author: JUSTICE RIZZI

text:
    STANLEY G. BORYS et al., Plaintiffs-Appellants, v. JOSADA BUILDERS, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—760
    Opinion filed October 27, 1982.

      Werner E. Hintz, of Chicago, for appellants.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann, Howard A. London, and William Woloshin, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiffs, Stanley G. Borys and Paul Raymond Olson, each entered into an agreement with defendants, Josada Builders, Inc., and American National Bank & Trust Company of Chicago, as trustee under Trust No. 43847, for the purchase of a new construction condominium unit. Plaintiffs subsequently brought suit to have the agreements rescinded and their earnest money returned. Defendants’ motion to dismiss the complaint for failure to state a cause of action was granted, as was a similar motion made in regard to the first amended complaint. On appeal plaintiffs contend that (1) they alleged a valid cause of action under section 22 of the Condominium Property Act; (2) they adequately alleged that the purchase agreements were not supported by consideration and (3) they are each entitled to a purchaser’s lien and an accounting. We affirm.

Plaintiffs entered into virtually identical agreements with defendants for the original purchase of condominium units in buildings being developed by defendants. Prior to closing, plaintiffs sent defendants a letter in which they gave notice that they were rescinding their agreements pursuant to section 22 of the Condominium Property Act and, alternatively, because defendants failed to give any consideration to support the contracts. Plaintiffs requested that their earnest money be returned. In response, defendants wrote plaintiffs that they were declaring a default on the contracts and, pursuant to the terms of the contracts, all sums paid by plaintiffs were forfeited to defendants as liquidated damages. Plaintiffs then filed the present action.

Plaintiffs first argue that their first amended complaint should not have been dismissed because they stated a valid cause of action under the Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, par. 301 et seq.) by alleging that defendants failed to comply with section 22 of the Act. This provision requires that where an initial sale or offering for a sale is made, the seller must make full disclosure of and provide copies to prospective buyers of certain information, including the declarations. (Ill. Rev. Stat. 1979, ch. 30, par. 322(a).) Section 22 further provides that if this information is not available at the time the contract for sale is executed, then the contract is voidable at the option of the buyer up until five days after the last item of required information is furnished to the prospective buyer, or until the closing of the sale, whichever is earlier. If a seller fails to make full disclosure as required by this section, then the buyer is entitled to rescind the contract and receive a refund of all deposit moneys paid plus interest. Ill. Rev. Stat. 1979, ch. 30, par. 322.

It is undisputed that defendants here provided plaintiffs with copies of the declaration as required by section 22. Rather, the dispute focuses on the following language in the declaration:

“Plat. The Plat of Survey of the Development Parcel and of all Units in the Property submitted to the provisions of the Act, which Plat is attached hereto as Exhibit B and by reference expressly incorporated herein and made a part hereof and recorded and filed concurrently with the Registration of this Declaration with the Cook County Registrar of Titles.” (Emphasis added.)

According to plaintiffs’ allegations, the plat was thereby made a part of the declaration, and since they never received copies of the plat, they were entitled to rescind their contracts under section 22. We disagree.

Initially, we note that section 22 does not require a seller to provide a prospective buyer with a plat of survey prior to or at the time the sales contract is executed. Moreover, we agree with defendants that the provision quoted above did not require that the plat be included in the declaration. The index to the declaration states: “Exhibit B — Plat of Survey (attached only to original Declaration filed with the Registrar of Titles of Cook County, Illinois).” Reading the document as a whole, it is clear that the declaration did not require defendants to provide plaintiffs with a copy of the plat as part of the declaration itself. Additionally, a handwritten addition to plaintiff Borys’ contract and a typewritten addition to plaintiff Olson’s contract state that defendants will give each plaintiff “a survey of the development and his unit as shown in the exhibit to the condominium declaration” at the time of closing. According to the affidavit of the president of defendant Josada Builders, at the time the contract was executed no plat of plaintiffs’ condominium units could be prepared because they were not yet under construction. The president further stated that the provision requiring defendants to give each plaintiff a copy of the survey at the closing was added at each plaintiff’s request. Since plaintiffs did not file counteraffidavits, these allegations must be taken as true. (Denton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 507, 396 N.E.2d 34, 43.) It is clear that plaintiffs were aware that the plat was not in-eluded in the declaration and that they agreed to wait until their closing to receive copies of the plat. Thus, the pleadings together with defendants’ uncontradicted affidavit show that defendants violated neither the letter nor the spirit of section 22, and plaintiffs’ cause of action as it relates to section 22 was therefore properly dismissed.

Next, plaintiffs argue that they adequately alleged that they were entitled to a return of their earnest money because their contracts were not supported by consideration. In their first amended complaint, plaintiffs alleged that the contracts were entirely optional as to defendants and that the contracts were therefore “illusory and lacking mutuality.” Defendants, in their motion to dismiss, alleged that they were obligated by the contract to sell plaintiffs condominium units and did not have an option not to perform.

Mutuality of obligation means that both parties to an agreement are bound or neither is bound. The presence or absence of mutuality must be determined by construing the language used by the parties in their contract. Mutuality of obligation may be implied as well as expressed. (Hillman v. Hodag Chemical Corp. (1968), 96 Ill. App. 2d 204, 207, 238 N.E.2d 145, 147.) Neither party is bound by an executory contract where mutuality of obligation is lacking because one of the parties has the right to arbitrarily terminate the contract. Gardiakos v. Vanguard Communications, Inc. (1976), 38 Ill. App. 3d 937, 939, 350 N.E.2d 210, 212.

Plaintiffs’ allegations that the contracts lacked mutuality are based on the following provision:

“DEFAULTS If the Buyer shall fail to make any payment herein provided for within five (5) days after such payment is due, or should fail or refuse to perform any other material obligation of the Buyer under the terms of this Contract and any supplemental agreements which may be made a part hereof, then at the option of Seller all sums theretofore paid shall be forfeited as liquidated damages and shall be paid to or retained by the Seller, or the Seller may elect any other available remedy. In the event the Seller shall fail or be unable to deliver title to the Unit Ownership as herein provided on account of title defects which Buyer is unwilling to accept, this Contract shall be terminated and all funds paid or deposited by the Buyer shall be returned forthwith to the Buyer, without interest. The liability of Seller shall be limited to the return of Buyer’s deposit.”

According to plaintiffs, neither this clause nor any other provision in the contract imposes an express obligation on defendants to obtain the quality of title required as a condition of sale. Therefore, plaintiffs argue, because defendants can control the quality of the title, and their liability if they fail to acquire adequate title is limited to funds paid or deposited by plaintiffs, to which plaintiffs would be legally entitled in any event, defendants are free to perform or not perform at will. We believe that these allegations are insufficient to withstand the motion to dismiss.

It is well established that every contract contains an implied promise of good faith and fair dealing between the contracting parties (Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 29, 421 N.E.2d 1375, 1380; Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 127, 392 N.E.2d 363, 369), and where an instrument is susceptible of two conflicting constructions, one which imputes bad faith to one of the parties and one which does not, the latter construction should be adopted. (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286, 154 N.E.2d 683, 690; Bonner v. Westbound Records, Inc. (1979), 76 Ill. App. 3d 736, 744, 748, 394 N.E.2d 1303, 1309, 1311.) The provisions of the contracts before us, when read as a whole and interpreted in light of this good faith requirement, establish mutuality of obligation.

