author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARLIN W. DAVIS, Defendant-Appellant.
    Fifth District
    No. 81-139
    Opinion filed March 24, 1982.

      John Gitchoff, of Gitchoff and Wallis, of Granite City, for appellant.
    Donald W. Weber, State’s Attorney, of Edwardsville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

On November 25, 1980, defendant Arlin W. Davis was found guilty on three counts of reckless homicide, one count of driving while under the influence of intoxicating liquor, and one count of driving while license or permit is suspended. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(a), and ch. 95/2, pars. 11 — 501 and 6 — 303.) The charges were brought as the result of an automobile collision on December 31, 1979, in which Larry Lehman and his two daughters, Stacey and Nicole, were killed. Defendant was sentenced on one count of reckless homicide to a term of three years in prison. It is from this judgment that he now appeals. We affirm the convictions,' but remand to the circuit court for resentencing.

Defendant raises two issues on appeal. First, he charges that the trial court erred when it permitted Connie Pelat, a nurse, and Dr. Stephen Spurgeon, the emergency room physician, to testify for the prosecution. He claims that the tender of their names as witnesses violated Supreme Court Rule 412 (73 Ill. 2d R. 412) on “Disclosure to Accused,” and did not comply with a November 21 discovery deadline set by the court. He challenges the admission of their testimony because tender of its discovery was made so close to the time of trial that it effectively denied him the opportunity to prepare for cross examination. He maintains further that the November 12 listing of the names of witnesses as “any and all treating physicians,” in the absence of a memorandum of the prosecutor’s conversations with them, was insufficient to put him on notice that the witnesses would be called upon to testify, or that they would be asked their opinion on the issue of intoxication.

The record does not support his position. Rule 412 does not require that every conversation with witnesses during the course of investigation be reduced to writing. (People v. Abbott (1977), 55 Ill. App. 3d 21, 24, 370 N.E.2d 286.) The memoranda submitted by the State amounted to substantial compliance and satisfied the intent and purpose of the rule.

Defendant’s argument that the State’s Attorney’s office acted in bad faith is also untenable. The prosecutor explained that he had been unable to contact certain witnesses earlier because the hospital refused to cooperate when served with a subpoena duces tecum. In attempting to meet the court’s deadline, he carried his discovery material (including the names of Pelat and Spurgeon) to the courthouse at noon that day. When defense counsel did not arrive, the prosecutor then arranged to deliver the documents to his office that afternoon. In view of these facts, we agree with the trial court that the State made a reasonable and good faith effort to disclose the names of his witnesses and we see no reason to impose exclusionary sanctions.

Defendant likewise cannot claim that he had no notice that the witnesses’ testimony would relate to the issue of intoxication. Included in the original discovery submitted by the State were statements made by barmaids that Davis had been drinking. Defense counsel was aware of the physical evidence at the scene of the collision. When the hospital had complied with the subpoena, he had access to the witnesses’ names in the medical records. In those records, Nurse Pelat had written “smells of alcohol” on defendant’s chart. During the course of trial preparation, defense counsel successfully sought to exclude the results of his client’s blood alcohol analysis tests. Thus, he cannot claim he was surprised that those who had an opportunity to observe him on the evening of December 31 would be asked their opinion on the intoxication issue. People v. Miller (1979), 75 Ill. App. 3d 775, 777-78, 394 N.E.2d 783.

Finally, the argument that the court’s reliance on the opinions of the medical personnel unfairly prejudiced defendant is without merit. The absence of the testimony of Pelat and Spurgeon would not have changed the outcome of the trial. A State trooper and a hospital security guard who had nine months prior experience on a de-tox unit also testified that, in their opinion, Arlin Davis was intoxicated on the evening of December 31. The trial court, in fact, noted its reliance on the guard’s opinion at the same time that it mentioned Pelat and Spurgeon. The testimony of the two officers, taken together with evidence in the record that defendant stopped and purchased drinks at three different taverns during the hours preceding the accident, constituted ample evidence on which the court could have based its decision. Thus, the exclusion of the opinions of the emergency room physician and his nurse would not have altered the outcome of this case. Of course, we do not condone delay in the filing or the exchange of discovery materials; but we do recognize that, under certain circumstances, the parties may have no choice. It is within the trial court’s province to determine whether or not the dilatory party exercised good faith in his efforts to submit discovery materials. (People v. Miller (1979), 75 Ill. App. 3d 775, 779, 394 N.E.2d 783.) Here, the challenged testimony did not unfairly prejudice the defendant nor was the tender of its discovery made in bad faith. Having further concluded that the requisites of Rule 412 were met, the trial court did not commit an abuse of discretion by ruling that the testimony was admissible.

The second contention, that the State failed to prove defendant’s guilt beyond a reasonable doubt as to each and every charge, is likewise without merit. Defendant was found guilty on three counts of reckless homicide. Recklessness is defined as conscious disregard of “a substantial and unjustifiable risk that circumstances exist or that a result will follow, ° e ”, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation * ° (Ill. Rev. Stat. 1979, ch. 38, par. 4 — 6.) The indicium of conscious disregard need not be shown solely by the maneuvering of the motor vehicle. It may include the physical condition of the driver. (People v. Boyle (1979), 78 Ill. App. 3d 791, 797, 396 N.E.2d 1347.) Evidence of a driver’s intoxication has often been held probative on the issue of recklessness. (People v. Miller (1979), 75 Ill. App. 3d 775, 777, 394 N.E.2d 783.) If a driver is under the influence of intoxicating liquors, and evidence shows that his driving violation caused death or great bodily harm, courts will find that the violation was “reckless” within the meaning of section 9 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3(a)). In short, improperly driving a motor vehicle while intoxicated may constitute reckless conduct which will convert what would otherwise be ordinary negligence into criminal conduct. People v. Chambers (1972), 8 Ill. App. 3d 430, 434, 289 N.E.2d 476.

The record indicates several witnesses testified that, in their opinion, the defendant was intoxicated. In addition, the State presented evidence that the collision occurred in the victims’ lane of traffic. A reconstruction expert stated that gouge marks in the pavement on the Lehman’s side of the road were an indication to him that the impact had occurred there. Oil leaks from defendant’s car dotted the victims’ side of the highway. Much of the debris from the wreckage was also in the Lehman’s lane. The expert stated firmly that, in his opinion, defendant had crossed the center line and driven into the path of the Lehman automobile. Thus, the element of recklessness was definitely proved by the State.

Further, after an examination of the evidence, one must conclude that defendant’s reckless driving was the cause of the accident. The road that the parties traveled was straight. There were no hills, curves, bumps, or unfavorable weather conditions which could be said to have contributed to the cause of the accident. Decedent’s wife testified that her husband had not been drinking prior to the accident. Thus, there is only one sound conclusion to draw: defendant drove his car recklessly, in a manner likely to cause death or great bodily harm, and, indeed, did cause the death of three persons.

Defendant challenges this conclusion, arguing that the court relied entirely on circumstantial evidence. He maintains that the accident reconstruction expert’s conclusions are insufficient to convict him beyond a reasonable doubt. However, in the absence of eyewitness testimony or any evidence to the contrary, a court may rely on testimony from reconstruction experts to determine such facts as the point of impact and the probable path of vehicles after impact. (Cf. Plank v. Holman (1970), 46 Ill. 2d 465, 470-71, 264 N.E.2d 12; Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 211 N.E.2d 733; Abramson v. Levinson (1969), 112 Ill. App. 2d 42, 250 N.E.2d 812.) It is the province of the trier of fact to determine the guilt or innocence of an accused, and its verdict will not be set aside on review unless it is palpably contrary to the weight of the evidence or so unsatisfactory as to justify a reasonable doubt of guilt. (People v. Hairston (1970), 46 Ill. 2d 348, 365-66, 263 N.E.2d 840.) We cannot say the verdict in this case was palpably contrary to the weight of the evidence. This is so particularly when evidence of swerving or improper lane usage was coupled with evidence of intoxication. (People v. Jones (1972), 2 Ill. App. 3d 575, 579, 277 N.E.2d 144.) Consequently, we hold that the State proved Arlin Davis guilty beyond a reasonable doubt, and we affirm his conviction on the three reckless homicide counts.

We likewise find no merit to the related contention that defendant was not proven guilty beyond a reasonable doubt of driving under the influence of intoxicating liquor in violation of section 11 — 501 of the Illinois Vehicle Code. The State merely had to prove that the defendant was under the influence of intoxicating liquor while driving or being in actual physical control of a vehicle. (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11 — 501.) These elements have already been established by facts set forth in the opinion and further discussion is unnecessary. Davis challenges the final conviction by arguing that he did not violate the special permit under which he operated his automobile. On March 24, 1979, his driver’s license was revoked by the Secretary of State. In April of that year he was issued a restricted driving permit for purposes of employment and for performing “necessary household duties.” We cannot and do not interpret this language to include the visits to three local taverns or the purchase of substantial amounts of alcoholic beverages. Accordingly, his conviction on these two counts is affirmed.

