author: JUSTICE JOHNSON PRESIDING JUSTICE ROMITI,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS MALONE, Defendant-Appellant.
    First District (4th Division)
    No. 81—1753
    Opinion filed April 7, 1983.

      ROMITI, P.J., dissenting.
    Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Garritt E. Howard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Curtis Malone, appeals his conviction of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)). After a jury trial, he was sentenced to 10 years in the Illinois Department of Corrections. He raises the following issues for review: (1) whether he was denied due process when the prosecution failed to provide certain evidence; (2) whether he was denied his constitutional right of confrontation; (3) whether the trial judge erroneously refused to recuse himself prior to hearing evidence on whether trial counsel had rendered ineffective assistance of counsel; (4) whether he was denied effective assistance of counsel; (5) whether in-court identification was the result of an impermissibly suggestive identification procedure; and (6) whether the prosecution’s final argument was improper and prejudicial. We affirm.

Defendant was charged by information with the armed robbery and attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(a), 8— 4(a)) of Tom Hall on February 7, 1980, and March 4, 1980. The instant case involves the trial of defendant for the robbery occurring on March 4,1980.

At a hearing on defendant’s motion to suppress a lineup identification, Ronald Grego, an Oak Park, Illinois, policeman, testified that he arrested defendant at about 9:30 p.m. on March 5, 1980, pursuant to a robbery report by the victim, Tom Hall. Grego arranged a lineup of five men, two of whom were suspects and two of whom were policemen not in uniform. Hall positively identified the two suspects, defendant Malone and W. B. Bolton.

Hall testified that he immediately recognized the suspects in the lineup; he did not notice the other men and did not know whether they fit the description that he had given to the police. Hall described the offender as five feet seven inches in height and weighing 140 pounds. Defendant Malone was 5 feet 10 inches and weighed 150 pounds. At the close of the hearing, the trial court denied the motion to suppress identification.

Testimony at trial established the following.

Tom Hall was the manager of a gas station in Oak Park, Illinois, on March 4, 1980. The day was sunny and clear. At about 3:15 p.m., Hall was alone in the office when a gold Buick with a tan top entered the station. There were two men in the car; the taller man was driving and the shorter man was the passenger. Hall recognized the passenger as the person who had robbed him in the same gas station on February 7, 1980. The taller man came into the office for cigarettes, returned to the car and drove off. Hall went into the washroom. As he opened the door to leave, the man who had been the passenger in the Buick shoved the door back toward Hall. The lights were on and Hall looked directly into the man’s face. The man was pointing a .38-caliber revolver at Hall. He demanded Hall’s money and said that he would kill him. Hall gave the man about $100. After a struggle, the man fired a shot and left. Hall heard another shot. At that point in his testimony, Hall identified defendant Malone as the passenger in the Buick and as the man who robbed him. After Hall telephoned the police, a neighbor, Georgia Bowling, ran into the office. When the police arrived, they removed a bullet from the commode.

On February 7, 1980, the day was sunny and clear. Around 4 p.m., a man taller than the defendant came into the office, bought cigarettes and left. Then defendant walked into the office, bought cigarettes and left. As Hall was counting money, defendant returned pointing a gun at Hall. Defendant took the money and forced Hall outside, threatening to kill him. When Hall ran back toward the office, defendant shot at him three or four times. At that point in his testimony, Hall identified defendant Malone as the person who had robbed him on February 7, 1980. On cross-examination, Hall stated that he did not know whether the taller man he saw in the company of defendant on March 4, 1980, was the same taller man he saw on February 7, 1980.

Georgia Bowling testified that on March 4, 1980, at about 3:20 p.m., she was walking her dog in the alley behind her house, which is west of the gas station. She noticed two men in a gold Buick. As she returned to her house she heard a gunshot. She continued walking and saw the same car with both doors open and the motor running. No one was in the car. She noticed the license plate number, ZM 1239. Two men ran from behind the garage and jumped in the car. Bowling ran into her house, jotted down the license number and ran over to the gas station. She showed the license number to Hall and talked to the police on the telephone. On March 5, 1980, Bowling identified the car at the Oak Park police station.

On cross-examination, the defense attorney asked Bowling to describe the two men. He inquired as follows:

“I ask you to look around this courtroom and ask you if you recognize either of the two people you saw?
A. I see one.
Q. What was that man wearing?
A. Green pants and waist hip length jacket.
Q. What color was the jacket?
A. Black.
Q. And by hip length jacket you mean one that stopped at the waist, is that correct?
A. That’s right.
Q. Showing you what has previously been identified as People’s Exhibit Number 5 I ask you to look at that photograph and ask you if you see an individual under the number three.
A. That’s the man, but not the coat.
Q. Is that the type of coat the man was wearing on March 4th?
A. No.
Q. Did you see any man on March 5th when you went to the police station to see the car?
A. Yes, I did.
Q. Did you view a lineup at that time?
A. Yes, I did.
Q. Do you recall what the other man was wearing?
A. I believe he also had a jacket on, but I didn’t look.
Q. Had you ever seen either of these two men before?
A. Not until that day.”

Greg Ford, an Oak Park policeman, received the robbery report on March 4, 1980. The offender was described as five feet seven inches in height with a full beard, weighing 140 pounds, about 25 to 30 years old, and wearing green pants and a white beanie-type hat.

Ronald Grego, an Oak Park policeman, arrested defendant and W. B. Bolton on March 5, 1980, after surveillance of a car with the license plate number reported by Bowling.

Bernard Bucholz, an evidence technician, removed bullets from the walls of the gas station following the February 7 and March 4, 1980, robberies. The parties stipulated that the bullets were fired from a .38-caliber revolver.

Curtis Malone testified that he never went to the gas station and fired at anyone. He had been in military service and was familiar with .38-caliber revolvers, but he never had a gun on February 7 and March 4, 1980. He had been laid off from his job on January 19, 1980, and lived about three or four blocks from the gas station.

During its deliberations, the jury sent questions to the judge and received answers as follows:

“There is a major discrepancy between the jurors as to Mrs. Bowling’s testimony. Some of us believe that Mrs. Bowling actually picked Mr. Malone out of the line-up at the Oak Park police station on March 5, 1980. Can you confirm or deny this pursuant to the testimony.
Respectfully,
Forman.
[Judge’s response]: You are asking about evidence which I cannot comment upon.
4:00 P.M.
You are instructed to continue your deliberations.
Judge Welfeld.
[Forman]: 1. How can we clear up information we have questions on?
2. May we have the transcript of Mrs. Bowling’s testimony?
[Judge’s response]: You are asking about testimony which is evidence that I cannot comment upon.
You must rely upon your collective memories. *** No transcripts are available.
[Forman]: Did Mrs. Bowling identify in a line-up, Mr. Curtis Malone?
Who did she identify as the person who shook his finger at her?
[Judge’s response]: You, the Jury, have heard the evidence and it is improper for me to comment, explain or otherwise discuss any of the evidence.
Judge Welfeld.”

The jury found defendant guilty of armed robbery and not guilty of attempted murder.

On June 25, 1981, at the hearing on a motion for a new trial, defendant’s original attorney, Steven Decker, was replaced by Frederick Cohn. Georgia Bowling testified that at a lineup conducted two days after the March 4, 1980, robbery, she picked out a police officer and another person not the defendant. Prior to trial, she told an assistant State’s Attorney that she did not identify defendant at a lineup. Officer Grego did not recall whether he told anyone that Bowling could not make an identification.

The prosecutors, Mary Ann Callum, Paul Gridelli, and James McCarter, testified that they had no conversations with Bowling about her failure to identify defendant at a lineup.

On July 8, 1981, the motion for a new trial was denied and defendant was sentenced to 10 years in the Illinois Department of Corrections. Defendant appeals.

The first issue raised by defendant is whether he was denied due process where the prosecution failed to disclose that Bowling viewed a lineup and did not identify defendant. He contends that this failure to disclose cannot be excused by the argument that the assistant State’s Attorneys were unaware of the existence of that evidence. Defendant refers to the questions submitted to the trial judge by the jury during their deliberations in support of his claim that he was prejudiced.

We disagree with defendant’s contentions. We have examined Bowling’s testimony. At trial she described the car at the scene of the robbery and its license plate number. She did not testify in order to identify the offender. To justify a reversal, the prosecutor’s failure to disclose exculpatory evidence must be material and result in the denial of a fair trial. (People v. Hardy (1979), 70 Ill. App. 3d 351, 355-56, 387 N.E.2d 1042, 1047.) In the instant case, these criteria are not met because Bowling’s failure to identify defendant is not material and he was not prejudiced by the nondisclosure. The identification of defendant by the victim Hall was sufficient to prove defendant guilty beyond a reasonable doubt. Where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. (People v. Lindsey (1979), 72 Ill. App. 3d 764, 774, 391 N.E.2d 382, 389.) We hold, therefore, that defendant was not denied his right to due process because of the nondisclosure of Bowling’s failure to identify him in a lineup.

