author: JUSTICE REINHARD

text:
    WILBUR W. HART et al., Plaintiffs and Counterdefendants-Appellants, v. ROBERT E. LYONS et al., Defendants and Counterplaintiffs-Appellees.
    Second District
    No. 81-808
    Opinion filed June 2,1982.
    Terry P. Eland, of Glendale Heights, for appellants.
    Wayne L. Mular, of Bloomingdale, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiffs, Wilbur W. Hart and Pamela J. Hart, sellers, appeal from a judgment of the circuit court of Du Page County which found against them and in favor of defendants, Robert E. Lyons and Janice E. Lyons, purchasers, on plaintiffs’ complaint for breach of contract to sell a residential home. The order appealed from also found in favor of defendants on a counterclaim to recover their earnest money and awarded defendants judgment against the plaintiffs in the amount of $5,000 plus interest and costs.

Plaintiffs raise the following issues for our review: (1) whether the trial court erred in finding plaintiffs breached the contract and in determining that the “time is of the essence” clause had not been waived; (2) whether the trial court erred in not allowing cross-examination and testimony regarding the defendants’ ability to obtain financing and testimony of title commitment practices; and (3) whether the plaintiffs were entitled to the earnest money as liquidated damages.

There is no significant dispute as to the relevant facts which are as follows. On August 31, 1978, the parties entered into a written agreement using a standard printed residential sales contract whereby defendants agreed to purchase plaintiffs’ residence in Bloomingdale, Illinois, for $95,500. No brokers were involved. The amount of earnest money was set at $5,000, and closing was scheduled for February 1, 1979. Among the agreement’s terms was a provision that “[tjime is of the essence of this contract.” The contract also provided that plaintiffs were to furnish evidence of merchantable title and a spotted survey prior to the closing date.

On February 1, 1979, the parties mutually agreed in writing that the closing date be changed to April 1,1979, inasmuch as the home into which plaintiffs planned to move had not been completed and defendants had not sold their home. Just prior to the extended closing date, the parties again mutually agreed, orally, to a further extension of closing to June 1, 1979. Each of these extensions was made at plaintiffs’ request. No other terms of the contract were discussed or changed other than the closing date. No further discussion occurred concerning the transaction until June 1, 1979. On the evening of June 1 at about 10 p.m., defendants came to plaintiffs’ home and stated that since the closing had not taken place on that date as scheduled, the contract was null and void.

On June 14, 1979, defendants’ attorney sent plaintiffs a demand for the return of their earnest money. It was stated in this demand that plaintiffs had breached the contract by failing to provide defendants with a survey of a preliminary title report and by failing to close the transaction. Plaintiffs responded on June 20, 1979, with a “Demand to Close” which noted that no demand had been made on either party with respect to production of a title commitment, a document customarily ordered by the buyers’ lending institution. The demand set July 2, 1979, at 5 p.m. for the time of closing and stated that a title commitment would be forwarded shortly. The title commitment was forwarded on June 28, 1979. No closing took place on July 2, and on July 10, defendants again demanded the return of their earnest money.

Plaintiffs thereafter filed suit for breach of contract and forfeiture of the earnest money. Defendants counterclaimed for restoration of the earnest money and accumulated interest. Following a bench trial, the court found in defendants’ favor on the original complaint and on their counterclaim. The trial court found that the extensions of the closing date did not act as a waiver of the “time is of the essence” provision. He further held that the plaintiffs had breached the contract by failing to obtain a title commitment and survey prior to closing as required by the contract. During the trial, the court excluded testimony relative to the buyers’ ability to obtain financing and proposed testimony of title commitment custom and practice in the area.

Plaintiffs first contend on appeal that the judgment of the trial court was against the manifest weight of the evidence when it found that the “time is of the essence” provision of the contract had not been waived by the extensions of the closing date. Plaintiffs maintain that this waiver was made manifest by the two extensions of the closing date which were agreed to after the original signing of the contract, and that defendants’ failure to inform plaintiffs prior to June 1 that strict compliance with the extended closing date was expected is evidence that the “time is of the essence” provision had not been revived as of that time. Plaintiffs further maintain that their subsequent demand for a closing on July 2 operated to revive this clause so that defendants breached the contract by their refusal to close on that date.

Generally, the parties may make “time is of the essence” a provision of their agreement, and when it distinctly appears that they have done so and no peculiar circumstances have intervened to prevent or excuse a strict compliance, it will be treated by the court as of the essence. (Fannin v. Devine (1920), 294 Ill. 597,605,128 N.E. 745; Zempel v. Hughes (1908), 235 Ill. 424, 431, 85 N.E. 641.) The extent to which a “time is of the essence” provision in a contract will be strictly enforced depends upon the intention of the parties as determined primarily by the language used viewed under the circumstances surrounding the agreement as they reflect on the meaning of the words. (Cantrell v. Kruck (1975), 25 Ill. App. 3d 1060, 1064, 324 N.E.2d 260.) Thus, courts have found a waiver of a “time is of the essence” clause where the seller in an installment contract accepts late or lesser payments (Fox v. Grange (1913), 261 Ill. 116, 103 N.E. 576; Kirkpatrick v. Petreikis (1976), 44 Ill. App. 3d 575, 358 N.E.2d 679; Barlow v. McDowell (1905), 118 Ill. App. 506), where the actions of the buyer are not consistent with strict enforcement of the terms (Kohenn v. Plantation Baking Co. (1975), 32 Ill. App. 3d 231, 336 N.E.2d 491), or where a closing date has been extended and there is no meeting of the minds as to a new closing date (Cantrell v. Kruck (1975), 25 Ill. App. 3d 1060, 324 N.E.2d 260). Once there is a waiver of the provision, it may be revived only by specific notice of that intention. (Fox v. Grange; Cantrell v. Kruck.) It is plaintiffs’ contention that the two extensions of the closing date, the inaction of the defendants to notify them to deliver a title commitment and survey, and defendants’ failure to tender the purchase money, all are circumstances which operate as a waiver of the “time is of the essence” provision.

