author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM A. McDANIEL, Defendant-Appellant.
    Fourth District
    No. 4—83—0412
    Opinion filed July 19, 1984.

      Asher O. Geisler, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

At night on February 9, 1983, two sheriff’s deputies stationed themselves inside the defendant’s house because they had received a tip that a burglary might be attempted there. After a series of misunderstandings the defendant, though he had met one of the deputies and been told of the plan, became convinced that the deputies were the expected burglars. The defendant chased them from his home, firing a gun at one of them. The defendant was then charged with attempted murder and aggravated assault, convicted of those charges in a jury trial, and sentenced to seven years’ imprisonment on the more serious offense. We conclude that the State proved beyond a reasonable doubt that the defendant was not justified in using deadly force but that incorrect jury instructions entitle the defendant to a new trial.

Sheriff’s deputies John Montgomery and Samuel Baum testified at the defendant’s trial about their attempt to protect the defendant’s house from burglars.

On February 8, 1983, the Macon County Sheriff’s Department got a tip from the Decatur Police Department that a collection of firearms was going to be stolen from a house located somewhere outside Decatur. Deputy Montgomery, an investigator, knew that the defendant collected guns and believed that he might be the intended victim. That night Montgomery and two other deputies sat in a car and watched the defendant’s house; nothing happened.

According to Montgomery, the next night he decided to station himself inside the defendant’s house. At 8 p.m. he went there in mufti, showed the defendant his identification, and told the defendant about the planned theft. The defendant acknowledged that he owned a collection of guns. They agreed on a schedule for the evening: the defendant would go and visit his sick sister while Montgomery stayed in the house; when the defendant got back, Montgomery would drive to Decatur to pick up his partner and then return to the defendant’s house to resume surveillance. First, though, Montgomery moved his car, which was unmarked, from the defendant’s driveway to a less conspicuous place, a nearby church. Montgomery was gone for 10 to 15 minutes; when he returned, the defendant appeared upset and insisted on inspecting Montgomery’s identification again. The defendant explained that earlier that day someone had entered the house and taken an envelope containing $500. While the defendant recounted that incident he was holding part of his gun collection, a 9-shot, .22-caliber pistol. The defendant said that the money had been in a bank envelope. Montgomery noticed an envelope in the defendant’s shirt pocket, and the defendant opened it and found the missing money. The defendant set the cocked pistol on the kitchen table, and it went off accidentally, hitting a wall.

Montgomery testified that the defendant then left to visit his sister, taking the gun with him. Montgomery telephoned his supervisor. Detective Samuel Baum soon arrived; like Montgomery, he was in mufti. They sat in the kitchen in the dark, with lights burning in other rooms of the house. About midnight the defendant returned, slowly and cautiously entering by the back door. The defendant asked who Baum was, and Montgomery introduced him. Montgomery’s and Baum’s service revolvers were in their holsters. The defendant asked to see Baum’s identification card and displayed the gun that he had taken with him. As Baum started to proffer his card, the defendant fired a shot into the kitchen floor. Montgomery and Baum scattered. The defendant fired six or eight more times toward the front of the house, which was the direction in which Baum had run. The defendant yelled at Baum, threatening to kill him and ordering him to leave the house. Baum, fearing for his life, eventually escaped through the front door, which did not open the first two tries. Montgomery, who after the first shot had retreated to a spot somewhere off the kitchen, left the house by the back door.

Montgomery and Baum regrouped outside; they could see the defendant in the kitchen, reloading his gun and talking on the telephone. Montgomery stepped in the back door; the defendant, through a telephone conversation with the sheriff’s department, was able to confirm the identities of Montgomery and Baum and their purpose in being at his house. The defendant then let them inside. Montgomery and Baum testified that they did not fire their service revolvers.

The defendant testified, and his version of the events followed the same general chronology given by Montgomery and Baum but disagreed with their testimony on several important points. The defendant, who was 72 years old at the time of trial, explained that he began to suspect Montgomery because he was not in uniform. Montgomery told him that the house had been watched the previous night, but the defendant doubted it, for his neighbors would have noticed something like that and had not mentioned anything. The defendant believed that Montgomery was trying to set him up to steal his gun collection.

The defendant testified that several unusual events quickly confirmed his suspicions. Told about the missing money, Montgomery returned it by putting a bank envelope in the defendant’s shirt pocket. Also, the defendant thought that Montgomery was lying when he said that the minister had given him permission to park his car at the church; according to the defendant, the minister is at the church only on Sundays and these events occurred on a weekday. As the defendant was about to leave for his sister’s house, he asked Montgomery whether he should transport his gun by removing the ammunition and locking the weapon in the trunk; Montgomery said that that would be the safest way, which the defendant did not believe.

The defendant then drove to the homes of some friends and relatives; several of these persons were not at home. He did see his sister and her 20-year-old son, though. The defendant feared for his nephew’s safety and told him to stay home. The defendant did not report his suspicions to the sheriff’s office during this time because his complaints had been ignored in the past.

The defendant testified that on returning from Decatur he saw that Montgomery’s car was still parked at the church. The car was unmarked and did not look like a law enforcement vehicle. The defendant drove to a neighbor’s house and parked his car there. He thought that he saw two men carrying guns out of his house. The defendant retrieved his gun from the trunk, loaded it, and advanced on his house. Carefully, he entered through the back door; he saw a stranger — Baum—in the kitchen with Montgomery. The stranger refused to provide any identification. The defendant was puzzled, for Montgomery had said earlier that he would have to go back to Decatur to pick up his partner, yet now he was saying that the stranger in the house was the partner. The defendant told the two men to leave, but they grabbed his arms instead. The defendant managed to pull his pistol from his belt and fired it, intending only to scare them. They ran and eventually escaped from the house. Baum shot at the defendant from outside. The defendant testified that he could have killed Baum and Montgomery had he wanted to. Defense counsel did not present any other evidence.

In rebuttal, Montgomery and Baum denied stealing from the defendant or grabbing his arms. Another member of the sheriff’s department testified that his examination of the two deputies’ service revolvers shortly after these events occurred revealed that they had not been fired.

The defendant raises two major arguments on appeal: that the State failed to prove that he was not justified in using deadly force in defense of himself and his dwelling, and that the jury was incorrectly instructed on the mental state necessary to sustain a charge of attempted murder. The first argument pertains to the sufficiency of the evidence, and the second argument pertains to the conduct of the trial; therefore, the defendant’s constitutional guarantees against double jeopardy require that we address the first argument regardless of our resolution of the second. Burks v. United States (1978), 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141; Greene v. Massey (1978), 437 U.S. 19, 57 L. Ed. 2d 15, 98 S. Ct. 2151; People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

The defendant first argues that he was not proved guilty beyond a reasonable doubt of the offenses of attempted murder and aggravated assault. He renews the affirmative defense that he relied on at trial: that he justifiably used deadly force in defending himself and his dwelling.

A person may use deadly force in self-defense “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony” (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 1). A person may use deadly force to terminate an entry into a dwelling “only if: *** (b) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling” (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 2). The reasonableness of these beliefs is a question of fact. People v. Henry (1980), 86 Ill. App. 3d 602, 408 N.E.2d 228; People v. Nichols (1974), 21 Ill. App. 3d 432, 315 N.E.2d 663.

The State presented sufficient evidence of the unreasonableness of the defendant’s twin beliefs that force was necessary to defend himself and his home. Montgomery testified that he twice showed his identification to the defendant; this should have allayed the defendant’s fears. The deputies did nothing to suggest that they were going to either harm the defendant or commit a felony. Whatever threat they presented was not imminent: they did not remove their service revolvers from their holsters until after the defendant started shooting — the defendant does not assert the separate theory that he justifiably used force despite being the aggressor (Ill. Rev. Stat. 1981, ch. 38, par. 7 — 4). The jury was free of course to reject the defendant’s testimony of what substantiated his fears: for example, that Montgomery returned rather than helped find the missing bank envelope with its money and that the two deputies grabbed and restrained his arms. Our decision here does not, however, bind the court on retrial. People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.

We must consider next the defendant’s alternative argument that reversible error occurred when the jury was incorrectly instructed on the mental state necessary for attempted murder. The jurors were told in a definitional instruction that murder occurs when a person “intends to kill or do great bodily harm,” and they were told in an issues instruction that to prove the offense of attempted murder the State had to prove that the defendant “attempted to kill or do great bodily harm.” The first was Illinois Pattern Jury Instruction (IPI), Criminal, No. 7.01 (2d ed. 1981), with some of but not all the inappropriate material deleted. The second was a hybrid derived from IPI Criminal No. 7.02, which is the issues instruction for murder. There is no instruction in the IPI Criminal series for attempted murder as such; rather, IPI Criminal No. 6.07, “Issues in Attempt,” may be used in conjunction with the correctly limited definition of “murder” from IPI Criminal No. 7.01 (see IPI Criminal No. 27.02 (sample set of instructions for attempted murder)).

The State agrees with the defendant that attempted murder is a specific intent crime and that only proof of intent to kill will suffice; thus, neither the definitional nor the issues instruction should have contained the words, “or do great bodily harm.” (People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888.) We note that the information charging the defendant with attempted murder correctly alleged only the intent to kill.