The next issue raised by defendant is whether he was denied his constitutional right of confrontation. Defendant argues that at trial Hall testified he was unsure whether Bolton was present at the February 7 robbery. This is inconsistent with his preliminary hearing testimony positively identifying Bolton as being present on February 7. Defendant claims that it was error to limit this impeachment because it relates to Hall’s ability to make an identification.

We hold that defendant’s argument has no merit. At trial, Hall did not contradict his earlier testimony; he simply could not recall the questions asked and the answers he gave with respect to Bolton’s involvement in the February 7 robbery. He did state that he was unsure whether the taller of the two men he saw on February 7 was the same man he saw with defendant on March 4. The jury was made aware of this “inconsistency” by defendant’s cross-examination of Hall. Hall positively identified defendant at the preliminary hearing and at trial. We fail to see how uncertainty about Bolton’s participation in both robberies impairs Hall’s positive identification of defendant. Therefore, we conclude that defendant was not denied his right of confrontation.

Defendant argues that the trial judge erroneously refused to recuse himself prior to hearing evidence on whether trial counsel had rendered ineffective assistance of counsel. At a post-trial hearing on June 25, 1981, the following conversation occurred between the defendant’s attorney and the trial judge:

“THE COURT: You have alleged ineffectiveness of counsel—
MR. COHN: Right.
THE COURT: And you made pretty strong remarks about him and I would say the Court was appalled that — how does that tie up -with this phase of the motion.
MR COHN: First of all I am not sure how the Court can be appalled until you hear the evidence supporting my allegations.
THE COURT: I read your motion.
MR. COHN: I understand it. The motion is merely—
THE COURT: You talk about one, you talk about a man blundering—
MR. COHN: That’s true.
THE COURT: A lawyer that has appeared in all of the courts around here in this building. He has tried cases here, he is highly regarded as a highly skillful lawyer here and you put these things in a report that is quite surprising, I never saw it before and never anticipated seeing it before and it is there.”

Later, during the same hearing, the following conversation occurred between the same parties:

“THE COURT: *** All that is left is your allegations of ineffectiveness — incompetency and ineffectiveness of counsel.
MR. COHN: That, your Honor, yes.
THE COURT: All right, then I will state that I’m amazed that you would make such an allegation, just amazed, for the record.
MR. COHN: Your Honor-
THE COURT: It is unethical and improper and if I were him I would file a suit against you.
MR. COHN: I would stand to defend that suit at any time.
THE COURT: You may have to. He has the respect of the Court and respect of the lawyers in this building and the other Judges and he conducted a fine trial and the jury was out for over six hours. Now, there are instances in the case law of ineffective assistance of counsel but it certainly wasn’t in this case.
MR. COHN: Your Honor, in that your Honor has stated your Honor’s opinion prior to hearing the evidence—
THE COURT: I’m stating my opinion of him as a lawyer and I’m chastising you in open Court for making allegations like that against a fine lawyer.
MR. COHN: Your Honor, I then feel that because I feel that after an evidentiary hearing I would be able to demonstrate and support my allegations.
THE COURT: What you feel is a subject of opinion of your own, not shared by other lawyers that are in this courtroom right now and there are three of them, including—
MR. COHN: Your Honor has foreclosed the issue by making a determination. I ask your Honor to recuse yourself for the remainder of the hearing.”

At a hearing on July 8, 1981, the trial judge refused to recuse himself. In the instant case, it would have been the better practice if the trial judge had refrained from commenting on the allegation of ineffectiveness of trial counsel before ruling on the matter. A judge should resolve disputed issues of fact only after hearing all of the evidence with an open mind. (People v. Johnson (1972), 4 Ill. App. 3d 539, 541, 281 N.E.2d 451, 453.) However, the trial judge’s comments do not justify a reversal. If any error was committed, it was harmless. We have read the entire record presented to this court, and we are of the opinion that defendant received a full and fair hearing.

Defendant next raises the issue of whether he was denied effective assistance of counsel. Defendant claims that trial counsel was unprepared in his examination of Bowling, that he did not properly investigate the circumstances of the lineup, and that he failed to assert suggestive aspects of the lineup identification of defendant. We reject defendant’s contentions. The constitution does not require a new trial for every defendant whose counsel errs at trial, particularly in the absence of a demonstration that the outcome of a new trial would probably be different. (People v. Greer (1980), 79 Ill. 2d 103, 121, 402 N.E.2d 203, 212.) In the instant case, defendant has not shown that trial counsel’s “errors” would have changed the outcome of the trial. As stated earlier, the testimony of the victim Hall was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant also contends that he was denied his sixth amendment right to counsel because, for a period of time, he and Bolton were represented by the same law firm. At the preliminary hearing, defendant and Bolton were represented by the firm of Lawrence Wolf Levin. At trial, defendant was represented by Steven Decker, an employee of Levin. After trial, the bond refund went to attorney Levin. Defendant argues that this prevented counsel from presenting statements made by Bolton exculpating defendant but inculpating Bolton, and it also prevented counsel from negotiating an agreement which would have benefited defendant but harmed Bolton. Again, we reject defendant’s contentions. Joint representation of codefendants is not per se violative of constitutional guarantees of effective assistance of counsel. (People v. Nelson (1980), 82 Ill. 2d 67, 72, 411 N.E.2d 261, 264.) On appeal, defendants have the burden of showing that they had antagonistic defenses or that appointed counsel had other conflicts of interest in defending them during the criminal proceedings. (People v. Doyle (1978), 61 Ill. App. 3d 571, 575, 377 N.E.2d 1093, 1097.) A finding of adverse interests cannot be based on mere assertion and unless the defendant can establish that such conflict in fact existed at trial, this court will not indulge in speculation or conjecture to determine whether separate counsel was required. (People v. Doyle (1978), 61 Ill. App. 3d 571, 575.) A conflict of interest will not be created out of mere conjecture as to what might have been shown. (People v. Doyle (1978), 61 Ill. App. 3d 571, 575.) We conclude that defendant did not establish that a conflict existed at the time of trial. Therefore, we hold that defendant was not denied effective assistance of counsel.

Defendant argues that the trial court erred in denying his motion to suppress the victim’s in-court identification. Defendant claims that the lineup was unnecessarily suggestive because only two of the five persons in the lineup had full beards, one of them the defendant, and because only defendant was wearing a leather jacket. The offender had been described as bearded and wearing a leather jacket.

We reject defendant’s argument. As the court stated in People v. Anthony (1980), 90 Ill. App. 3d 859, 863, 418 N.E.2d 757, 761:

“Even assuming that some criticism of the lineup procedure be demonstrated valid, where the in-court identification had a sufficient origin independent of any possibly suggestive procedures the courts of Illinois have unanimously held that a proper in-court identification is sufficient for a conviction. In other words, where the identification of the defendant had an adequate origin independent of the previous identification procedures, this factor renders irrelevant any suggestability in connection with said procedure.”

In our opinion, the victim’s face-to-face confrontation with defendant in the two armed robberies clearly was sufficient to support an in-court identification. Therefore, we hold that the trial court properly denied defendant’s motion to suppress the victim’s in-court identification.

The final issue raised by defendant is whether the prosecutor’s final argument was improper and prejudicial. Defendant finds objectionable the following statements by the prosecutor:

“We are always in every case allowed to argue a second time. I do not fear this burden of proof beyond a reasonable doubt, but I accept it. The presumption of innocence is rebutted every day in every courtroom in this country.
This burden of guilt beyond a reasonable doubt is not unreasonable nor insurmountable. It is met in criminal courts of this country every day. The penitentiary is full of people who are there because the People met their burden of guilty beyond a reasonable [doubt]. And this burden has been met by the People in this case.”

Defendant did not object to these comments when they were made and thus waived the error. (People v. Hyche (1979), 77 Ill. 2d 229, 241, 396 N.E.2d 6, 12.) Furthermore, even assuming defendant has not waived the error, a reversal is not warranted. In Illinois even though every defendant is entitled to a trial free from improper comments or arguments that engender prejudice, a verdict will not be set aside unless the remarks are clearly prejudicial, affecting the outcome of the case. (People v. Trolia (1982), 107 Ill. App. 3d 487, 504, 437 N.E.2d 804, 817.) In our opinion, the prosecutor’s remarks were not a material factor in defendant’s conviction and did not result in substantial prejudice to him.

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

Affirmed.

LINN, J., concurs.

PRESIDING JUSTICE ROMITI,

dissenting:

I respectfully dissent.

Defendant’s conviction was based on his identification by two eyewitnesses: Tom Hall, who was the victim of the robbery, and Georgia Bowling, a passer-by who identified defendant at trial as one of the two men she saw fleeing the scene. Yet the State failed to disclose that two days after the robbery Bowling had failed to identify the defendant in a lineup and had misidentified a police officer as one of the men she had seen after the robbery. Was this evidence material and did its nondisclosure prejudice the defendant? On three separate occasions during jury deliberations the jury sent to the trial judge questions concerning Bowling’s testimony. Two of those questions specifically related to the issue of whether Bowling had previously identified the defendant in a lineup. Indeed, it is clear from one of those questions that some of the jurors mistakenly believed that Bowling had testified that she had previously identified the defendant in a lineup. Under these circumstances, where the State failed to disclose evidence which was favorable to the defendant and which specifically related to key identification testimony on which the jury focused its attention, I find the materiality of the evidence and the prejudice arising from its nondisclosure to be apparent. Accordingly, I would reverse defendant’s conviction and remand for a new trial.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    VIRGIL L. COLE, Plaintiff-Appellant, v. JOHN IGNATIUS et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—595
    Opinion filed March 30, 1983.
    Rehearing denied May 6, 1983.