While both parties have cited to us cases which generally state the aforesaid principles, we have not found the cases controlling within the factual context of the case before us. We have not found any Illinois authority which holds that the extension of the closing date itself also automatically operates to waive the “time is of the essence” provision. Nor is there anything in the actions of the parties here that indicate such an intention. Both of the agreements to extend the closing date contained no conversation about or change of any other provision of the contract. It is stated in section 722 of Corbin on Contracts: “If the extension is a definite one, fixing a new time limit, it is a question of interpretation of the new expression, whether performance by the new limit is of the essence. It should be held to be so in the absence of anything to indicate the contrary intention, where the waiver is a mere extension of time without consideration.” (3A Corbin on Contracts sec. 722, at 380 (I960).) Also, a waiver of a contract provision may be express or implied from acts or conduct. (See Cantrell v. Kruck (1975), 25 Ill. App. 3d 1060, 324 N.E.2d 260.) Nevertheless, in the instant case we find neither an express or implied waiver of the provision by the defendants. The mere extension of the closing date, absent some evidence of modification of the “time is of the essence” provision, does not under the circumstances here operate to waive that clause in the contract. To hold otherwise would contravene the express language of this agreement and jeopardize enforcement of contracts fairly entered into in real estate transactions.

Plaintiffs have additionally argued that the inaction of the defendants in failing to demand the title commitment and survey and their failure to tender the purchase money on June 1 also constitutes a waiver of the “time is of the essence” provision. We disagree with this contention as well. By express provision in the contract the plaintiffs were to deliver “prior to closing date” evidence of merchantable title and a spotted survey. These conditions of the agreement were not performed by the plaintiffs by the closing date of June 1. Since plaintiffs failed to fulfill these conditions by June 1, the defendants were relieved of any duty to tender payment. “The party who insists upon performance by the other party must show performance on his part, while he who desires to rescind the contract need only show nonperformance or inability to perform by the other. Inability to perform is sufficient excuse on the part of the purchaser for not tendering performance, for, in this event, a tender would be devoid of meaning.” (Christopher v. West (1951), 409 Ill. 131, 136, 98 N.E.2d 722.) Where the plaintiffs had the express obligation under the contract to deliver evidence of merchantable title and a spotted survey prior to closing, we can find no precedent which would impose an obligation upon defendants to initiate a “demand” for performance of these express conditions or to require them to tender the purchase money when confronted with the plaintiffs’ prior breach of the contract. Under the circumstances present here, defendants did nothing to mislead the plaintiffs, and the plaintiffs’ failure to comply with the express terms of the agreement constituted a material breach of the contract.

From the foregoing analysis, we also reject plaintiffs’ next contention that the trial court erred in disallowing cross-examination and testimony concerning defendants’ ability to have sufficient funds to complete the purchase. In view of plaintiffs’ breach due to its failure to perform express conditions in the agreement, it therefore became immaterial whether the defendants had sufficient funds in order to tender the purchase price at the time of closing. The failure of plaintiffs to perform excuses tender of the purchase price. See Christopher v. West (1951), 409 Ill. 131,136-37,98 N.E.2d 722.

The plaintiffs also contend that the trial court erred when it disallowed testimony from their proposed witnesses who would have testified that custom and usage in the area would indicate that the institution providing financing for the purchaser would normally order the title report. Plaintiffs contend that this testimony would have showed “that title is ordered by the lender where a lender is involved and that sellers’ responsibility is limited to paying for their portion thereof.” The trial court refused to allow this testimony ruling that there was no showing that plaintiffs were aware of any third-party financing. The trial court ruled correctly since there is no evidence in this record to indicate that the plaintiffs considered or relied on this custom and practice in failing to fulfill their express obligation under the contract.

As we have concluded that plaintiffs breached the contract, the trial court correctly found that defendants here were entitled to return of their earnest money, and interest thereon, as specified in the agreement.

Affirmed.

VAN DEUSEN and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT C. LANG, Defendant-Appellant.
    Third District
    No. 81-536
    Opinion filed May 17, 1982.

      Robert H. Jones, Ltd., of Peoria, for appellant.
    Bruce W. Black, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Robert C. Lang, appeals from his conviction for murder following a jury trial in the Circuit Court of Tazewell County.

The facts indicate that on February 22, 1981, at 3:40 a.m., June Trewyn, a police dispatcher for the City of Pekin, received a telephone call from an unidentified caller whose whispering voice requested that a squad car be sent to 1107 Gehr Street. The dispatcher repeated the street name, spelled it and asked if that location was in the Schaferville area. The caller replied that it was and then added, “They’re trying to kill me.” At that point the dispatcher heard two male voices in the background and one of them shouted, “I’m going to kill her. I don’t care. I’m going to kill her anyway, she’s dead.” The dispatcher repeated to another dispatcher, “Hurry, they’re trying to kill her,” and the caller responded, “Yes, hurry, hurry.” The button was then pushed down by someone at the caller’s end of the line so that all the dispatcher heard was a beeping sound.

A squad car was immediately dispatched to the address given by the caller and the murder victim was found shot to death. The defendant admitted that he shot his wife.

The defendant first argues that the trial court abused its discretion in admitting the testimony of the police dispatcher. The defendant alleges that the trial court improperly permitted the dispatcher to relate the substance of the call as an exception to the hearsay rule as being an excited utterance.

