaine from the codefendant and another person approximately nine days before the purchase involved here. Defendant contends that Fieroh’s testimony was relevant in that it would tend to create a reasonable doubt of defendant’s association with the codefendant and of defendant’s participation in the codefendant’s delivery of the cocaine. We disagree.

The latitude to be allowed in the cross-examination of a witness rests within the discretion of the court, and a reviewing court will interfere only when there is a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Gallo (1973), 54 Ill. 2d 343, 356, 297 N.E.2d 569, 576.) We believe that evidence of the codefendant’s involvement in a drug deal that did not involve defendant was not relevant to defendant’s involvement in the drug purchase here. Moreover, defendant was able to establish during the cross-examination that Fieroh had no prior dealings with defendant and, in particular, that Fieroh did not negotiate this purchase of cocaine with defendant. In addition, from the cross-examination, the jury learned that when Fieroh first met the codefendant, the codefendant was in the presence of another person, not defendant. Thus, even without hearing the specifics of any prior deal, the jury learned that Fieroh had no prior dealings with defendant. We therefore conclude that the court did not abuse its discretion in restricting the cross-examination.

Defendant next contends that the court erred in refusing to grant a mistrial after a State’s witness testified that defendant “made no comment whatsoever” immediately after he was arrested. The witness’ testimony referred to defendant’s silence before he was given Miranda warnings. Thus, the testimony regarding defendant’s silence was proper under Fletcher v. Weir (1982), 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309, but improper under People v. Better (1979), 74 Ill. 2d 514, 386 N.E.2d 857. In People v. Miller (1983), 96 Ill. 2d 385, 450 N.E.2d 322, the Illinois Supreme Court spoke of the dichotomy between Fletcher and Better, but it did not decide whether it would follow Fletcher or continue to follow Better. (96 Ill. 2d 385, 393, 450 N.E.2d 322, 326.) Rather, in Miller, the court held that if there was error on the issue, it was harmless because the trial court admonished the jury, the disputed comment by the witness was an isolated incident, and the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt. (96 Ill. 2d 385, 395-96, 450 N.E.2d 322, 327.) Since the same circumstances occurred and the same conclusion may be reached in the present case, we feel that we are bound to follow the holding of the supreme court in Miller. Therefore, we hold that the court properly denied defendant’s motion for a mistrial.

Lastly, defendant argues that the court abused its discretion in preventing defendant from questioning two State’s witnesses about his signed consent to search his automobile. Specifically, defendant contends that he should have been permitted to cross-examine Agent DeFranco about the signed consent and that he should have been able to introduce evidence of the consent to search after Agent Petersik opened the door by testifying on direct examination that he believed a search of defendant’s car was conducted at the Schaumburg police department. Defendant maintains that evidence of his signed consent to search would demonstrate his cooperation after his arrest and indirectly discredit his confession, which was not in writing. We believe that defendant’s argument lacks merit.

The latitude to be allowed in cross-examination is within the discretion of the court, and a reviewing court will interfere only when there is a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Gallo (1973), 54 Ill. 2d 343, 356, 297 N.E.2d 569, 576.) Here, the court properly determined that if defendant were to elicit testimony that he had consented to a car search, the jury might infer that nothing was found in the search. Thus, the court indicated that it would reconsider its previous ruling on defendant’s motion in limine which precluded the State from introducing evidence recovered in the car search. Defendant then withdrew his request to ask about the consent form. When, under direct examination, Agent Petersik inadvertently testified that the car had been searched, we believe that the court was faced with the same considerations, weighed them, and properly decided to admit the evidence that the search took place without allowing counsel to go into either the consent form or the results of the search. Under the circumstances, we do not believe that the court abused its discretion regarding testimony about defendant’s consent to search or that defendant was prejudiced by the court’s ruling.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    JEAN W. ELLIOTT, Plaintiff-Appellee and Cross-Appellant, v. CHICAGO TITLE INSURANCE COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 83 — 1671
    Opinion filed March 20, 1984.
    Rehearing denied May 7, 1984.