      Michael B. Mann, of Giachini, Murphy & Mann, of Maywood, for appellant.
    Alan C. Hoffman, of Alan C. Hoffman & Associates, of River Grove, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Virgil L. Cole, brought an action for specific performance of the contract formed when he exercised an option to purchase property owned by defendants, John Ignatius and his wife, Mildred. Plaintiff alleged that defendants had leased the property involved to CSC Incorporated and that CSC had assigned the lease to him. Plaintiff further alleged that the lease contained an option to renew as well as an option to buy and that he had exercised both options. Plaintiff also alleged that he was ready, willing and able to perform all of the conditions under the contract formed when he exercised the option to buy. In their answer, defendants alleged as affirmative defenses that plaintiff was guilty of fraud and that plaintiff’s exercise of the option to buy was untimely because it occurred after CSC had exercised the option to renew. Prior to trial, CSC and Brush Pottery, Incorporated, a division of CSC acquired by plaintiff, were made third-party defendants. Joseph Witry, who subleased the premises from plaintiff, was allowed to intervene as a plaintiff. A trial was held, and at the conclusion of the testimony, defendants sought to have a forfeiture of the lease declared because various provisions of the lease had been breached. The trial court found that plaintiff was in default of the lease and declared plaintiff to be a tenant at sufferance. We reverse and remand with directions.

Defendants leased a warehouse-type building located in Palatine, Illinois, to CSC for a five-year term commencing on May 1, 1975, and terminating on April 30, 1980. The lease contained both an option to renew and an option to buy. Plaintiff testified that he had been an employee of CSC from January 15, 1975, until November 30, 1979. On December 1, 1979, he acquired Brush Pottery from CSC, and that same day, CSC assigned him the lease involved here. Subsequently, defendants received a letter dated December 21, 1979, which informed them that the option to renew the lease was being exercised pursuant to the lease. The letter was signed by plaintiff and by an executive vice-president of CSC.

According to plaintiff, defendants learned of the lease assignment in January 1980. Plaintiff testified that he had a telephone conversation with defendant John Ignatius on January 7 in which Ignatius acknowledged that he had received plaintiff’s rent check through Brush Pottery and stated that he would appreciate dealing with plaintiff because he had previously had problems with CSC. Plaintiff also testified that he spoke with Ignatius regarding a sublet of part of the building to Meadow Auto Body Shop in late February. A letter regarding this conversation was sent to Ignatius on February 25, and Ignatius testified that he was aware of this sublease. Plaintiff further testified that he spoke with Ignatius on or about May 2, 1980, regarding the option to purchase. According to plaintiff, he told Ignatius that he wanted to move his business to Ohio, and he therefore wanted to exercise the option so that he could sublease the building. Plaintiff stated that while Ignatius voiced his concern regarding the tax consequences of the sale and also questioned whether the option to purchase could be exercised since the option to renew had already been exercised, he told plaintiff to go ahead and mail a notice that the option to buy was being exercised in accordance with the lease. Plaintiff sent the notice on May 13 by certified mail, return receipt requested, as required by the lease, but because he did not receive a receipt, he sent a copy of the letter on May 28. Along with the notices, plaintiff sent a copy of CSC’s assignment of the lease to him.

Meanwhile, plaintiff testified, he had spoken with Joseph Witry on or about April 5, 1980, about leasing or purchasing the building. As a result, plaintiff and Witry entered into a lease agreement for the entire building which included an option to buy for $360,000. Witry occupied the premises on May 16. Plaintiff testified that he did not give Witry permission to remodel the interior of the building. Finally, plaintiff testified that he had not received any notice from defendants regarding defects or defaults under the lease until after he had exercised the option to buy.

Defendant John Ignatius testified that he had no correspondence with plaintiff or CSC between January 1980 and May 1980, although he did testify that on January 19, 1980, he received the letter in which the option to renew was exercised. This defendant also testified that he received the notices of plaintiff’s exercise of the option to buy. He denied that plaintiff told him he wanted to exercise the option, or that he encouraged plaintiff to do so.

Ignatius further testified that Witry took possession of the premises without his knowledge. He learned of Witry’s presence during an inspection he made of the building in June 1980. Following this inspection, he sent a letter to the president of CSC informing him that if the grounds and driveway were not brought into compliance with the lease, he would have the work done and then bill CSC for it. Ignatius sent plaintiff a copy of the letter because he did not know “who was actually in possession of the lease.” A similar letter regarding other violations was sent to CSC and plaintiff on September 12. Ignatius stated that as of September 1980, none of the violations of which he had complained had been rectified.

Following the conclusion of the testimony at trial, defendants sought to have a forfeiture declared because various provisions of the lease relating to insurance had been breached, and because Witry had altered the premises without defendants’ prior consent as required by the lease.

The trial court found that CSC’s assignment of the lease to plaintiff was valid, and therefore, CSC had no right, title or interest upon which to exercise the option to renew. The court further found that plaintiff was in default of the covenants of the lease, and under the terms of the lease, a lessee could not exercise the option to renew or the option to buy if he was in default. Thus, the court found, plaintiff failed to effectively exercise either of these options. Finally, the court found that plaintiff was not a holdover tenant but was a tenant at sufferance. Witry, consequently, was a subtenant at sufferance. CSC and Brush Pottery were found to have no claim to the property. The court dismissed plaintiff’s complaint, ordered defendants’ title quieted as to claims by plaintiff, Witry, CSC and Brush Pottery, ordered Witry to restore the property to its original condition and ordered plaintiff to change the insurance policies he held on the premises to reflect ownership in defendants.

Since the parties agree that the lease in question was valid when executed by CSC and defendants, the first question we must address is the validity of CSC’s assignment of the lease to plaintiff. Defendants admit that there is no provision in the lease prohibiting its assignment or requiring their prior approval of an assignment. In fact, language in the lease requiring prior written consent of lessors to an assignment has been lined out. In the absence of an express restriction in a lease prohibiting an assignment, the lease may be assigned. (Keogh v. Peck (1925), 316 Ill. 318, 328, 147 N.E. 266, 270.) Therefore, CSC had the right to assign its right, title and interest in the lease to plaintiff without first obtaining defendants’ consent. We conclude that the December 1, 1979, assignment of the lease from CSC to plaintiff was valid.

In concluding that the assignment was valid, we reject defendants’ argument that the assignment “was as a matter of law, at best, a nullity or, at worst, a fraud upon [defendants] and consequently not binding on [defendants].” In this regard, defendants argue that plaintiff failed to inform them of the assignment prior to May and failed to record the assignment. These arguments lack merit. The lease does not provide for notice of an assignment within a certain time or in any particular manner. We believe that the evidence shows that even though defendants did not receive written notice of the assignment until May, they were made aware of it prior to that time. In January 1980, defendants began receiving rent checks from plaintiff through Brush Pottery. In February, defendant John Ignatius learned that plaintiff was subleasing a portion of the premises. Ignatius also testified that he spoke to plaintiff regarding insurance rates for the building in February. In addition, plaintiff testified to conversations he had with defendant John Ignatius relating to the assignment at least as early as January. Although Ignatius denied that these conversations took place, the trial court presumably resolved the question of credibility in favor of plaintiff since it decided that the assignment was valid, and we see no reason to disturb this determination. Therefore, we must reject defendants’ argument that the assignment was not valid because it was made in secrecy and defendants were not given notice of it.

As for plaintiff’s failure to record the assignment, while the lease provides that an assignment may be recorded, it does not provide that an assignment must be recorded. In the absence of such a requirement, plaintiff’s failure to record the assignment did not render it invalid.

In further support of their argument that the assignment was either a nullity or a fraud, defendants contend that CSC validly exercised the option to renew, and this had the effect of invalidating its prior assignment of the lease. Contrary to defendants’ assertion, however, it was CSC’s exercise of the renewal option which was invalid, not its assignment of the lease to plaintiff. Since CSC had validly assigned the lease on December 1, 1979, it no longer had any right, title or interest in the lease on December 21, 1979, when it purportedly exercised the option to renew, and therefore it could not have validly exercised that option. Defendants’ argument that the conduct of CSC and plaintiff was so inconsistent with an assignment as to imply that they had rescinded the assignment is not supported by the record.

Having decided that CSC did not validly exercise the option to renew, we must next determine whether that option was validly exercised by plaintiff. The December 21, 1979, letter purporting to exercise the option to renew reads as follows:

“[T]he undersigned is hereby electing to exercise its option to renew the lease ***.
Yours truly,
CSC, Incorporated
By: [Signature]
Executive Vice President
By: [Signature]
Virgil L. Cole.”