The law is well settled in Illinois that a statement may be admitted as an exception to the hearsay rule if it is an excited utterance. In order to establish an excited utterance it is necessary to show that there is an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the absence of time to fabricate, and the statement must relate to the circumstances of the occurrence. (People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358; People v. Poland (1961), 22 Ill. 2d 175,174 N.E.2d 804; People v. Robertson (1976), 43 Ill. App. 3d 143, 356 N.E.2d 1180.) If a statement is a spontaneous declaration, then the victim’s statement may be admitted in its entirety. (People v. Wilson (1976), 44 Ill. App. 3d 15, 357 N.E.2d 842.) The trial court is accorded a reasonable degree of latitude in determining the admissibility of statements as excited utterances. The court will be found to have abused its discretion only if the statements are not so immediately connected with the event as to indicate lack of premeditation. People v. Cherry (1980), 88 Ill. App. 3d 1048, 411 N.E.2d 61; People v. Wilson (1976), 44 Ill. App. 3d 15, 357 N.E.2d 842.

The defendant attacks the introduction of the telephone conversation for several reasons. He first argues that the person who made the phone call never identified herself and that the individual’s voice was not recognized by the police dispatcher. The defendant therefore argues that the individual was not sufficiently identified as the victim, Candy Lang, to be admissible as an excited utterance. It must first be noted that the defendant need not be identified in order for statements to be spontaneous declarations. People v. McNeal (1980), 88 Ill. App. 3d 20,410 N.E.2d 480; People v. Fields (1979), 71 Ill. App. 3d 888, 390 N.E.2d 369.

Secondly, the circumstantial evidence strongly suggests that the victim made the phone call. The individual who made the call gave the victim’s and defendant’s address. The individual requested a squad car and said that “they’re trying to kill me.” The dispatcher heard a male voice shouting, “I’m going to kill her; I don’t care.” Approximately five minutes later a deputy sheriff found the victim shot at the home of the defendant and the victim. The defendant admitted that he shot his wife.

It is difficult to imagine the telephone call received by the police dispatcher as being placed by someone other than the victim. It would be coincidental indeed for a prank caller to choose the precise moment when the victim was being shot to call the police and report an impending shooting. It would be even more coincidental for that prank caller to give the victim’s address. The defendant testified that he and the victim were alone in their home at the time of the crime. He did not make the call. Therefore, it is clear that the trial court did not abuse its discretion in permitting the dispatcher to testify to the substance of the phone call and permitting the People to infer that the victim made that call.

The defendant also argues that the evidence is insufficient to establish that the caller was actually excited. That argument seems to ignore the fact that the victim was found shot within five minutes of the call. It also ignores the testimony that the shouting male voice was threatening the caller with death during the telephone call. We believe that an immediate threat of death is sufficient to engender a sufficient degree of excitement to satisfy the rule.

The defendant also objects to the dispatcher’s characterization of the caller as a female. On cross-examination the witness was not able to positively identify the whispering voice as female. The defendant did not specifically object to the testimony on this ground at trial. He has therefore waived the objection on appeal. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Also, it is clear that the witness was thoroughly cross-examined by counsel at trial and the witness admitted that she could not positively identify the caller’s voice as female. Thus, any error in the instant case was harmless. Furthermore, the shouting male voice heard by the dispatcher said, “I’m going to kill her, I don’t care. I’m going to kill her anyway; she’s dead.” (Emphasis added.) The caller indicated that “she” was the target of that individual. The evidence is more than sufficient to conclude that the caller was female.

Nor did the trial court err in permitting the dispatcher to repeat her statement to a dispatcher to “hurry, they’re trying to kill her.” The defendant did not specifically object to that statement at trial, the statement was an excited utterance by the dispatcher based on the frantic nature of the phone call received, and the statement was admissible to show the dispatcher’s present sense impression that the caller was a female.

That the remaining requirements for an excited utterance were present is not subject to debate. Clearly there was an absence of time to fabricate in the instant case. As indicated, the statements were made within minutes of the victim’s being shot and were in fact made while the victim was being threatened. Likewise, the statements made by the caller certainly relate to the circumstances of the threats made against her. For these reasons, the trial court did not err in admitting the testimony of the police dispatcher as exceptions to the hearsay rule under the doctrine of excited utterance.

The defendant next argues that the trial court erred in permitting a prosecution witness to testify as an expert witness. Apparently the defendant questions the relevance of a witness’ testimony and the witness’ qualifications as an expert.

The defense tried to establish that the victim and the defendant were a happily married couple who had been to a family gathering on the night in question. At that gathering several people testified that the victim and the defendant appeared normal, did not fight at the party, and had a happy marriage. Although the closing arguments were not transcribed, it appears to have been the defense’s theory that defendant and the victim were happily married but had a fight on the night of the murder after leaving their relatives’ party. In the defendant’s version of the shooting, he procured a shotgun during the fight in order to shoot some of the victim’s possessions, that a struggle ensued over the shotgun, and that the victim was accidentally shot.

The defendant testified that only he and his wife were present in the home at the time of the shooting. The defendant’s father, who lived next door to the defendant, denied on cross-examination that he had ever told investigating officers that he had been over to the defendant’s house on the night of the murder. The defendant’s father was impeached on rebuttal with the testimony of a police officer who testified that the defendant’s father told the officer that the defendant came over to his house about 3:30 a.m. and informed the father that he had shot his wife. The officer also testified that the defendant’s father told him that he had been over to the defendant’s house earlier, that he couldn’t do any good, and had returned to his own home.

C. E. Brisbin was called by the People in rebuttal. He testified that in his opinion there were three voices other than the police dispatcher on the tape submitted to him by the police. Obviously that testimony was relevant. The fact that there were three other voices on the tape, the victim and two males, would support the People’s theory that the defendant became angry at his wife, that his wife was fearful of him, that another male individual was present, and that the defendant murdered his wife. The same evidence impeached the defendant’s testimony that he was home alone with his wife at the time of the crime and that the victim was accidentally shot while she struggled with the defendant over the shotgun.