Finally, however, we note that the trial court erred as a matter of law when it declined to sentence defendant on the other four counts upon which he was convicted. The law on convictions and sentences where multiple victims exist, set forth in People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330, was applied in People v. Grover (1981), 93 Ill. App. 3d 877, 879, 417 N.E.2d 1093, a reckless homicide case which also contained three counts for reckless conduct. There, the court affirmed the conviction and sentencing of the defendant on three separate reckless conduct convictions because three different victims were injured by the defendant’s conduct. (People v. Grover (1981), 93 Ill. App. 3d 877, 883.) This rule has been applied in kidnapping situations as well. (People v. Schultz (1979), 73 Ill. App. 3d 379, 382, 392 N.E.2d 322.) In the case before us, the other two counts of reckless homicide arose because of separate deaths. Separate victims therefore required separate sentences, and the trial court erred in failing to impose them.

The remaining convictions may also draw independent sentences. Driving under the influence of intoxicating liquor in violation of the Illinois Vehicle Code is not by definition a lesser included offense of reckless homicide. This court has already held that, for an offense to be lesser included, all elements of the lesser must be included in the greater. (People v. Luigs (1981), 96 Ill. App. 3d 700, 708, 421 N.E.2d 961.) To be convicted of driving under the influence, the defendant must have been intoxicated while operating an automobile.

Intoxication is probative of recklessness, but it is not an element of the crime of reckless homicide. It is possible to commit reckless homicide without ever being intoxicated or driving a motor vehicle. Applying the rule set forth in Luigs, the lesser charge in this case is by definition a separate offense warranting a separate penalty.

Likewise, the conduct giving rise to the charge of driving while license or permit is suspended is a separate “act,” as “act” is defined in People v. King (1977), 66 Ill. 2d 561, 566, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. Defendant violated this statute on his first visit to the tavern, long before the conduct occurred which gave rise to the homicide convictions.

Consequently, we affirm the defendant’s conviction on all five counts, but remand to the circuit court of Madison County with instructions to enter sentences on the remaining convictions.

Affirmed and remanded.

KARNS, P. J., and KASSERMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE KASSERMAN

license: Public Domain

text:
    AILENE C. KELLY, Plaintiff-Appellee, v. EVERETT C. KELLY, Defendant-Appellant.
    Fifth District
    No. 81-220
    Opinion filed April 1, 1982.
    James B. Wham, of Wham & Wham, of Centralia, for appellant.
    Richard Shaikewitz, of Wiseman, Shaikewitz, McGiven and Wahl, P. C., of Alton, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Everett C. Kelly, appeals from an order denying his motion to expunge orders entered June 12, 1974, which vacated a decree of divorce and dismissed the cause in which it was entered. Defendant urges that the trial court lacked subject matter jurisdiction to enter such orders and, as a consequence, they are void. He contends that his divorce from plaintiff, Ailene C. Kelly, on July 5,1973, therefore remains in effect. The trial court determined that it retained jurisdiction to vacate its previous divorce decree after the expiration of 30 days after the decree was entered. We reverse.

On July 5,1973, plaintiff filed a complaint for divorce and defendant filed an entry of appearance, waiving service of process and consenting to the entry of an immediate default judgment. After hearing plaintiff’s evidence, the trial court found, inter alia, that defendant was guilty of extreme and repeated mental cruelty and granted the divorce.

On June 12, 1974, almost a year later, plaintiff and defendant filed a joint petition to set aside the decree pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72) in which it was alleged that the parties were “mutually mistaken” as to the grounds and reasons for the divorce. The petition was accompanied by the affidavits of both parties, reciting that due to severe emotional strain each of them failed to comprehend the grounds and reasons for their divorce. At the hearing on the petition, the parties reiterated the statements in their affidavits and testified that they wished to resume the marital relationship. The trial court granted the petition and entered orders vacating the divorce decree and dismissing the proceedings.

On August 16, 1979, approximately five years later, plaintiff filed a petition for dissolution of marriage. Defendant responded by filing a motion to dismiss, alleging that the divorce decree entered on July 5,1973, remained in full force and effect because the trial court lacked subject matter jurisdiction on June 12, 1974, to vacate its decree of divorce. In opposition to defendant’s motion, plaintiff argued that the order vacating the divorce decree was valid and resulted in the revival of the marriage. Plaintiff further contended that, in light of the fact that the parties lived together as husband and wife for the past five years, the doctrine of estoppel or laches precluded defendant from attacking the order. The trial court entered an order on January 4, 1980, finding that since the section 72 petition was in proper form and the parties voluntarily entered into the proceedings thereby submitting to the court’s jurisdiction, the judgment was valid. Defendant sought leave to appeal this order pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308), but his request was denied by this court.

On July 9, 1980, defendant filed a motion to expunge the orders entered in the original divorce proceedings which vacated the decree and dismissed the cause and again asserted that these orders were void because the trial court lacked subject matter jurisdiction at the time of their entry. On May 19, 1981, after hearing the arguments of counsel, the trial court denied defendant’s motion and stated that the only supreme court decision appearing on point was the case of Meyer v. Meyer (1951), 409 Ill. 316, 99 N.E.2d 137, in which the court held that absent an allegation of fraud, the court in a divorce proceeding is divested of jurisdiction to

vacate a decree after the expiration of 30 days from the date of its entry. The trial court then observed that the Meyer court based its decision on the distinction between remedies available in a court of equity and those available in a court of law and stated: “While the broad and sweeping language of Meyer seems to hold that a divorce court is totally without jurisdiction to vacate a decree of divorce after the expiration of thirty days, this generalization must be confined to the state of the law prior to the abolition of the procedural distinctions between law and equity.” The court also noted that the court in Bratkovich v. Bratkovich (1962), 34 Ill. App. 2d 122, 180 N.E.2d 716, relied upon by defendant, cited the Meyer decision in stating that the parties may not by stipulation revest the court with subject matter jurisdiction. Bratkovich was then distinguished by the trial court from the case at bar, and the court observed that there the parties came into court two months after the decree with a stipulation requesting that the decree be vacated.

In this case, the trial court stated:

“Section 72 of the Civil Practice Act is controlling. In the case at bar, unlike Meyer, the parties did not allege the mere fact of reconciliation in support of their Petition, and unlike Bratkovich, the parties did not merely stipulate to revest the Court with subject matter jurisdiction. In this case there is a Section 72 petition in statutory form alleging mutual mistake as a proper ground for relief. Groak vs. Groak, 64 Ill. App. 2d 439, 212 N.E.2d 139 (First District, 1965). There was a trial on the merits and following the sworn testimony of the parties in support thereof, the Court entered its Order vacating the Decree of Divorce. While there is presently the suggestion of mere reconciliation as the grounds for the Section 72 Petition, at the time the Petition was presented to the Court it was sufficient to confer subject matter jurisdiction. Accordingly, the husband’s only form of relief would have been a direct appeal from the Order vacating the Decree or a successive timely Section 72 petition.”

It is from this order that defendant appeals.

On appeal defendant urges that the trial court erred by failing to follow the Meyer and Bratkovich opinions. We agree.

In Meyer, the Illinois Supreme Court, observing that jurisdiction in divorce proceedings is purely statutory, held that 30 days after a decree of divorce is entered the trial court cannot be revested with jurisdiction by the parties. Thus, the court has no jurisdiction of the subject matter for purposes of vacating a previously entered divorce decree entered more than 30 days before. Likewise, in Bratkovich the court held void an order vacating a divorce decree entered pursuant to stipulation of the parties where more than 30 days had elapsed after the entry of the decree.

Plaintiff contends that Meyer and Bratkovich do not apply and argues that the trial court correctly distinguished these cases on two grounds: (1) article VI, section 9 of the Illinois Constitution overrules these decisions (Ill. Const. 1970, art. VI, §9), and (2) because the petition to vacate the divorce decree was based on section 72 of the Civil Practice Act, the trial court properly exercised its judicial authority. We reject these distinctions and find Meyer and Bratkovich dispositive of the instant case.

Plaintiff, citing English v. English (1979), 72 Ill. App. 3d 736, 393 N.E.2d 18, argues that since the 1970 Illinois Constitution grants circuit courts “original jurisdiction of all justiciable matters” (Ill. Const. 1970, art. VI, §9) that Meyer and its progeny are no longer viable law. In English, the court found that the trial court had subject matter jurisdiction of a petition seeking relief in connection with the ownership of marital property. In so holding, the court suggested in dicta that the concept of subject matter jurisdiction as set forth in Meyer appeared to be altered by the 1962 amendment of article VI of the 1870 Illinois Constitution (Ill. Const. 1870, art. VI (1964), §9). We do not agree and note that Illinois courts have continued to follow the law as stated in Meyer subsequent to the enactment of the Illinois constitutional provision upon which the defendant relies. As stated in Meyer, equity courts have only such jurisdiction in divorce matters as is conferred by statute (In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 407 N.E.2d 746; Brickey v. Brickey (1976), 44 Ill. App. 3d 563, 358 N.E.2d 406) and a final divorce decree is a conclusive adjudication after the expiration of 30 days from its rendition (Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5), regardless of whether the parties purport to stipulate or consent to an order vacating the decree. In re Marriage of Kekstadt.