We do not believe that this letter constituted a valid exercise by plaintiff of the option to renew. The statement in the letter that the undersigned was exercising its option clearly did not refer to plaintiff. The letter is ostensibly signed by CSC, and the fact that plaintiff’s signature appears following the word “By” suggests that plaintiff was signing on behalf of the corporation and not on his own behalf. Plaintiff’s explanation for the presence of both his signature and that of the executive vice-president is that he had not yet had an opportunity to inform defendants of the assignment. This explanation is clearly untenable. Since the December 21 letter represents the only attempt made by plaintiff to exercise the option to renew, we conclude that plaintiff never validly exercised that option.

Next, we must determine whether plaintiff’s exercise of the option to buy was valid. The provisions in the lease relating to this option state:

“16. As part of the consideration of this Lease, Lessee is hereby granted the right and option to purchase the demised premises *** together with the improvements thereon for a purchase price of $240,000.00 * * *. Such option may be exercised by Lessee at any time during a sixty (60) day period commencing on a date thirty (30) days before termination or expiration (regardless of whether for breach by Lessee, lapse of time or otherwise) of the term of this Lease and ending on a date thirty (30) days after such termination, it being agreed that this option shall survive any such termination or expiration and shall expire only if not exercised by Lessee within such sixty (60), day period. ***
For purposes of permitting Lessee to exercise this option, it is understood and agreed that, notwithstanding the printed provisions of this Lease, Lessee’s obligation to yield up possession upon termination shall be postponed for a period of thirty (30) days from and after any termination or expiration (for any reason as aforesaid) of the term hereof.
22. In reference to Paragraph 16, the notice to exercise the option to purchase shall be given by certified mail, return receipt requested, to the Lessor by the Lessee if the Lessee exercises said option.”

The letter in which plaintiff exercised the option to buy was mailed by plaintiff on May 13, 1980, by certified mail, return receipt requested. Although plaintiff never received the receipt, defendant John Ignatius testified that he received the letter on May 16. Plaintiff subsequently sent a copy of the letter, also by certified mail, return receipt requested. The receipt shows that defendants received this letter on May 31. We believe that defendants received appropriate notice as required under the lease, and defendants do not argue to the contrary.

Defendants do argue, however, that plaintiff’s exercise of the option to buy was invalid because the provisions allowing the option to be exercised within 30 days after the expiration of the lease was invalid for lack of mutuality. According to defendants, “During that period the lessor obviously could neither lease out the premises nor sell it to a third party, while the ex-lessee could in his sole discretion exercise or not exercise the option to purchase.” This contention lacks merit. It is not necessary that a contract be reciprocal in every separate obligation, and it is sufficient if it legally obligates both parties to abide by and perform its conditions. (Cox v. Grant (1978), 57 Ill. App. 3d 922, 925, 373 N.E.2d 820, 822.) Where an option to buy is an integral part of the lease, it is not subject to the objection that there is want of mutuality, for the agreement to pay rent or do other acts will support the option as well as the right to occupy under the lease, and binds the lessor notwithstanding the lessee is not bound to purchase. (Garlick v. Imgruet (1930), 340 Ill. 136, 146, 172 N.E. 164, 168; Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 552, 89 N.E.2d 392, 401.) We see no reason why these principles are any less applicable where, under the express terms of the lease, the lessee is permitted to exercise the option to buy within a limited period after the lease expires or otherwise terminates. The lease here specifically provides that the option to buy is part of the consideration for the lease and that the option shall survive the expiration or termination of the lease for the time specified. The parties were aware of the consequences of allowing plaintiff to exercise the option during the 30-day post-lease period, for the lease expressly provides that the lessee’s obligation to vacate the premises upon termination or expiration of the lease is postponed for the 30-day period. Where parties competent to contract enter into a contract fairly and understandingly, and the contract is made for a consideration and without fraud, courts will not concern themselves with the wisdom or folly of the contract. (Keogh v. Peck (1925), 316 Ill. 318, 324, 147 N.E. 266, 268.) Accordingly, plaintiff’s exercise of the option to buy following the termination of the lease cannot be invalidated on the ground that a portion of the option was not supported by consideration.

In addition, we do not believe that any breach of the lease on plaintiff’s part rendered plaintiff’s exercise of the option to buy invalid. While the lease required as a condition of exercising the option to renew or of exercising the option to buy under the renewal lease that the lessee not be in default, absence of default was not a prerequisite to exercising the option to buy under the original lease. In fact, under paragraph 16, the lessee could exercise the option to buy even if the lease was terminated due to a breach of the lease by the lessee. Moreover, defendants did not declare a forfeiture of the lease until the end of the trial, long after plaintiff had exercised the option to buy. Since plaintiff’s exercise of the option terminated the lease, defendants lost their right to declare a forfeiture of the lease. As the court in Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 554, 89 N.E.2d 392, 402, stated:

“Where the relation of landlord and tenant exists under the terms of a written lease, containing an option to purchase which the lessee exercises, he is no longer in possession as a tenant, but his possession is that of a vendee. [Citations.] *** The exercise of the option extinguishes the lease and terminates the relation of landlord and tenant. *** [T]he relation of vendor and vendee [is] created.”

Therefore, once plaintiff exercised his option to buy, he was no longer obligated to fulfill his obligations under the lease, and he could not thereafter be found in default of the lease.

We conclude that plaintiff’s exercise of his option to buy was valid in all respects. As assignee of the lease containing the option, plaintiff had the right to exercise the option. The option was exercised in the time and manner required under the lease and was for the requisite amount of $240,000. Plaintiff’s exercise of the option extinguished the lease and created a contract for the sale of the property. Plaintiff is entitled to have this contract specifically enforced.

In reaching this conclusion, we reject defendant’s contention that plaintiff’s right to specific performance should be denied on the basis of fraud. Defendants alleged fraud as an affirmative defense in their answer, and in their brief and at oral argument they suggested that plaintiff was guilty of fraud, sharp practices and secrecy. Fraud, however, is never presumed, and facts constituting fraud must be clearly and explicitly alleged. (Bridge v. Newridge Chemical Co. (1967), 88 Ill App. 2d 337, 342, 232 N.E.2d 551, 554.) Proof of each element in an action for fraud must be clear and convincing (National Republic Bank v. National Homes Construction Corp. (1978), 63 Ill. App. 3d 920, 924, 381 N.E.2d 15, 18), and the burden of proving fraud is on the party asserting it. (Lagen v. Lagen (1973), 14 Ill. App. 3d 74, 78, 302 N.E.2d 201, 204.) An essential element to be pleaded and proved is that the party was induced by fraud to act to his detriment. (Macaluso v. Jenkins (1981), 95 Ill. App. 3d 461, 469, 420 N.E.2d 251, 258; see Halla v. Chicago Title & Trust Co. (1952), 412 Ill. 39, 48, 104 N.E.2d 790, 795.) Here, even if we were to find that plaintiff’s conduct relating to the assignment and the attempt to exercise the option to renew was fraudulent, defendants’ affirmative defense of fraud must fail for they neither alleged nor proved any injury resulting from reliance on plaintiff’s actions. The only suggestion of injury is defendant John Ignatius’ testimony that as a result of receiving the letter purporting to exercise the option to renew:

“Well, I based my income with the tax — for tax purposes based on that letter of renewal, and I didn’t proceed looking for any other property to replace the income that might have been sold — Well, might have been taken away from me if the building had been — if I had not received this letter.”

In the absence of any allegations of injury in defendants’ answer and any evidence of injury other than this vague statement by Ignatius, we must conclude that defendants have failed to adequately plead and prove fraud.

While a contract for the sale of real estate will not be specifically enforced when it would be unjust and inequitable to do so, yet there is no injustice or oppression in compelling the seller to do what he agreed to do when he thought it was to his advantage. (Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 553, 89 N.E.2d 392, 401.) Where, as here, a contract is supported by consideration, made without fraud, and entered into fairly and understandingly between parties who are competent to contract, it should be enforced as a matter of right. See Cities Service Oil Co. v. Viering (1949), 404 Ill. 538, 553, 89 N.E.2d 392, 401.

Accordingly, the judgment is reversed, and this case is remanded to the trial court with directions to enter judgment in favor of plaintiff for specific performance of the contract formed when he exercised his option to buy and for any further proceedings consistent therewith.

Reversed and remanded with directions.

McNAMARA, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE McBRIDE et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 81—373, 81—482 cons.
    Opinion filed April 5, 1983.

      Steven Clark and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and Joseph L. Ponsetto, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court;

Defendants, Willie McBride, Wayne Black and Rita Hughes, were convicted of robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 1) and home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 11) following a bench trial. Each defendant was sentenced to a term of six years imprisonment. In a consolidated appeal, the defendants challenge their convictions, asserting the following: (1) the trial court mistakenly granted the State’s motion to reinstate the case against McBride after the State’s appeal of an order quashing McBride’s arrest and suppressing her statement was dismissed and prior to the issuance of this court’s mandate; (2) the trial court erroneously admitted a photocopy of Hughes’ statement into evidence; and (3) the State failed to present sufficient corroborative evidence linking defendants to the crime in spite of the statements.