The State argues that the error has been waived. Although the defendant’s post-trial motion was to raise the question eventually, the issues instruction on attempted murder was offered by defense counsel to correct a deficiency in the State’s proposal, which did not refer to the justifiable use of force, and defense counsel did not object to the definitional instruction. Normally this would result in waiver. People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248; People v. Kelley (1969), 105 Ill. App. 2d 481, 244 N.E.2d 818.

The defendant argues that the waiver rule should not be applied here, for the evidence was closely balanced and the right instructions could have led to his acquittal rather than conviction for attempted murder. Under Supreme Court Rule 451(c) (87 Ill. 2d R. 451(c)), substantial defects in jury instructions “are not waived by failure to make timely objections thereto if the interests of justice require.”

In People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861, the defendant, on trial for deceptive practices, failed to make a timely objection to an issues instruction that did not refer to the intent to defraud, which is an element of the offense. The defendant’s mental state was at issue in his trial. The supreme court held that the error was not waived and warranted a new trial. Discussing waiver and instructional error, the court said:

“The interests of justice demand that the rule of waiver be modified, in criminal cases, where necessary to ensure the fundamental fairness of the trial. (People v. Roberts (1979), 75 Ill. 2d 1, 15; People v. Parks (1976), 65 Ill. 2d 132, 137.) Fundamental fairness includes, among other things, seeing to it that certain basic instructions, essential to a fair determination of the case by the jury, are given. Instructions on the elements of the offense are among these basic instructions, and we have recognized that the trial court has responsibility for ensuring that they are given. (People v. Roberts (1979), 75 Ill. 2d 1, 13.) The failure correctly to inform the jury of the elements of the crime charged has been held to be error so grave and fundamental that the waiver rule should not apply. (People v. Jenkins (1977), 69 Ill. 2d 61, 66-67; People v. Davis (1966), 74 Ill. App. 2d 450; People v. Lewis (1969), 112 Ill. App. 2d 1.) It is of the essence of a fair trial that ‘the jury not be permitted to deliberate a defendant’s guilt or innocence of the crime charged without being told the essential characteristics of that crime.’ People v. Lewis (1969), 112 Ill. App. 2d 1, 11.” 87 Ill. 2d 216, 222, 429 N.E.2d 861, 864.

Here, the trial court failed to ensure that the jury was correctly instructed on the elements of attempted murder. Furthermore, under the circumstances in this case, the error was prejudicial. The specific problem with the instructions used here is that they “permitted] the jury to return a verdict of guilty upon evidence that the defendant intended only to cause great bodily harm short of death. An instruction must make it clear that to convict for attempted murder nothing less than a criminal intent to kill must be shown.” (People v. Harris (1978), 72 Ill. 2d 16, 27, 377 N.E.2d 28, 33.) Whether the defendant had formed the necessary intent to kill was a major theme at trial, variously shown and negated by both circumstantial and direct evidence of the defendant’s threats, marksmanship, and self-restraint. Intent was also stressed in closing argument. Thus, the defendant’s mental state was at issue, and the incorrect instructions could have led the jury to convict the defendant of attempted murder for less than intent to kill. Cf. People v. Jones (1979), 81 Ill. 2d 1, 405 N.E.2d 343 (in prosecution for attempted murder, use of definitional instruction containing incorrect mental states was harmless error, for intent to kill was not at issue).

Because the defendant may be tried again, we shall discuss briefly a question that may recur: the defendant objects to certain language in the instructions used below on self-defense and defense of dwelling. These instructions, IPI Criminal Nos. 24 — 25.06 and 24— 25.07, speak of force that “is intended or likely to cause death or great bodily harm,” and the defendant would take out the phrase, “or great bodily harm,” to make them consistent with the correct instructions on attempted murder. The reference to great bodily harm has a different, unobjectionable function here, however, for it serves to define the type of force — deadly—used by a defendant and not his essential mental state.

The defendant also argues that trial counsel — different from counsel on appeal — was ineffective. The defendant bases this argument on two aspects of the trial: the problems with the instructions, and defense counsel’s failure to call as a witness the nephew whom the defendant visited during the night in question. The defendant believes that the nephew’s testimony could have confirmed his own about his state of mind that night. The decision whether to have a particular person testify is generally a part of trial strategy (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677), and trial counsel may have had the reasonable belief that the defendant’s testimony would be more effective if it were not juxtaposed with another witness’s. The defendant does not suggest that defense counsel failed to question potential witnesses. The problems with the instructions are limited to the conviction for attempted murder, which we have already decided to grant the defendant a new trial on. Examination of the record discloses that trial counsel conducted a vigorous and able defense; failure to have the defendant’s nephew testify did not amount to substantial prejudice having a probable effect on the outcome of the trial. People v. Royse (1983), 99 Ill. 2d 163, 457 N.E.2d 1217.

We have jurisdiction over both convictions even though the defendant was sentenced on only one of them. (People v. Garcia (1983), 97 Ill. 2d 58, 454 N.E.2d 274; People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.) For the reasons indicated we reverse the defendant’s conviction and sentence for attempted murder; because the error in the conviction for attempted murder does not pertain to the defendant’s conviction for aggravated assault, the latter is affirmed. (See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838 (a single act may support only a single conviction).) The cause is therefore remanded, and the trial court is directed to impose sentence on the defendant’s conviction for aggravated assault (People v. Garcia (1983), 97 Ill. 2d 58, 454 N.E.2d 274; People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180) or, in the alternative, on the motion of the State, to vacate that judgment and to retry the defendant for attempted murder.

Affirmed in part, reversed in part, and remanded.

TRAPP and WEBBER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY PALMER, Defendant-Appellant.
    Fourth District
    No. 4—83—0706
    Opinion filed July 12, 1984.

      Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Following a jury trial, defendant Jerry Palmer was convicted of rape and sentenced to 20 years’ imprisonment. He appeals, contending the State failed to establish his guilt beyond a reasonable doubt. He also asserts he was denied a fair trial because the jury considered extraneous, prejudicial information and the judge coerced the guilty verdict from the jury.

A 12-year-old papergirl was raped early in the morning on September 23, 1982. At about 6 a.m., she left her Bloomington home to do her paper route, which took about a half hour to complete. When she reached the corner of Market and Hinshaw Streets, she noticed a black man across the street. He walked away, but she saw him again a few minutes later at the corner of Holton Drive and Hinshaw. After she delivered a paper to the house on the corner of Sheridan and Hin-shaw, the man approached her. He asked if he could buy a paper, and she sold him one. She then continued on her route. Halfway through her route, the man stopped her again and asked her to go with him to get some bicycles. She refused, stating she had to finish her route. The man pulled out a knife and put it to her neck. The knife had a short dull blade and a brown handle. He took her to a secluded area and raped her. After about five minutes, the man got up and handed the victim her radio, then he left stating, “he had to go to pick up the kids over at the school bus.” She got up and walked about two blocks to her home.

The girl arrived home very upset, according to her mother. After talking with the victim for a few minutes, the mother determined what had happened. She then ran one block to the nearest telephone and called the police. The police received the call at 6:33 a.m.

At trial, the victim described the rapist as a thin, black man with short hair and a mustache. He wore a short, brown leather jacket and gray pants. She stated that he was a lot taller than she. She was about five feet tall when the rape occurred. She was also cross-eyed, but she wore corrective glasses. Her glasses were knocked off during the rape, but she stated she could see “pretty good” without them. The victim identified defendant as the rapist.

On cross-examination, the victim admitted she had described the rapist to police as 5 feet 9 inches, 150 pounds, and in his late teens or early twenties. She testified she did not remember the rapist’s skin tone when giving her original description. Defendant is 6 feet 5 inches, 210 to 225 pounds, and he has a medium build and dark skin tone. He was 27 years old at the time of the rape. The victim, who was about 5 feet tall, testified she did not know her own height or weight or the height of any of her family members except her father.

The victim testified her paper route took her through Holton Homes, defendant’s neighborhood. She also visited a bait shop near her home to buy candy and get change. A picture of defendant holding a catfish hung on one of the doors to the store prior to the attack. Defendant also visited the store frequently.

Officer Steve Reeter responded to the mother’s call. He testified the victim was upset and stammering when he arrived at her home. Reeter attempted to get a description, but he could not get anything definite from her. He testified he supplied the 5-foot 9-inch figure based upon her statement that the rapist was taller than he. Reeter is 5 feet 6 inches. The victim also told him the rapist was thin, and Ree-ter estimated the rapist’s weight to be 150 pounds based upon experience and training. Reeter took her to the hospital for a medical examination, and then he took her to the police station.

At the hospital, doctors removed seminal material from the victim and a hair from her clothing. Testing showed the hair was not consistent with defendant’s hair, but it was not matched against the victim’s hair. Defendant was a possible donor of the semen, but only 17% of the black population was excluded.

The victim’s 13-year-old sister was also a papergirl. She testified that a black man accompanied her on her route on nine mornings between September 6 and September 18. On one occasion, he asked if he could buy a paper from her. On September 15, he tried to kiss her. When she finished her route on September 18, he pushed her onto an old truck bed. She screamed, and he let her go. He told her that he would get her the next day.