The contracts specifically state that “Seller agrees to sell or cause to be sold the Unit Ownership [of the designated apartment unit plus common elements] to Buyer and Buyer agrees to purchase the Unit Ownership from Seller, on the terms and subject to the conditions herein contained.” In addition to this express promise to sell, the contract provides that the “Seller agrees to cause the Unit Ownership to be conveyed to Buyer” subject only to certain standard, enumerated exceptions such as real estate taxes, the declaration, and zoning ordinances. These clauses, when read in view of the entire contract and construed, as they must be, as requiring the parties to act in good faith, plainly refute plaintiffs’ allegations that defendants have the right to arbitrarily decide not to sell by not providing an adequately clear title. Although the contract does provide that “[n]o *** promises other than those specifically expressed herein whether oral, implied or otherwise, shall be considered a part of this transaction,” this general language cannot eliminate the implied promise to act in good faith which is an integral and necessary part of contract law. Defendants were clearly obligated, to obtain the quality of title required under the contract so that the sale could be consummated. (Compare Hunt v. Smith (1891), 139 Ill. 296, 28 N.E. 809.) Therefore, since it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiffs to relief (see Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 733, 394 N.E.2d 1283, 1289), the court did not err in granting defendants’ motion to dismiss the first amended complaint.

Since plaintiffs have failed to allege any facts which would entitle them to relief against defendants, we need not address plaintiffs’ arguments that they are entitled to the equitable remedies of a purchaser’s lien and an accounting.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE DOWNING STAMOS, P.J.,

license: Public Domain

text:
    THE PEOPLE ex rel. BEVERLY ASHFORD, Plaintiff-Appellant, v. WILLIAM ZIEMANN, Defendant-Appellee.
    First District (2nd Division)
    No. 81—858
    Opinion filed October 26, 1982.

      STAMOS, P.J., dissenting.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Nancy Kay Donnellan, and Barbara M. Wheeler, Assistant State’s Attorneys, of counsel), for the People.
    William P. O’Malley, of Chicago, for appellee.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff Beverly Ashford brought an action pursuant to the Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) to have defendant William Ziemann declared to be the father of her daughter, born September 5, 1978. Following a jury verdict of nonpaternity, plaintiff appeals, contending that: (1) the trial court erred in refusing to admit the daughter’s birth certificate into evidence; (2) the trial court should have excluded the testimony of one of the defense witnesses; (3) remarks made by defense counsel in closing argument were so prejudicial as to require reversal; and (4) the verdict was against the manifest weight of the evidence.

Plaintiff Beverly Ashford and defendant William Ziemann have known each other since 1965. Both parties agree that during the early years of their relationship they dated steadily and had sexual relations frequently. During the 1970’s the parties saw each other sporadically. Plaintiff had not seen defendant for some time when, on December 10, 1977, she and her roommate were walking down the street on their way to buy a Christmas tree and saw defendant coming out of an alley in his car. Plaintiff testified that defendant offered to help them get the tree but said that he had to go to work first. Defendant, a detective for the Chicago police department, said that he would take the two women home, check into work, and return to take them shopping later. Defendant came to plaintiff’s apartment that evening in an unmarked police car and took the two women to buy a tree. After bringing the tree back to plaintiff’s apartment, plaintiff and defendant went out for a drink and then to defendant’s apartment. Defendant left plaintiff there while he returned to work to check out. When he returned, they had intercourse “a couple of times” before going to sleep, and again in the morning. Plaintiff testified that the parties engaged in sexual intercourse on December 17, 1977, and on January 20, 1978, and also on New Year’s Eve, December 31, 1977, each time at defendant’s apartment. It was on New Year’s Eve that plaintiff first told defendant that she thought she was pregnant. During January of 1978, the parties also had dinner at plaintiff’s apartment twice. On both occasions defendant was on duty as a police officer. Plaintiff’s roommate testified that she was present during those dinners and at some of the times when defendant picked plaintiff up to take her to his apartment. After January 1978, the parties did not communicate for several months. In the summer of 1978, plaintiff called defendant to discuss their responsibilities to the unborn child. Defendant told her that the child was not his responsibility and that she should get a lawyer.

Plaintiff also testified that her last menstrual period was on November 28, 1977, and that she had not dated anyone except defendant since 1976.

Defendant testified that he dated plaintiff between 1965 and 1969 and that after they stopped dating they maintained a friendly relationship. He stated that he did help plaintiff and her roommate with their Christmas tree in early December of 1977, but could not recall the exact date and stated that they picked up the tree in his personal car and he did not take plaintiff to his apartment that day. Defendant also testified that plaintiff was at his apartment on one occasion, which may have been New Year’s Eve, and he drove her home late that night. Defendant denied having intercourse with plaintiff during December of 1977 or January of 1978. Defendant went to plaintiff’s apartment several times in early 1978 to help her with her car. He stated that they had discussed her pregnancy and that she implied that he was the father of the child. Defendant testified that plaintiff had talked about marriage often in the late 1960’s, and once had asked him if he would marry her if he was still single when he was 35.

James Storz was the only other witness called by the defense. His existence was revealed to plaintiff’s counsel during the jury conference after the bulk of plaintiff’s case in chief had been presented. He was first interviewed by defense counsel during trial and was deposed by plaintiff’s counsel the day before he was called as a witness. Storz testified that he is a bartender who has worked in several taverns in plaintiff’s neighborhood. He first met plaintiff in the summer of 1977 while he was working. Between then and November of 1977, he encountered plaintiff several times and they had drinks together each time. During the weekend before Thanksgiving 1977, he met plaintiff at a bar where they stayed for several hours. They then went to his apartment where they had intercourse. He met plaintiff by chance in the neighborhood twice during December of 1977, and on one of these occasions they went to his apartment and had intercourse. Storz met plaintiff again in January of 1978. She told him that she was pregnant and they discussed an abortion and the possibility of giving the baby up for adoption. Plaintiff rejected both suggestions. Storz did not see plaintiff again until the trial. On cross-examination, Storz was asked to describe plaintiff. He stated that she was five feet six inches tall, weighed 150 pounds and has brown eyes, “shapely” legs, and no scars or identifying marks. He also stated that she drank scotch and water or scotch on the rocks.

Plaintiff testified as a rebuttal witness. She stated that she had never seen Storz before he walked into the courtroom. She also said that she is five feet two inches tall, weighs 105 pounds, has blue eyes, has noticeable scars and birthmarks and that one of her legs is shorter and thinner than the other as a result of childhood polio. She also stated that she drinks nothing but beer or spritzer and that she did not frequent the bars where Storz claimed to have met her.

I

We first consider plaintiff’s contention that the trial court erred in refusing to admit the daughter’s birth certificate into evidence. A certificate of live birth of plaintiff’s daughter signed by Stuart Abel, M.D., was received by the Chicago department of health on September 15, 1978. The birth certificate listed the child’s name, date and time of birth, sex, and place of birth. The certificate also listed the name, address, age, and place of birth of plaintiff, the mother. The certificate contained the age (37) and place of birth (Illinois) of the father, but the father’s name was not included, in accordance with section 12(4) of the Vital Records Act (Ill. Rev. Stat. 1981, ch. lll1^, par. 73 — 12(4)), which states:

“(4) If the mother was not married to the father of the child either at the time of conception or birth, the name of the father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as the father unless a determination of paternity has been made by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered.”