According to the trial testimony of the complaining witness, Victor Ristich, the defendants broke into his house and took some money. Ristich stated that at about 11 a.m. on June 9, 1980, he and his wife were in their home at 2423 West Pensacola in Chicago watching television in the front area of the house. Ristich heard someone call out the name of the woman who lived in the upstairs apartment. Suddenly, a man came in from the kitchen area of the Ristich house and put a sack over Ristich’s head and dragged him into a bedroom. While in the bedroom, Ristich heard a female voice say: “Put the pillow on his face and keep him quiet.” Ristich later identified the voice as that of Willie McBride who had worked for the Ristichs as a nurse’s aid and housekeeper for nearly a year until one week before the incident. During a preliminary investigation of the crime, Willie McBride’s name was given to police by the victims. The police obtained McBride’s address from the employment service that had placed McBride with the Ristichs. The police proceeded to McBride’s address without a warrant and arrested her and the four other people in the apartment at the time.

The other individuals arrested with McBride were released. McBride signed a statement which detailed the crime and implicated Hughes and Black. Hughes was arrested on June 12, 1980, and Black surrendered to police when he heard they were looking for him.

Each defendant filed pretrial motions to quash the arrests and to suppress the statements. The trial court heard each defendant’s motion separately. During the early stages of the supression hearing on behalf of McBride, the assistant State’s Attorney, responding to a question by defense counsel, suggested that the suppression of McBride’s statement would be a moot issue if her arrest was quashed. The trial court subsequently granted McBride’s motion.

The State filed a notice of appeal challenging the trial court’s order which sustained defendant’s “Motion to Quash Arrest and Suppress Evidence.” The State later filed a motion to dismiss its appeal of that order which was granted. Prior to the issuance of this court’s mandate, the State filed a motion in the trial court requesting that the case against McBride be reinstated and that the trial court entertain a motion regarding the issue of attenuation. The trial court granted the State’s motion and, following a hearing, ruled that the illegality of McBride’s arrest was attenuated and that her statement was admissible. The motions to quash the arrests and suppress the statements of Hughes and Black were subsequently denied.

During the suppression hearings for Hughes and Black, Officer Richard Cauble of the Chicago police department testified on behalf of the State that he was involved in the interrogation of all three defendants and was present while their statements were taken. McBride and Hughes claimed that they were coerced into signing the statements, while Black said that he did not make a statement to the police. However, Officer Cauble testified that McBride explained that she had attempted to rob the Ristichs earlier in the day on Friday, June 8, 1980, but was interrupted by a neighbor. On Friday evening, McBride discussed with Hughes, Black and Ann Davenport a plan for them to rob the Ristichs the following day. The following day all four took the el to Wilson Avenue and then a cab to the Ristichs’ house on Pensacola Street. Ann cut the back screen door and called out the name of “Angie,” who lived upstairs. As they broke in, Black struggled with Mr. Ristich, dragging him into a bedroom. Mrs. Ristich told them there was money in a tool box in another bedroom. After they took the money and left, Ann suggested that they take the tool box to an apartment in the area and split the money. The statements of Hughes and Black were, according to Officer Cauble, substantially the same as that given by McBride.

During the bench trial which followed, defendants offered alibi testimony to show that they were not at the Ristichs’ house on June 9, 1980. The testimony on behalf of the State was essentially the same as that offered at the suppression hearings. Following argument, the trial court took the matter under advisement, subsequently finding each defendant guilty of robbery and home invasion.

I

Defendants first argue that the trial court erred when it entertained the State’s motion to reinstate the case against McBride and to hear the issue of attenuation. According to McBride, the circuit court did not have jurisdiction to entertain the State’s motion before this court issued its mandate. The State contends that the trial court could entertain its motion since this court had already dismissed its appeal and the issue on appeal was different than that asserted in the motion on attenuation. The State argues that “the court, rather than delay the trial further, was acting in a quasi nunc pro tunc manner, which should not be challenged.” We cannot agree.

“It is a basic rule of law in Illinois that with few exceptions *** the proper filing of a notice of appeal causes the jurisdiction of the reviewing court to attach instanter and concomitantly deprives the trial court of jurisdiction of the cause. *** It is equally well established that a reviewing court retains jurisdiction of the cause until it issues its mandate ***.” (People v. Baker (1980), 85 Ill. App. 3d 661, 662, 406 N.E.2d 1152; People v. Circella (1972), 6 Ill. App. 3d 214, 216, 285 N.E.2d 254 (where the court found that the trial court acted improperly by authorizing the State’s motion to withdraw an appeal of an order quashing a search warrant and reinstating the original charges).) The filing of a notice of appeal is a jurisdictional step, and the only actions the trial court may take in the matter subsequent to the notice of appeal being filed are purely ministerial. (People v. Circella (1972), 6 Ill. App. 3d 214, 216.) Following a ruling on a pretrial motion, the State is authorized to perfect an interlocutory appeal within 30 days. (87 Ill. 2d Rules 604(a), 606; see People v. Wagner (1981), 100 Ill. App. 3d 1051, 1053, 427 N.E.2d 985, appeal denied (1982), 88 Ill. 2d 554.) However, the State’s failure to appeal within the time limit or its abandonment of such an appeal, constitutes a bar to further consideration of the propriety of the trial court’s ruling by another judge of that court in a later proceeding. (People v. Circella (1972), 6 Ill. App. 3d 214, 216.) Within the 30-day period, the remedy of appeal is not exclusive nor will it preclude a petition for reconsideration prior to filing a notice of appeal. (People v. Wagner (1981), 100 Ill. App. 3d 1051, 1053.) If the State chooses to appeal the order and then abandons that remedy, it is collaterally estopped from reinstating that issue. Cf. People v. Taylor (1972), 50 Ill. 2d 136, 140, 277 N.E.2d 878.

The State argues that a new issue (that of attenuation) was raised by its motion to reinstate the case against McBride. According to the State, the only issue raised by its abandoned appeal was the appropriateness of the trial court’s action of quashing McBride’s arrest and not the admissibility of McBride’s statement. However, the State admitted in its brief and at oral argument before this court that it was erroneous for the assistant State’s Attorney to have suggested that the issue of admissibility of McBride’s statement would be moot if her arrest were quashed. The State urges this court to look beyond the State’s error and to recognize that the issue which was appealed was not being reconsidered but that a previously undecided issue was being presented by its motion. We cannot agree. The State was bound by the posture it took at the suppression hearing regarding McBride’s statement. When the trial court ordered the statement suppressed, the State chose to appeal that order. And, the notice of appeal stated the appeal was from the trial court’s order allowing defendant McBride’s motion to quash the arrest and suppress evidence.

In the case at hand, the original appeal to this court was perfected on March 19, 1980, by filing its notice of appeal pursuant to Supreme Court Rule 606(a) (87 Ill. 2d R. 606(a)). The trial court lost jurisdiction on that date. It did not re-acquire jurisdiction, as discussed above, until the mandate was issued on July 28, 1980. Thus, the trial court had no jurisdiction to reinstate the case on May 30, 1980.

The State abandoned the prosecution of its appeal and is now precluded from reconsideration of those issues determined which, in this case, included the admissibility of McBride’s statement. Even if there were facts in this case to show that the illegality of the arrest was attenuated (see Brown v. Illinois (1975), 422 U.S. 590, 600, 45 L. Ed. 2d 416, 425, 95 S. Ct. 2254, 2260; People v. Townes (1982), 91 Ill. 2d 32, 39, 435 N.E.2d 103, cert. denied (1982), 459 U.S. 878, 74 L. Ed. 2d 143, 103 S. Ct. 174), it would be inappropriate for us to address the issue of attenuation in light of our disposition of this matter. The circuit court did not have jurisdiction to consider the State’s motion prior to the issuance of the appellate court’s mandate. The reinstatement of the case against McBride was erroneous and the conviction must be reversed and the case remanded as to McBride.

II

Defendants Hughes and Black, along with McBride, argue that their convictions must be reversed in spite of the statements they allegedly made to police because the State failed to offer sufficient corroborative evidence linking them to the crime. “The corroboration rule requires that the corpus delicti be proved by some evidence aliunde admission of a defendant.” (People v. Dalton (1982), 91 Ill. 2d 22, 29, 434 N.E.2d 1127.) The corpus delicti need not be proved beyond a reasonable doubt by evidence independent of the confession but the evidence taken as a whole must show that a crime was committed and that the accused committed it. (People v. Willingham (1982), 89 Ill. 2d 352, 359, 432 N.E.2d 861.) Once independent evidence establishes the fact that a crime did occur, there is no reason to ignore a confession when considering whether the corpus delicti has been established.

Here, defendants made statements to the police admitting involvement in the crime. Hughes claims to have been coerced into signing the statement and Black contends that he never made a statement and that he refused to sign a confession when asked to do so by police. Following a suppression hearing, it was determined that the statements were admissible against Hughes and Black. The State proved, through the testimony of the victim of the crime and the investigating police officers, that the crime did occur. Such independent evidence corroborated the facts contained in the statements and established the corpus delicti. People v. Willingham (1982), 89 Ill. 2d 352, 359, 432 N.E.2d 861.