Additionally, we observe that the purpose of article VI, section 9 of the Illinois Constitution was to abolish courts of limited jurisdiction and to provide for an integrated trial court structure. (Ill. Ann. Stat., 1970 Const., art. VI, §9, Constitutional Commentary, at 473 (Smith-Hurd 1971).) As defendant points out, there is no indication that this provision was intended to expand subject matter jurisdiction in divorce matters so as to allow trial courts to exercise unlimited jurisdiction after the passage of 30 days. Indeed, this court has specifically noted that the jurisdiction granted by this section will generally terminate after 30 days from the entry of judgment. (Weilmuenster v. H. H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 390 N.E.2d 579.) We conclude that article VI, section 9 of the Illinois Constitution did not effect an abolition of the concept of subject matter jurisdiction. Therefore, we find, pursuant to Meyer and Bratkovich, that the trial court lacked subject matter jurisdiction to vacate the divorce decree in the instant case.

The question remains whether the result dictated by Meyer and Bratkovich is affected by the fact that the petition to vacate the divorce decree in this case was filed under the provisions of section 72 of the Civil Practice Act. We conclude that it does not. While we recognize that section 72 constitutes an exception to the general rule that the trial court loses jurisdiction after 30 days (Spears v. Spears (1977), 52 Ill. App. 3d 695, 367 N.E.2d 1004), the exception is a limited one and requires that the party proceeding under this section allege and prove a proper ground for relief. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294; Hokin v. Hokin (1968), 102 Ill. App. 2d 205, 243 N.E.2d 579.) A section 72 petition will not lie to relieve a party from the consequences of his or her own mistake. (Brockmeyer v. Duncan.) Nor was it intended as a remedy for a belated change of mind characterized in the case at bar as a “mutual mistake.”

The trial court’s reliance on Groak v. Groak (1965), 64 Ill. App. 2d 439, 212 N.E.2d 139, is misplaced. In Groak, the court held that section 72 relief is appropriate where a written property settlement agreement fails to express the real intentions of the parties because of a mutual mistake. We are aware of no authority, however, supporting the plaintiff’s contention that section 72 relief is available to confer jurisdiction upon a trial court to correct a mutual mistake of the parties to a divorce proceeding as to the grounds for divorce. Here, the situation is analogous to Meyer, where the parties relied on reconciliation as ground for vacation of a divorce decree. In both Meyer and the case at bar the ultimate goal of the parties was to resume their marital status. As the court noted in Meyer, the appropriate remedy in such circumstances was remarriage, not judicial action. Meyer v. Meyer.

Further, we reject plaintiff’s contention that the equitable doctrines of estoppel and laches prohibit defendant from attacking jurisdiction of the trial court. A judgment rendered without subject matter jurisdiction is void and may be vacated at any time without regard to the doctrines of estoppel and laches. Thayer v. Village of Downers Grove (1938), 369 Ill. 334, 16 N.E.2d 717; Meyer v. Meyer (1948), 333 Ill. App. 450, 77 N.E.2d 556; see also Bratkovich v. Bratkovich.

For the above reasons, we reverse the May 19, 1981, order of the circuit court of Madison County and remand the cause with directions to grant defendant’s motion to expunge the orders of the trial court vacating the decree of divorce and dismissing the divorce proceeding, entered by the trial court on June 12,1974.

Reversed.

KARNS, P. J., and JONES, J., concur.


author: JUSTICE JONES

text:
    AMERICAN FOOD MANAGEMENT, INC., Plaintiff-Appellee, v. WESLEY C. HENSON et al., Defendants-Appellants.
    Fifth District
    No. 81-685
    Opinion filed April 2, 1982.
    J. Phil Gilbert, of Gilbert and Gilbert, of Carbondale, for appellants.
    Charles E. Schmidt, of Mitchell, Brandon and Schmidt, of Carbondale, and Richard C. Thomas, of Bear, Hines and Thomas, of Columbia, Missouri, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Defendants appeal from a judgment of the circuit court granting a permanent injunction which prohibited the violation of restrictive covenants in a contract of employment and a contract for furnishing food services. We consider provisions of two written contracts although litigation in the case has dealt principally with but one of them, that containing the employee’s covenant not to compete.

Plaintiff, American Food Management, Inc., a Missouri corporation, provides food services in several States to facilities such as college dormitories. One of plaintiff’s numerous contracts for such services — and one of the two contracts with which we are here concerned — was with the Stevenson Arms Dormitory in Carbondale, Illinois. This contract was signed for Stevenson Arms Dormitory by “Lewis H. Smith” as an individual without any reference to a partnership or to any other type of business association. Lewis Smith is a practicing dentist who owns and operates the Stevenson Arms Dormitory. By the express terms of the contract it was to become effective on February 21, 1981, and was to expire three months later on May 21,1981. This contract provided:

“The Dormitory [Stevenson Arms] agrees that it will not hire management employees of American Food Inc. for the purpose of providing food service for the duration of the contract and one year thereafter.”

No question was raised in the trial court as to the validity of this contractual provision.

In the operation of its business plaintiff uses a system of “absentee management,” relying heavily upon the services of its unit managers. Defendant Wesley Henson had worked in food preparation under plaintiff’s supervision while he was a student at Southwest Baptist College in Bolivar, Missouri. As he was finishing his final semester of college during the fall of 1979, he entered into an oral agreement with plaintiff to work as one of its unit managers at an annual salary of $9,000. In order to take the position in Chanute, Kansas, where Neosha Community College is located, defendant Henson moved to that city. He began to work for plaintiff on January 3,1980.

Approximately a week to 10 days after he had begun working he received in the mail a letter mailed by plaintiff to him at Neosha Community College, instructing him to sign the original and one copy of the written contract enclosed, which contained a covenant not to compete expressed as follows:

“5. The Manager agrees that in consideration of the terms of this contract, the training which he received, and his continuing good relationship with American Food, that he will not operate, establish, reestablish, open, reopen or in any manner become interested, directly or indirectly, either as an employee, owner, partner, agent, stockholder, director, or officer of a corporation, or otherwise, in any business, trade, or occupation similar to the business of American Food or in the business of college food service in any form within a TWENTY-FIVE (25) mile radius of any unit at which he has worked for American Food, which is operating on the date of this contract or commences to or agrees to operate during the life of this contract, for a term of TWO (2) years after the termination of this contract.”

It is undisputed that reference to a written contract or to an agreement not to compete was never made by either party to the employment agreement at any time prior to Henson’s receipt of the written contract in the mail after he had begun to work for plaintiff. Plaintiff’s president, Roger Neilson, testified at the hearing for injunctive relief that if Henson had refused to sign the employment contract, he would have “fired” him and that plaintiff requires all its unit managers to sign a covenant not to compete. Henson testified that when he received the written contract and instruction to sign it, he did not believe he had an option as to whether to sign it. Asked what he thought at the time, Henson answered,

“I thought that I was — I was told that I was to sign the contract, and I thought that if I signed it, then I would have my job, but if I did not sign the contract, then I would not have a job and I had already moved to Kansas and I would have to find another job somewhere else.”

Henson signed the contract, which contained as its final provision,

“7. In so far as it is possible to do so, under the laws of any state in which this contract is to be enforced, the parties agree that the laws of Missouri shall apply.”

Prior to Henson’s receipt of the written contract neither party to the agreement had referred to the application to the employment agreement of the laws of any jurisdiction.

Henson had worked for plaintiff approximately 18 months when, in compliance with his written contractual agreement, he gave in writing, in a letter dated August 20, 1981, 21 days’ notice of the termination of his contract with plaintiff. At that time he was serving as the manager of food services for the Wilson Hall Dormitory, located in Carbondale, Illinois. At no time during his employment with plaintiff did he work at Stevenson Arms Dormitory.

Plaintiff had with the Wilson Hall Dormitory a contract to provide food services similar to the contract between plaintiff and the Stevenson Arms Dormitory. Like that contract, the one between plaintiff and Wilson Hall Dormitory contained the provision prohibiting the hiring by Wilson Hall Dormitory of plaintiff’s management employees for the purpose of providing food service for the duration of the contract and for one year thereafter. The owner and operator of Wilson Hall Dormitory, Howard Wilson, who is not a party to this lawsuit, had signed the agreement for Wilson Hall Dormitory, which was to be in effect for 12 months from June 1, 1981, unless terminated by Wilson Hall Dormitory with 60 days’ notice in writing. On August 25, 1981, Howard Wilson for Wilson Hall Dormitory terminated the contract with plaintiff, giving 60 days’ notice in writing. Earlier, on August 18, 1981, Lewis Smith, having purchased Wilson Hall Dormitory, had become the new owner of that dormitory, renaming it International Hall. Defendant Henson testified at the hearing that on “the 17th or around there” he and defendant Smith had agreed that Henson would work for Smith as his food service manager for both the Stevenson Arms Dormitory and International Hall, formerly Wilson Hall Dormitory. Henson began to function in that capacity after he had finished his employment with plaintiff.