Plaintiff, who signed the live birth certificate, identified a certified copy of it during her testimony in her case in chief. Also in plaintiff’s case in chief, defendant was called as an adverse witness and asked his date of birth and place of birth. Plaintiff then sought admission of the birth certificate into evidence. Upon defendant’s objection, the trial court denied admission, stating:

“In this case, my ruling is that it will be denied. The law is very clear that you cannot insert the name of the alleged father without his consent. I am not going to permit by innuendo now that she put the defendant on the stand and identified him as being age 37 and living in the City of Chicago. That’s my ruling.”

We believe that the birth certificate constituted relevant and proper evidence, and that the trial court erred in refusing its admission. An essential element of a paternity case is proof of a “child born out of wedlock.” (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.) This birth certificate, with the father’s name not entered, was probative of the fact that a child was born out of wedlock. Thus, the birth certificate was relevant evidence.

We next address the potential hearsay objection to the birth certificate, and find it not valid for two reasons. Initially, we conclude that the certificate was not hearsay, because the oút-of-court declarations were those of plaintiff and she testified at trial and was subject to cross-examination by the defendant against whom the exhibit is offered. (People v. Carpenter (1963), 28 Ill. 2d 116, 120-22, 190 N.E.2d 738.) This case is not a situation in which an attempt is made to introduce testimony by a third person, nor is there any issue of the remoteness of the declaration; rather, we are dealing with a certificate of live birth signed by the plaintiff who testified and was subject to cross-examination. (See People v. Osborn (1977), 53 Ill. App. 3d 312, 319, 368 N.E.2d 608; People v. Clark (1972), 52 Ill. 2d 374, 388-89, 288 N.E.2d 363; 2 Gard, Illinois Evidence Manual sec. 14.09, at 72- 73 (2d ed. 1979).) Alternatively, if the birth certificate was hearsay, it was admissible because of the exception to the hearsay rule for records of vital statistics. Fed. R. Evid. 803(9); McCormick, Evidence sec. 316, at 736 (2d ed. 1972); Cleary & Graham, Handbook of Illinois Evidence sec. 803.14, at 450 (3d ed. 1979).

It might also be noted that this relevant evidence corroborates plaintiff’s testimony as a prior consistent statement. By contesting the paternity action, defendant challenges the veracity of plaintiff’s testimony. Under such circumstance, the evidence is admissible. See Cleary & Graham, Handbook of Illinois Evidence sec. 611.14, at 319-20 (3d ed. 1979); McCormick, Evidence sec. 251, at 604 (2d ed. 1972); 2 Gard, Illinois Evidence Manual sec. 14.09, at 71 (2d ed. 1979); Fed. R. Evid. 801; People v. Clark (1972), 52 Ill. 2d 374, 382; People v. Rosario (1978), 65 Ill. App. 3d 170, 174, 382 N.E.2d 31.

The trial court apparently excluded the birth certificate because of prejudice to defendant. We disagree and find that any prejudice to defendant is outweighed by the probative value of the birth certificate. Of course in any paternity action, there may be evidence prejudicial to the defendant. If we understand the trial court, it might never be possible to complete a birth certificate pursuant to section 12(4) of the Vital Records Act (Ill. Rev. Stat. 1981, ch. lllVa, par. 73— 12(4)). That plaintiff listed the age of the father as 37 and his place of birth as Illinois at the time of completing the certificate in September 1978 is probative in this paternity action.

II

We next consider plaintiff’s contention that the trial court erred in refusing to exclude James Storz from testifying as a sanction for defendant’s violation of the discovery rules. On January 31, 1979, plaintiff propounded a set of interrogatories to defendant, which included a request for disclosure of the existence of any other men that defendant contended had intercourse with plaintiff. Despite the filing by plaintiff of two motions to compel the answer of these interrogatories, defendant never filed an answer.

On January 13, 1981, plaintiff moved to set the case for trial, alleging that discovery was complete. On Monday, March 9, 1981, the date scheduled to commence trial, defendant requested a continuance until the next day. On March 10, at the start of the trial, defendant told the court that he would have one or two witnesses. At the conclusion of the proceedings on that date, defendant advised the court he would put defendant on the stand plus one more witness. On Wednesday, March 11, before trial commenced, defendant advised the court and plaintiff about James Storz. Apparently the notification took place in the court’s chambers out of the presence of a court reporter. Based upon the record before us the following facts emerge: (1) the court said defendant’s counsel stated he did not know anything about this witness until a week ago (March 4); (2) defendant’s counsel said Storz came to his attention some time last week, maybe Friday (March 6), maybe Saturday (March 7); and (3) Storz testified on March 12 and said he first became aware of the case about 10 days ago on a Sunday evening (March 1). Based upon any reasonable interpretation of the record, it is obvious defendant became aware of Storz at the earliest on March 1 and at the latest on March 7. In any respect, it was prior to March 9, the date scheduled for trial when defendant requested a one-day continuance, yet for some unexplained reason, the surprise witness Storz was not announced until March ll.

The trial court overruled plaintiff’s objection to permitting Storz to testify, but permitted the plaintiff to depose Storz during a lunch break. There is no record that plaintiff sought a continuance because of the disclosure of this surprise witness.

Supreme Court Rule 219(c) (iv) (87 Ill. 2d R. 219(c)(iv)) permits the exclusion of a witness for unreasonable failure to comply with discovery requests. The determination of whether a witness should be excluded is within the sound exercise of the trial court’s decisión. (Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 133, 298 N.E.2d 233.) The factors to be considered in determining whether exclusion is proper are: “the surprise to the adverse party, the prejudicial effect of the testimony, the nature of the testimony, the diligence of the adverse party, the timely objection to the testimony and the good faith of the party calling the witness.” 12 Ill. App. 3d 129, 132.

In our opinion, the record clearly established that defendant wilfully violated the supreme court rules governing discovery. We therefore conclude that the trial court abused its discretion in refusing to bar the testimony of Storz. It is apparent that defendant knew of the existence of this witness for several days before disclosure to plaintiff. Due to the explosive impact that this witness’ testimony had on plaintiff’s case, time for investigation might have substantially aided plaintiff. For the same reason, late disclosure worked to defendant’s advantage.

The dissent states that “the trial court’s field of discretion in the employment of this sanction is narrowly circumscribed. (See Mason v. Mundelein Lanes, Inc. (1979), 72 Ill. App. 3d 990, 993-94, 391 N.E.2d 151; Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254, 259, 300 N.E.2d 855.)” In Mason, the excluded witness was first named as a potential witness early in 1975, over two years before trial. In Smith, defendant was permitted to call as witness a person not listed on defendant’s answers to interrogatories. However, plaintiffs were aware that the witness was on the job while they were also employed on the job. We think these cases are inapposite.

We realize that plaintiff’s counsel failed to protect plaintiff’s interests to the fullest extent possible by failure to insist on answers to the interrogatories and failure to move for a continuance once the surprise witness was presented. We cannot, however, find a waiver in this lack of diligence by counsel in light of the deliberate concealment of a material witness by defendant. Accordingly, we hold that the trial court abused its discretion in refusing to impose the sanction of barring the testimony of Storz.

III

The errors of the circuit court in failing to exclude Storz as a witness and in denying admission of the birth certificate into evidence warrant reversal and a remand for a new trial. Accordingly, we find it unnecessary to reach the other two issues raised by plaintiff. These issues are not likely to arise on remand.