On September 23, the victim’s sister saw the man a little before 6 a.m. Although it was not very light out, she knew it was the same man. She ran to a nearby house, and the occupant, Helen Houchin, heard her knock at the door. She let the girl into her house and called the police. The police received the call at 6 a.m.

At the police station that morning, the sister described the man as black, 6 feet tall or under, 22 years old, 160 to 190 pounds with a thin mustache, a beard, and short, curly “perm” type hair. Defendant had short, nonpermed hair, and he did not wear a beard at the time of the rape. The victim’s sister also told police she thought he said his name was Larry. At trial, she identified defendant as the man she had seen on all the previous occasions. She was 5 feet 1 inch tall and 80 to 90 pounds at the time of the incident.

When the victim arrived at the police station, the two girls were placed in separate rooms. Each girl was shown two sets of six pictures and neither sister recognized any of them. They were then shown 26 more pictures. Both girls picked out defendant’s photograph.

After this photo identification, police went to defendant’s home. Defendant’s wife, Joyce Palmer, told them defendant was at work, and she denied them permission to search the house. Police stayed to search anyone who left the house. Mrs. Palmer eventually gave permission for the search. Police did not find the clothes or knife that the victim had described.

Defendant was arrested that afternoon at his place of work in Coveil. He was wearing camouflage pants, a blue or gray jacket, and army boots., He denied any knowledge of the rape and stated he had been wearing the same clothes all day. He told police he had arisen at 5:30 a.m., fed his baby, showered, hit a few golf balls in his yard, and then went directly to work.

Several alibi witnesses testified for defendant. Mrs. Palmer testified she and defendant went to bed at 2 a.m., on September 23. Her son, Cory Gibson, knocked on their bedroom door to wake them early in the morning. Their baby’s crib, which had been leaning against the door to keep it shut, was still in that position. Defendant arose and went downstairs to fix the baby’s bottle. Mrs. Palmer testified she did not know what time they got up, although she had earlier told police it was at 6 a.m. Defendant returned upstairs to shave and shower, which took 15 minutes. He dressed in the clothes that he wore when he was arrested later that day. He took his golf clubs and went outside for three or four minutes. He then left for work with his employer, Alva Brent. Mrs. Palmer testified she did not know what time defendant left; however, she had told police he left around 7:05 a.m. She testified Cory left for school about 15 minutes after defendant had departed.

Cory Gibson, defendant’s 12-year-old stepson, testified he woke his parents up September 23. He did not know the time, although he had told police it was at 5:45 a.m. He also testified defendant was outside hitting golf balls for just a few minutes before leaving for work. Cory remembered seeing defendant wearing the camouflage pants. Cory testified he left for school about 15 minutes after defendant left. He wanted to attend free swim, which began at “7:00 something.” The walk to school took 15 to 20 minutes, and he arrived at school a little later than when open swim began, at a few minutes after 7.

Defendant’s employer, Alva Brent, testified he drove defendant to work every day. Brent testified he left his home at 6:12 a.m., on September 23, and he arrived at defendant’s home between 6:25 and 6:30. He saw defendant in the yard with a golf club. They then left for work. Brent had earlier told police he arrived at defendant’s house at 6:45 or 6:50 that morning.

Shirley McGill, defendant’s neighbor, saw Brent’s truck arrive at defendant’s home at 6:30 or 6:35 that morning as she was leaving for work. She stated it was a 10-minute drive to work and another 10 minutes before she checked in. She checked in that morning at 6:56 a.m.

Sam Reed also testified for defendant. Reed rented a house about 40 yards from where the rape occurred. Reed testified he was changing the oil and rotating the tires on his car on September 23. At about 6:30 a.m., he saw a black man and the papergirl go into the area where the rape occurred. After 5 to 10 minutes, the girl came out and walked away. The man emerged and walked within 10 feet of Reed. Reed described the man as thin, petite, 5 feet 9 inches, with a beard and jerry curled hair. The man wore a waist-length leather coat and light pants. Reed knew the man’s name was Andy and he drove a 1973 red Camero. Reed stated the man was not defendant. Reed did not contact the police with this information. Reed also admitted he knew defendant previously and had given him rides to work. The State introduced Reed’s two prior convictions to attack his credibility.

The jury began deliberating at 4:15 p.m. on July 22, 1983, and continued until after 11 p.m. Deliberations resumed the next day at 9:30 a.m. At 10:25, the jury sent a note to the judge, which stated:

“Judge: We have taken 6 votes, and have shown a change of only two from an even vote. In good conscience after much discussion we do not see the possibility of a unanimous verdict in this case. What are our instructions at this point.”

Upon hearing of the jury’s note, defendant moved for a mistrial. The judge wrote to the jury “continue your deliberations.” Defendant again moved for a mistrial. The court decided to recall the jury and declare a mistrial if there had been no change in the voting. Around noon, the court questioned the foreman, who responded that the jury had started on another line of thinking and wanted to continue. At 3:30 p.m., the jury returned the guilty verdict.

Defendant’s supplemental post-trial motion included an affidavit by juror Joseph Barth. According to the affidavit, another juror stated during deliberations that she had a child who attended the same school as Cory Gibson. The juror had dropped her child off for open swim at 7:30, possibly on more than one occasion in the past. Defendant argued this constituted an improper, independent investigation by a juror, and thus, deprived him of a fair trial. The trial court rejected this argument.

Defendant first asserts a reasonable doubt as to his guilt remains. In rape cases, reviewing courts must carefully examine all the evidence, and if the evidence fails to remove all reasonable doubt and create an abiding conviction that defendant is guilty, then the court must reverse the jury’s finding. (People v. Raker (1979), 75 Ill. App. 3d 975, 978, 394 N.E.2d 852, 854.) Although reviewing courts have this special duty in rape cases, they may not encroach upon the jury’s function to weigh credibility and otherwise assess the evidence. Thus, conflicting evidence alone will not justify a reversal of a conviction. Rather, a reviewing court will set aside a guilty finding only if the evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused’s guilt. People v. Reese (1973), 54 Ill. 2d 51, 57-58, 294 N.E.2d 288, 291.

Defendant contends the victim’s identification is insufficient proof of his guilt. A conviction cannot be based upon vague, doubtful, or uncertain identification testimony. (People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1.) The sufficiency of identification testimony, however, is a fact question for the jury, and the testimony of a single identification witness is sufficient to support a conviction if the witness viewed the accused under circumstances permitting a positive identification to be made. (People v. Strater (1979), 72 Ill. App. 3d 486, 490, 390 N.E.2d 979, 982.) The victim had ample opportunity to view the rapist. She saw him four times that morning, including during the actual rape when he had lain face-to-face upon her for five minutes.

Defendant argues the discrepancies between the victim’s initial description to police and his actual appearance make her testimony vague, doubtful, and uncertain. Defendant fails to recognize the difference between the validity of a witness’ identification and the witness’ credibility. Evidence showing either the identification was made under overly suggestive circumstances or the witness had an inadequate opportunity to view the accused destroys the validity of an identification. (People v. Brown (1972), 52 Ill. 2d 94, 285 N.E.2d 1; People v. Cullotta (1965), 32 Ill. 2d 502, 207 N.E.2d 444.) This makes the identification vague, doubtful, or uncertain. Discrepancies or omissions of detail, however, do not destroy the validity of an identification; rather, they go to the weight of the testimony and are evaluated by the trier of fact. People v. Bibbs (1981), 101 Ill. App. 3d 892, 897, 428 N.E.2d 965, 969.

Because a charge of rape is easy to make and hard to defend, the law requires the victim’s testimony to be either clear and convincing or corroborated. (People v. Reaves (1962), 24 Ill. 2d 380, 382, 183 N.E.2d 169, 170.) For example, when the victim first denies the rape occurred or delays identifying the accused, then her testimony cannot be clear and convincing, and it must be corroborated. (People v. White (1962), 26 Ill. 2d 199, 186 N.E.2d 351; People v. Raker (1979), 75 Ill. App. 3d 975, 394 N.E.2d 852.) Defendant concludes the victim’s testimony is not clear and convincing because her initial description of him was inaccurate.

Precise accuracy in a defendant’s description, however, is not required when the identification is positive. (People v. Brown (1977), 50 Ill. App. 3d 348, 353, 365 N.E.2d 907, 910; People v. Coe (1978), 67 Ill. App. 3d 552, 384 N.E.2d 987.) Clear and convincing evidence is not synonymous with uncontradicted or unimpeached testimony. If the victim’s story is consistent and any discrepancies do not detract from its reasonableness, her testimony can be clear and convincing. (People v. Thompson (1978), 57 Ill. App. 3d 134, 140, 372 N.E.2d 1052, 1057-58.) The important factor is the witness’ ability to make a positive identification after having an adequate opportunity to view the offender. People v. Nichols (1975), 32 Ill. App. 3d 265, 268, 336 N.E.2d 194, 196.