In a letter dated August 24, 1981, plaintiff’s attorney reminded Henson of the terms of his written employment contract with plaintiff, particularly the covenant not to compete. On September 8,1981, plaintiff filed a petition for injunctive relief against both Henson and Smith. Plaintiff sought both a preliminary and a permanent injunction against Henson, the latter injunction to provide that he be restrained and enjoined “from working as a food manager, cook, or other food related occupation [sic] at the Wilson Hall Dormitory, the Stevenson Arms Dormitory, or any other institution within 25 miles of the City of Carbondale for a period of two years since the termination of the Employment Contract between the parties as provided in the Employment Contract.” Plaintiff sought a permanent injunction against Smith, d/b/a Stevenson Arms Dormitory, enjoining him “from employing Wesley Henson as a cook or other food service manager for a period of one year from the termination of said agreement between [plaintiff] and Lewis H. Smith, as provided in said agreement.” Plaintiff sought no injunction against Smith, d/b/a International Hall, formerly Wilson Hall Dormitory. After a hearing on November 6, 1981, the trial court denied plaintiff’s petition for a preliminary injunction. On December 18, 1981, the trial court entered a judgment granting a permanent injunction against defendant Henson and against defendant Smith, d/b/a Stevenson Arms Dormitory.

Defendants appeal raising several issues. In view of the disposition we make in this case, we consider but two of them, whether under the circumstances the covenant not to compete constitutes an adhesive clause unenforceable at law and whether plaintiff failed to prove irreparable harm and is, therefore, not entitled to injunctive relief.

Defendants maintain that Illinois law should control all questions arising out of this litigation, including the enforceability of the covenant not to compete contained in the agreement between plaintiff and defendant Henson. Although defendant Henson had no greater bargaining power with respect to the choice-of-laws provision than he had with respect to the covenant not to compete, because we think the result we reach in his favor on this issue would be the same whether we apply Illinois or Missouri law, we apply the substantive law of Missouri, as plaintiff in its brief urges us to do. See also Restatement (Second) of Conflict of Laws §187 (1971).

Professor Corbin, in speaking of adhesion contracts, says:

“ ‘Adhesion contracts’ include all ‘form contracts’ submitted by one party on the basis of this or nothing. Ehrenzweig [Ehrenzweig, Adhesion Contracts in the Conflict of Laws, 53 Col. L. Rev. 1073 (1953)] defines them as ‘agreements in which one party’s participation consists in his mere “adherence”, unwilling and often unknowing, to a document drafted unilaterally and insisted upon by what is usually a powerful enterprise.’ He includes the following classes: Insurance Policies; Commercial Loan Contracts; Transportation Contracts; Employment Contracts.” (6A Corbin on Contracts §1446, at 490 (1962).)

Corbin on Contracts §§559A through 5591 (Kaufman supp. 1980) contains a rather extensive discussion of contracts of adhesion which is apt and instructive. Worth quoting is the observation:

“Since the bulk of contracts signed in this country, if not every major Western nation, are adhesion contracts, a rule automatically invalidating adhesion contracts would be completely unworkable. Instead courts engage in a process of judicial review. Those terms which cannot be proven to be unfair are enforced, unless the rest of the contract is so one-sided that justice would be better served by discarding the contract entirely [citation], in which case it can be entirely unenforceable by the sticking party. Finding that there is an adhesion contract is the beginning point for analysis, not the end of it; what courts aim at doing is distinguishing good adhesion contracts which should be enforced from bad adhesion contracts which should not.” Corbin on Contracts §559A(B) (Kaufman supp. 1980).

We now refer to the Missour Law of contracts of adhesion. In USA Chem, Inc. v. Lewis (Mo. App. 1977), 557 S.W.2d 15, discussed by plaintiff in its brief, the Missouri Court of Appeals considered the question of whether a standard form contract for employment containing a covenant not to compete was a contract of adhesion. The court concluded that it was not and ruled the covenant enforceable against the plaintiff’s former employee. There is in USA Chem, Inc., no indication that the defendant had begun working for the plaintiff prior to signing the contract for employment. On the issue of adhesion the court stated,

“Here, the contract was a prerequisite to employment, but no one forced Mr. Lewis to accept and execute it. He, at all times, had the option to forego employment with USA Chem, but he chose to accept employment in the justified belief it would be mutually gainful. As demonstrated, the contract meets the tests for enforceability; and adhesive clauses are subject to a defense of unconscionableness only when exacted by the overreaching of a contracting party who is in an unfairly superior bargaining position. Fluor Western, Inc. v. G. & H. Offshore Towing Co., 447 F.2d 35, 39 (5th Cir. 1971).” 557 S.W.2d 15, 24.

Plaintiff argues that defendant Henson, presumably like the defendant in L7SA Chem, Inc.,

“ * * * had a clear choice as to whether or not he would accept employment under the terms and conditions offered. He read the contract, understood its terms, and signed it without any questions whatsoever. Wesley Henson is a college educated man who can use his college training and abilities in other areas of employment.”

It is true that defendant Henson, upon reading plaintiff’s letter and enclosed contract, understood his situation at once; indeed, the correctness of his perception that he would lose his job if he did not sign the written contract was borne out by the testimony of plaintiff’s president. However, understanding the terms of the contract or the choices presented are not, for obvious reasons, the test of unconscionability. The test is, as the court stated, overreaching by a contracting party in an unfairly superior bargaining position. We think the test has been met here in view of the fact that defendant Henson had not only begun his employment with plaintiff pursuant to an oral agreement but had relocated in order to do so, all before he received plaintiff’s written contract containing an additional promise by him to his detriment in the form of a covenant not to compete that contituted a condition of his continued employment.

Although the trial court found in a memorandum that this contract was not one of adhesion, we reach a different conclusion. Plaintiff’s conduct in failing, whether intentionally or unintentionally, to give reasonable notice that agreement to a covenant not to compete would be a condition of employment before defendant Henson had relocated and begun working for plaintiff amounted to overreaching by a contracting party in an unfairly superior bargaining position. We think this conclusion accords with the spirit and the letter of the law of both Missouri and Illinois (see Eisele v. Ayers (1978), 63 Ill. App. 3d 1039, 381 N.E.2d 21, and Star Finance Corp. v. McGee (1975), 27 Ill. App. 3d 421, 326 N.E.2d 518). The adhesive covenant not to compete is thus unenforceable by reason of the defense of unconscionability, and we therefore reverse that part of the judgment of the trial court restraining and enjoining Wesley Henson from competing with plaintiff.

As we stated earlier, defendants did not contend in the trial court that the contract between plaintiff and defendant Smith, d/b/a Stevenson Arms, is for any reason invalid. In their brief on appeal defendants say that “[i]t is unclear from the language of his contract whether or not Defendant Smith committed a breach because Defendant Henson was never employed at Stevenson Arms.” Even if the point were not waived for review, having been raised for the first time in this court, the suggestion of ambiguity is not well taken. Wesley Henson being one of the “management employees of American Food [sic] Inc.” at the time the contract commenced and expired, there is no doubt as to its application to him.

Defendants maintain, further, that plaintiff failed to prove that it would suffer irreparable harm and, for that reason, is not entitled to injunctive relief. Although the parties have not addressed the question of whether Missouri or Illinois law should be applied to the resolution of this question, the express covenant as to choice of law notwithstanding, we have concluded that Illinois law must be applied in accordance with Restatement (Second) of Conflict of Laws §135 (1971). That section provides that “[t]he local law of the forum determines whether a party has introduced sufficient evidence to warrant a finding in his favor on an issue of fact, except as stated in §§133-134,” which have no application to the instant case.

Defendants refer to the fact that the trial court failed to include a specific finding about the fact of irreparable injury as an indication of the court’s error in granting the injunction against defendant Smith, d/b/a Stevenson Arms, “without hearing any evidence of testimony regarding irreparable harm.” Supreme Court Rule 366(b)(3) (i) (73 Ill. 2d R. 366(b)(3)(i)) provides that “[n]o special findings of fact * ° * [are] necessary to support the judgment or as a basis for review.” Although a finding of all specific facts upon which a decree in equity is based is desirable, it is no longer necessary. Ill. Ann. Stat. ch. 110A, par. 366(b)(3) (i), Historical and Practice Notes, at 270-71 (Smith-Hurd 1976).

Despite defendants’ contentions, the transcript of proceedings reveals that plaintiff pointedly addressed the issue of irreparable harm in the presentation of its evidence by testimony with respect to its organization according to a system of “absentee management.” Plaintiff showed the harm it would suffer if such contractual provisions as this were not honored and that the very thing it had attempted to provide against had occurred, namely, its own loss of a contract for services as well as the loss of one of its trained unit managers. Since this was a bench trial it was the duty of the trial court to weigh the evidence and to draw from it proper inferences and conclusions, and these conclusions will not be disturbed on review unless they are contrary to the manifest weight of the evidence. (County of Winnebago v. Willsey (1970), 122 Ill. App. 2d 149, 258 N.E.2d 138.) Since the record reflects sufficient evidence to support the judgment of the trial court against defendant Smith, d/b/a Stevenson Arms, the judgment was not against the manifest weight of the evidence and must be affirmed.

In its judgment for permanent injunction the trial court ordered the defendant Lewis H. Smith, d/b/a Stevenson Arms, “restrained and enjoined from hiring management employees of American Food Management, including Wesley C. Henson, for the purpose of providing food service for a period of one (1) year from and after the termination of said contract in May, 1981.” Since the contract in question expressly provides for termination on May 21, 1981, we hereby amend the judgment of the trial court to reflect that date. Thus, the defendant Lewis H. Smith, d/b/a Stevenson Arms, shall be restrained and enjoined as ordered by the trial court for a period of one year from and after the termination of the contract between plaintiff and Stevenson Arms Dormitory on May 21, 1981.