The judgment of the circuit court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HARTMAN, J., concurs.

STAMOS, P.J.,

respectfully dissenting:

I would hold that the birth certificate was properly excluded from evidence and that the trial court did not abuse its discretion in refusing to exclude the testimony of James Storz.

My colleagues found that the birth certificate was relevant evidence of an essential element of the cause of action, namely the illegitimate birth of plaintiff’s child. The declarations, and lack thereof, contained in the birth certificate which relate to the parentage of the child are hearsay, and inadmissible to prove that element of the paternity action. Section 25 of the Vital Records Act (Ill. Rev. Stat. 1979, ch. IIN/b, section 73 — 25) outlines the permissible evidentiary uses of a birth certificate or certification of birth and thus the scope of the “records of 'vital statistics” hearsay exception as it relates to such documents. (See Cleary and Graham, Handbook of Illinois Evidence sec. 803.14, at 450 (3d ed. 1979).) Subsection 6 of that statute provides that “[a]ny certification or certified copy of a certificate issued in accordance with this section shall be considered as prima facie evidence of the facts therein stated ***.” Subsection 2 provides in pertinent part that “[t]he certification of birth shall contain only the name, sex, date of birth, and place of birth, of the person to whom it relates ***.” Our supreme court has interpreted these two provisions, which appeared in the prior statute dealing with vital records (Ill. Rev. Stat. 1955, ch. IllVz, par. 55), as limiting the evidentiary use of a certified record of birth (containing all the information on the birth certificate) to proof of only those facts which could properly be placed in a certification of birth. (See People ex rel. Moran v. Teolis (1960), 20 Ill. 2d 95, 105, 169 N.E.2d 232.) The information in the birth certificate relating to the parentage of the child could not be included in a certification and does not fall within the hearsay exception for records of vital statistics.

It is clear from the foundation which plaintiff’s counsel attempted to lay for the birth certificate that the document was not offered to prove the birth of the child out of wedlock, but, as plaintiff asserts in her brief, to prove plaintiff’s belief as to the identity of the father at the time the certificate was filled out and to thereby bolster her credibility as a witness. Plaintiffs state of mind when the certificate was made out was never at issue in this case, and the sole purpose of the offer was to have the hearsay statements contained in the certificate admitted into evidence.

The majority holds that the out-of-court declarations of the plaintiff in the certificate are not hearsay because the declarant was a witness at the trial and therefore was available for cross-examination. (Citing People v. Carpenter (1963), 28 Ill. 2d 116, 120-22, 190 N.E.2d 738, in support of this interpretation of the hearsay rule.) However, Carpenter involved the frequently heard objection that a statement is inadmissible if it was made “out of the presence of the [criminal] defendant.” In holding that this objection is essentially meaningless, the court went on to state that the “fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination.” (28 Ill. 2d 116, 121.) However, the thrust of that opinion was that in most cases the presence of absence of the opposing party when an out-of-court statement is made is immaterial. That case does not explicitly propound a rule that every out-of-court statement by a declarant witness is nonhearsay simply because the declarant is available for cross-examination. Rather, the generally accepted rule is that the prior out-of-court statements of witnesses are not available for use as substantive evidence. (See McCoy v. Board of Fire & Police Commissioners (1977), 54 Ill. App. 3d 276, 281, 369 N.E.2d 278.) Such out-of-court statements have been characterized as “pure hearsay.” Kubisz v. Johnson (1975), 29 Ill. App. 3d 381, 383-84, 329 N.E.2d 815.

Frequently, a party’s out-of-court statements which are unfavorable to the party’s cause are allowed into evidence as substantive admissions. (See generally McCormick, Evidence sec. 262, at 628-31 (2d ed. 1972).) However, a party’s out-of-court statements which are consistent with his or her pleadings or in-court testimony do not receive the same treatment. Such declarations are commonly referred to as “self-serving” statements and are held inadmissible under the hearsay rule. (See People v. Colletti (1968), 101 Ill. App. 2d 51, 55, 242 N.E.2d 63.) Prior out-of-court statements which are consistent with the witness’ in court testimony are admissible only for purposes of rebutting a charge that the testimony is a recent fabrication or that some motive has arisen that would prompt the witness to testify falsely. (See People v. Powell (1973), 53 Ill. 2d 465, 474-75, 292 N.E.2d 409; Cleary and Graham, Handbook of Illinois Evidence sec. 611.14 at 319-20 (3d ed. 1979); McCormick, Evidence sec. 251, at 604; sec. 49, at 106 (2d ed. 1972); cf. 4 Wigmore sec. 1124, at 255 (Chadbourne rev. ed. 1972).) Under the Federal Rules of Evidence, prior consistent statements are classified as nonhearsay, and thus may be used as substantive evidence, but such statements may be offered only after a charge of recent fabrication has been made. Fed. R. Evid. 801(d)(1)(B).

Although the majority finds that defendant made a general attack on plaintiff’s veracity by contesting the paternity action, there is nothing in the record to suggest that defendant attempted the specific type of impeachment which would render the hearsay declarations in the birth certificate admissible. I would therefore hold that the trial court acted properly in excluding the birth certificate from evidence.

This case is the first Illinois opinion which has held that a trial court’s failure to apply the severe sanction of exclusion of a witness was an abuse of the trial court’s discretion. In Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 298 N.E.2d 233, the plaintiffs failed to disclose the names of any of the nonparty witnesses to the automobile collision that was the subject of the action. The plaintiffs had answered interrogatories five months before trial. The surprise witness called by the plaintiffs was the only nonparty occurrence witness who testified in the case. She was the sister of one of the plaintiffs, and she had knowledge of at least three other nonparty witnesses to the collision who were not deposed and not called to testify. The witness was disclosed during trial and the defense was allowed to interview the witness for five minutes prior to her testimony. The court stated that there were strong indications of lack of good faith in the nondisclosure of the witness’ identity, that the “deposition” the defendants were allowed to take was inappropriately brief, that the defendants were severely prejudiced by the nondisclosure of the witness because the other nonparty witnesses would have been discovered through her, and that the defendants were also prejudiced because the court must have placed a great deal of reliance on the testimony of the only nonparty available to testify to the occurrence at issue. However, the court held that the trial court did not abuse its discretion in refusing to exclude the witness. (Kirkwood v. Checker Taxi Co. (1973), 12 Ill. App. 3d 129, 133.) While that holding was based in part on the fact that the trial judge was not informed at the time of his ruling as to the relationship of the witness to one of the plaintiffs or that she was an occurrence witness, that case nonetheless illustrates the extreme reluctance with which the sanction of witness exclusion should be applied.

In Kirkwood, the plaintiffs were aware of the existence of the witness, and probably the existence of the other occurrence witnesses, for months prior to trial. In the instant case, defendant contacted the witness a week or 10 days prior to trial. Defendant’s counsel did not speak to the witness, and thus had no chance to determine if the witness should be called, until the day before the witness was called. On the same day that he interviewed the witness, defendant’s counsel notified the court and opposing counsel that he intended to present Storz’ testimony, and plaintiff’s counsel was given the belated opportunity to take a full deposition of the witness. Although the record plainly shows that defendant and his counsel could have acted with a good deal more diligence and courtesy in making plaintiff aware of the existence of this witness, this conduct does not amount to the showing of deliberate concealment that was present in Kirkwood.