The defendant also appears to argue that the tape examined by Brisbin was not properly identified as the same tape made of the conversation between the dispatcher and the anonymous caller on February 22, 1981. By failing to object to Brisbin’s testimony on that ground at trial or in his post-trial motion, the defendant has waived that objection on appeal. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

The defendant contends that Brisbin was improperly qualified as an expert in the operation of recording equipment and did not possess an ability to discern the number of voices on a particular piece of tape. The defendant places particular emphasis on the fact that Brisbin did not have a degree in electronics or any formal training in the field. A trial court has broad discretion to determine the qualifications of experts and to decide what testimony would assist a jury in its deliberations. (People v. Gordon (1981), 94 Ill. App. 3d 764,419 N.E.2d 66.) Irrespective of how specialized knowledge was acquired, whether through education, training, experience, or combination of each, if the witness possesses such knowledge, then he or she may testify by opinion or otherwise. (People v. Rhoden (1981), 101 Ill. App. 3d 223,427 N.E.2d 1292.) Specialized formal training is not necessary; experience may qualify one as an expert. People v. Wade (1977), 51 Ill. App. 3d 721,366 N.E.2d 528; People v. Jenkins (1974), 20 Ill. App. 3d 727, 315 N.E.2d 269.

Mr. Brisbin testified that he started in the broadcasting industry in 1968. He received approximately two months of training at a radio station in the operation of transmitting equipment. He was taught to record his own voice, to record from other tape sources, to record other people’s voices, and to mix them in such a way that they would blend or stand out, depending upon the requirements of the production. In 1969 he began announcing as well as working in production studios of a radio station. It was at that time he was issued a third-class radio operator’s license after successfully passing a test by the Federal Communications Commission. As part of his training, he was taught to deal with differences in frequencies of individual voices.

Subsequently, the witness was employed to sell professional recording equipment. He was trained by the owner of the company to become conversant with all levels of equipment of professional audio recording. The witness was in fact the sales manager for the company. The witness testified that he put tapes of various people’s voices together to make master tapes approximately 1,000 times and that this procedure involved dealing with the frequency of different people’s voices. The witness then purchased his own studio-owned equipment. At the time of his testimony he was employed in producing television and radio commercials, sound tracks for films, and recordings of voices.

Based on the above testimony, the trial court rules that Brisbin was properly qualified as an expert in the use and operation of recording equipment and in his ability to discern voice frequencies and the number of voices on a particular tape. The trial court did not err in that determination. We believe the witness had sufficient recording experience and was competent to explain the mechanical operation of the equipment and the procedure used to determined how many voices were present on that tape. People v. Lamprey (1979), 79 Ill. App. 3d 1065, 398 N.E.2d 1076.

The defendant next argues that the trial court erred in admitting the testimony of Carolyn Maddox, Barbara Bollinger, and Georgia Rogers in rebuttal concerning evidence of the victim’s state of mind. On appeal, the defendant objects to the testimony as irrelevant and suggests that the trial court’s limiting instructions on the use of the testimony were insufficient.

Again, it is well settled that statements which indicate the declarant’s state of mind are admissible as exceptions to the hearsay rule. (People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112; People v. Johnson (1976), 42 Ill. App. 3d 425, 355 N.E.2d 699; People v. Fletcher (1978) , 59 Ill. App. 3d 310, 375 N.E.2d 1333.) The only requirements for their admissibility are the unavailability of the declarant and a reasonable probability that the preferred testimony is truthful. People v. Goodman (1979) , 77 Ill. App. 3d 569, 396 N.E.2d 274; People v. Reddock (1973), 13 Ill. App. 3d 296, 300 N.E.2d 31.

In the instant case it was obvious that the declarant, the deceased, was unavailable to testify at trial. Likewise, there is a reasonable probability of the truthfulness of the statements. All three witnesses testified that they were friends and co-workers with the decedent at her place of employment, the telephone company. All three witnesses testified that, individually, they had a conversation with the decedent within two weeks of her death in which the decedent indicated her unhappiness in her marriage to the defendant and her intention of leaving him. Moreover, the fact that the victim individually relayed that information to three different people on different occasions supports the conclusion that there was some truth to the matter asserted. According to the witnesses, the decedent made those statements two weeks before she was shot and killed by her husband. Those statements were close enough in time to the crime to be relevant to the decedent’s state of mind on the night of the shooting.

The statements were relevant to the case because of defendant’s testimony on behalf of the defense. Defense witnesses testified that the defendant and the victim had been at a family gathering on the night in question. Those witnesses testified that the defendant and the decedent were getting along fine during that gathering. The defendant’s brother testified that the defendant and the decedent had a happy marriage and never argued in his presence. The defendant also testified that he had a good marriage and believed that the decedent was happy in the marriage. According to him no divorce was planned. As indicated, his testimony at trial was that the decedent was accidentally shot while she struggled with the defendant over a shotgun during a rare marital argument.

The rebuttal testimony as to the decedent’s state of mind was relevant to rebut the defense testimony concerning the marital accord between the defendant and the decedent, to respond to the defendant’s version of how his wife was shot, and to suggest a possible motive for the defendant’s crime. People v. Adams (1981), 102 Ill. App. 3d 1129, 430 N.E.2d 267.

The court gave limiting instructions during the testimony of Carolyn Maddox as to the use of the state-of-mind testimony. The court gave another limiting instruction after the testimony of Georgia Rogers. The jury was again instructed on the limited use of the testimony after closing arguments. Any argument that the trial court failed to properly instruct the jury on this issue is without merit. This is especially so when defense counsel failed to tender his own limiting instruction.