Reversed in part; affirmed in part as amended.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE HARRISON PRESIDING JUSTICE KARNS,

text:
    ARTHUR McLORN, JR., Plaintiff-Appellee, v. THE CITY OF EAST ST. LOUIS, Defendant-Appellant.—(FIRST ILLINOIS BANK, EAST ST. LOUIS, Garnishee-Intervenor.)
    Fifth District
    No. 80-567
    Opinion filed March 30, 1982.

      KARNS, P. J., dissenting.
    Edward J. Kionka, of Carbondale, and Dale M. Funk, of Apoian, Ross & Funk, P. C., of Belleville, for appellant.
    Del A. Goldenhersh, of Goldenhersh & Goldenhersh, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant-Appellant, the City of East St. Louis (the City), appeals from a final order and judgment of the circuit court of St. Clair County which denied the City’s motion to quash a garnishment summons. The City raises one issue on this appeal, that is whether its Ordinance No. 80-10043, which prohibits nonwage garnishment of City funds on deposit at institutions within the City, is valid. The City urges resolution of this issue in its favor on the ground that, as a home rule unit, the City is entitled to prohibit the garnishment of City funds located within the City because that is a subject pertaining to the City’s government and affairs under article VII, section (6) of the Illinois constitution. (Ill. Const. 1970, art. VII, §(6).) Appellee, Arthur McLorn, raises two arguments to rebut the City’s contention. First, McLorn asserts that the ordinance in question is an invalid legislation of sovereign immunity. Second, McLorn contends that the ordinance is an improper exercise of powers not accorded home rule units by the constitution. We affirm.

In 1979 a final order of the Industrial Commission awarded Arthur McLorn a workers’ compensation award of $11,012.80 against the City. The City failed to pay the amount of the award, and on August 24, 1979, McLorn filed an application with the circuit court of St. Clair County for entry of judgment on the award. On September 20, 1980, judgment was entered. On May 22,1980, the City adopted the following ordinance:

“HOME RULE ORDINANCE TO GRANT IMMUNITY TO THE PROPERTY AND ASSETS OF LOCAL GOVERNMENTAL UNITS AND SCHOOL DISTRICTS FROM SUPPLEMENTARY PROCEEDINGS INSTITUTED BY JUDGMENT CREDI_TORS AND THEIR SUCCESSORS_
WHEREAS, the City of East St. Louis is a ‘Home Rule Municipality’ under the provisions of Article VII, Section 6 — a, etc., of the Illinois State Constitution and was adopted in 1970; and
WHEREAS, the legislature of the State of Illinois has not enacted any statutes dealing with or granting sovereign immunity as to supplementary proceedings relating to local units of government, including municipalities, school districts, park districts, etc., as was reserved to said legislature in Article XIII, Section 4 of the Illinois State Constitution; and
WHEREAS, it would be within the purview of the City of East St. Louis to enact legislation dealing with the issue of immunity of local governmental units and school districts from supplementary proceedings initiated by judgment creditors and their successors as such proceedings would occur and/or effect [sic] such local governmental units and school districts situated within the geographical boundaries and municipal corporate limits of the City of East St. Louis; and
WHEREAS, it would be in the best interest of the City and its citizens and the local governmental units, including school districts, park districts, sewer districts and health districts, to be granted immunity by such actions of judgment creditors as it relates to the property of such entities situated within the geographical boundaries of the City of East St. Louis.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE ALDERMANIC COUNCIL OF THE CITY OF EAST ST. LOUIS, as follows:
I. All property or assets of local governmental units, including municipalities, school districts, park districts and sewer districts, shall be immune and shall not be subject to garnishment actions by judgment creditors where said property or asset is held or dis-posited [sic] with any third party, or situated within the geographical boundaries and city limits of the City of East St. Louis.
II. Any institution, firm, trust, person or corporate entity situated within the city limits of the City of East St. Louis, upon which a judgment creditor issues a garnishee summons on any property or any local governmental unit, shall be empowered to affirmatively plead the immunity granted in the preceding paragraph 1.
III. Any local governmental unit, upon whose property has been subject to a garnishee summons with any third party institution referred to in Sections 1 and/or 2 of this Ordinance, shall have the right to intercede as a party of interest to any such garnishment proceedings and to affirmatively plead the immunity granted in Section 1 of this Ordinance.
IV. Garnishment process, as defined and intended within the provisions of this Ordinance, shall not include wage deduction summons upon local governmental units situated within the geographical limits of the City of East St. Louis.”

The City is a home rule unit. On May 27,1980, McLorn filed an affidavit for garnishment (nonwage) based on his belief that the First Illinois Bank, East StLouis (the Bank), had City funds in its possession. The City was granted leave to intervene and filed a motion to quash the garnishment summons on the ground that “a certain Ordinance #80-10043, ** * * grant[s] imnuity [sic] to the property and assets of the City from all actions or proceedings instituted by judgment creditors including the act of non-wage garnishment.” On September 18, 1980, the circuit court denied the motion to quash and the City filed a motion asking the court to reconsider this decision. This motion was denied on November 3, 1980. The circuit court entered judgment in favor of McLorn and against the City and the Bank and also ordered the Bank to pay any City funds held by the Bank to McLorn pursuant to the garnishment. This last order was stayed pending appeal. The City then appealed to this court.

The City initially contends that the ordinance in question does not conflict with article XIII of the Illinois Constitution. Article XIII, section 4 provides that “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) The City contends that the words “General Assembly” should be construed to “include other legislative bodies to whom the General Assembly and the constitution have granted concurrent legislative power.” We cannot agree. The constitution does not say “Except as the General Assembly and other legislative bodies may provide * * (Emphasis added.) Hence, we read “General Assembly” to mean General Assembly. The supreme court implied some support for this reading when it said that “the principle of sovereign immunity, whether it stems from prior

constitutional provisions or from principles of common law (see Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11), does not exist under the 1970 Constitution except as the General Assembly provides by law. See S.H.A. Ill. Const., art. XIII, sec. 4, Constitutional Commentary, at 292 (1971).” (Emphasis added.) (Henderson v. Foster (1974), 59 Ill. 2d 343, 349, 319 N.E.2d 789.) We conclude that only the General Assembly may establish sovereign immunity. The question before us now becomes whether the ordinance confers sovereign immunity on the City. The City appears to claim that the ordinance does not grant sovereign immunity to the City, but rather is solely a procedural matter, because it restricts only the manner in which a judgment against the City may be collected. This argument focuses on only one aspect of the ordinance. Formerly, the standard used to determine whether a municipal corporation was immune focused on whether public funds would be diverted to pay damage claims. “ ‘The reason, as often expressed, is one of public policy, to protect public funds and public property.’ ” (Emphasis deleted.) (Thomas v. Broadlands Community Consolidated School District No. 201 (1952), 348 Ill. App. 567, 572, 109 N.E.2d 636.) That is, if the effect of an ordinance is to protect municipal funds from the reach of creditors, then the ordinance provides sovereign immunity for the city so ordaining. The current validity of this effects test is supported by a 1979 supreme court case involving the sovereign immunity of the State of Illinois. A suit is against the State if “the State will be directly and adversely affected by the judgment or decree * * (Hudgens v. Dean (1979), 75 Ill. 2d 353, 357, 388 N.E.2d 1242.) The court concluded that the suit in question was barred by sovereign immunity because it would require “the spending of state funds * * (Hudgens v. Dean (1979), 75 Ill. 2d 353, 357; see also Land v. Dollar (1947), 330 U.S. 731, 738, 91 L. Ed. 1209, 67 S. Ct. 1009.) Looking to the effect of the instant ordinance, which is the exclusion of City funds from the reach of creditors, we conclude that the ordinance does ordain sovereign immunity. This conclusion is supported by the City’s motion to quash, filed in the trial court, which asserted that the ordinance granted “immunity” to the City’s property and assets. Even more telling on this point is the preamble to the ordinance itself, which provides in part, “whereas the legislature of the State of Illinois has not enacted any statutes dealing with or granting sovereign immunity as to supplementary proceedings relating to local units of government * 0 We conclude that the ordinance is an exercise in sovereign immunity. Having already determined that only the General Assembly may enact legislation concerning sovereign immunity, we further conclude that the City’s ordinance No. 80-10043 is invalid.

An alternative basis for this conclusion is that the ordinance does not relate to the City’s “government and affairs,” within the meaning of article VII, section 6 of the Illinois Constitution. Article VII, section 6(a) provides in pertinent part that:

“A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of public health, safety, morals and welfare; to license; to tax; and to incur debt.” (Emphasis added.) (Ill. Const. 1970, art. VII, §6(a).)