The instant case is also distinguishable from Kirkwood in that the delay in disclosure probably resulted in less prejudice to the opposing party. In Kirkwood the delay made it impossible for the defendants to depose or even contact two occurrence witnesses other than the witness who testified. Knowledgé of those witnesses would have at the least been helpful in preparing the defendant’s case for trial, and might have resulted in the presentation of testimony which would have been less favorable to the plaintiffs than the testimony of the witness that was called. Although plaintiff here would have surely benefited from an opportunity to investigate the basis of Storz’ testimony, there is nothing in the record to suggest that a whole class of important witnesses was made unavailable to plaintiff because of the delay. The prejudice to plaintiff that was worked by the delay is therefore far more speculative than the obvious prejudice to the defendants in Kirkwood.

Additionally, the surprise witness in Kirkwood was the only nonparty occurrence witness called at trial, and her testimony was undoubtedly given great weight by the trial court. In the instant case, it is difficult to ascertain what affect Storz’ testimony had on plaintiff’s case. His testimony on direct, if taken alone, would appear to be damaging to plaintiff. However, on cross-examination, plaintiff’s counsel asked Storz a series of questions concerning plaintiff’s physical attributes. Storz’ answers to these questions were all wildly inaccurate. That impeachment, taken with the vagueness of Storz’ testimony as a whole, might justify this court in concluding that the jury completely disregarded the testimony of this witness but still determined that plaintiff had not met her burden of proof.

Other Illinois cases which have dealt with the sanction of exclusion illustrate that the trial court’s field of discretion in the employment of this sanction is narrowly circumscribed. (See Mason v. Mundelein Lanes, Inc. (1979), 72 Ill. App. 3d 990, 993-94, 391 N.E.2d 151; Smith v. Realcoa Construction Co. (1973), 13 Ill. App. 3d 254, 259, 300 N.E.2d 855.) Although defendant’s attitude toward the discovery process cannot be condoned, the conduct of defendant and his counsel was not so egregious as to make exclusion of the witness appropriate. I would hold that the trial court did not abuse its discretion in allowing the witness to testify.

I would also hold that the verdict was not against the manifest weight of the evidence, and that the improper remarks of defendant’s counsel during closing argument were not prejudicial to plaintiff because of the curative remarks of counsel and of the court.

Therefore, I would affirm.

      The name of the infant daughter is in the record but not used in this opinion.

      It is inconceivable that a discussion of this significance would take place in this manner without recording the entire discussion.

      The dissent seems to suggest that if opposing counsel does not talk to the witness until during the trial, the delay in advising the other party and court is excusable. We think this position overlooks the fact that counsel was aware of the witness at least five days before he informed the plaintiff, and disregards the good faith, duty and requirement of counsel, particularly in a case such as this. It ignores the fact that counsel twice referred to the fact that he was going to call the defendant plus one more witness.

      The genesis of this curious objection can be traced to several opinions of our supreme court. In People v. Schallman (1916), 273 Ill. 564, 113 N.E. 113, the court held that the sales records of a purveyor of stolen goods were inadmissible to prove that the defendant had knowingly purchased stolen property. The records had been dictated to the declarant/witness, a bookkeeper for the seller, at a time when the defendant was not present. The court stated that:
      “Declarations out of court, or statements of any kind by a third person against the accused and made in his absence and without his knowledge, are inadmissible as evidence against him. The rule is elementary, and a violation of it is a violation of the accused’s constitutional right that he shall not only be informed of the nature of the charge against him but be permitted to meet the accusing witnesses face to face.” 273 Ill. 564, 569.
      In People v. Blockburger (1933), 354 Ill. 301, 310, 188 N.E. 440, the court reiterated this rule in commenting on a witness examination which it found to be improper for several reasons other than the absence of the defendant when the statements which the prosecutor sought to elicit were made. In People v. Bennett (1953), 413 Ill. 601, 110 N.E.2d 175, the court again held that a statement made out of the defendant’s presence was inadmissible. The primary purpose for which the statement was offered in that case was to have the defendant’s silence when the statement was repeated to him construed as an admission of guilt.


author: PRESIDING JUSTICE STAMOS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS BUFORD, Defendant-Appellant.
    First District (2nd Division)
    No. 81—171
    Opinion filed October 26, 1982.

      Steven Clark, of State Appellate Defender’s Office, and Scott J. Szala, of Winston & Strawn, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant Dennis Buford was charged by indictment with rape, deviate sexual assault, armed robbery, unlawful use of weapons and armed violence. After a jury trial, defendant was found guilty of rape and armed violence. Judgment was entered on the verdict and defendant was sentenced to 60 years for rape and 30 years for armed violence. Defendant contends on appeal that: (1) the Illinois “rape shield” statute (111. Rev. Stat. 1979, ch. 38, par. 115 — 7) is unconstitutional as applied to him because it works a denial of his right to confrontation and his right against self-incrimination; (2) the same statute is also unconstitutional as a legislative infringement on the inherent powers of the judiciary; (3) the trial court committed reversible error when it allowed a letter which was purportedly authored by the defendant into evidence without proper authentication; (4) the prosecutor’s closing argument contained misrepresentations of law, references to facts not in evidence and attacks on defense counsel’s integrity, all of which denied the defendant his right to a fair trial; (5) the logical inconsistency of the jury’s verdict demands a finding that the prosecution did not prove defendant guilty beyond a reasonable doubt, and (6) the sentences imposed were excessive and should be reduced.

On January 19, 1979, at approximately 4 a.m., Chicago police officer Michael O’Connor went to 1711 West 82d Street in response to a radio call. When he arrived with his two partners, they observed the complainant’s son standing in a first floor apartment window and pointing towards the alley. As the officers walked through a courtway towards the alley, they heard someone crying. Officer O’Connor testified that he saw defendant and complainant lying in the snow. Defendant was on top of complainant and was holding a gun to her head. Officer O’Connor twice ordered defendant to “freeze,” after which defendant tried to put his gun underneath the complainant’s body, saying “tell him I am your boyfriend or else I am going to kill you.” When the officers took the defendant’s gun and pulled him off of the complainant, they observed that his penis was outside of his pants. The complainant was dressed in a C.T.A. uniform, and her pants were down around her ankles. At the scene, in addition to the gun, the police recovered a satchel full of tools, a shoulder holster and $133 from .the defendant.

Complainant testified that she left her apartment at 4 a.m. on January 19, 1979, to go to work as a C.T.A. bus driver. She passed the defendant on the street, and as she turned to look at him he pointed a gun at her. He grabbed her and forced her to the rear of the building, where he took $133 from her and threatened to kill her. Defendant then forced her to have oral and vaginal intercourse with him.

A medical examination conducted soon after the incident confirmed the presence of semen in complainant’s vagina and in her throat.

Complainant testified that she had never seen defendant before January 19, 1979. She also testified that in February 1979 she received a letter from defendant which expressed sorrow over the incident and asked her to reconsider pressing charges. This letter was received into evidence over defense counsel’s objection to its foundation.

Defendant testified that he had known complainant since 1972, having met her at 46th and Prairie Streets, an area of Chicago’s south side which is frequented by prostitutes and is known as “The Stroll.” He testified that he had paid complainant for sex almost weekly between 1972 and 1974. Defendant was imprisoned from 1974 to 1978, and he testified that they resumed their relationship after his release. Defendant testified that on January 18, 1979, he telephoned complainant and invited her to his house. When she arrived, they drank rum and smoked marijuana. Andre Davis, defendant’s 14-year-old brother, testified that he was present for part of the time that complainant was in the house. Defendant testified that he and complainant had oral and vaginal intercourse that night, for which he paid her $25. He stated that he fell asleep, and that when he woke up complainant was gone and $143 of his money was missing.