In sum, it is clear that the evidence relating to the victim’s state of mind was relevant, was properly admitted, and that the jury was properly instructed as to its use.

The defendant raises a question concerning the sufficiency of the evidence to prove him guilty in that portion of his brief entitled “Issues Presented for Review.” However, defense counsel makes no argument concerning that issue in his brief. Apparently it is counsel’s opinion that the evidence is insufficient to prove the defendant guilty of murder absent the testimony of Ms. Trewyn, C. E. Brisbin, and the evidence relative to the decedent’s state of mind. As indicated above, that testimony was properly admitted and was sufficient to prove the defendant’s guilt.

It must be remembered that the defendant admitted at trial and to the police that he shot his wife. The only question to be decided by the trier of fact was why the defendant shot the victim and what crime, if any, was committed. The defendant’s exculpatory testimony at trial was rebutted by his statements to police officers that he was standing by the stove and his wife was standing by a heater when the gun accidentally went off. He was also impeached with his prior statements that “he and his wife were fighting and that this fight was worse than the other ones that they had,” and that “he took the safety off of the shotgun” and “the gun went off.” That evidence, together with the statements contained in the phone call to the Pekin police dispatcher, was sufficient to prove the defendant guilty beyond a reasonable doubt.

Finally, the defendant raises the issue that his constitutional rights under Miranda v. Arizona were violated. Again, although the defendant raises this issue in his issues presented for review, he presents no argument on the same. In any event, the defendant’s issue is without merit, since the defendant was not questioned by the police. Each time an officer testified that the defendant made a statement, the officer also testified that he had not questioned the defendant prior to the volunteered statement.

Even if a defendant is under arrest, volunteered statements are admissible against the defendant and the police are not required to interrupt a suspect in the process of making such a statement to inform him of his Miranda rights. (People v. Baer (1974),19 Ill. App. 3d 346, 311 N.E.2d 418.) The trial court did not err in admitting the various statements of the defendant which had been volunteered to various police personnel without questioning during investigation of Candy Lang’s shotgun death.

The motion of the defendant to amend the record on appeal with a tape recording, which was taken with the case, is allowed. The allowance of this motion in no way alters the results reached in this opinion.

For the foregoing reasons, the judgment and sentence of the Circuit Court of Tazewell County are affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE PERLIN

text:
    RUSSELL L. REINEMAN, Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81-1630
    Opinion filed May 25, 1982.
    Emerson E. Blue, of Chicago, for appellant.
    Tyrone C. Fahner, Attorney General, of Chicago (Russell C. Grimes, Jr., Assistant Attorney General, of counsel), for appellees.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiff, Russell L. Reineman (Reineman), filed a complaint in the circuit court of Cook County pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) to obtain judicial review of the decision rendered by the Illinois Department of Revenue (Department) which affirmed a tax deficiency assessed against Reineman for the years 1972 and 1974 in the amounts of $1,003.05 and $3,862.50 respectively, and which denied his claim for a tax refund for the tax year 1973 in the amount of $885.76. Reineman appeals from the order of the circuit court which affirmed the decision of the Department.

On August 1, 1969 the Illinois Income Tax Act (Act) (Ill. Rev. Stat. 1977, ch. 120, par. 1 — 101 et seq.) became effective. The Act grants to noncorporate taxpayers who have sold property during the year a deduction equal to the amount of appreciation which accrued prior to the effective date of the Act. (Ill. Rev. Stat. 1977, ch. 120, pars. 2 — 203(a)(2)F), 2 — 203(c)(2)F); Warren Realty Co. v. Department of Revenue (1978), 62 Ill. App. 3d 450, 451, 379 N.E.2d 100, appeal denied (1978), 71 Ill. 2d 622.) This deduction is known as the “[vjaluation limitation amount.” (Ill. Rev. Stat. 1977, ch. 120, par. 2 — 203(e).) In this manner noncorporate taxpayers may capitalize appreciation which accrued prior to August 1, 1969 and thus reduce their reportable net gain on sales made during the year. (Warren Realty Co.) In general, the Act provides that the Illinois valuation limitation amount is equal to the sum of the pre-August 1, 1969, appreciation amounts which are reportable as ordinary income on an individual’s Federal income tax return under sections 1245 or 1250 of the Internal Revenue Code plus the amount reported as capital gain on the federal tax return. (Ill. Rev. Stat. 1977, ch. 120, pars. 2 — 203(e)(1)(A), (B).) The sole issue presented for our review is whether Reineman may deduct on his Illinois income tax return, as a valuation limitation amount, the gain realized from the sale of his race horses which was attributable to pre-August 1, 1969, appreciation and which was reported as ordinary income on his Federal income tax return under section 1251 of the Internal Revenue Code.

For the reasons which follow, we affirm.

Reineman was in the business of racing thoroughbred horses. In 1972, 1973 and 1974 he sold a number of horses which he had acquired prior to August 1, 1969. The gains on these sales were reported on his Federal income tax return as ordinary income under sections 1245 and 1251 of the Internal Revenue Code. In filing his Illinois income tax returns in 1972 and 1974 Reineman deducted as a valuation limitation amount the amounts of gain realized attributable to pre-August 1, 1969, appreciation that he reported on his Federal tax return under both sections 1245 and 1251. The valuation limitation amount claimed by Reineman for the amount of income reported under section 1245 was allowed in full, but the Department denied his claim for the amount reported under section 1251.

In 1975 Reineman filed with the Illinois Department of Revenue a claim for refund for the 1973 tax year in the amount of $885.76. He contended that he had overpaid his Illinois income tax in 1973 because he failed to deduct, as a valuation limitation amount, the amount of realized gain which he had reported under section 1251 on his Federal tax return for that year. The Department denied this claim.