Where powers or functions of a home rule unit are concerned, the scope of authority granted to home rule units under section 6(a) is generally coextensive with that of the sovereign, except where such powers are limited expressly by the General Assembly. (City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273, 367 N.E.2d 692.) In addition, the constitution mandates that “Powers and functions of home rule units are to be construed liberally.” (Ill. Const. 1970, art. VII, §6(m).) The parties to the instant case have cited a number of law review articles bearing on the resolution of this issue. While these have provided helpful background information, our determination of this case depends ultimately on our supreme court’s analysis of the scope of home rule power granted by section 6(a). (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 540, 338 N.E.2d 15.) A line of cases decided by our supreme court has indicated that certain functions do not pertain to a home rule unit’s government and affairs and hence are not appropriate subjects for municipal legislation. (See, e.g., County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553; People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, 368 N.E.2d 100; Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, and City of Chicago v. Pollution Control Board (1974), 59 Ill. 2d 484, 322 N.E.2d 11.) These cases have invalidated ordinances on the basis of a statewide, rather than local, interest in the subject matter of the ordinance. As stated in Ampersand, “ ‘the powers of home rule units relate to then-own problems, not to those of the state or the nation.’ * * * Although mindful of the liberal construction mandate, we have struck down home rule ordinances where they did not pertain to the government or affairs of the local unit.” (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542.) The supreme court has found the presence of a statewide interest to be indicated by constitutional provisions committing the area in question to a specific branch of government. In John Sexton Contractors Co. and Pollution Control Board, zoning restrictions dealing respectively with landfills and a city’s power to regulate garbage collection and disposal, were held to be limited by article XI of the Constitution, which mandates the legislature to set standards for environmental control. In Ampersand, a home rule unit’s power was held not to extend to the collection of a library fee with the filing of civil pleadings because that tax constituted a “condition to the right to litigate in the courts” which could only be imposed by the State, not by a home rule unit. (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542.) The court’s analysis relied heavily on the single unified court system, which was committed to the State by article VI. (Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 542.) In Lignoul the court found statewide concern for the regulation of the banking industry in article XIII, section 8 of the 1970 Illinois Constitution. (People ex rel. Lignoul v. City of Chicago (1977), 67 Ill. 2d 480, 487.) In the instant case McLorn argues that section 4 of article XIII of the 1970 Illinois Constitution similarly provides a constitutional indication that the ordinance in question is an exercise of power properly belonging to the State alone. Because we have already determined that only the General Assembly may re-establish sovereign immunity, we agree with this contention. The City argues that it is vitally interested in preventing the disruption of funds needed to continue basic city services. This argument pertains to the desirability of sovereign immunity for municipal corporations rather than to what the constitution actually provides. As such, the argument is better addressed to the General Assembly than to this court. We note, parenthetically, that the General Assembly has not immunized home rule units from either the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.; see the Local Governmental and Governmental Employees Tort Immunity Act, Ill. Rev. Stat. 1979, ch. 85, par. 2 — 101(c)), or an “Act in regard to Garnishment” (Ill. Rev. Stat. 1979, ch. 62, pars. 33-52). Merely because the General Assembly has refrained from accomplishing that which the City deems desirable is not reason enough to justify the ordinance in question. Because power over sovereign immunity is vested solely in the General Assembly, sovereign immunity does not pertain to a home rule unit’s government and affairs. We conclude that the City’s ordinance is therefore invalid. Because the ordinance is invalid, the trial court correctly refused to quash the garnishment summons and should therefore be affirmed.

Affirmed.

KASSERMAN, J., concurs.

PRESIDING JUSTICE KARNS,

dissenting:

I do not consider this case to involve a question of sovereign immunity. Article IV, section 26 of the Illinois Constitution of 1870 stated that the State of Illinois could not be made a defendant in any court of law or equity. The proscription never applied against units of local government (People v. Illinois Toll Highway Com. (1954), 3 Ill. 2d 218, 120 N.E.2d 35) and has been abolished altogether in the Illinois Constitution of 1970 except as provided by the General Assembly. Ill. Const. 1970, art. XIII, §4.

Here, the City of East St. Louis was properly made a defendant in the Circuit Court of St. Clair County and judgment was properly entered against it when it failed to pay the award made to plaintiff under the Workers’ Compensation Act. (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(g).) No question arises as to the propriety of that judgment.

We are here concerned with the proper method of satisfying that judgment, and this question does not present a sovereign immunity question, or a question involving the home rule powers of the City of East St. Louis, in my opinion.

Beginning with the City of Chicago v. Hasley (1861), 25 Ill. 485, orig. ed. 595, a long line of cases has held that execution cannot be levied against a municipal corporation on a judgment recovered against it, even though no exemption for cities or units of local government has ever appeared in the statutes, just as no such exemption appears in the Garnishment Act. (See Ill. Rev. Stat. 1979, ch. 77, par. 1 et seq.; ch. 62, par. 33 et seq.) This judicially created exemption was justified not on consideration of sovereign immunity, but on considerations of public policy. As stated in Hasley:

Levying on and selling such property, and removing it, would work the most serious injury in any city. Many of our cities, Chicago especially, have costly water works, indispensable to the lives and health of the citizens. These works are as much the property of the city as any other it may control, and, in appellee’s view, hable to be seized and sold on execution, to the great discomfort and probable ruin of the inhabitants. Fire engines are also indispensable; they too can be seized and sold, and a great city exposed to the ravages of fire, and all this to enable one or more creditors of the city to obtain the fruits of judgments against the city, which, by another process, not producing any of these destructive inconveniences, they could fully obtain. The money raised by taxation could also be levied upon, and the whole business of the city be broken up and deranged. Its offices and office furniture, its jails, hospitals and other public buildings, taken from the corporate authorities, and sold to strangers, who would have a right to the exclusive possession of them, if not redeemed. In the absence of an express statute authorizing a proceeding, fraught with such consequences, we must hold that a fi. fa. cannot issue against the city of Chicago.” 25 Ill. 485, 487.

If the tangible property of the city cannot be taken on execution, can the budgeted, operating revenues of the city, the revenues raised by taxation for public purposes on deposit in a financial institution be taken by garnishment? I should think not; garnishment is but a form of execution designed to reach debts owing the judgment debtor and property of the judgment debtor in the hands of third parties.

It should be emphasized that the funds sought to be reached here are the operating revenues of the city. These are not funds owing to city employees which the supreme court has held subject to the Wage Deduction Act in Henderson v. Foster (1974), 59 Ill. 2d 343, 319 N.E.2d 789. In overruling prior inconsistent cases holding that municipalities and units of local government were immune from garnishment in actions to reach wages owing employees who were judgment debtors, the court emphasized that public funds were not put in jeopardy. Here, public funds would be put in jeopardy. In overruling prior inconsistent decisions, I do not believe the court intended to overrule Hasley and other cases holding municipalities exempt from execution to satisfy judgments taken against the municipal corporation, as entirely different considerations are involved.

The exemption of municipal corporations from execution or garnishment to satisfy judgment debts is the general rule prevailing in the United States. It is the general rule that judgments against municipal corporations are not liens on property held for public use, including funds raised by taxation or funds appropriated for specific purposes. Such funds and property are exempt from execution or garnishment unless a specific statute provides otherwise. See 64 C.J.S. Municipal Corporations §§2211f, 2212 (1950).

Municipal corporations, just as counties, may not, however, refuse to satisfy judgments entered against them. (See Ill. Rev. Stat. 1979, ch. 34, par. 604.) There has always been an orderly method by which judgment creditors can compel, by mandamus, the satisfaction of judgments by payment or the levy of a tax sufficient to raise a fund to satisfy outstanding judgments against the municipality. See Ill. Rev. Stat. 1979, ch. 24, par. 8 — 1—6.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LaVERN LUMPKIN et al., Defendants-Appellants.
    Fifth District
    No. 80-439
    Opinion filed April 1, 1982.

      Randy E. Blue and John W. McGuire, both of State Appellate Defender’s Office, of Mt. Vernon, for appellants.
    John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley and David J. Mullett, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Defendants LaVerne and Lester Lumpkin were convicted of the offense of murder following a joint trial before a jury in the circuit court of St. Clair County. On appeal defendants contend that the trial court erred in denying their motions for mistrial after the prosecutor introduced, in the form of a leading question, prejudicial evidence which the prosecution had represented would not be used at trial. In addition, defendant Lester Lumpkin asserts that he was denied a fair trial due to the trial court’s failure to sever his trial from that of his codefendant, LaVerne Lumpkin, when La Verne’s out-of-court statement was used at trial. Lester argues in the alternative that he was denied effective assistance of counsel by his attorney’s failure to raise the issue of severance properly.

The decedent, Ricky Hilliard, was found on March 8, 1980, in a deserted area off Interstate 70 with a shotgun wound to his chest as well as two additional bullet wounds to his back and his left thigh. The defendants were arrested shortly afterwards in the nearby town of Venice, Rlinois, and charged with the shooting. At the time they were apprehended, defendant Lester Lumpkin was carrying a .38 revolver, and defendant LaVerne Lumpkin was in possession of a .20-gauge shotgun.

Prior to their joint trial, the court denied La Verne’s motion to suppress a statement made by him after his arrest. Lester’s attorney then advised the court that La Verne’s statement implicated Lester and that he would be unable to cross-examine LaVerne regarding this statement if the defendants were tried together. Lester’s attorney stated that he had a motion for severance prepared although he felt it would be premature at that time. The court responded:

“We will wait until that arises. If it arises, and you feel it is important to the defense of your case, the severance, then we would have to sever it at that time.”

Lester’s attorney subsequently made no motion for severance at trial and did not object when La Verne’s statement was admitted at trial.