The victim’s testimony was both consistent and reasonable. She positively identified defendant at trial and in the photo lineup. Her testimony was not unreasonable merely because she was a bad judge of height, weight, and age. Due to the large differences between their sizes, the victim could not easily compare the rapist’s height or weight to her own. In fact, she did not even know her own height or weight. The police officer testified he supplied the height and weight figures based upon the victim’s general statements. The fact that she could not accurately describe defendant’s height, weight, or age is not surprising. As the court stated in People v. Evans (1962), 25 Ill. 2d 194, 201, 184 N.E.2d 836, 839-40:

“It is a matter of knowledge that these matters are often deceiving, that few people are accurate judges of height and weight, and that many people are notoriously poor judges.”

The same can be said of age.

The jury was fully aware of the discrepancies between the victim’s initial description and defendant’s actual appearance. The court in Evans also noted:

“The jury, who not only heard the testimony but saw the defendant in court, was in a far better position than are we to evaluate the weight to be given to the discrepancy in the description insofar as it pertained to defendant’s height and weight, and we are unable to say that the jury was required to regard the discrepancy as sufficient to create a reasonable doubt as to defendant’s guilt.” (25 Ill. 2d 194, 201, 184 N.E.2d 836, 840.)

We will not second-guess the jury’s determination on a matter of credibility.

Moreover, the victim’s identification was corroborated by her sister’s testimony. Her sister also had ample opportunity to view the man. Both girls separately selected defendant’s photograph as that of the attacker. Both girls positively identified defendant at trial. Defendant asserts the sister’s testimony is insufficient corroboration because she also inaccurately described defendant. Once again, the jury heard all the evidence and decided on the girls’ credibility.

Defendant speculates the girls recognized him from his picture in the bait shop and from seeing him in the neighborhood. The victim’s sister, however, testified she had never seen defendant before September 6 when he accompanied her on her paper route. Furthermore, neither girl picked defendant’s photograph as someone with whom they were familiar. When the victim saw defendant’s photograph, she stated: “This is him.” Her sister saw defendant’s photograph and stated: “This is him. I could never forget a face like that.”

Defendant further contends that the alibi witnesses and Reed’s testimony raise a reasonable doubt about his guilt. We note the testimony of both defendant’s wife and employer varied from the statements they made to police. Furthermore, the jury is never required to accept alibi testimony over the positive identification of the accused even if the alibi testimony is given by a greater number of witnesses. The jury is in a superior position to observe the witnesses and consider their interest in exonerating defendant. (People v. Jackson (1973), 54 Ill. 2d 143, 149, 295 N.E.2d 462, 464.) Nor did the jury have to believe Reed’s testimony. Reed knew defendant prior to the rape. He never went to police with his information, but instead, he went to defendant’s wife. Finally, the victim testified she saw no one where Reed claimed to be on the day of the rape.

Secondly, defendant argues he was denied a fair trial because the jury considered extraneous, prejudicial information. Defendant contends the juror’s statement regarding the time she dropped her child off for open swim contradicted his stepson’s testimony. Defendant used the testimony of his wife and stepson to establish the time he left for work. Defendant concludes the juror’s statement effectively destroyed the credibility of these two alibi witnesses.

While evidence that the jury considered extraneous information can be used to impeach the verdict, not every instance in which unauthorized information reaches the jury results in reversible error. (People v. Holmes (1978), 69 Ill. 2d 507, 517, 372 N.E.2d 656, 661.) Only when defendant is prejudiced is reversal required. People v. Hayes (1979), 70 Ill. App. 3d 811, 828, 388 N.E.2d 817, 829.

Defendant contends the extraneous information was crucial because it dealt with the time of the day’s events. The State maintains the information was irrelevant and defendant was not prejudiced. The State first points out the juror’s statement does not indicate when open swim began on the day in question. The State also asserts the real issue is when the stepson left for school, not when open swim began. Defendant used the time his stepson left for school as a reference point for estimating the time he departed for work.

The information was neither crucial nor explicit enough to determine that defendant was prejudiced. (People v. Hayes (1979), 70 Ill. App. 3d 811, 828, 388 N.E.2d 817, 829.) It did not relate directly to guilt. (People v. Wurster (1980), 83 Ill. App. 3d 399, 410, 403 N.E.2d 1306, 1315.) Moreover, the stepson’s testimony regarding the time defendant left for work was cumulative. Both defendant’s employer and neighbor testified as to the time defendant went to work. Additionally, both the wife and stepson testified defendant left the house for only a few minutes before going directly to work. When open swim actually began, therefore, was unimportant.

Finally, defendant contends the trial judge coerced the verdict when he instructed the jury to “continue your deliberation.” The State argues defendant waived the issue by failing to clearly raise it at trial or in his post-trial motion. The plain error doctrine, however, may be invoked in criminal cases where the evidence is closely balanced or where the error is of such magnitude that defendant was denied a fair trial. (87 Ill. 2d R. 615(a); People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091, 1094.) The right to a fair trial by an impartial jury is so basic that a violation requires reversal. (People v. Cole (1973), 54 Ill. 2d 401, 411, 298 N.E.2d 705, 711.) In addition, the length of the jury deliberations and the jury’s note demonstrate the closely balanced nature of the evidence in this case. Defendant’s failure to raise the issue in the trial court, therefore, is irrelevant.

Defendant maintains the trial court erred in failing to declare a mistrial or give a Prim instruction. (People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.) Generally, the length of jury deliberations is left to the sound discretion of the trial court (People v. Daily (1968), 41 Ill. 2d 116, 242 N.E.2d 170), as is the decision of whether to declare a mistrial (People v. Watson (1982), 103 Ill. App. 3d 992, 999, 431 N.E.2d 1350, 1356). Mere failure to give a Prim instruction to a deadlocked jury is not reversible error. The directive in Prim was aimed mainly at eliminating instructions to heed the majority. (People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359.) We also note defendant never requested the trial court to give a Prim instruction.

The court’s instruction to “continue your deliberations” did not coerce the verdict. The test is whether under the circumstances the language actually used hastened the verdict or coerced or interfered with the jury’s deliberations to the prejudice of defendant. (People v. Pankey (1978) , 58 Ill. App. 3d 924, 927, 374 N.E.2d 1114, 1116.) The jury heard conflicting testimony from 21 witnesses over three days. (See People v. Daily (1968), 41 Ill. 2d 116, 121, 242 N.E.2d 170, 173.) When questioned, the foreman stated the jury wanted to continue deliberating because they had started on another line of thinking. The jury did not reach its verdict until almost five hours after the judge’s instruction. (See People v. Evans (1979) , 80 Ill. App. 3d 444, 460, 399 N.E.2d 1333, 1345.) Finally, the language actually used was simple, neutral, and in no way coercive. People v. Farella (1979), 79 Ill. App. 3d 440, 446, 398 N.E.2d 615, 617.

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

Affirmed.

GREEN and MILLER, JJ., concur.


author: JUSTICE GREEN

text:
    HAZEL MADONIA, d/b/a Whirl-A-Way Tavern, Plaintiff-Appellant, v. J. MICHAEL HOUSTON, Mayor and Local Liquor Control Commissioner, et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0001
    Opinion filed July 12, 1984.

      Costello, Long & Young, and Michael B. Metnick, both of Springfield, for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Imelda R. Terrazino, Assistant Attorney General, of counsel), for appellee Illinois Liquor Control Commission.
    James J. Párente, of Springfield, for appellees J. Michael Houston and City of Springfield.
   JUSTICE GREEN

delivered the opinion of the court:

On May 4, 1982, defendant, J. Michael Houston, as local liquor control commissioner of the city of Springfield, filed with the local liquor control commission of that city (LLCC) a complaint alleging that plaintiff, Hazel Madonia, d/b/a Whirl-A-Way Tavern, had committed certain violations of the city of Springfield liquor control ordinance. On June 18, 1982, following a hearing on the complaint before the LLCC, the commissioner adopted the LLCC findings of fact and conclusions of law and revoked plaintiff’s liquor license effective July 12, 1982. Plaintiff appealed to the Illinois Liquor Control Commission (ILCC), which affirmed the commissioner’s decision. Plaintiff then brought an action for administrative review in the circuit court of Sangamon County. On December 9, 1983, that court affirmed. Plaintiff has appealed to this court. We also affirm.

By the terms of section 4 — 4(1) of the Liquor Control Act of 1934 (Ill. Rev. Stat. 1983, ch. 43, par. 112(1)), the local liquor control commissioner has the power to revoke for cause all local liquor licenses issued for premises located within his jurisdiction. Section 7 — 5 of the Act (Ill. Rev. Stat. 1983, ch. 43, par. 149) authorizes the local commissioner to revoke licenses for violations of municipal ordinances.

The complaint charged that plaintiff violated section 4.44 of the Code of the City of Springfield which states “no riotous, disorderly, indecent, or offensive conduct of any kind shall be allowed in or about [the licensed] premises.” The complaint alleged that plaintiff, the licensee, had violated section 4.44 by “permitting indecent and offensive conduct on a licensed premises, to-wit: prostitution *** with the knowledge and complicity of the licensee through her employees and agents, to-wit: the manager, Samuel Ray LaForce.” The complaint alleged the incidents of prostitution occurred on March 30, 1982, and April 21, 1982. In addition, the complaint alleged the licensee violated section 4.47 by selling or furnishing alcoholic liquor at retail to three female patrons without requiring payments at the time of sale on March 30, 1982. The LLCC found the allegations concerning prostitution to have been proved.