III

Defendants contend that the trial court erred by admitting a copy of Hughes’ statement without adequate explanation for the absence of the original. It is undisputed that an original of Hughes’ statement did exist and that it was unavailable for trial. The testimony was that the copies fairly and accurately reflected the original. The trial court was satisfied that the copy was authentic and that a diligent effort to locate the original was made. We agree. (See People v. Bowman (1981), 95 Ill. App. 3d 1137, 420 N.E.2d 1085.) We are satisfied from the record that the trial court’s decision was not erroneous.

IV

Defendants further argue that the evidence as a whole reveals conflicts between the statements and the testimony of the State’s witnesses. However, our review of the record reveals that any alleged discrepancies between the confessions and the independent evidence are minor and do not create inconsistencies requiring reversal of defendants’ convictions. From our review of the record, we are satisfied that the evidence established defendants’ guilt beyond a reasonable doubt.

For the reasons herein stated, the trial court’s decision to reinstate the case against Willie McBride is reversed and the cause is remanded for proceedings consistent with the views expressed herein. The convictions of defendants Hughes and Black are affirmed.

The judgment of the circuit court of Cook County is affirmed in part and reversed and remanded in part.

STAMOS and HARTMAN, JJ., concur.

      McBride filed one motion entitled, “Petition to Suppress Evidence.” By this petition, McBride claimed to have been illegally arrested and detained and that the statement she signed was the “fruit” of that unlawful detention and should be suppressed.

      The State’s motion was entitled, “Motion to Re-Instate Case on Trial and Petition for Rehearing on Attenuation.” Although we recognize that a confession or statement obtained as a result of an illegal arrest may be so “attenuated” by intervening events that it is removed from the tainted fruit doctrine and is thereby admissible (People v. Martin (1966), 240 Cal. App. 2d 653, 657-58, 49 Cal. Rptr. 888, 891), our research has not uncovered the common use or recognition in Illinois of a “Motion of Attenuation.”

      The following chronology occurred in this case:
      1. January 11,1980: defendant McBride filed motion to quash;
      2. February 19,1980: trial court granted McBride’s motion;
      3. March 19, 1980: State filed notice of appeal;
      4. May 27,1980: State’s motion to dismiss appeal granted;
      5. May 30, 1980: State moves trial court to reinstate the case against McBride and hear the issue of attenuation;
      6. July 28, 1980: mandate of the appellate court dismissing State’s appeal of motion to quash issued.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL CARRADINE, Defendant-Appellant.
    First District (5th Division)
    No. 81—1131
    Opinion filed April 8, 1983.

      Joseph A. Ettinger and Rick M. Schoenfield, both of Ettinger & Schoenfield, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Shapiro, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8 — 4, 9 — 1), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4) and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 2, 12 — 4(b)(1)) and sentenced to a six-year term for attempted murder, and a three-year-consecutive sentence for armed violence in the Illinois Department of Corrections.

Defendant appeals, alleging prejudicial error in (1) his impeachment as a witness by cross-examination regarding his prior arrests, (2) the trial court’s misstatement of law concerning the credibility of a witness, and (3) the trial court’s denial of a defense motion to reopen its case in chief to present a witness.

The following pertinent evidence was adduced at trial.

Steven Davis testified for the State that on the evening of September 5, 1980, he went to the Garage Disco on 66th Street and King Drive in Chicago, Illinois, and was dancing with Tyesha Martin when defendant bumped into him and walked in between them. An exchange of words followed, and when Martin asked the two men to “cool all this out,” Davis walked away. Subsequently, defendant approached Davis in the washroom and stated that he had a “violation” against him which Davis stated was a street term meaning “that I had something coming to me.”

Davis further testified that he had seen and talked to his girlfriend, Kumar Spencer, in the disco, and decided to leave with her at about 1:25 a.m. As he left the building, he encountered defendant who again said that he had a “violation” against him, and, as they started to argue, a security guard for the disco told them to move across the street. They proceeded to cross the street onto a small embankment in a parking lot where a fist fight ensued. Defendant pulled a pearly white object out of his pocket, swung at him, and ran across the street where he was grabbed by the security guards. Davis noticed his jacket had been ripped and then saw his intestines were hanging out of his abdomen. He screamed, “I've been cut, I'm stabbed,” and he went back across the street to the disco seeking help. He was taken to the emergency room of Billings Hospital where he underwent surgery, remained hospitalized for four days, and subsequently received treatment for approximately a month following his injury.

Tyesha Martin testified for the defense that she went to the disco that evening with defendant’s sister, Rene Carradine, and danced with both defendant and Davis. As she first danced with defendant, Davis interrupted and asked her where defendant’s sister was. After she responded, defendant told Davis that it was not polite to interrupt their dance. Davis retorted that he was not talking to him but to the young lady, and left. Later on in the evening, defendant came up behind Davis as he was dancing with her, and briefly argued with him until Martin asked them to stop and Davis walked away.

Defendant testified on his own behalf that he went to the disco with Charles and Daniel Hilson, and as was customary, they were searched by security guards before being allowed to enter the building. The search was a full pat down body search and the guards found nothing on them. Once inside, he argued with Davis when he interrupted his dance with Tyesha Martin, but denied that any argument between them occurred in the bathroom.

He further testified that subsequent to his dance with Martin, various young men approached him several times to ask him what gang he was in, and when he told them he was not in a gang they indicated by gesture that they were with the Disciples street gang.

Defendant explained that he decided to leave after being approached by the Disciples, and walked outside the disco with Charles Hilson to wait for his sister who was to join them on their return home. While Hilson and several other young men gathered around them, Davis came outside the disco and defendant began to argue with him. Both men accused each other of having a “violation” and they crossed the street to continue the argument with most of the other 15 to 20 young men following them.

Defendant further testified that he pushed Davis down and ran from the group that was on the hill back to the disco to seek protection from Davis and the crowd, and that he did not stab Davis.

On direct examination, defendant testified that he spoke with a State’s Attorney at the police station who asked him, inter alia, what his address was “and have I ever been locked up before. I said no.”

On re-cross-examination the following colloquy ensued:

“STATE’S ATTORNEY: Mr. Carradine, you say when you talked to the State’s Attorney you tried to answer his questions truthfully, didn’t you?
DEFENDANT: I did answer them truthfully.
STATE’S ATTORNEY: And you say one of the things he asked you was if you were ever locked up before, right?
DEFENDANT: Yes.
STATE’S ATTORNEY: And you told him no. Is that what you told the State’s Attorney as to whether you had been locked up before? Did you tell him no, Mr. Davis? Mr. Carradine?
DEFENDANT: I think so.
STATE’S ATTORNEY: But that’s not true, is it? Mr. Carradine?
DEFENDANT: No.
STATE’S ATTORNEY: As a matter of fact, Mr. Carradine, you have been locked up more than once before, haven’t you?
* * *
[Y]ou got locked up on the 23d of January for battery, didn’t you? You remember that, don’t you?
DEFENDANT: Yes.
STATE’S ATTORNEY: And you remember on the 10th of July, 1980, when they locked you up for burglary. Do you remember that one?
DEFENDANT: Burglary?
STATE’S ATTORNEY: Yes.
DEFENDANT: Yes.
STATE’S ATTORNEY: Do you remember the 18th of July, ’80 just eight days after that one when they locked you up for rape?
DEFENDANT: Yes.
STATE’S ATTORNEY: But those things slipped your mind when you talked to the State’s Attorney when you were truthful with them? You just forgot about it, right.
No, I didn’t forget about it.” DEFENDANT:

The defense attorney attempted to rehabilitate the defendant by questioning him regarding his prior arrests but the trial court refused to allow testimony concerning any prior arrests, trials, or convictions, although defendant had not been tried or convicted for the prior arrests.

During this time the trial court made the following statement in the presence of the jury: “For the fourth time, the question was, was he ever locked up, it’s not for the jury to determine the credibility of this witness, not the charges on what he was charged with [sic].”

The defense moved to re-open its case in chief after the State rested because it had found a new witness. The trial court denied this defense motion.

During the State’s closing argument, the prosecution referred to the defendant’s comment about having been “locked up.” “Now, [the public defender] said, you can look in that man’s face and see that he is telling the truth; but aside from looking in his face remember the answer that he gave about what he told the State’s Attorney — it was a State’s Attorney in the police station that apparently asked him have you ever been locked up before — that he volunteered when his attorney was questioning him. Now I said, you’re honest with everything that you told the State’s Attorney? He said, yes, I was. I said, were you honest with the State’s Attorney when you told him you haven’t been locked up before? He said, yes. Did you tell the State’s Attorney about being locked up for battery? No. That wasn’t honest, was it? No. Did you tell the State’s Attorney about being locked up for burglary? No. That wasn’t honest, was it? No. And did you forget also to tell the State’s Attorney when you were locked up for rape? Yes, I forgot that, too. He told you on the stand he wasn’t honest with the State’s Attorney and I will tell you right now he has not been honest with you.”