Reineman contends that he is entitled to a valuation limitation amount equal to the total amount of gain realized on the sale of his race horses that is attributable to the pre-August 1, 1969, appreciation. He maintains that the legislative purpose underlying the enactment of the valuation limitation amount was to exempt from the Illinois income tax all such gain realized.

Reineman relies heavily on Thorpe v. Mahin (1969), 43 Ill. 2d 36, 250 N.E.2d 633. In Thorpe the Illinois Supreme Court held constitutional the Income Tax Act of 1969. In defining the scope of the Act, the court found that the legislature did not intend to tax the appreciation on capital assets which occurred prior to the effective date of the Act. In response to Thorpe, the legislature amended the Income Tax Act to provide for the valuation limitation amount. (1971 Ill. Laws 1368.) The amendment states that the valuation limitation amount equals:

“The sum of the pre-August 1,1969 appreciation amounts (to the extent consisting of gain reportable under the provisions of Section 1245 or 1250 of the Internal Revenue Code) for all property in respect of which such gain was reported for the taxable year.” Ill. Rev. Stat. 1977, ch. 120, par. 2 — 203(e)(1)(A).

As a part of the same enactment the legislature also provided that:

“Except as expressly provided by this Section, there shall be no modifications or limitations on the amounts of income, gain, loss or deduction taken into account in determining gross income, adjusted gross income or taxable income for federal income tax purposes for the taxable year, or in the amount of such items entering into-the computation of base income and net income under this Act for such taxable year, whether in respect of property values as of August 1, 1969 or otherwise.” Ill. Rev. Stat. 1977, ch. 120, par. 2 — 203(g).

While the thesis of Thorpe tends to support Reineman’s position, his reliance on that decision ignores the legislature’s amendments subsequent to Thorpe. By these amendments the General Assembly has explicitly defined the scope of the valuation limitation amount. The legislature did not provide a deduction for gain realized on the sale of property that is reported under section 1251 on an individual’s Federal income tax return. Further, the legislature expressly reserved unto itself the power to modify the valuation limitation amount. Under these circumstances we cannot expand the scope of the valuation limitation amount to include a deduction for the amount of income Reineman reported under section 1251 of his Federal income tax return. Illinois courts have established that a deduction is a privilege granted as a matter of legislative grace. (Bodine Electric Co. v. Allphin (1980), 81 Ill. 2d 502, 410 N.E.2d 828.) Here the legislature did not enact the deduction that Reineman claims as it was within the prerogative of the General Assembly not to do so. Accordingly, our decision is mandated by the explicit language of the Illinois Income Tax Act, and we affirm the order of the circuit court which upheld the Department’s assessment of a tax deficiency against Reineman for the years 1972 and 1974 and which denied his claim for a refund for the tax year 1973.

Affirmed.

DOWNING and HARTMAN, JJ., concur.

       26 U.S.C. sec. 1245 (1969). This section taxes as ordinary income the gain realized from the sale of certain depreciable personal property such as race horses.

       26 U.S.C. sec. 1250 (1969). This section involves the taxation of gain realized from the sale of certain real property and is not at issue in this appeal.

       26 U.S.C. sec. 1251 (1969). This section taxes as ordinary income the gain realized from the disposition of property used in farming where farm losses have been used to offset nonfarm income. Under this section the business of farming includes the business of racing horses.


author: JUSTICE JIG ANTI

text:
    FRANK J. VIGILANTE et al., Plaintiffs-Appellants, v. NATIONAL BANK OF AUSTIN, Defendant-Appellee.
    First District (4th Division)
    No. 81-1827
    Opinion filed May 20,1982.
    Jerome Marvin Kaplan and Marc K. Schwartz, both of Chicago, for appellants. ■
    John E. Coffey and Richard A. Kerwin, both of Chicago, for appellee.
   JUSTICE JIG ANTI

delivered the opinion of the court:

The plaintiffs, Frank J. Vigilante and Annette Vigilante, were indebted to the defendant, National Bank of Austin (National), on a note. The dispute between the parties centers around whether the note was extended by an agreement between the parties. National’s position is that there was no extension agreement and on the maturity date of the note exercised its right of set-off and deducted money from the plaintiffs’ savings account to pay off the note’s principal and interest. The plaintiffs contend that National had no right to do this because the note was not then due and brought this action for actual and punitive damages. On a motion for summary judgment, the trial court found that there had been no extension agreement and entered judgment in favor of National.

The promissory note at issue was dated January 3,1977. By its terms, it was a six-month note in the amount of $335,000 with a maturity date of July 5, 1977, with interest at the rate of 8 1/4% per annum payable when the note was due. The assignment of the beneficial interest in various trusts was recited on the face of the note as being the collateral for this loan. The note was signed by both Frank and Annette Vigilante. The parties to this action agree that this note consolidated and renewed prior loans made by National to the Vigilantes.

According to the plaintiffs, certain letters which were exchanged between the parties, certain conduct on the part of the Vigilantes and certain statements contained in the minutes of various committees of the Bank are evidence of an agreement between National and the Vigilantes to extend this note.

On March 24, 1977, approximately two months after the note was signed, Robert F. Gallery, National’s executive vice president, sent a letter to Frank Vigilante. The plaintiffs contend that this letter sets out the terms of the extension agreement. Specifically, the plaintiffs claim that this March 24 letter changes their obligation from a promissory note due at maturity to an installment note due in approximately six years with $5000 plus 8 1/4% interest due each month to be deducted from the Vigilantes’ account at the bank. The March 24 letter stated:

“Mr. Burke has advised me that it has been mutually agreed that reductions per month of $5000 plus interest will commence this month. Unless I hear different from you, we are expecting a check from you per this agreement prior to the end of this month.” (Emphasis added.)