On appeal to this court, plaintiff contends that (1) the administrative decision was contrary to the manifest weight of the evidence; (2) the failure of the LLCC to grant her request for a bill of particulars was a denial of her constitutional right to a fair hearing; and (3) the consideration of hearsay evidence by the LLCC requires reversal.

The evidence of plaintiff’s ordinance violations came entirely from the testimony of Joseph Davis, a detective for the city of Springfield.

Davis testified that he entered plaintiff’s tavern in Springfield at about 4 p.m. on March 30, 1982, and gave 50<? to a woman who was collecting donations from patrons for the jukebox. He stated that she then offered to perform sexual favors for him and said the price would be $45, whereupon he refused. Davis testified that he then asked the bartender, Samuel Ray LaForce, if the woman was “clean,” and the bartender answered that he did not know what Davis was talking about and wanted to have nothing to do with whatever Davis had in mind. Davis also testified that he made gestures to LaForce “that [he] had — she had made an offer for some fun and had offered— had stated a price.” The witness maintained that LaForce did nothing to stop the woman from making similar offers to others before he, Davis, left shortly thereafter.

Davis told of later returning to the tavern and sitting down at the bar, after which four women came over, began talking to him and one of them, Mary Payne, made a proposal to perform a sexual act for $80. The most significant part of Davis’ testimony was his statement that, while he was still at the tavern, another woman named Martie offered, in a loud voice, to perform a sexual act for a price and that during the entire conversation with this woman LaForce was on the other side of the bar only three to five feet away. Davis contended that after Martie made the comment, LaForce made a gesture with his head to her and to Davis, smiled and walked away.

Davis further testified that when no one offered to buy drinks, one of the women asked LaForce if he would give them drinks on credit and “they would pay him tomorrow.” LaForce served two women drinks and wrote something down on a pad next to the cash register. Davis testified that no money was exchanged when the liquor was delivered to the women. Finally, Davis testified that he returned to the tavern on April 21, 1982, and Mary Payne again offered to perform a sexual act with him for $50.

Ray LaForce, called on behalf of plaintiff, testified that he did not recall seeing Davis or speaking with him on March 30, 1982. He stated that he did not allow prostitution or solicitation for prostitution to take place on the premises, and he was not aware that there may have been solicitation for prostitution going on on March 30, 1982. He said that if he had known that was happening he would have stopped it. He also testified that he has barred prostitutes or people he knew to be prostitutes from being in the tavern.

On administrative review, “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 110.) They should be set aside only if contrary to the manifest weight of the evidence. (Whitley v. Board of Review (1983), 116 Ill. App. 3d 476, 451 N.E.2d 942.) That occurs only when a conclusion opposite that of the agency is clearly evident. (Spiros Lounge, Inc. v. Illinois Liquor Control Com. (1981), 98 Ill. App. 3d 280, 423 N.E.2d 1366.) In contending that the commission’s decision here was contrary to the manifest weight of the evidence, plaintiff relies on Daley v. License Appeal Com. (1964), 54 Ill. App. 2d 265, 204 N.E.2d 36, and Evans v. License Appeal Com. (1968), 95 Ill. App. 2d 121, 237 N.E.2d 817, where administrative decisions to revoke similar licenses of taverns were overturned on administrative review. Both cases involved charges that solicitation of prostitution had been permitted in the respective taverns.

In Daley, a plainclothes police officer entered the licensee’s premises, was served a drink by the bartender, and was approached by a female patron. The bartender was at all times within three or four feet of the officer. The woman propositioned the officer for $10. While the woman was leaving the tavern, the officer called the bartender over and said, “ ‘[l]isten, buddy, this girl wants to give me a lay. Is she clean?’ ” The bartender answered, “ ‘Yes, she is okay. Stop back in.’ ” (Daley v. License Appeal Com. (1964), 54 Ill. App. 2d 265, 267, 204 N.E.2d 36, 38.) The officer testified that he believed the bartender heard part of the conversation but was not sure what part of the conversation he had heard. The court concluded that the administrative agency did not have sufficient proof to find that the bartender heard any part of the conversation or understood that the woman was soliciting the officer until the solicitation had taken place and the woman and the officer were leaving.

In Evans, the evidence showed that two police officers in plainclothes entered the licensed tavern and were approached by a woman who offered to perform a sexual act at a particular place for a particular price. The officers purported to agree, and one of the officers stated to the bartender that he and his friend were going with the woman to “get laid” and wanted to take some whiskey with them. As the bartender sold the officer the whiskey, the officers told the bartender that the woman was charging them $10 apiece. The officer then asked the bartender to change a $20 bill so he could pay the woman, and the bartender exchanged the $20 bill for two $10 bills. The bartender denied hearing most of the conversation. The court stated that the precedent of Daley required it to conclude that the proof was insufficient, because it did not show that the bartender knew that solicitation had taken place until the act was complete and, thus, did not permit the act of prostitution to take place. Evans v. License Appeal Com. (1968), 95 Ill. App. 2d 121, 124, 237 N.E.2d 817, 819.

Plaintiff also relies on Fitzgerald v. Illinois Liquor Control Com. (1980), 82 Ill. App. 3d 1018, 403 N.E.2d 696. In that case, the commission had revoked a tavern’s liquor license because of circumstances wherein a sale of narcotics had taken place in the tavern. The decision was also overturned on administrative review. The sale apparently took place within two or three feet of the bartender. The police officer making the purchase could not say that the bartender appeared to hear his conversation with the seller. The situation there was not analogous to the instant case.

The cases of Daley and Evans are somewhat similar to the instant case, but we consider the evidence in favor of the commissioner’s ruling to be stronger here. In any event, those cases were decided by a different district of the appellate court than ours and are not binding precedent on us. To the extent, if any, that our decision is at variance to those decisions, we reject their rationale.

One who offers to perform an act of sexual intercourse or an act of deviate sexual conduct with another for money commits an act of prostitution. (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 14(a).) The evidence is fully sufficient to support a finding that several acts of prostitution took place in plaintiff’s tavern while Davis was present. At least in regard to the offer of the woman named Martie, the agency could have determined that LaForce, because of his presence near Martie and Davis and because of his subsequent conduct, heard the offer. We disagree with the Evans and Daley courts that it would have been mere conjecture for the fact finder to have so found. In addition, here, there is evidence of the gesture purportedly made by LaForce indicating his understanding of what was taking place and his acquiescence in it. Furthermore, according to Davis, this all happened after, earlier in the day, Davis had asked LaForce about the cleanliness of one of the women in the tavern, thus indicating to LaForce that Davis was seeking a prostitute and had, perhaps, been solicited. The evidence that LaForce had given some of the women in the tavern credit to buy drinks was further circumstantial evidence that he wished for the women to come to the tavern to attract men.

If the trier of fact believed Davis’ testimony, it could find that when LaForce understood that an offer had been made he gave tacit acquiescence rather than expelling both Martie and Davis, and thus permitted prostitution to take place in the tavern.

Approximately two weeks before the hearing, plaintiff filed a motion for a bill of particulars requesting specific facts indicating how the plaintiff or any of her employees knew that prostitution was taking place at the tavern. The attorney for the local commissioner responded by filing the Springfield police department’s reports of the investigation of plaintiff’s tavern by Davis. These reports contained no reference to the “gesture” Davis allegedly made to LaForce when asking if the first woman who approached him was “clean,” nor did they mention LaForce’s alleged reaction later made after Martie had allegedly made an offer to Davis in a loud voice. The plaintiff renewed her request for a bill of particulars on the date of the hearing, but no further response was made by the attorney for the commission.

A bill of particulars is a pleading requested, for the most part, in criminal cases. Its purpose is to supplement in detail an already sufficient charge to enable a defendant or respondent to better prepare a defense. (People v. Aud (1972), 52 Ill. 2d 368, 288 N.E.2d 453.) The tribunal in which the proceeding is brought has great discretion in determining whether to grant a request for such a bill, and its denial is seldom, if ever, a denial of a constitutional right. (People v. Curtis (1968), 41 Ill. 2d 147, 242 N.E.2d 201.) Here, plaintiff sought detail which was mostly of an evidentiary nature. The refusal of the request fell far short of depriving plaintiff of due process or any other constitutional right.

The dispute over the admission of hearsay evidence arose during the hearing when Davis, over plaintiff’s specific objection, was permitted to testify that (1) he told one of the women who had solicited him in the tavern that he had asked the bartender if the women in the tavern were clean, and (2) the woman responded that the bartender “is too smart for that, and so are we.” The only purpose for which this testimony could have been offered was as an assertion by the witness that the bartender knew prostitutes plied their trade in the tavern but was too intelligent to admit that he had this knowledge. As such, this evidence was inadmissible hearsay. (People v. Spicer (1979), 79 Ill. 2d 173, 402 N.E.2d 169.) Any indication to the contrary in Starnawski v. License Appeal Com. (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102, is incorrect! That decision was not rendered by the appellate court for this district and is not precedentially binding upon us.