In his opening statement, the prosecutor advised the jury that the evidence against the defendants was circumstantial and that there was no known motive for the alleged offense. Counsel for La Verne Lumpkin asserted that the defendants were coming to the aid of the decedent on the day of the alleged murder and that, when they were arrested, they were within a few blocks of the police station on their way to turn in the weapons they had found.

The State’s first witness, Dawn Thurman, testified that she had lived with the decedent for several months before his death. On March 8,1980, the decedent had come home at 8 a.m. after being gone the night before, picked up his shotgun and told her he was going hunting. Ms. Thurman observed two men, whom she identified as the defendants, sitting in the decedent’s car, which was parked in front of the house. She stated that she had known the Lumpkin brothers for some tiñie and that the decedent had been a close friend of the defendants, having lived at their home during one period when he was out of a job.

Clarence Hart testified that on March 8, 1980, at approximately 8 a.m., the decedent had driven up to his farm near the intersection of Interstate 70 and Route 203. The decedent had parked his car, approached Hart, and asked for permission for himself and his two companions to hunt on Hart’s land. Hart observed two black men in the back seat of the car, which was parked about 50 feet away, but he was unable to observe anything more about them.

Ronald Watson testified that on March 8 he was fishing in a pond near the intersection of Interstate 70 and Route 203. Between 7:30 and 8 a.m. the decedent’s blue Buick Electra approached and stopped approximately 100 yards away from him, at which time three black men whom Watson could not describe got out of the car. After the three men left the car, Watson heard shooting which he recognized as shotgun and handgun fire, and he yelled to the men not to shoot in his direction. The men then walked out of sight. About 15 minutes later Watson heard a burst of closely spaced handgun fire, followed by shotgun fire, followed by more handgun fire. A minute or so later Watson observed two black men reappear and walk out of sight on the frontage road that ran west to Route 203 and parallel to Interstate 70. The two men did not appear to be carrying anything. Watson assumed that these were two of the three men he had seen before because he had not seen anyone else in the area; however, he did not actually see any shots fired and did not know for certain that it was this group of three men that had been shooting.

Venice police officer Joseph Mehan testified that the defendants were seen at about 10:30 a.m. on March 8 walking together on Washington Street in Venice, Illinois. As the police car approached them, La Verne Lumpkin dropped the .20-gauge shotgun which he had been carrying and continued walking until Mehan ordered him to stop. When the defendants were arrested, Lester Lumpkin was carrying a .38 revolver in his pocket. The Venice police department was three blocks from where the defendants were arrested, although the defendants would have had to make one right turn to arrive there. One block in the direction from which the defendants were walking was a field, beyond which were some railroad tracks that ran from the vicinity of the alleged murder to Venice.

Firearms expert Larry Lorsbach testified that tests performed on a spent .20-gauge shotgun shell found at the scene of the alleged offense established that the shell had been fired in the shotgun La Verne was carrying at the time of arrest. Plastic wadding and shot recovered from the decedent’s chest were of the same type as those normally contained in this brand of shell. Examination of the .38 special bullet recovered from the decedent’s thigh established that it was fired from the revolver which Lester had in his possession at the time of the arrest. This revolver contained six spent shells, consisting of two of the .38 special variety and four of the shorter .38 S & W variety. The bullet recovered from the decedent’s upper body was of the .38 S & W variety. This bullet had characteristics similar to those of a sample bullet fired from Lester’s revolver, but Lorsbach could not determine whether the bullet had been fired from that revolver.

Forensic pathologist Dennis Aubuchon testified that a red substance on the shirt La Verne was wearing when arrested was type “B” human blood, the same type as that of the decedent. A pair of gloves belonging to La Verne had human blood on them of an undeterminable type. No blood was found on the clothing of Lester Lumpkin. Both La Verne and Lester had type “O” blood.

Louis Reddo of the Illinois Department of Law Enforcement testified that the decedent’s car was found one-quarter mile east of Route 203, on the frontage road south of the parallel to Interstate 70. The car was pointed east and the front passenger door was open. The decedent’s dark half-length jacket was found one foot west of the rear of the car. Blood samples found in the vicinity of the car and near the fence along Interstate 70 were determined to be type “B,” that of the decedent. The keys of the car were found 12 feet west and to the rear of the vehicle.

Glen Allen testified that he knew the Lumpkin brothers and had known the decedent. He had last seen the decedent on March 7,1980, the night before the alleged offense, at M C’s Lounge in East St. Louis, at which time the decedent was in the company of the defendants. Allen stated that he had observed the decedent and the defendants standing near the cigarette machine talking. At that point, assistant State’s Attorney William Hanks asked the following question:

“[Mr. Hanks]: Now, did you overhear LaVerne that night trying or talking — did you overhear LaVerne talking about selling a gun that night?”

Counsel for LaVerne objected to this question, and in a discussion held in chambers both defendants moved for a mistrial. La Verne’s counsel stated that the defense had learned in discovery that Allen had been told by someone else that the Lumpkin brothers had possessed a gun. Counsel argued that because Allen had not actually seen the gun himself and had no personal knowledge of this purported possession, the prosecution had introduced prejudicial hearsay before the jury. Furthermore, the defense had been assured by assistant State’s Attorney Judy Cates, who appeared at trial along with prosecutor Hanks, that the State would not question Allen regarding this alleged possession by the defendants of a gun. Counsel had relied upon this assurance and consequently had not filed a motion in limine. Ms. Cates affirmed that she had told the defense that Allen would not be questioned on this matter. Prosecutor Hanks stated, however, that he had not been advised of co-prosecutor Cates’ statement to the defense and that, as he recalled, Allen’s statement was that he had seen the gun himself. The court sustained the defense objection and admonished the jury to disregard the prosecutor’s last question but denied defendants’ motion for mistrial.

The State’s next witness, Illinois Division of Criminal Investigation agent Jim Bivens, testified that he had questioned LaVerne on March 8, 1980, immediately after LaVerne was taken into custody. The following colloquy took place between Bivens and the prosecutor regarding LaVeme’s statements:

“[BIVENS]: He then stated that he knew Mr. Hilliard, had known him for several years, and at times Mr. Hilliard stayed at his house, but he hadn’t seen him in the last two or three days. He stated that he and his brother had been hunting that day in an area that I took, I understood him to say around the tanks, and he stated that they had fired the shotgun a couple of times at things.
[PROSECUTOR]: And did he say anything else about the shotgun?
[BIVENS]: Oh, he stated — I asked him if he knew anything about the shotgun, and it was a .20 gauge shotgun that was in his possession at the time he was apprehended or taken into custody, and he stated that he didn’t own a .20 gauge shotgun. He owned a .16 gauge shotgun, and he had obtained, I think it was several years ago, from his sister in Oklahoma.”

At the close of the State’s case, the court denied a motion by defendants for a directed verdict, and defendant La Verne Lumpkin rested without putting on any evidence.

In his opening statement, which he had reserved, counsel for Lester Lumpkin reminded the jury that the two men Ronald Watson had seen leaving the area of the alleged murder had walked down the road in a westerly direction to the location of the car and that the men did not appear to be carrying anything. Counsel stated that the defendants’ witness would establish that the defendants had left this area in a different direction.

Birdell Mouser testified for the defense that he was familiar with the pond south of Interstate 70 one-quarter mile east of Route 203 and that the pond was visible from the Interstate. Mouser was driving west on Interstate 70 one-quarter mile east of Route 203 at approximately 9:30 a.m. on March 8, 1980, when he observed two men running across the road from left to right in front of him. The two men crossed the Interstate at a point even with the lake. He could not determine their race but observed that one of the men carried a long object which could have been a shotgun. The two men ran across the highway in front of him, slowed the pace of their running and disappeared into the brush along the north side of the Interstate when Mouser’s car was even with them.

During his closing argument the prosecutor made the following remarks concerning the defendants’ theory of the case:

“And then we have been given to believe that they have come to seek aid. They have come to seek aid. They came all the way across country on a mission of mercy, and they finally get to the destination, there it is. What do they do? I ask you just to consider this. Does it make any sense at all? What about La Verne’s statement. La Verne’s statement, what does he tell them? I haven’t seen Ricky Hilliard for two or three days. Glen Allen said they were together the night before. * * * So we know that La Verne is not only a murderer, he is a liar as well.”

Defense counsel asserted in closing argument that the defendants were not the two men Ronald Watson observed arrive with the decedent and leave the scene minutes later by way of the frontage road which runs west to Route 203. Rather, counsel argued, the defendants were the two men seen by Mouser leaving the aréa in a northerly direction at approximately 9:30 a.m., and the long object that one of them was carrying was the shotgun they had found at the murder scene.

The jury found both defendants guilty of the offense of murder. Defendants filed post-trial motions alleging that the court had erred in denying their motions for mistrial. Lester Lumpkin also alleged in his post-trial motion that the court had erred in not severing his trial from that of codefendant LaVerne. The court denied the post-trial motions. LaVerne Lumpkin was sentenced to a term of 30 years imprisonment and Lester Lumpkin was sentenced to a term of 20 years.

In this appeal defendants initially contend that the court erred in denying their motions for mistrial after prosecutor Hanks improperly suggested to the jury that they possessed a gun on the evening prior to the incident. Defendants assert that this suggestion contradicted a crucial element of their defense — that they acquired the murder weapons only after someone else killed the decedent and left the weapons at the scene — and that this improper reference was sufficiently prejudicial to warrant a mistrial.