Defendant testified that he left early for work on the morning of January 19 because of the inclement weather conditions. On the way to work, he stopped at complainant’s house to retrieve his money. At first, she denied having taken the money, but she later produced $133 and gave it to defendant. He told her that $10 was missing. Defendant testified that complainant suggested that they go behind her house and have sex for the missing amount. They did so, and when they laid down, defendant removed the gun he was carrying from its shoulder holster to make himself more comfortable. Defendant testified that when he heard the police he picked up his gun and ordered complainant to tell the police that everything was all right, but that when complainant began to cry, he knew that she had “set him up.”

Prior to trial, the court granted the State’s motion in limine prohibiting the defense from making any reference to the fact that complainant was convicted of solicitation for prostitution in 1972. The court based its ruling on the Illinois “rape shield” statute (111. Rev. Stat. 1979, ch. 38, par. 115 — 7), which provides: “In prosecutions for rape or deviate sexual assault the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.”

Defendant’s first contention on appeal is that the “rape shield” statute is unconstitutional as applied to him because the exclusion of complainant’s 1972 conviction for solicitation denied him the right to confront the witnesses against him. Defendant asserts that he was precluded from showing that, because complainant was convicted of mail fraud in 1978 and was on Federal probation at the time of the incident, she had a motive to fabricate her testimony in order to protect her probation. Defendant argues that complainant admitted that she knew that a conviction for any crime, including prostitution, would result in a revocation of her probation, and that her 1972 conviction was relevant to this issue. Defendant’s brief does not clarify how a 1972 conviction might affect a probation which began in 1978, or how that earlier conviction is relevant to complainant’s possible fear that her probation might be revoked.

Defendant asserts that the case of Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, is controlling. In that case, the defendant was charged with breaking into a bar and removing its safe. The safe was found near the home of Richard Green, who testified that he had seen and spoken with two men in the area where the safe was found on the day before the safe was discovered. Green later identified the defendant in a lineup as one of the men that he had seen, and stated that the defendant had been carrying a crowbar. Green was on juvenile probation for burglary at the time the safe was stolen and at the time of trial. Prior to trial, the court granted a protective order, pursuant to Alaska statute, which prohibited the defense from making any reference to Green’s probationary status. On appeal, the defense contended that the application of the statute unconstitutionally restricted its right of cross-examination in that it made it impossible to show that Green, as a convicted burglar, might have been subject to coercive police questioning at the time the safe was discovered near his home and that his identification of the defendant and his testimony might have been the products of police j pressure.

The court noted that Green was cross-examined as to his state of mind at the time that the safe was found, and that when he was asked if he felt that the police might suspect him of the burglary he denied feeling any concern at all. The court found it doubtful that Green would have responded in the same way had he been subject to traditional cross-examination, and held that in this situation defense counsel should have been free to inquire into the possible bias of the witness.

In holding that the restriction placed on cross-examination in that case violated the confrontation clause, the court stated:

“While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness ***.” Davis v. Alaska (1974), 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111.

The Illinois appellate court has twice rejected challenges to the constitutionality of the “rape shield” statute on the grounds urged by defendant. (People v. Bachman (1981), 92 Ill. App. 3d 419, 414 N.E.2d 1369; People v. Cornes (1980), 80 Ill. App. 3d 166, 399 N.E.2d 1346.)

In the instant case, defendant asserts that the statute’s prohibition against the admission of any evidence concerning the complainant’s sexual conduct with parties other than the defendant made it impossible to show that complainant’s testimony might have been a fabrication designed to protect her probation. The supreme court has stated that an inquiry into the witness’s motive for testifying is an important function of the right of cross-examination. (See Greene v. McElroy (1959), 360 U.S. 474, 496, 3 L. Ed. 2d 1377, 1391, 79 S. Ct. 1400, 1413.) Such an inquiry has been made in the instant case. The jury heard the defendant’s testimony regarding his relationship with complainant, and her presence in his apartment the night before the incident was corroborated by the testimony of the defendant’s brother. Additionally, defense counsel asked complainant on cross-examination if she knew that a conviction for prostitution would result in a revocation of her probation, and she replied that she thought that it would. Defense counsel also asked complainant if she knew the defendant and if she had ever frequented “The Stroll” and she replied in the negative to both questions.

In Davis, the court noted that the defense was confronted with a situation in which the jury simply could not be made aware of the defendant’s theory of the case. In the instant case, the defense presented its theory of the case at length. Although the complainant’s 1972 conviction might have added some weight to defendant’s contention that complainant was performing an act of prostitution with the defendant at the time of his arrest, nothing in the complainant’s arrest record could have been used to impeach her testimony conclusively. In Cornes, the court stated:

“Complainant’s past sexual conduct has no bearing on whether she has consented to sexual relations with defendant. The legislature recognized this fact and chose to exclude evidence of complainant’s reputation for chastity as well as specific acts of sexual conduct with third persons in cases of rape and sexual deviate assault. The exclusion of this evidence does not prevent defendant from challenging or attacking complainant’s credibility or veracity or otherwise utilizing cross-examination as an effective tool of impeachment. It merely denies defendant the opportunity to harass and humiliate the complainant at trial and divert the attention of the jury to issues not relevant to the controversy.” People v. Cornes (1980), 80 Ill. App. 3d 166, 175, 399 N.E.2d 1346.

We find that the limitation placed on defendant’s cross-examination of complainant in this case did not infringe upon defendant’s right of confrontation.

Even if it were determined that the operation of the “rape shield” statute in this case worked a denial of defendant’s right to confrontation, or that the statute was invalid on its face, that conclusion would not require reversal of defendant’s convictions. The test of whether error is harmless or reversible is whether the reviewing court can say beyond a reasonable doubt that the error at trial did not contribute to the conviction. (See People v. Smith (1967), 38 Ill. 2d 13, 17, 230 N.E.2d 188.) When the evidence of the defendant’s guilt is overwhelming, errors of constitutional magnitude are deemed harmless if a fair minded jury could not return a verdict of acquittal even if the error had not been committed. (People v. Tilden (1979), 70 Ill. App. 3d 859, 865, 388 N.E.2d 1046.) In the instant case, the evidence of defendant’s guilt was overwhelming, and the impact of the evidence which defendant was prevented from introducing by the operation of the statute would have been negligible. Therefore, we cannot say that there is a reasonable doubt that defendant would not have been convicted even had the evidence been presented. Any error in this regard was therefore harmless.