Notwithstanding the hearsay nature of this testimony, its admission is not grounds for reversal. Without mention of this testimony, we have described evidence which was sufficient to support the decision of the commissioner. Where the evidence is otherwise sufficient, we are aware of no case where an administrative decision has been held to be erroneous by a court of review of this State because of the admission of hearsay testimony. The precedent is that the admission of the improper hearsay does not require that the decision be set aside. Goranson v. Department of Registration & Education (1980), 92 Ill. App. 3d 496, 415 N.E.2d 1249; La Grange Bank No. 1713 v. Du Page County Board of Review (1979), 79 Ill. App. 3d 474, 398 N.E.2d 992.

Our affirmance is for the reasons stated.

Affirmed.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE HEIPLE JUSTICE BARRY,

text:
    JUNE OKO, Plaintiff-Appellant, v. JAMES ROGERS, M.D., Defendant-Appellee.
    Third District
    No. 3-83-0479
    Opinion filed July 18, 1984.
    BARRY, J., dissenting.
    Louis S. Goldstein & Associates, of Chicago (David A. Novoselsky, of counsel), for appellant.

      James D. Rogers, of Joliet, for appellee, pro se.

   JUSTICE HEIPLE

delivered the opinion of the court:

This appeal arises out of a medical malpractice action brought by the plaintiff, June Oko, against the defendant, Dr. James Rogers, who appeared pro se. The complaint alleged that the defendant was negligent in performing hemorrhoid surgery on the plaintiff. A jury verdict was returned in favor of the defendant.

The issues on appeal concern whether the plaintiff was denied her right to a fair trial due to the conduct of the defendant acting as his own counsel. An issue is also raised as to the jury instructions. Relevant facts will be presented as needed.

The plaintiff first argues that the trial court erred in not granting a mistrial due to an improper comment made by the defendant in his opening statement. The defendant told the jury that the plaintiff had asked him to write a letter saying that her hemorrhoids had been caused by a work-related accident so she could collect insurance money. The defendant’s theory was that the plaintiff left his care because he refused to write the letter. Therefore, the defendant was not liable for the plaintiffs post-operative complications since she refused to remain in his care and follow his instructions.

The plaintiff moved for a mistrial characterizing the defendant’s comment as an unfounded charge of fraud. The court held that the plaintiff’s motion was premature and advised the plaintiff to renew the motion if the defendant failed to “tie-up” his allegations. The defendant presented no supporting evidence and the plaintiff did not renew her motion at the close of the defendant’s case.

When a trial court reserves a ruling, the movant must seek a decision in order to preserve the motion for review. (Terracina v. Castelli (1979), 80 Ill. App. 3d 475.) The plaintiff was instructed to renew her motion for a mistrial if the defendant failed to substantiate his charges. It is true that the plaintiff moved for a mistrial a second time, but this motion was in response to comments made by the defendant when he cross-examined one of plaintiff’s expert witnesses. To the extent that this motion sought to renew the prior motion for a mistrial, it was untimely because the defendant had not presented any evidence.

Had the motion been renewed at the proper time during trial, the court might have been able to cure any error via cautionary instructions. By failing to renew the motion, the plaintiff deprived the court of this opportunity. The fact that the issue was raised in the plaintiff’s post-trial motion does not cure this defect. It was the plaintiff’s obligation to settle the issue at trial. It is too late to do so once judgment has been entered. Therefore, the issue is waived.

Next, the plaintiff argues that the court erred in giving the jury two different instructions on the duty of care owed by a physician. The plaintiff tendered Illinois Pattern Jury Instruction (IPI), Civil, No. 105.02 (2d ed. 1971), which defined the duty owed by a physician holding himself out as a specialist. The defendant admitted that he held himself out as a specialist in rectal surgery. The court also gave defendant’s IPI Civil No. 105.01, over the plaintiff’s objection, which defined the duty owed by a general practitioner. The defendant agreed that No. 105.01 should not be given since he was a specialist, but the court saw no conflict between the instructions and gave both. The plaintiff contends that a specialist should be held to a higher standard of care. Therefore, plaintiff argues that it was error for the court to permit the jury to base its verdict on the standard of care owed by a general practitioner.

The comment to IPI Civil No. 105.02 indicates that as a general rule, a specialist is held to a higher degree of skill, care and learning than the average practitioner. Thus, in most jurisdictions, it is error to give an instruction which applies to a specialist the degree of skill and care required of a general practitioner. (61 Am. Jur. 2d Physicians, Surgeons sec. 363 (1981).) Illinois is an exception.

In Schireson v. Walsh (1933), 354 Ill. 40, 57, the Illinois Supreme Court rejected the idea that one who held himself out as the world’s greatest surgeon had to possess a higher degree of skill than is expected of the average physician:

“The law of this State is that a physician and surgeon is required to possess, and in his practice to use, reasonable skill— not, perhaps, the highest degree of skill that one learned in the profession may acquire, but reasonable skill such as physicians in good practice ordinarily use and would bring to a similar case in that locality. *** [We] are not disposed to depart from that rule or to enlarge the professional requirements of a physician or surgeon in the practice of his profession ***.”

This is still the law in Illinois (Stogsdill v. Manor Convalescent Home, Inc. (1976), 35 Ill. App. 3d 634), and we are in no position to depart from supreme court precedent and adopt the rule followed in other jurisdictions. Therefore, no error occurs when a court applies to a specialist the standard of care required of a general practitioner.

The plaintiff’s final arguments relate to the defendant’s pro se status. The plaintiff contends that she was denied a fair trial because: (1) the trial court attempted to assist the defendant in presenting his case; (2) the defendant was argumentative and used leading questions when he examined witnesses, and; (3) the defendant made an improper closing argument.

The trial in this cause spanned over five days and produced a record which is 661 pages long. After a thorough and detailed review of this record, we are unable to conclude that the plaintiff was denied a fair trial. Although the defendant on numerous occasions departed from the rules of trial court practice, his excursions were usually cut short by objections which were sustained and repeated until the defendant conformed to proper procedures. The defendant was not permitted to do as he pleased.

Furthermore, the trial court took steps to make sure that the defendant’s unorthodox questions did not confuse the jury. Whenever necessary, the trial judge would make his own brief and limited examination of a witness in order to clarify the testimony. The court also guided the defendant through parts of his own testimony in order to avoid a long narrative on irrelevant matters.

Considerable latitude must be allowed a judge in conducting a trial. The conduct and remarks of the judge are grounds for reversal only if they are such as would ordinarily create prejudice in the minds of the jury. (Clamage v. Shapiro (1977), 48 Ill. App. 3d 90.) We find that the judge remained within his proper provinces in the present case. The judge gave due consideration to the defendant’s pro se status but was never reluctant to sustain the plaintiff’s objections when necessary. Although the judge would carefully explain to the defendant why certain objections were being sustained, there is no evidence that he conducted the defendant’s case for him or failed to remain impartial.

As any judge or lawyer knows, the conduct of a jury trial with a pro se litigant who is unschooled in the intricacies of evidence and trial practice is a difficult and arduous task. The heavy responsibility of ensuring a fair trial in such a situation rests directly on the trial judge. The buck stops there. There is no law that requires a litigant to have a lawyer. The lawyer for the opposing side cannot be expected to advise the opposing party who is pro se. The judge cannot presume to represent the pro se party. In order that the trial proceed with fairness, however, the judge finds that he must explain matters that would normally not require explanation and must point out rules and procedures that would normally not require pointing out. Such an undertaking requires patience, skill and understanding on the part of the trial judge with an overriding view of a fair trial for both sides. We believe that Judge Cerri adequately faced up to that high responsibility in this case.

The plaintiff is entitled to a fair trial, not one that is error free. If it appears that an error has not affected the outcome below or if it can be seen from the entire record that no injury was done, the judgment is not to be disturbed. (Tripp v. Bureau Service Co. (1978), 62 Ill. App. 3d 998.) The plaintiff has failed to demonstrate how the outcome below would have been different if the defendant had retained an attorney. Taking into account the conduct of both the court and the defendant, it is not apparent from the record that the plaintiff was denied her right to a fair trial. Accordingly, the judgment of the circuit court of Will County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

I do not agree that plaintiff received a fair trial in this cause, and I would grant her a new trial; therefore, I must dissent from the opinion of the majority.

One blatant error occurred when the jury was given two instructions stating two different standards of care to be applied in this case. IPI Civil No. 105.01 was given, defining the duty owed by a general practitioner, and IPI Civil No. 105.02 was also given, setting forth the higher standard expected of a specialist. Even though it is not error to apply to a specialist the standard of care required of a general practitioner, the problem here is that the jury was given both instructions. Confusion as to the proper standard of care would be inevitable. An error in defining the standard of care should be reversible error. Cf. Seibert v. Grana (1968), 102 Ill. App. 2d 283, 243 N.E.2d 538.