      Susan E. Woods and William R. Yowell, both of Chicago, for appellant.
    James N. Vail, of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Jean Elliott (Elliott) brought an action against Chicago Title Insurance Company (CTI) for damages resulting from an alleged breach of a title policy issued to her and her husband Richard Elliott. The policy showed title to their residence in joint tenancy although it was actually recorded as tenancy in common. The circuit court granted her motion for summary judgment and denied her request for attorney fees and damages. CTI appeals from the order granting summary judgment. Elliott cross-appeals from the denial of attorney fees and damages.

The issues raised by CTI include whether: (1) summary judgment was properly granted; (2) CTI’s exclusion clause exculpates it from liability for mistakes in describing title; (3) a necessary party was omitted; and, (4) CTI’s policy is one of indemnity rather than guaranty, thereby limiting damages to actual loss. The issue raised on the cross-appeal is whether CTI’s defense was vexatious and unreasonable and its allegations and denials unreasonable and untrue so as to entitle Elliott to attorney fees and damages.

On October 26, 1956, Richard and Jean Elliott purchased and were deeded in joint tenancy residential property from Durable Construction Company (Durable), which shall be described as “Lot 82,” subject to a mortgage obtained by Durable on October 6, 1956. The proceeds of this mortgage were credited to the purchase price. Adjoining Lot 83 was sold by Durable to the Elliotts by an installment contract, secured by an installment note, to be paid in full by December 1961, at which time title to Lot 83 would be transferred to the Elliotts.

In April 1958, the Elliotts and Durable entered into an $11,215 contract for an addition to their residence, on which the Elliotts paid down $1,000 cash. Durable’s 1956 mortgage on Lot 83 was released; Durable secured a new mortgage on Lots 82 and 83; and the installment note was increased. As security for the increased installment note, the Elliotts executed a quitclaim deed to Lot 82 to the construction company. In 1959, Durable resubdivided Lots 82 and 83 into Lot 1.

The Elliotts paid off the installment note in 1968 and retained their own attorney to clear title and draft a deed to Lot 1, transferring title to them from Durable. The deed did not contain essential joint tenancy language. In 1970 the attorney ordered a commitment for title insurance from CTI giving it all documents relating to the purchase and financing of the property of which he was aware, including the warranty deed conveying Lot 1 from Durable to the Elliotts. CTI issued a title insurance policy showing title in the Elliotts as joint tenants, however, and mailed it to the Elliotts’ attorney on November 17, 1970.

In June 1973, the Elliotts retained a different attorney to draft their wills and a trust agreement and gave him the title policy. Assertedly relying on the policy showing their home in joint tenancy and believing it would pass to the survivor upon either’s death, the attorney drafted wills and trust agreements conveying all the husband’s assets to a testamentary trust, with a bank as trustee (trustee) without specifically referring to their home.

In July 1981, Richard Elliott died, and his estate was opened in Du Page County.

In March 1982, Elliott retained the previous attorney to represent her in the sale of the subject home. He prepared an installment sales contract for $90,000 between Elliott, as sole owner, and the purchasers, which both parties executed. A commitment for title ordered by the purchasers from a title company other than CTI reported that title to the property was not in joint tenancy but rather in tenancy in common. Elliott’s attorney immediately notified CTI of the finding, and it issued a new commitment showing Elliott and the trustee of the testamentary trust as tenants in common, each with an undivided one-half interest in the property.

On April 1, 1982, the sale for $90,000 was consumated, the proceeds eventually to be distributed equally between Elliott and the trustee, each receiving $45,000.

On April 5, 1982, Elliott notified CTI of her loss of $45,000, the amount distributed to the trustee. On April 7, 1982, and May 7, 1982, Elliott demanded that CTI pay her for such loss, as provided in the title policy. On May 14, 1982, Elliott filed a two-count complaint against CTI, claiming a loss of $45,000 and CTI’s engagement in improper claims practice thereby entitling her to reasonable attorney fees and other costs. CTI’s amended answer denied Elliott’s allegations and set forth affirmative defenses, specifically that: the 1958 deed to the construction company was actually a mortgage; the claim is barred from coverage under the policy’s exclusionary clause; and Elliott sustained no actual losses.