The jury subsequently found defendant guilty of attempted murder, aggravated battery, and armed violence. Following a hearing, the trial court sentenced defendant to six years for attempted murder and three years for armed violence to run concurrently. The aggravated battery counts merged into the attempted murder charge for sentencing.

Opinion

Defendant first argues that prejudicial error occurred in his impeachment as a witness by cross-examination regarding his prior arrests. Although the State contends that defendant has waived any claim of error by failing to object at trial, we find that we have ample authority under Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)) to consider substantial rights even though not properly preserved at trial.

Generally, evidence that a defendant has committed an offense which is separate and distinct from the offense for which he is being tried is not admissible because of its prejudicial effect (People v. Turner (1979), 78 Ill. App. 3d 82, 396 N.E.2d 1139) as no question is more damaging to a defendant with a jury than one that suggests or intimates that he is a criminal or has been charged with criminal offenses. (People v. Harges (1967), 87 Ill. App. 2d 376, 231 N.E.2d 650.) Thus, proof of a prior conviction is inadmissible unless relevant to show motive, intent, identity, absence of mistake or modus operandi (People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056) and the trial court must balance its relevance against its tendency to inflame and prejudice the jury. People v. Olson (1981), 96 Ill. App. 3d 193, 420 N.E.2d 1161.

In People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, our supreme court established further guidelines to the general rule and held that only convictions of crimes punishable by sentences of more than one year, or involving dishonesty or false statement may be admitted, and only if the conviction or release of the testifying witness, whichever occurred later, was less than 10 years prior to the testimony. People v. Montgomery (1971), 47 Ill. 2d 510, 516, 268 N.E.2d 695, 698-99.

The rules relating to impeachment of witnesses are the same where it is the accused who testifies (People v. Gilmore (1969), 118 Ill. App. 2d 100, 254 N.E.2d 590, cert. denied (1970), 400 U.S. 845, 27 L. Ed. 2d 81, 91 S. Ct. 89), although, of course, the danger of unfair prejudice increases where the conviction relates more closely to the accused (People v. Brown (1978), 61 Ill. App. 3d 180, 377 N.E.2d 1201) due to the possibility that the jury will convict a defendant because it appears that he is of bad character and therefore probably committed the crime, rather than because of the evidence of his guilt or innocence in the case on trial. People v. Hall (1982), 104 Ill. App. 3d 1064, 433 N.E.2d 1039.

However, it is also clear that a prosecutor may cross-examine regarding any other convictions when a witness himself has “opened the door” by testifying on direct examination regarding some aspect of his criminal record (People v. Brown (1978), 61 Ill. App. 3d 180, 377 N.E.2d 1201), and, where a witness affirmatively states that he has never been arrested, there is some authority to indicate that the prosecutor may then cross-examine regarding any prior arrests. Peo ple v. Johnson (1976), 42 Ill. App. 3d 194, 198, 355 N.E.2d 577, 579.

In the present case, however, defendant’s sole reference to his past criminal record was that a State’s Attorney asked him at the police station if he had ever been “locked up” before and he responded “no.” Even assuming, arguendo, that proper cross-examination followed, the use of the phrase “locked up” during both cross-examination and closing argument connotes a conviction, which might serve to alter the jury’s perception of the defendant and which is ambiguous at best.

Thus, we find that use of the ambiguous phrase “locked up” for impeachment purposes, coupled 'with the trial court’s failure to allow defendant to explain the circumstances of the arrests and their dispositions, or to give a limiting instruction to the jury regarding the limited relevance of such evidence, far outweighed the probative value of such evidence. (See also People v. Hudson (1972), 7 Ill. App. 3d 333, 287 N.E.2d 297.) As a result, defendant was denied the right to choose to explain the circumstances and disposition of the arrests to the jury in order to remedy the danger of prejudice. Accordingly, we hold that the trial court’s refusal to permit the defense to present such evidence was plain error.

As to the other alleged errors concerning the trial court’s misstatement of law, and the denial of the defense motion to re-open its case to present a witness, we note that these issues are not likely to occur again at retrial and we do not consider them here.

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

Reversed and remanded.

SULLIVAN and MEJDA, JJ., concur.


author: JUSTICE MEJDA

text:
    GRANT, SCHON, WISE & GRANT, P.C., Plaintiff-Appellee, v. R. W. BORROWDALE CO., Defendant-Appellant.
    First District (5th Division)
    No. 81—2128
    Opinion filed April 8, 1983.
    William J. Harte, Ltd., and Richard J. Predergast, Ltd., both of Chicago, for appellant.
    Gary P. Flanagan, of Blatt, Hasenmiller & Komar, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff filed a petition for registration of a Michigan judgment entered in its favor against defendant R. W. Borrowdale Co. (Ill. Rev. Stat. 1981, ch. 77, par. 88 et seq., now codified as Ill. Rev. Stat. 1981, ch. 110, par. 12 — 601 et seq.) Defendant filed an answer and a motion for summary judgment. The motion for summary judgment was denied. On July 24, 1981, the circuit court entered an order in favor of plaintiff sustaining the registration. Defendant appeals.

The issue presented is whether the Illinois court erred in denying defendant an evidentiary hearing on its defense that the judgment was void because its due process rights were denied by the Michigan court in denying its requested continuance. We affirm.

The pertinent facts are not in dispute. Plaintiff on September 29, 1978, filed a complaint for legal fees against defendant in the Michigan District Court, 46th Judicial District, and summons was duly served. A default for failure to answer was entered on November 30, 1978, and a notice thereof mailed to defendant on December 8, 1978. A notice was mailed on January 26, 1979, stating that the case was set for hearing on March 5, 1979. On March 2, 1979, an Illinois attorney wrote a letter to the Michigan judge requesting a continuance, advising that R. W. Borrowdale, Sr., president of defendant, was unable to travel within the next 90 days and that no other officer or employee had knowledge of the facts in the pending cause. A doctor’s letter was attached. A mailgram from defendant was sent on March 2, 1979, similarly advising that Mr. Borrowdale, “scheduled to appear pro se,” was in a hospital with a fractured leg, that he was unable to appear for 60 to 90 days, and that a physician’s statement would follow. On March 9, 1979, a superseding notice was mailed notifying defendant of a hearing on June 4, 1979, on which date plaintiff’s testimony was taken. On June 6, 1979, the Michigan court received a mailgram dated June 5, 1979, addressed to it by Mr. Borrowdale. This mailgram again requested a continuance due to Mr. Borrowdale’s fractured leg, stating that his doctor estimated that it would be another 90 days before he could travel. On June 13, 1979, the court received a motion to vacate the “Ex Parte Default Judgment entered herein on March 5, 1979” verified by Mr. Borrowdale, stating that he would yet be unable to travel for at least 90 days from May 25, 1979, due to his injuries and also stating that “Defendant has a good and valid defense to this cause of action.” On June 14, 1979, the motion to vacate was denied and a default judgment then entered against defendant corporation for $5,500 plus interest from January 1,1974, and costs of $40.29.

On February 27, 1980, a petition to register the Michigan judgment was filed in the circuit court. Defendant filed its answers and a motion for summary judgment alleging that the Michigan judgment was void, fundamentally unfair, and a violation of due process of law in that the injury and incapacity of Mr. Borrowdale was made known to the Michigan court by correspondence and mailgrams and that judgment was rendered against defendant without representation by counsel or its representative, Mr. Borrowdale. Plaintiff filed a response. An order was entered for a briefing schedule and a hearing thereon set for July 24, 1981. The order stated that there was no issue as to the Michigan court’s jurisdiction of the parties and of the subject matter, which was stipulated. Memoranda were filed, defendant’s memorandum requesting a “brief oral argument.” On July 24, 1981, after oral argument and without taking evidence, the court ordered registration of the foreign judgment, with judgment in favor of plaintiff and against defendant for $7,768.39 and costs. Defendant appeals from that order.

Opinion

Defendant contends that the Illinois court erred in denying defendant an evidentiary hearing as to whether defendant was denied due process of law by the Michigan court’s denial of its request for a continuance. Defendant argues that where due process is denied in the rendering State, regardless of the context in which the denial took place, the foreign judgment has no claim to full faith and credit in the second State. Defendant therefore concludes that the denial of the requested continuance was a denial of due process which rendered the Michigan judgment constitutionally defective and void.

In Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 364 N.E.2d 926, cert. denied (1978), 435 U.S. 968, 56 L. Ed. 2d 59, 98 S. Ct. 1605, the court stated:

“Article IV, section 1 of the United States Constitution *** commonly known as ‘the Full-Faith-and — Credit Clause,’ is intended to establish as constitutional law the principles embodied in the common law doctrine of res judicata: that a lawsuit, once pursued to judgment, should be as conclusive of the rights of the parties in every other court as it is in the court where the judgment was rendered. (Riley v. New York Trust Co. (1942), 315 U.S. 343, 349, 86 L. Ed. 885, 62 S. Ct. 608; Durfee v. Duke (1963), 375 U.S. 106, 109, 11 L. Ed. 2d 186, 84 S. Ct. 242.) Illinois adopted the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1975, ch. 77, par. 88 et seq.) to facilitate the enforcement of judgments across State lines. (Light v. Light (1958), 12 Ill. 2d 502, 505, 147 N.E.2d 34.)” (49 Ill. App. 3d 247, 250, 364 N.E.2d 926, 928.)