In addition I believe that the most critical issue in this appeal is whether plaintiff received a fair trial in view of the understandable efforts of the trial judge to assist defendant in the presentation of his defense. As this court stated, in Bohannon v. Schertz (1974), 21 Ill. App. 3d 149, 150, 315 N.E.2d 316, 317:

“The law is well settled in Illinois that a defendant has the right to represent himself and to conduct his care without the aid of an attorney; however, if this is his desire he must comply with the same rules of proceedings as would be required of an attorney.”

(Accord, Biggs v. Spader (1951), 411 Ill. 42, 46, 103 N.E.2d 104, 107.) It is clear from the record, in the instant case the trial court several times took over the questioning of witnesses on behalf of defendant in order to facilitate the presentation of a coherent defense in response to the testimony of the plaintiff and the doctors who testified in her behalf. Several examples from the report of proceedings will illustrate my concern.

In presenting her case, plaintiff first called defendant as an adverse witness. At the conclusion of her examination of defendant, the trial court explained to defendant the tactical alternatives available to him — ie., that he could wait and testify as a part of his own case or he could give direct testimony at the conclusion of plaintiff’s examination of him. Defendant indicated that he wanted to testify right then, and the trial judge proceeded to question defendant at length about his post-operative treatment of plaintiff and about her progress under that treatment. Thus the court conducted the direct examination of defendant. Later, while defendant was attempting to cross-examine plaintiff’s expert medical witness, defendant started to read from an article that had not been introduced into evidence. After sustaining plaintiff’s objection to defendant’s questions, the court told defendant, “Ask him if he read it and is familiar with the article, Doctor, the operation procedure.” During subsequent cross-examination of the same witness, defendant attempted several times to ask the witness whether his responsibility to his patient did not end when she terminated her relationship with him. After several versions of the question were objected to by plaintiff and the objections sustained by the court, defendant asked, “Is there any way I can accomplish that?” and the court advised defendant, “Ask him what is customary.” Following plaintiff’s redirect examination of the witness, defendant had no recross, but the trial court asked several questions to clarify certain details of surgical procedure which had been mentioned by the witness on redirect. In effect, the court conducted the re-cross-examination for defendant.

During another occasion, while defendant was questioning his own expert witness, Dr. McSweeney, the court overruled an objection by plaintiff to the form of a question asked by defendant relating to the surgical procedures the witness would use, and then the court provided defendant with the correct form by adding, “Based on the standards of our local community.” At the close of Dr. McSweeney’s testimony, plaintiff moved that the testimony be stricken as not relevant to the issue of the prevailing standard of care for a reasonably well-qualified surgeon. The court stated:

“Well, normally if I had a lawyer sitting there, I would — you might be technically correct. You might be correct. With Dr. Rogers, who at least in his artful questioning, I think the concept is sufficiently established in the record to allow that testimony to stand.”

It is apparent to me that the trial court did not hold defendant to the same rules of procedure as he would have an attorney in determining the relevancy and admissibility of this evidence. To condone such actions of the trial court here is to invite pro se representation in difficult trials which would make a mockery of the judicial process, even though to fully inform a jury is a commendable purpose. Defendant was entitled to a fair opportunity to present his evidence, but nothing more. If he was insufficiently versed in legal procedure to place his evidence before the jury pursuant to the ordinary rules of procedure, then he was not entitled to have the court assist him by phrasing questions, by conducting the examination of witnesses, or by special rulings in his favor.

Without unnecessarily lengthening this opinion, with additional examples, it is my firm belief the trial court overstepped the bounds of judicial discretion in assisting defendant with the trial of this cause, and, accordingly, that plaintiff is entitled to have the judgment reversed and a new trial granted.


text:
    THE CITY OF MARSHALL, Plaintiff-Appellee and Cross-Appellant, v. CLYDE KNOWLES, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—83—0832.
    Opinion filed July 16, 1984.

      Harlan Heller and Jan H. Ramsey, both of Harlan Heller, Ltd., of Mat-toon, for appellant.
    Richard J. Bernardoni, of Meehling, Rich & Bernardoni, of Marshall, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On September 24, 1981, plaintiff, city of Marshall, filed suit in the circuit court of Clark County against defendant, Clyde Knowles (Developer). The city sought (1) a declaratory judgment concerning the validity of a document entitled “Water Line Agreement” (Agreement) purportedly entered into between the parties, and (2) specific performance by the Developer of certain terms of the Agreement. After an evidentiary hearing, the court entered an order on December 1, 1983, upholding the validity of the document and ordering Developer to make certain conveyances. The Developer appealed, and the city cross-appealed but withdrew the cross-appeal at oral argument. We affirm the decree but remand.

The Agreement was dated April 12, 1971, and was signed on behalf of the city by its mayor and by the Developer. It recited that (1) city had granted Developer permission to connect a six-inch water main from a certain city water main to his property; (2) the parties desired operation to be beneficial to those who wished to obtain city water; (3) city was willing (a) to furnish water to lines connected to Developer’s waterline; (b) to “take over operation” of those service lines connected to Developer’s line; (c) to assume maintenance of those lines one year after their installation; and (d) to assume the maintenance of Developer’s line “at such time as it is conveyed to the City at a date not earlier than two years nor later than ten years from the date” of the Agreement on terms stated in the Agreement. (Emphasis added.)

By the terms of the Agreement the Developer agreed (1) to convey to city all of his rights and interest in all service lines and meters connected thereto as soon as installed, (2) to maintain those service lines and meters for one year after their installation, and (3) to assign to city all right-of-way easements from the point of connection of the city water main to Developer’s land upon the completion of Developer’s waterline and the service lines. The city (1) agreed to maintain service lines after the one-year period of Developer’s responsibility to do so, (2) agreed to furnish and maintain a water supply, (3) granted Developer the right to sell water taps to Developer’s waterline at prices to be determined by Developer, provided that, after the Developer’s waterline was conveyed to the city, the city would permit only such additional taps as would not interfere with maintaining reasonable pressure through the six-inch waterline, and (4) granted Developer the right, at any time and without charge, to connect as many taps as he wished to the portion of the main that was on his property, as long as the taps were for the purpose of serving his property.

At the time of the December 1, 1983, decree, more than 12 years had elapsed since the July 12, 1971, Agreement. The Developer had made no conveyance of the main or of any easements. The city had assumed responsibility for various service lines, but no formal conveyance of those lines had been made to the city. The decree (1) declared the Agreement to be binding and that the city was entitled to ownership of the waterlines and easements claimed, and (2) ordered the Developer to make specific performance of the Agreement by conveying to the city (a) Developer’s interest in the six-inch waterline, (b) “all easements procured or owned by [Developer] on which the six-inch water main is located,” (c) an easement “for the waterline on his property,” and (d) all interest in the service lines to the point of meter installation.

On appeal, the parties do not dispute that the Agreement purported to require Developer to make the various conveyances within 10 years and that he has not done so. The Developer’s contentions on appeal fit into two categories. First, he maintains that the Agreement was not binding as to the city because of the city’s failure to follow the statutory procedures for acquiring a waterworks system. He maintains that if the Agreement were not binding on the city, the Agreement would lack mutuality and thus would not be binding on him. Second, he asserts that specific performance should not have been granted, because (1) to the extent that the rights and interests to be conveyed were realty, neither the Agreement nor the evidence produced sufficient description of the location of the interests to permit specific performance, and (2) to the extent that the interests were personalty, the interests were not shown to be sufficiently unique to justify specific performance.

The Developer’s contention that the city had no authority to enter into the Agreement is based upon section 11 — 127—1 of the Illinois Municipal Code, which states:

“In all municipalities where waterworks have been constructed, the corporate authorities of the municipality may purchase or lease the waterworks from the owner thereof. However, such a lease or purchase is not binding upon the municipality until the corporate authorities pass an ordinance which includes the terms of the lease or purchase therein.” Ill. Rev. Stat. 1969, ch. 24, par. 11 — 127—1.

The Developer then calls our attention to section 11 — 130—2 of the Illinois Municipal Code, which defines the term “ ‘waterworks’., as used in this Division 130” or article 11 of the Illinois Municipal Code to mean and include “a waterworks system in its entirety or any integral part thereof, including mains, hydrants, meters, valves, standpipes, storage tanks, pumping tanks, intakes, wells, impounding reservoirs, or purification plants.” (Emphasis added.) (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 130—2.) He contends that the Agreement involved a purchase of a main and some meters and thus was a purchase of a “waterworks” requiring the passage of an ordinance to make the agreement valid. The record here indicates that the city approved the agreement by a resolution on July 12, 1969, but no ordinance authorizing the agreement was ever passed.

Divisions 127, 128, 129, and 130, all part of the portion of article 11 devoted to water supply and sewage systems (Ill. Rev. Stat. 1969, ch. 24, pars. 11-127-1, 11-128-1, 11-129-1, 11-130-1) set forth various ways that a municipality may “purchase,” “lease,” construct, build, enlarge, or improve a “waterworks.” All require council authorization by ordinance except Division 128, which states that the council may approve by ordinance or resolution (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 128—1). However, Division 128 requires that the council’s action be approved at referendum (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 128—3), which was also not done here. Accordingly, if the Agreement constituted the “purchase” of a “waterworks” by the city, the required statutory procedures were not followed.