Elliott’s motion for summary judgment, supported by affidavits, sought the right to recover damages sustained because of her reliance upon the policy’s erroneous description of title. CTI’s countervailing memorandum, to which the affidavit of its office counsel was attached, claimed that there were issues of fact and law which precluded summary judgment. CTI’s subsequent request for admission of genuineness of certain documents was admitted in the absence of objections. (87 Ill. 2d R. 216.) The documents and another affidavit of office counsel were filed by CTI as exhibits in opposition to Elliott’s motion for summary judgment. Elliott answered CTI’s additional brief, disclaiming the allegation that the deed to the construction company was a constructive mortgage and emphasizing her rightful reliance on the policy’s joint tenancy language.

The circuit court found that: CTI’s policy showing title in joint tenancy when the record indicated title was held in tenancy in common, was in error; the 1982 commitment describing Elliott and the trustee as tenants in common was an admission by CTI that the 1970 policy was a mistake; the tenancy in common created by the 1968 deed, drafted by Elliott’s attorney, was not a defense affecting the nature of Elliott’s cause of action; and the Elliotts had a right to rely on the joint tenancy characterization of title by the policy. Summary judgment was entered in Elliott’s favor.

CTI then filed two motions: one, a motion to reconsider and vacate the order granting summary judgment in favor of Elliott, was denied; the other, which requested leave to file a third-party complaint against Durable and the trustee as third-party defendants, was granted, and the complaint filed. Based on the concept of subrogation, CTI’s complaint asked that: (1) Durable’s deed to the Elliotts as tenants in common be reformed to reflect ownership in joint tenancy; (2) title to that part of Lot 1 which was formerly Lot 82, be quieted in Elliott as surviving joint tenant; (3) title to Lot 1 be quieted and found to be in Elliott as a surviving joint tenant; and (4) the trustee’s receipt of one-half the sale proceeds which properly belong to Elliott was a mistake of fact and is due her or CTI if it is required to pay Elliott for such loss, as subrogee under its policy. The trustee’s motions to strike and dismiss the third-party complaint or to enter judgment against CTI in counts I and III of the third-party complaint and to strike and dismiss counts II and IV as substantially insufficient at law, have not been ruled on.

Elliott’s petition for attorney fees and damages, because CTI’s allegation that Durable’s deed was a release of a mortgage was unreasonable and vexatious, was denied.

CTI appeals from the summary judgment order. Elliott cross-appeals from the denial of her petition for attorney fees and damages.

On appeal, the parties are in dispute as to the actual amount of Elliott’s losses, the propriety of relying upon the insurance policy’s description of title, the designation of Durable’s transfer of title as a deed rather than a release of a constructive mortgage and whether Elliott and her husband’s alleged intent to hold title as tenants in common, which became the ultimate result; is relevant in light of the policy’s description of title as held in joint tenancy, which questions themselves indicate material issues of fact exist. Underlying all these issues is the question of title to Lot 1, which must be resolved before Elliott’s claim under the policy may be adjudicated.

Under the insurance policy, CTI has a right to establish title, which right must be considered together with Elliott’s right to file a claim. Paragraph 7(a) of the insurance policy (“Conditions and Stipulations”) states:

“No claim shall arise or be maintainable under this policy (a) if *** [CTI], after having received notice of an alleged defect, lien or encumbrance insured against hereunder, by litigation or otherwise, removes such defect, lien or encumbrance or establishes the title, as insured, within a reasonable time after receipt of such notice; ***.”

CTI thereby possesses the right to clear title before an action under the policy may be brought. The transfers of title involved in this case support CTI’s insistence upon its contractual right to clear title. Once title has been established, Elliott’s claim under the policy can be resolved.

In the still pending third-party action, CTI seeks to establish title to Lot 1. Durable and the trustee were properly made defendants as necessary parties for the complete determination or settlement of the question involved. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 405(a).) A necessary party is one whose presence is required: (1) to protect an interest in the subject matter of the controversy which would be materially affected by a judgment entered in his or her absence; (2) to reach a decision which will protect the interests of those before the court; or, (3) to enable the court to make a complete determination of the controversy. (Lain v. John Hancock Mutual Life Insurance Co. (1979), 79 Ill. App. 3d 264, 398 N.E.2d 278.) Durable and the trustee are necessary parties here because without their presence, title cannot be cleared and without this issue being resolved, a complete determination of Elliott’s claim for losses under the insurance policy cannot be made. The fact that the third-party claim was filed after summary judgment was entered does not bar adjudication of the claim since the summary judgment was not satisfied and, by allowing the claim to be filed, the circuit court effectively stayed enforcement of said judgment.