The evidence here claimed to be prejudicial consisted of prosecutor Hanks’ question to witness Allen concerning La Verne’s attempt to sell a gun the night before the offense. The established rule for evaluating the effect of such evidence was articulated in People v. Kavinsky (1980), 91 Ill. App. 3d 784, 797, 414 N.E.2d 1206, 1217:

“When the evidence validly placed in the record proves the guilt of the defendant beyond a reasonable doubt, introduction of improper ‘evidence’ through asked but unanswered inquiries is not a ground for reversal unless the conduct of the prosecution is so prejudicial as to produce a result not otherwise possible. [Citations.]”

In this case, there is sufficient evidence properly in the record to support the jury’s finding of guilt beyond a reasonable doubt. In view of the testimony detailing the events surrounding the incident, the physical evidence, and the circumstances of the defendants’ arrests, we do not believe the prosecutor’s conduct of which defendants complain was so prejudicial “as to produce a result not otherwise possible.”

The question posed of witness Allen in the presence of the jury was whether Allen had overheard LaVerne talking about selling a gun at M C’s Lounge the night before the offense. There was nothing in the question to indicate that LaVerne at that time possessed one of the guns used to kill Ricky Hilliard the next day, and the suggestion that LaVerne tried to sell an undescribed gun before the offense is not inconsistent with the defendants’ theory of the incident. Thus, it cannot be said to be so prejudicial that it caused the jury to render a result they would otherwise not have reached.

Furthermore, the court in the instant case sustained a defense objection to the prosecutor’s question and admonished the jury not to consider it in any way. As stated in Kavinsky, such action by the trial court “generally relieves substantial prejudice, preserves fairness, and cures any error.” (91 Ill. App. 3d 784, 797, 414 N.E.2d 1206, 1217.) Where, as here, no answer was made to the offending question, and where the question itself was not sufficiently prejudicial in light of the other evidence to warrant a mistrial, the trial court properly denied the defendants’ motions for mistrial.

Defendants point out that prosecutor Hanks’ question concerning LaVerne’s attempt to sell a gun violated a promise made by his co-prosecutor that the State would not use this evidence at trial. They contend that this breach of promise constituted prejudicial error under the rule of People v. Mwathery (1968), 103 Ill. App. 2d 114, 243 N.E.2d 429. In Mwathery the court reversed the defendants’ convictions after the prosecution questioned a witness concerning a particular statement that it had promised not to use at trial. The court’s reversal, however, did not follow from the State’s violation of its promise, but was rather based upon the prejudicial effect of the improperly elicited evidence. (See People v. Hall (1971), 1 Ill. App. 3d 949, 275 N.E.2d 196.) The prosecutor’s improper reference in Mwathery was highly prejudicial in that it indicated that an accomplice witness had confessed after reading a statement signed by one of the defendants. As discussed above, the question here posed to witness Allen was not of such a prejudicial nature. Moreover, the prosecutor in Mwathery emphasized the improperly elicited evidence during closing argument whereas, here, no further mention was made during the course of the trial of LaVerne’s attempt to sell a gun. Even under the more compelling facts of Mwathery the court there indicated that the prosecutor’s error alone might not have constituted reversible error. Under the circumstances of this case, we do not believe the isolated and unanswered question posed to Glen Allen warrants a new trial for the defendants.

The second issue in this appeal concerns defendant Lester Lumpkin’s contention that he was denied a fair trial due to the trial court’s failure to order a severance when LaVerne’s out-of-court statement was introduced at trial. We note, initially, that although Lester’s counsel advised the court before trial that it might become necessary as the trial progressed to ask for a severance, no such motion was made at that time or at any time during the trial. The issue was first presented to the court when Lester filed his post-trial motion alleging that the court had erred in not ordering a severance. Generally, a motion for severance of jointly indicted defendants must be made before trial (People v. Precup (1977), 50 Ill. App. 3d 23, 365 N.E.2d 1007), although a trial judge has a continuing duty to grant such a motion if prejudice appears during the course of the trial (People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911). The issue of prejudice cannot, however, be raised for the first time by post-trial motion, and a failure to move for severance forecloses any claim of prejudice on appeal. People v. Appold (1976), 39 Ill. App. 3d 814, 350 N.E.2d 511.

Lester contends, however, that under People v. Wheeler (1970), 121 Ill. App. 2d 337, 257 N.E.2d 587, the court had an obligation to order a severance sua sponte when, as here, the court was apprised before trial of the potential prejudice to Lester resulting from a joint trial. (See People v. Stevenson (1980), 90 Ill. App. 3d 903, 413 N.E.2d 1339.) In Wheeler the court was advised before trial that a codefendant had made a statement that implicated the defendant and would greatly prejudice him at trial. Defendant’s attorney, however, failed to request a severance after the court denied a motion to suppress the statement. The appellate court reversed the defendant’s conviction and remanded the cause for a new trial, reasoning that the trial court had a duty to order a severance sua sponte in light of the “serious prejudice” which resulted to the defendant from failure to sever.,

Wheeler appears to be the only Illinois case imposing such a duty on a trial judge, and even under Wheeler, severance would have to be made prior to trial due to the serious double jeopardy problems that would result if a trial court were to order a severance during the course of a trial without a motion requesting one. (See People v. Precup (1978), 73 Ill. 2d 7, 382 N.E.2d 227; People v. Wilhoyt (1980), 87 Ill. App. 3d 539, 409 N.E.2d 162.) Thus, the holding of Wheeler does not apply to a situation such as the one at bar where the need for severance is not apparent prior to the commencement of trial. (People v. Precup (1977), 50 Ill. App. 3d 23, 365 N.E.2d 1007.) Here, Lester’s counsel indicated before trial that a motion to sever would be premature at that time. When the statement complained of was subsequently introduced at trial, the court was under no obligation to order a severance in the absence of a motion by defendant, and we find no error in its failure to do so.

Lester’s alternative argument that his counsel’s failure to raise properly the issue of severance constitutes ineffective assistance of counsel is likewise without merit. In order to establish ineffective assistance of counsel, a defendant must show that counsel was actually incompetent and that this incompetence produced substantial prejudice to the defendant, without which the result of the trial would probably have been different. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) In this case, the trial court could properly have denied a motion for severance even if one had been made because La Verne’s statement was not of such a prejudicial nature as to render a fair trial impossible in the absence of a severance. See People v. Davis (1976), 43 Ill. App. 3d 603, 357 N.E.2d 96.

The substance of LaVerne’s statement, as related to the jury by Agent Bivens, was that La Verne knew the decedent but had not seen him in the last two or three days and that he and his brother had been hunting the day of the murder and had fired a shotgun a couple of times. La Verne stated that he did not own a .20-gauge shotgun but instead owned a .16-gauge shotgun. Lester asserts that, because the defendants were closely associated by the rest of the evidence as well as by LaVerne’s statement, which referred to Lester explicitly, LaVerne’s statements that he had not seen the decedent recently and that he did not know anything about the shotgun were antagonistic to Lester’s defense that he and his brother had come upon the wounded decedent and had then gone to seek aid.

La Verne’s statement, however, did not implicate Lester in the sense of attributing the commission of the offense to him and is, at most, merely contradictory of Lester’s defense rather than antagonistic to it. (See People v. Davis; People v. Precup (1977), 50 Ill. App. 3d 23, 365 N.E.2d 1007.) While a severance should be granted where the defendants’ defenses are so antagonistic that severance is the only way of assuring a fair trial (People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356; People v. Davis), a severance is not mandated by the mere fact that a codefendant’s statement is contradicted by evidence introduced at trial. (See People v. Holman (1976), 43 Ill. App. 3d 56, 356 N.E.2d 1115; People v. Precup.) In People v. Holman a statement to police by one defendant differed from the evidence introduced at trial on the question of time. The court held that since the statement did not implicate any defendant in the commission of the offense, the fact that the credibility of the statement was attacked did not render it incriminating and it was thus not error to deny a motion for severance.

We likewise find that the statement at issue here was not sufficiently incriminating to require a severance. Indeed, LaVerne’s statement was potentially helpful to Lester’s defense in that it provided the only refutation of a key element of the State’s case — Dawn Thurman’s identification of the defendants as the two men who left to go hunting with the decedent on the morning he was killed. Thus, counsel cannot be branded as ineffective where his motion to sever would have been futile (People v. Pangburn (1976), 41 Ill. App. 3d 781, 354 N.E.2d 152) and where his failure so to move was conceivably a viable trial strategy. (Cf. People v. Wheeler, where the court’s reversal appears to be premised in part on counsel’s ineffectiveness in failing to move for a severance when this decision could not possibly have benefited his client.) Finally, because LaVerne’s reference to Lester was not a crucial link in the State’s case against Lester, which consisted of testimony as to events surrounding the incident as well as substantial physical evidence, it cannot be said that the result of the trial would have been different had a severance been granted. (See People v. Jones (1980), 82 Ill. App. 3d 386, 402 N.E.2d 746.) We hold, therefore, that Lester was not denied effective assistance of counsel when his attorney failed to request a severance at trial.

Affirmed.

EARNS, P. J., and WELCH, J., concur.