In the strict sense, the Agreement does provide for a “purchase” by the city of pipes and easements, because the city is required to give consideration. (See definition of “Purchase,” Black’s Law Dictionary 1110 (5th ed. 1979).) However, the whole tenor of the previously mentioned divisions of article 11 is to protect the citizens of the municipality from the incurring by the municipality of large expenditures or substantial indebtedness in regard to the acquisition of water facilities without its governing body proceeding in a prescribed formal manner. Each division speaks of borrowing or appropriating money, levying and collecting taxes, or issuing bonds in order to finance the transaction described in the division. Here, the city was not required by the Agreement to make a substantial monetary outlay.

The principal obligations assumed by the city were to maintain service lines and one six-inch water main and to serve additional customers on the periphery of its service area. It was not a substantial obligation in comparison to the total functioning of its waterworks. The money it would collect from the sale of water would likely cover its additional expenses. An ordinance is not required to authorize the city to take on new customers for its water service. The Developer was allowed to retain a right to tap the main to obtain water for use by him on his premises, but the expenses involved in furnishing that amount of water would appear to be de minimis in comparison to the money the city would obtain for sale of the rest of the water that passed through the main.

Considering the terms of the Agreement and the circumstances of its execution, we conclude that, rather than providing for a “purchase” by the city within the meaning of the Code, the Agreement provides for a transaction which is similar to a common law dedication to the public by the Developer of the facilities described therein. Were it not for the consideration given by the city to the Developer, the transaction could be considered to be a gift. One dedicating property does receive consideration when he benefits from the property being used by the public. That consideration supports the dedication. (Warren v. President & Trustees (1853), 15 Ill. 236.) The reservation of certain rights by the one making the dedication does not defeat the dedication if the reservation of the rights is not contrary to public policy and does not defeat the public control and use of the property dedicated. (Village of Lake Bluff v. Dalitsch (1953), 415 Ill. 476, 114 N.E.2d 654.) Here, the Developer reserved the right to tap the main for his own use without charge and to sell the right to tap the six-inch main to others. The latter would then pay the city for the water they used. The reservations would not interfere with the city’s control and use of the property. The reservations were not contrary to public policy.

As the transaction arising from the Agreement was not a “purchase” by the city, its action by resolution was sufficient to authorize its entry into the agreement and to bind the city. Accordingly, there was no lack of mutuality of obligation between the parties to the Agreement. The trial court properly found it to be binding on the parties and that the city was entitled to ownership of the six-inch water main, the sewer lines and the easements described in the Agreement.

We now turn to the right of the city to specific performance by the Developer as ordered by the trial court. The decree directed him to convey to the city (1) his interest in the six-inch main, (2) “all easements procured or owned by [him]” on which the main is located, (3) an easement “for the waterline on his property,” and (4) his interest in service lines to the point of meter installation. The developer maintains that specific performance by conveyance could not properly be ordered for any of the foregoing that constituted personalty, because none of them had the unique quality necessary to support an order of specific performance of personalty. However, the easement rights involved here are clearly real estate. (Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 192 N.E .2d 384.) Under the doctrine set forth in Dunham v. Slaughter (1915), 268 Ill. 625, 109 N.E. 673, once the court is empowered to enforce a provision in a contract for conveyance of realty, the court may also require specific performance of portions of the agreement requiring conveyance of personalty without regard to the character of the personalty.

In Dunham, a dispute arose between the three children of a testator. The son reached an agreement with the two daughters that he would (1) consent to the probate of a purported will, (2) convey to the daughters a quit claim deed as to all of decedent’s real estate, and (3) acknowledge a receipt in full for his share in all personalty in exchange for distribution to him of three promissory notes, none of which were shown to be unique. Upon the refusal of one of the daughters to abide by the agreement, the son brought suit for specific performance. The supreme court held that such a remedy was appropriate because “an agreement to convey real estate and to transfer personal property will be specifically enforced in equity, both as to the realty and the personalty. Leach v. Fobes, 11 Gray, (Mass.) 506.” (268 Ill. 625, 632, 109 N.E. 673, 676.) Similarly, specific performance was held to be an appropriate remedy to enforce in full a contract to sell both realty and personal property in Kuhn v. Sohns (1926), 324 Ill. 48, 154 N.E. 401. See also 5A Corbin, Contracts sec. 1159, at 183-84 (1964).

Finally, we turn to the question of whether the property rights to be conveyed can be sufficiently identified to grant specific performance. In this regard, it is important to recognize that we are not concerned with the question of whether a tract of land to be conveyed is sufficiently described. Rather, we are dealing with existing underground conduits and the easements necessary for the conduits’ existence and maintenance. Because of the particular nature of this property, the case of Anastaplo v. Radford (1958), 14 Ill. 2d 526, 153 N.E.2d 37, is very helpful.

In Anastaplo, the plaintiff’s decedent (Anastaplo) had purchased two tracts of land from defendant’s decedent (Radford). In connection with one purchase, the parties entered into a written agreement to permit Anastaplo to connect to and use a sewer which traversed the land of both parties. The purchase of the second tract was accompanied by an oral agreement that plaintiff’s decedent could construct and use a sewer from his land through the land of defendant’s decedent. The oral agreement further provided that the understanding concerning the sewer would be reduced to writing and contain a grant to Anastaplo. The sewer was installed, but Radford failed to make the conveyance and eventually dug up and blocked a portion of the sewer, rendering it useless. Plaintiff’s decedent sued for equitable relief including specific performance of the oral agreement. After a hearing on the merits, the trial court denied all relief. The supreme court reversed and remanded with directions to grant the requested relief including specific performance.

As here, the defendant in Anastaplo contended that the agreement was vague and that the testimony did “not specify the location of the sewer, the manner in which it was to be constructed or the duration of the easement.” (14 Ill. 2d 526, 537, 153 N.E.2d 37, 43.) The supreme court answered this argument by stating:

“The short answer to this argument is that if there was anything indefinite about the agreement, the parties, by their subsequent conduct, made it definite. Anastaplo located the sewer where Radford told him to put it and built it according to instructions. Radford saw it constructed and made no objection. The matter of duration presents no problem. According to Anastaplo, Radford agreed to furnish the same type of writing as that executed with respect to the residences. That contract provided that the sewer would be a permanent drain and that neither of the parties should ever interfere with its operation. Surely this contemplated a perpetual easement.” 14 Ill. 2d 526, 537,153 N.E.2d 37, 43.

The water main here is similar to the sewer in Anastaplo. Here, as there, both parties knew where the underground conduits were located. Here, the parties had stipulated that the six-inch main ran from its connection with the city’s main “to the land of Developer, ending in or ending on the north side of 70” running to the Developer’s property. Later, the Developer demonstrated, by use of a map, the route taken by the main, but the map was not introduced into evidence. The Agreement described the point of connection as being at the end of North Seventh Street in Marshall. Instruments are now available whereby with the foregoing information the six-inch main can be easily located and followed to its terminus. The main serves somewhat as an artificial monument. We recognize the rule that a monument must be visible, but we deem the water main to be a sufficient point of reference as long as it can be located and is an aid in establishing a location. (See 12 Am. Jur. 2d Boundaries sec. 4, at 549 (1964).) A sufficient description has been shown for the six-inch main.

The Developer’s obligation to convey to the city easements owned or procured by him can be discerned as in Anastaplo, by reference to existing documents. The Agreement recited that the Developer had obtained conveyance of easements from others by written document, and this was substantiated at trial. The record’s lack of description (1) of the land upon which these easements are impressed, and (2) the nature of the easements, should create no problem. We interpret the decree to require the Developer to merely make conveyance to the city of whatever rights he acquired by the aforesaid documents granting easements to him. He should quit-claim to the city all interest he received by those documents. He can do no more and should be permitted to do no less. Pursuant to its inherent power to enforce its decrees, the court can/ on petition, determine whether the Developer has obeyed the decree.

The Developer admitted at trial that he had made no formal conveyance of the service lines up to the point of the meter. As these lines can also be located, if necessary, by available instruments, a conveyance describing the various lots through which these lines run would be sufficiently definite.

The direction in the decree that the Developer make conveyance to the city of an easement for the “waterline on his property” creates the most difficult problem. As the course of the “waterline” can be located, determination of the center of the easement should not be a problem. However, the decree does not specify the full nature of the easement, whether it merely permits the main to lie on or under the ground, or whether the city should have the right to go upon the premises to service the main. The decree does not state whether there is a particular width to the area which may be used for any servicing of the main. This deficiency can only be corrected by re-mandment for the sole purpose of holding an evidentiary hearing to determine, with more particularity, the nature of the easement for the “waterline on [Developer's] property.'' At this hearing the trial court may wish to consider the nature of the easements which the Developer has obtained from others for the portion of the six-inch main which runs through the land of others.

The decree of the circuit court of Clark County is affirmed and the case remanded to that court for further proceedings as herein directed.

Affirmed and remanded with directions.

TRAPP and MILLER, JJ., concur.