The circuit court should have directed that Elliott be included also in the third-party complaint since any decision regarding Lot 1 would necessarily affect her interest in said lot under section 2 — 406(a) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406(a)). Further, including Elliott in the third-party action is contemplated by the insurance policy itself. Paragraph 3(e) (“Conditions and Stipulations”) provides that an insured shall give the company all reasonable aid in prosecuting or defending any action required or permitted by the policy, in this instance, the third-party action.

Summary judgment, although a salutary procedure in the administration of justice, should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped; only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law, should a case be so decided. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005; Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App. 3d 778, 793-94, 392 N.E.2d 1352, aff’d (1981), 85 Ill. 2d 161.) The moving party must show that his right to summary judgment is free from doubt. (Bultman v. Bishop (1983), 120 Ill. App. 3d 138, 457 N.E.2d 994.) Where the entire record reveals a genuine issue of material fact, the motion for summary judgment should be denied. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, cert denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) Under the circumstances of this case, the order granting summary judgment was premature and must be reversed and vacated.

Nevertheless, Elliott’s claim should be preserved pending the outcome of the third-party complaint. Nothing in our decision should be construed as having determined any factual issue raised in the third-party complaint. Upon remandment, the circuit court must resolve the issue of title to Lot 1, followed by a determination of Elliott’s claim under the policy, including whether or not the exclusionary provision of section 3(a) of the title policy should be applied. In light of the existence of factual issues involving title to Lot 1, the denial of Eliott’s cross-appeal for attorney fees must be affirmed, since CTI’s allegation and defenses at this stage of the litigation appear neither vexatious nor unreasonable.

In view of our decision, other issues on appeal need not be and are not reached.

Accordingly, the circuit court’s order granting summary judgment is reversed and vacated and the cause remanded for a determination of the issues raised in the third-party complaint, as modified to include Elliott as a party and to preserve her claim under the policy. The circuit court’s denial of Elliott’s request for attorney fees is affirmed.

Affirmed in part, reversed and vacated in part, and remanded with directions.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND PARQUETTE, Defendant-Appellant.
    First District (2nd Division)
    No. 83 — 197
    Opinion filed March 27, 1984.
    Edwin R. McCullough, of Chicago, and Robert V. Boharic, of Riverside, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and James Fink, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

On November 3, 1981, Roland Parquette was charged by information with three counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9— I) , two counts of home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12— II) and three counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A — 2). After a bench trial he was convicted of murder and was sentenced to 20 years’ imprisonment. He contends here that the trial court erred (1) in denying his motion to suppress statements; (2) in admitting into evidence defendant’s wife’s rebuttal testimony regarding an abortion; (3) the State failed to comply with discovery; and (4) the State failed to prove defendant guilty beyond a reasonable doubt of the mental state required for murder.

At a hearing on defendant’s motion to suppress his statements, Officer Schak of the Chicago police department testified that on October 7, 1981, he was investigating the shooting death of James Ward. That evening he and “several” other officers went to defendant’s apartment. They heard “breathing or gurgling noise” coming from the apartment. Twenty minutes of pounding on the door did not arouse an occupant. After 20 more minutes the apartment door was forcibly removed. Defendant was found asleep nude in his bed. Several officers, “some” with their guns drawn, awakened and arrested defendant. Several guns were recovered from the apartment, including one later identified as being of the same caliber as that used to kill Ward.

On direct examination Officer Schak testified with regard to interrogation of defendant at his apartment as follows:

“Q. While you were at — and Roland’s apartment was at 510 at 2001 West Summerdale — was there any conversation between Mr. Parquette and police officers?

A. Yes, sir.

Q. What was that conversation?

A. His name and—

Q. Didn’t you ask or inquire of Mr. Parquette or any officer in your presence in the apartment ask Mr. Parquette anything in regards to the death of James Ward?