Following this letter, the bank began to make monthly interest deductions from the Vigilantes’ bank account.

Over one month later on April 25,1977, Frank Vigilante responded to the letter. The plaintiffs contend that this response indicates that an extension contract had been agreed to and that the consideration for the extension was monthly deductions of $5000 plus 8 1/4% interest which had not been required under the original note. The April 25 letter from Frank Vigilante to the bank stated:

“I am sorry that I have not gotten to this sooner but I have been very busy. Enclosed please find my check in the amount of $15,000 which I am forwarding in order to lower my Note with your bank.”

A letter dated May 16,1977, from Robert Gallery to Frank Vigilante is the third and final document which the plaintiffs claim comprise the extension agreement. The letter states:

“This letter is to confirm the conditions and terms as to the continuation of your note with our bank.
We will forbear further action regarding our notice to you of the call of your note in full on the basis that we will continue to receive a regular payment of $5,000 plus interest each month. We continue to reserve our rights and conditions of the note as to further review of your credit.” (Emphasis added.)

On June 17, 1977, less than a month before the maturity date on the promissory note at issue, Frank and Annette Vigilante deposited $350,000 in a savings account at National and made one more $5000 payment to National. Then on July 6, 1977, Robert Gallery wrote Frank Vigilante a letter informing him that because his note with an unpaid principal balance of $315,000 became due and payable in full on July 5, 1977, National had exercised its right of set-off and charged his savings account for principal in the amount of $315,000 plus interest in the amount of $2,398.23.

In addition to the above facts, the plaintiffs also cite certain language in four separate sets of minutes kept by National to support their position that an extension agreement was in effect. The first set of minutes is from an April meeting of the loan and discount committee which was held approximately three months before the original note was due. The minutes state: “The Committee was informed that the agreed upon monthly reduction program has not been adhered to; # * *. It was agreed that the borrower be informed that we expect strict adherence to a reduction program or legal action will be instituted.” (Emphasis added.) The second set of minutes is from a May meeting of the confidential loan review committee of the Bank. The minutes state that the Vigilante loan was current on the “agreed upon monthly repayment program,” but that the Vigilantes should be notified that “legal action” would be instituted in the event any monthly payment was not received promptly. The third set of minutes is from, a meeting of the loan and discount committee held approximately one month before the original note was due. This set of minutes mentions a “monthly repayment program [which had] not been adhered to” along with a recommendation to the Board of Directors that “legal action be instituted immediately to effect collection of the unpaid balance of this loan.” The last set of minutes is from a meeting of a special executive committee of the Bank held approximately two weeks before the note was due. This meeting was convened specially for the purpose of discussing the Vigilante loan. At this meeting, it was decided that the Bank would exercise its right of “set-off" against the $350,000 deposited in the Vigilantes’ recently opened savings account if the note was not paid in full on its July 5 maturity date.

We do not believe that the record supports the Vigilantes’ claim that there was an extension agreement between the parties. As we construe the letters cited to us by the plaintiffs, we can find no mutual agreement on the part of the parties to extend the initial note. None of the letters cited to us by the plaintiffs employ the word “extension.” The March 24 letter sent by the bank to Frank Vigilante, which the plaintiffs claim sets out the terms of the extension agreement, specifically refers to “reductions per month,” not an extension. The April 25 letter which Frank Vigilante sent to National specifically states that the enclosed check was “to lower my Note with your bank.” There is no mention of a possible extension. Finally, the last relevant letter of May 16 which the bank sent to Frank Vigilante specifically states that National continued “to reserve our rights and conditions of the note as to further review of your credit.” There is no indication in this letter that a formal extension agreement was in effect. The law is clear that parties are bound by the language which they use regardless of their intent. (4 Williston, Contracts §606, at 371 (3d ed. 1961); Traff v. Fabro (1949), 337 Ill. App. 83, 84 N.E.2d 874.) The language used in these letters is “reduction” and “lower.” A court must arrive at meaning from language used in documents. Construction is a pure question of law, and the court must determine this from the documents’ clear language. Sears v. First Federal Savings & Loan Association (1971), 1 Ill. App. 3d 621, 275 N.E.2d 300.

The plaintiffs’ conduct, which they claim shows that a formal extension agreement was created, also supports the conclusion that the Vigilantes and National had merely agreed to some kind of a loan reduction program. On April 25, 1977, Frank Vigilante sent a $15,000 payment of principal to National. Then on June 17,1977, he sent another $5,000 payment to National. These payments reduced the outstanding principal on his loan from $335,000 to $315,000, the latter being the amount of principal set-off by the bank.

The sets of bank minutes cited to us by the plaintiffs are also unconvincing proof of the existence of an extension agreement. These minutes consistently refer to the arrangement between the parties as a “monthly reduction program” and a “monthly repayment program.” In all four sets of minutes, National emphasizes its decision to institute legal action if the note is not paid at maturity. Specifically, the minutes refer to the fact that “legal action will be instituted,” that the Vigilantes should be notified that “legal action would be instituted” and, as the maturity date on the note grew closer, that “legal action be instituted immediately” and that a “set-off” should be exercised.

Subsequent to the signing of the note, the parties entered into some sort of an arrangement to reduce the principal balance of the note and also to make monthly payments of interest. Enforceability of that agreement is not before the court. What is before the court is whether or not these arrangements constituted an extension agreement. For the reasons stated, we believe that they do not and therefore affirm the decision of the trial court.

Affirmed.

JOHNSON, P. J., and LINN, J., concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS CIHLAR, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2374
    Opinion filed May 18,1982.