Defendant next contends that the Illinois “rape shield” statute is an unconstitutional exercise of the judicial power by the legislature. The General Assembly has the power to create laws governing judicial practices when the laws do not unduly infringe upon the inherent powers of the judiciary or conflict with a rule of the supreme court. (People v. Youngbey (1980), 82 Ill. 2d 556, 560, 413 N.E.2d 416.) While it is true that the legislature may not exercise those powers that are inherently judicial in nature (People v. Jackson (1977), 69 Ill. 2d 252, 256, 371 N.E.2d 602), the cases cited by defendant in support of this argument deal with situations in which legislation was enacted which restricted the power of the courts to render judgments (Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 105 N.E.2d 713), or which came into direct conflict with a properly promulgated supreme court rule. (People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602.) With regard to evidentiary matters, the legislature may not declare the weight to be given to evidence or what evidence shall be conclusive proof of an issue of fact. (Alton R.R. Co. v. Illinois Commerce Com. (1943), 382 Ill. 478, 483, 48 N.E.2d 381.) In the instant case, the legislature has not interfered with the power of the courts to weigh and evaluate the evidence before them. The supreme court has stated that “[i]t is well settled that the legislature of a State has the power to prescribe new and alter existing rules of evidence or to prescribe methods of proof.” (People v. Wells (1942), 380 Ill. 347, 354, 44 N.E.2d 32.) The statute in question is no more than a rule of evidence which precludes the introduction of a certain class of evidence when it is offered in a prescribed class of cases. We hold that the Illinois “rape shield” statute is not an unconstitutional legislative infringement on the powers of the judiciary.

Defendant also argues that the Illinois “rape shield” statute’s requirement that any evidence of past sexual conduct between the complainant and the accused be presented to the court in an in camera offer of proof before it can be admitted at trial is unconstitutional in that it compels the defendant to testify against himself. Defendant advances no authority in support of the proposition that an in camera offer of proof violates the right of a criminal defendant to be free from self-incrimination. This provision of the statute merely requires that the court be satisfied that evidence of prior sexual conduct between the complainant and the defendant is actually available before any attempt to impeach the complainant on that issue will be allowed. The obvious aim of this provision is to prevent baseless and harassing cross-examination of the witness. We hold that the requirement of an in camera offer of proof works no denial of defendant’s right to be free from self-incrimination.

Defendant next contends that the court erred in admitting a letter into evidence which was received by complainant and purports to be from defendant. Complainant testified at trial that she received the letter in February 1979. It is undisputed that the letter bears the correct return address of defendant at Cook County jail. The text of the letter contains defendant’s correct home address and refers to the incidents of January 19, 1979. The letter expresses sorrow at “what was supposed to have taken place,” states that defendant was under the influence of P.C.P. at the time of the incident and asks complainant to forgive him and to reconsider pressing charges. Defendant argues that complainant’s testimony was not a sufficient foundation for the authentication of the letter and that it should have been excluded from evidence for that reason.

In the case of People v. Munoz (1979), 70 Ill. App. 3d 76, 388 N.E.2d 133, this court addressed the question of the foundation necessary for the authentication of a private letter. In that case, the court admitted a letter into evidence which was purportedly authored by the defendant and sent to his girlfriend. The letter was signed “Campo,” and had the defendant’s correct jail address on the envelope. The defendant’s girlfriend testified that “Campo” was the defendant’s nickname. She could not authenticate the handwriting in the letter, and it was not contended that the defendant wrote the letter in his own hand. This court held that the letter was properly admitted, noting that authentication does not require that authorship by all others besides the purported writer be disproven. This court stated that the fact that the letter was signed with the defendant’s nickname, that the letter appeared to come from the defendant’s cell and that the letter contained information that was known to the defendant constituted a prima facie showing that would justify the court in allowing the jury to make the ultimate determination of authorship.

In light of our holding in People v. Munoz and the factual similiarities between that case and the instant case, we find that the trial court properly allowed the admission of this letter into evidence.

Defendant also argues that certain portions of the prosecution’s closing argument were improper. In the case of People v. Turk (1981), 101 Ill. App. 3d 522, 533, 428 N.E.2d 510, the court held that the issue of the propriety of the prosecution’s closing argument was waived on appeal when the defendant’s motion for a new trial merely characterized the prosecutor’s remarks as inflammatory and prejudicial without setting forth the specific remarks complained of. In the instant case, defendant’s motion for a new trial describes the remarks complained of as “prejudicial, inflammatory, and erroneous” and “designed to arouse the prejudices and passions of the jury” without setting forth any of the specific remarks referred to. Defendant’s post-trial motion, therefore, is in the same form as the motion which was held to be insufficient to preserve the issue in Turk.

Supreme Court Rule 615(a) empowers a reviewing court to disregard the waiver of issues on appeal. The court may invoke the plain error rule in situations where the record clearly shows the omission of an error that substantially affected a defendant’s rights. (People v. Baynes (1981), 88 Ill. 2d 225, 231, 430 N.E.2d 1070.) Our supreme court has stated:

“A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review.” People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.

The evidence of defendant’s guilt in the instant case is not so closely balanced, and the remarks of the prosecutor noted in defendant’s brief were not so prejudicial, as to prompt this court to invoke the plain error doctrine.

Defendant also contends that the jury’s verdict is so logically inconsistent that it casts doubt on the complainant’s credibility, thus showing that defendant could not have been found guilty of rape beyond a reasonable doubt. Defendant was convicted of rape and armed violence but acquitted of armed robbery and deviate sexual assault. This court has stated that verdicts are so logically inconsistent as to contribute to a finding that the prosecution has not met its burden of proof when they cannot be construed as anything but an acceptance and a rejection of the same theory of the case. (People v. Murray (1975), 34 Ill. App. 3d 521, 532, 340 N.E.2d 186.) In the instant case, the offenses with which defendant was charged have dissimiliar elements, and the verdicts can be construed as a finding by the jury that the State has proven that defendant forced the complainant to have vaginal intercourse at gunpoint, but that the State failed to prove that he stole her money or that oral sex occurred. We also note that the verdict may have reflected the jury’s belief that the convictions for rape and armed violence would provide sufficient punishment to the defendant, and that “[t]he jury’s historic power of lenity must prevail *** over the traditional doctrine concerning legally and logically inconsistent verdicts.” (People v. Murray (1975), 34 Ill. App. 3d 521, 536, 340 N.E.2d 186.) We hold that the verdicts in the instant case are not so logically inconsistent as to create an inference that there was a reasonable doubt as to defendant’s guilt.

Defendant's final contention is that the sentences imposed by the trial court were excessive and must be reduced. Our supreme court has stated that “the trial judge’s decisions in regard to sentencing are entitled to great deference and weight. *** [Ajbsent an abuse of discretion by the trial court a sentence may not be altered upon review.” (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882.) The defendant contends that the trial court, aware of defendant’s numerous prior convictions, did not give adequate consideration to defendant’s rehabilitative potential. It is true that the court’s range of discretion in fixing a sentence permits a recognition of the rehabilitative potential of the defendant. (People v. Loyd (1970), 125 Ill. App. 2d 196, 260 N.E.2d 63.) However, it can hardly be contended that defendant’s potential for rehabilitation was not considered by the trial judge where, as here, the evidence concerning the violence of the crime committed and the defendant’s extensive record of prior convictions speak so eloquently to that very factor.

This case presents an issue which has not been raised by the parties.