A. No, sir.”

On cross-examination the following exchanges occurred:

“Q. Did you say [in your police report] then the subject was roused and advised of his rights whereupon he admitted to the shooting of James Ward at his former address 3834 West George Street?
A. Yes, sir.
* * *
Q. Well, now, is this correct where you had written in the police report that you were, he was roused and advised of his rights whereupon he admitted to the shooting of James Ward at his former residence at 3834 West George Street, is that correct?
A. He wasn’t roused and advised of his rights immediately; no, sir.
* * *
Q. Well, before the time that he was allowed to dress then he was questioned with respect to the shooting, is that right?
A. No, sir. My recollection of what took place there is probably not what it should be but I know that he was allowed to dress immediately, and any questioning that was done was suspended by me almost immediately. I don’t recall questioning him. I really don’t.
* * *
Q. He was not advised of his rights at that point [upon being awakened], that is your testimony, is that right?
A. Not when I woke him up; no, sir.
Q. And not before he got dressed, right?
A. No, sir.
Q. And not in the apartment, period?
A. He asked me questions. I don’t recall. I don’t recall what he asked me or what the conversation was.
Q. Well, he did not waive his Miranda rights inside that apartment, did he?
A. I don’t recall.”

The only other witness to testify at the suppression hearing was Assistant State’s Attorney Phillip Mitchell. Following defendant’s arrest, Mitchell interviewed defendant at the police station. Mitchell’s testimony indicates that during his interrogation of defendant at least one other person — a police officer — was also present. Mitchell testified that defendant, after being advised of his Miranda rights, confessed to shooting the victim.

During argument on his motion to suppress, defendant argued the State had failed to comply with the “material witness” rule which requires the State to produce at the hearing all.material witnesses to a confession, or to explain their absence. The court responded that the rule “does not apply in this case.” Thereafter the court denied defendant’s motion to suppress.

At trial, Debra Ohlson, defendant’s wife, testified that she and defendant had been separated for about V-lz years as of the date of the shooting. On the date of the incident she lived with the victim and Kim Shanholtz. She had lived with the victim for six months. She “may” have told defendant she was living with Ward. Defendant and Ward had not previously met. She said her husband was a gun collector.

Officer Schak testified regarding defendant’s arrest at his apartment and stated that defendant there “admitted” to being at the scene of the shooting. Assistant State’s Attorney Mitchell testified as to his interrogation of defendant at the police station and recited defendant’s oral confession to the shooting.

James Tripp and Allen Van Allen testified for defendant. Both testified to his good reputation and that they observed defendant drinking heavily several hours prior to the shooting.

Defendant testified that he is a carpenter, married to Debra Ohlson, but separated from her. He visited with his wife and called her on the phone even though they were separated. He loved his wife in October 1981 when the shooting occurred. On the day of the incident he was drinking heavily. He dialed his wife’s number on the phone and a male voice told him “listen jackoff, don’t call her anymore” and then hung up. Defendant became “mad,” and knowing “there was a gun” at his wife’s apartment, he grabbed “a couple of guns” and drove to the apartment.

After defendant had knocked on the door for a time, a man — later identified as Ward — partially opened the door. He said to defendant “listen jackoff, get out of here.” Defendant described the man as very “demanding” and “belligerent.” Defendant started walking away from the door. The man told him to “get out” of there. As defendant started down the apartment stairs, the man said “that’s right jackoff, just keep going.” Defendant then turned and fired one shot at the door opening. Defendant stated he was sorry Ward was dead; defendant was only trying to “scare” him. At the time defendant turned and fired, Ward was making a movement — he was “turning *** away from the door” and “backwards towards the apartment.”

On cross-examination defendant stated Ward had never touched him nor pointed a gun at him nor had defendant seen a gun in Ward’s possession. Although defendant could not see Ward’s hands, defendant “thought” Ward would shoot him in the back.

On rebuttal, and over defendant's objection, defendant’s wife testified that defendant had impregnated her in March 1981 and had advised her to “get an abortion,” for which he paid.

After closing arguments, the court dismissed all charges except murder and found defendant guilty of that charge. Defendant was sentenced to 20 years.

On appeal, defendant contends the trial court erred in denying his motion to suppress statements.