Just as the doctrine of res judicata bars parties from relitigating a cause of action in the same State, the constitutional provisions bars them from relitigating the cause of action in a different State. Finley v. Kesling (1982), 105 Ill. App. 3d 1, 433 N.E.2d 1112.

When asked to register a foreign judgment, the forum court may constitutionally inquire into the proceedings of the sister State to determine whether such court had jurisdiction of the subject matter and of the parties. If this inquiry reveals an error which (1) renders the foreign judgment void according to the law of the foreign State, or (2) deprives the foreign court of jurisdiction over the contesting party according to the general constitutional principles of due process, the foreign judgment has no constitutional claim to full faith and credit. (Evans v. Advance Schools, Inc. (1979), 70 Ill. App. 3d 947, 388 N.E.2d 1003; citing Kolman v. National Racing Affiliates, Inc. (1965), 64 Ill. App. 2d 61, 212 N.E.2d 313.) In the instant case, defendant has stipulated that the Michigan court had jurisdiction of the parties and of the subject matter. Nonetheless, defendant contends that the Michigan judgment is unconstitutionally defective and void because the denial there of a continuance violated its due process rights.

Defendant relies on Riverside & Dan River Cotton Mills v. Menefee (1915), 237 U.S. 189, 59 L. Ed. 910, 35 S. Ct. 579, VanDyke v. Illinois Commercial Men’s Association (1934), 358 Ill. 458, 193 N.E. 490, Kolman v. National Racing Affiliates, Inc., and Evans v. Advance Schools, Inc. for the proposition that a judgment rendered without due process of law is not entitled to the benefits of the full-faith-and-credit clause. However, those cases are not in point. In each of the cases cited, the due process issue was whether the judgment was void for want of jurisdiction of the defendant. (See Baker v. Brown (1939), 372 Ill. 336, 23 N.E.2d 710.) Unlike the instant case, none involved nonjurisdictional errors or defects where jurisdiction as to the parties and subject matter was stipulated or not an issue.

Due process has been defined as an orderly proceeding with notice and an opportunity to be heard. It is not a guarantee against erroneous or unjust decisions by a court which has jurisdiction of the parties and subject matter, and a constitutional question is not presented where a court may have misconstrued the law or committed an error for which its judgment should be reversed. (Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282.) Due process is not denied when a party fails to avail himself of the opportunity to be heard after it is offered to him. (First Lien Co. v. Markle (1964), 31 Ill. 2d 431, 202 N.E.2d 26.) It is not a guarantee that the opportunity to be heard will be conducted entirely free from error, but rather provides a procedure for review and correction of such errors as may occur. (Rhodes v. Anderson (1976), 39 Ill. App. 3d 208, 349 N.E.2d 113.) The granting or refusal of a continuance rests in the discretion of the court to which application is made. Peoples Gas Light & Coke Co. v. Buckles (1962), 24 Ill. 2d 520, 182 N.E.2d 169; Chicago Land Clearance Com. v. Darrow (1957), 12 Ill. 2d 365, 146 N.E.2d 1; Economy Fire & Casualty Co. v. Warren (1979), 71 Ill. App. 3d 625, 390 N.E.2d 361.

Defendant’s argument regarding the denial of due process fails because the exercise of discretion in the allowance or denial of a motion for continuance does not involve due process. (Benton v. Marr (1936), 364 Ill. 628, 5 N.E.2d 466; City of Chicago v. Southgate Corp. (1980), 86 Ill. App. 3d 56, 407 N.E.2d 881; Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.) While a continuance clearly required by the ends of justice may be considered a denial of due process in the constitutional sense, it has instead been held to be an abuse of discretion warranting reversal on direct appeal. (See Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 227 N.E.2d 754.) Where a judgment is challenged on the grounds that its enforcement will deprive the person of some constitutional right, such as due process, no constitutional question is involved and the question is simply the validity of the judgment. Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282.

The denial of a continuance, however erroneous, even if it is an abuse of discretion or a denial of due process, does not necessarily render the judgment void. Although palpably wrong, these are matters for direct relief and “cannot be pleaded against the record collaterally, for to say that a court is divested of its jurisdiction to decide matters properly brought before it by deciding them erroneously, is to deny the very power it is called upon to exercise.” (Baker v. Brown (1939), 372 Ill. 336, 341, 23 N.E.2d 710, 713; 1 Freeman on Judgments sec. 357 (5th ed. 1925).) A court having jurisdiction has jurisdiction to decide erroneously as well as correctly. (La Salle National Bank v. County Board of School Trustees (1975), 61 Ill. 2d 524, 337 N.E.2d 19; Kazubowski.) Jurisdiction does not depend on the rightfulness of the decision and is not lost because of an erroneous decision, however erroneous it may be. Baker v. Brown; O’Brien v. People ex rel. Kellogg Switchboard & Supply Co. (1905), 216 Ill. 354, 75 N.E. 108.

Defendant’s reliance on Ann Arbor Bank v. Weber (1953), 338 Mich. 341, 61 N.W.2d 84, is also misplaced. There the defendant, a nonresident acting at all times through his attorney, filed an appearance and answer, and thereafter an answer verified by defendant to an order for discovery. The trial court struck defendant’s answer solely because defendant did not personally appear for discovery before a notary in Michigan as subpoenaed. On direct appeal by defendant, the default was reversed and the cause remanded for further proceedings. It was held that the Michigan court rules did not authorize the issuance of process enforceable outside Michigan and that such authority would conflict -with article II, section 12 of the Michigan State Constitution. Under that section, a defendant has the right “to prosecute or defend his suit, either in his own proper person or by an attorney or agent of his choice.” Although defendant here contends that Ann Arbor Bank is authority to hold the instant Michigan judgment void, that case does not so hold, nor is any authority cited nor found to support the contention. At most, it demonstrates that the error resulted in a voidable judgment which was binding upon the parties until set aside upon a direct challenge to its validity. No issue was there presented as to whether the judgment was void or subject to a collateral attack.

Although defendant stipulated that the Michigan court had jurisdiction of the parties and the subject matter, it contends that the denial of a continuance constituted a denial of due process “which affected the jurisdiction of the Michigan court to enter the judgment entered.” Defendant relies upon a statement in Thompson v. Safeway Enterprises, Inc. (1978), 67 Ill. App. 3d 914, 918, 385 N.E.2d 702, 706, which reads:

“Defendant does not contend that the Florida court's denial of a continuance amounts to fraud in procurement of the judgment or affects the jurisdiction of that court. Absent this type of allegation, we cannot review the denial of the continuance.”

Defendant argues that its allegations therefore allow a review of the denial of the continuance by the Michigan court. However, Thompson initially stated: “The judgment is not subject to collateral attack except for the defenses of fraud in the procurement of the judgment or lack of jurisdiction in the court rendering it.” (67 Ill. App. 3d 914, 916, 385 N.E.2d 702, 705.) The court further stated that a judgment debtor “is not permitted to raise defenses or setoffs, except for lack of jurisdiction and fraud in procurement of the judgment, that he could have advanced before the judgment became final.” 67 Ill. App. 3d 914, 918. 385 N.E.2d 702, 706.

Defendant has taken the statement in Thompson out of context. A full reading clearly indicates that the type' of allegation which affects the jurisdiction must show a complete lack of jurisdiction in the rendering court. No allegation has been made or could be made that the jurisdiction originally obtained was somehow lost or divested. The general rule is that the jurisdiction of a cause depends on the state of facts at the time the action is brought; after jurisdiction has once vested it cannot be divested by subsequent events. (Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 235 N.E.2d 23, cert. denied (1969), 393 U.S. 1084, 21 L. Ed. 2d 776, 89 S. Ct. 867; Griffin v. Billberry (1971), 1 Ill. App. 3d 219, 273 N.E.2d 693.) The jurisdiction of a court over the subject matter and the parties, once fully attached in a case, continues until all the issues both of fact and law have been finally determined. (Whitley v. Lutheran Hospital (1979), 73 Ill. App. 3d 763, 392 N.E.2d 729; Kovac v. Kovac (1960), 26 Ill. App. 2d 29, 167 N.E.2d 281.) Such jurisdiction is not lost by an erroneous decision or erroneous proceedings. The Michigan court’s authority was not lost or divested by the denial of a continuance.

In the absence of fraud in the procurement of the judgment, jurisdiction of the parties and of the subject matter having been stipulated and vested, defendant’s defense is a collateral attack on the Michigan judgment. It cannot be maintained in a proceeding to register a foreign judgment. Therefore, there was no error in the failure of the forum court to hold an evidentiary hearing on defendant’s defense.

Accordingly, the judgment sustaining registration of the Michigan judgment is affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.