Defendant was convicted of rape and armed violence, receiving a sentence of 30 years for the latter conviction. Although the other divisions and districts of the appellate court have held that dual convictions based on a single physical act are improper under the authority of People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, this court, relying on People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, has consistently held that dual convictions for armed violence and the predicate felony are proper even when only one physical act is involved, so long as the underlying act is a felony by statutory definition without reference to the use of a weapon in the commission of the act. (See People v. Pearson (1981), 102 Ill. App. 3d 732, 430 N.E.2d 304; People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765; People v. Lynom (1981), 97 Ill. App. 3d 1113, 423 N.E.2d 1281.) In People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, our supreme court unequivocally held that convictions for armed violence and the predicate felony cannot be based on the same physical act. By order, the court subsequently denied petitions for leave to appeal and vacated the armed violence convictions in People v. Feierabend (1982), 91 Ill. 2d 561 and People v. Pearson (1982), 91 Ill. 2d 564, and the voluntary manslaughter conviction in People v. Lynom (1982), 91 Ill. 2d 563. In People v. Mormon (1982), 92 Ill. 2d 268, our supreme court explicitly held that the commission of a rape while armed is a single physical act which will not support dual convictions, and that the defendant’s conviction for armed violence based on rape was properly vacated for that reason.

The conviction for armed violence in the instant case must likewise be vacated. Remandment for resentencing on the rape judgment is unnecessary because a separate sentence was imposed for each offense. People v. Donaldson (1982), 91 Ill. 2d 164, 170-71; People v. Reyes (1982), 108 Ill. App. 3d 911.

For the reasons stated herein, the rape judgment is affirmed and the armed violence judgment is vacated.

Rape judgment is affirmed; armed violence judgment is vacated.

DOWNING and PERLIN, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    ILLINOIS BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. SEYMOUR ZABAN et al., Comm’rs of Board of Appeals of Cook County, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81—411
    Opinion filed August 11, 1982.
    Rehearing denied November 29, 1982.

      James R. Bryant, Jr., Robert Guritz, Michael J. Karson, and John T. Lenahan, all of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Thomas J. McNulty, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered''the opinion of the court:

Illinois Bell Telephone Company (Illinois Bell), the plaintiff, filed an amended petition seeking issuance of a common law writ of certiorari to the Board of Appeals of Cook County, Illinois, for judicial review of the Board’s 1978 assessment of Illinois Bell’s personal property. The defendants, Seymour Zaban and Harry H. Semrow, the duly elected commissioners of the Board of Appeals of Cook County, Illinois (Board of Appeals), and Edward J. Rosewell, county collector of Cook County, made several motions to dismiss the petition and to strike certain paragraphs therein. After the motions were denied, the plaintiff filed a motion requesting the court to issue the writ. The defendants responded to the plaintiff’s motion and renewed their motion to dismiss. In reliance on the recent opinion of Illinois Bell Telephone Co. v. Rosewell (1980), 82 Ill. App. 3d 975, 403 N.E.2d 662, appeal denied (1980), 81 Ill. 2d 602, the trial court denied the plaintiff’s motion for issuance of the writ and granted the defendants’ motion to dismiss the petition. The plaintiff appeals.

The issues presented for review are: (1) whether the plaintiff’s amended petition stated a cause of action; (2) whether the dismissal of the plaintiff’s petition was proper; and (3) whether the trial court should have issued the writ of certiorari.

The plaintiff’s amended petition alleged that the Cook County assessor rejected the property values reported by the plaintiff on its 1978 personal property tax return. The assessor increased the values of the plaintiff’s personal property located in Cook County suburban townships by multiplying the plaintiff’s returned values by the 1977 county equalization factor of 1.4153. The city personal property values were determined by the assessor to be the value of that property in 1976 increased by the 1977 Cook County multiplier. When the plaintiff filed complaints with the Board of Appeals, the Board upheld the assessor’s values for property located in the suburban townships but reduced the values for property located in the city townships to an amount based upon the plaintiff’s values on its 1978 tax return increased by the 1977 Cook County equalization factor. The plaintiff alleges that the resulting assessments were excessive and in violation of the rules and regulations of the county assessor’s office and the Board of Appeals. The plaintiff further alleges that the Board illegally failed to adjust the plaintiff’s 1978 property assessments so that after application of the county multiplier, the equalized assessed value of the plaintiff’s personal property would not have been in excess of the statutory limit of 33x/3% of the properties’ fair cash values (see Ill. Rev. Stat. 1977, ch. 120, pars. 502, 627).

The defendants’ renewed motion to dismiss the plaintiff’s petition argued that the petition was predicated upon the plaintiff’s right to have its personal property debased to allow for the county multiplier. The defendants contended that Illinois Bell made this same claim with regard to its 1977 personal property tax liability in Illinois Bell Telephone Co. v. Rosewell and that this court rejected Illinois Bell’s debasement argument. The defendants reasoned that since the relief Illinois Bell sought in its present action was held improper in the prior case, the petition for issuance of a writ of certiorari should be denied.

The trial court agreed with the defendants and dismissed the plaintiff’s action. Included in its order of dismissal were the following paragraphs:

“6. This Court, having considered the above-referenced allegations of the Petition for Writ of Certiorari and having taken judicial notice of the evidence elicited during proceedings before the Court in Illinois Bell Telephone Company v. Rosewell ***, that Illinois Bell debased the unit values included in its 1977 personal property tax returns in the amount of the multiplier, FINDS that Illinois Bell Telephone Company unilaterally debased the unit values included in its 1978 Cook County personal property tax returns in the amount of the multiplier.
7. The Appellate Court, in Illinois Bell Telephone Company v. Rosewell *** rejected '**■* plaintiff’s practice of unilaterally debasing its personal property in order to allow for the multiplier,’ [(]403 N.E.2d 662, 666), and this Court, whether it is in agreement or not, is mandated to follow the Appellate Court’s opinion.”

Illinois Bell argues in the instant appeal that the trial court’s ruling on the defendants’ motion to dismiss was improper because the trial court erroneously took judicial notice of evidence elicited in Rose-well and because the trial court’s reliance on Rosewell was misplaced.

The subject of litigation in Rosewell was Illinois Bell’s 1977 personal property tax assessment. The parties disputed the assessed val-nation of Illinois Bell’s property located in Chicago. Illinois Bell initially valued the property at an amount that was approximately $15 million less than the 1976 valuation and subsequently submitted a revised schedule wherein it further reduced the value of its Chicago personal property by $63 million. The assessor rejected Illinois Bell’s figures and relied upon the 1976 value for that property. The trial judge, who was also the trial judge in the instant case, held that the assessor’s action was arbitrary and amounted to constructive fraud. This court in Rosewell rejected Illinois Bell’s contentions of excessive valuation and constructive fraud and reversed the trial court. This court also rejected Illinois Bell’s argument in support of its reduced valuation figures, noting that Illinois Bell’s own records showed that its personal property had an actual cash value of over $200 million more than what was reported on its revised 1977 tax return. The court stated: •

“Plaintiff attempts to justify this discrepancy by arguing that the personal property values must be debased in order to allow for the multiplier which is ultimately applied to both real and personal property valuations. Failure to make an allowance for the multiplier, plaintiff contends, results in its personal property being taxed at a higher level than the statutory maximum. We note that this same argument was raised before the Illinois Supreme Court *** and rejected. We therefore reject plaintiff’s practice of unilaterally debasing its personal property in order to allow for the multiplier.” 82 Ill. App. 3d 975, 979-80, 403 N.E.2d 662, 666.

In the case at bar, the underlying basis for Illinois Bell’s petition is Illinois Bell’s belief that the value of its personal property should be adjusted or debased to compensate for the application of the county multiplier. As this theory of debasement was specifically rejected in Rosewell, we believe that Illinois Bell’s cause of action was without legal support and that the trial court properly dismissed Illinois Bell’s petition.

In view of our holding, we find it unnecessary to address the other issues raised in this appeal.

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

Affirmed.

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