It is axiomatic that for incriminatory statements obtained from a defendant as a result of custodial interrogation to be admissible, the statements must be found at trial to have been voluntarily made. (People v. Alvarez (1981), 93 Ill. App. 3d 111, 416 N.E.2d 1217.) At a hearing on a motion to suppress a confession “[t]he burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State.” Ill. Rev. Stat. 1981, ch. 38, par. 114-ll(d).

When the voluntariness of a confession is challenged, the State has the burden of producing all material witnesses to the confession, or accounting for their absence. (In re J.C. (1979), 69 Ill. App. 3d 289, 387 N.E.2d 401.) Although the record here is not clear, apparently “several” police officers were present when defendant was arrested at his apartment and he appears to have made a statement of some kind. At least one police officer was likewise present at defendant’s confession to the assistant State’s Attorney at the police station. The material witness rule requires that the “State must produce all material witnesses, that is, all witnesses whose testimony is material to the issue of the voluntariness of the challenged statement. [Citations.] This rule is a safeguard against the use of improperly induced or coerced confessions by the State. [Citation.] Alternatively, the State could explain the failure of such a witness to testify.” People v. Robinson (1980), 87 Ill. App. 3d 621, 624, 410 N.E.2d 121, 123.

The significance of this rule is well illustrated by the case before us. Officer Schak’s uncertain testimony with regard to whether defendant, in his apartment, was or was not questioned; did or did not make any statements; was or was not read his Miranda rights and did or did not waive those rights is, at best, confusing. Further, the determination of what occurred at defendant’s apartment may well be material to establish the voluntariness of defendant’s confession alleged to have been subsequently made at the police station. If defendant did in fact make a statement at his apartment, and such statement was determined to be unlawfully obtained, the voluntanness of any subsequent statement would require consideration of, inter alia, any effect from the first interrogation. People v. Davenport (1977), 49 Ill. App. 3d 130, 363 N.E.2d 1200.

We believe the purpose of the material witness rule will be well served by requiring a new suppression hearing in this instance. (In re J.C.) When, as here, a defendant “does not receive a full evidentiary hearing in the trial court on the voluntariness of his confession, including the rights afforded him by Miranda,” it is proper to remand the case for a “new full and complete hearing on the admissibility of the defendant’s confession.” People v. White (1973), 10 Ill. App. 3d 914, 923, 295 N.E.2d 300, 306.

If, after hearing, defendant’s statement is found to have been voluntary and therefore admissible, the trial court should enter a new judgment of conviction. If defendant’s statement is found not to have been voluntary, the circuit court should vacate the judgment of conviction and order a new trial. People v. King (1975), 61 Ill. 2d 326, 335 N.E.2d 417.

To forestall the issue of double jeopardy (People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366) in the event a retrial is held, we find that the evidence produced at trial was sufficient to prove the defendant guilty beyond a reasonable doubt.

We believe that two of the other issues raised by defendant merit comment. Defendant contends it was a violation of the husband-wife privilege (Ill. Rev. Stat. 1981, ch. 38, par. 155 — 1) to allow the wife to testify in rebuttal with regard to defendant having recommended and paid for her abortion. Since we find such testimony irrelevant, we do not reach the issue of whether it is violative of the statute. Rebuttal evidence is that which is introduced by the State to “explain, repel, contradict, or disprove” evidence presented by the defendant. (People v. Bush (1981), 103 Ill. App. 3d 5, 430 N.E.2d 514.) The “rebuttal” evidence here served none of these purposes and was irrelevant to any issue before the court.

Defendant also contends the State failed to meet its burden of proof at the suppression hearing when its witnesses testified only in conclusory language with regard to the Miranda warnings given defendant. Both Officer Schak and Assistant State’s Attorney Mitchell testified that they had given defendant his “Miranda warnings” but did not specify the words actually employed to convey those warnings. We believe such conclusory testimony would be insufficient to establish that defendant received adequate Miranda warnings. See People v. Morgan (1977), 69 Ill. 2d 200, 370 N.E.2d 1063; In re Dennis M. (1969), 70 Cal. 2d 444, 450 R2d 296, 75 Cal. Rptr. 1.

For the reasons stated, this cause is remanded for a new hearing on defendant’s motion to suppress statements.

Reversed and remanded, with directions.

HARTMAN, P.J., and STAMOS, J„ concur.