      Ralph Ruebner, Steven Clark, and Phillip Zisook, all of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant was found guilty by a jury of rape, burglary and home invasion and not guilty of armed robbery. He was sentenced to a 6-year term. He raises as issues for review whether: (1) he was proved guilty beyond a reasonable doubt; (2) he was prejudiced by the State’s failure to provide his attorney with a statement of a State’s witness; (3) the court erred in allowing into evidence inadmissible hearsay testimony; and (4) the court erred in refusing to give an instruction as to prior inconsistent statements.

The victim testified that on June 24,1979, she returned to her Lyons, Illinois, apartment from work with her boyfriend, who left there at 2:30 a.m. She went to bed and was awakened by the “feeling” of someone watching her, saw a man standing at the foot of her bed, and screamed. The man jumped on her bed, put his hands over her mouth and throat, and told her to shut up or he would kill her. The man was wearing a pair of women’s panties around the outside of his face. His entire face was visible to her. She identified defendant as the man in her bedroom. Defendant told her he had a knife and asked her if she had any money; she said she did not. Defendant had sexual intercourse with her against her will. Thereafter, he said to her, “A1 told me you were a good piece of ass and he was right.” He then walked into the living room. When she thought he was gone, the victim went into the kitchen. There was a light on in the living room and she saw defendant there and again saw his face. The man ordered her back into the bedroom, pushed her back in the bed, and then left her apartment. She went to her neighbor, Marcia Londo, and banged on the door of her apartment. This occurred at approximately 4 a.m. The victim testified further that she had initially described the rapist to the police as 6 feet tall weighing 200 pounds; however, later in the police station she saw an individual of that size and told the police her assailant was smaller. Her assailant had very high cheekbones, a squared jaw, dark curly brown hair and a blemish problem.

Richard Kluk, a Lyons police officer who arrived at the scene with his partner, Officer Stanley Augustyniak, also testified that the victim described her assailant thus; however, neither this description, nor the assailant’s height and weight appeared in her written statement to the police. Kluk also testified that the victim never stated she could not see the offender’s face; however, the police report indicated that she stated the panties covered her assailant’s facial features. Kluk did not recall the victim relating this information to him, but noted that his partner spoke to her alone.

Officer Augustyniak testified that the statement in the police report that the panties covered the offender’s facial features was his interpretation of the victim’s description; however, she did not tell him what part of the offender’s head was covered nor that she was unable to see her assailant’s face. She had described the offender to Officer Kluk. The victim also testified she had not told Augustyniak that the panties covered the offender’s facial features. After she gave her initial statement to the police, it was discovered the $8 the victim had in her purse in the kitchen was missing.

Londo testified that when the victim appeared at her door, she was hysterical and incoherent. She had to “smack” the victim because she “couldn’t get anything out of her.” The victim told her, “I have been raped.” Londo called the police. She did “not know what was said between * * * [the victim] and the police * * and “did not really hear what was said between * * * [the victim] and the police.”

On October 9,1979, the victim identified defendant as her assailant in both visual and vocal lineups.

Defendant presented alibi witnesses who testified that he was in Syracuse, Indiana, the day preceding and the day of the rape where defendant was on vacation with his father. Three witnesses testified they saw defendant at 10:30 p.m. on June 23,1979, at 11 a.m. on June 24,1979, and in the afternoon of June 24,1979. Defendant’s father, Edward Cihlar, testified he saw defendant asleep in their trailer in Syracuse at 6 a.m. on June 24, 1979. Syracuse is a 3?i hour automobile drive from Berwyn, Illinois, where the Cihlars live. He further testified defendant did not have keys to his car and he was not allowed to drive because he had been involved in two accidents.

The jury found defendant guilty and he was sentenced as first above noted.

In a motion for a new trial, defense counsel alleged that the State failed to produce in discovery statements favorable to the defense, namely, that State witness Marcia Londo had asked assistant State’s Attorney Thomas Tucker, prior to trial, how anyone could make a positive identification of a person whose face was completely covered. Attached to the motion was a sworn statement by Londo that: she was present when the victim gave her statement to the police; she did not know whether the victim told the police she could not positively identify the offender and could not swear to it; prior to trial Londo asked the assistant State’s Attorney how anyone could make a positive identification of the attacker if underwear was covering his face; she told the assistant State’s Attorney that the victim had said the assailant’s face was covered by underwear; the assistant ignored her statement and replied that the underwear was worn on the head like a hairnet, with the legholes in the back; and, when two people from the State’s Attorney’s office interviewed Londo after trial, she told them the victim had told the police the attacker’s face and features were fully covered.

During the hearing on the motion, Londo testified that, with police present, the victim told her the attacker’s face was covered with underwear. In her sworn statement, Londo asserted the victim reported to police that “her attacker was fully masked in a pair of woman’s panties, and that his facial features were completely covered * * although at trial she had testified that she was unable to hear the conversation that took place between the victim and the police. Following argument, the court denied the motion.

I

Defendant first argues he was not proved guilty beyond a reasonable doubt, relying upon: evidence that defendant was in Syracuse, Indiana, on June 23, 1980, and June 24, 1980, and he was not allowed to use the family car; the contradiction of the victim’s testimony that she could identify her assailant by the police report which stated his features were covered by the underwear; the police officer who showed the victim photographs of suspects in July 1979 testified that the victim described her assailant as sounding uneducated and as having a slurred voice, whereas she testified at trial there was nothing unusual about her assailant’s voice; the victim’s denial that the assailant knew her boyfriend, whereas she told the officer she thought her assailant had known her boyfriend; and that the lineup occurred four months after the rape. He cites People v. Raker (1979), 75 Ill. App. 3d 975, 394 N.E.2d 852, and People v. Reese (1973), 14 Ill. App. 3d 1049, 303 N.E.2d 814, in both of which defendants’ convictions for rape were reversed where evidence was presented at trial that defendants were elsewhere when the crimes occurred. Both cases are inapposite. In Raker, the victim could not immediately identify the defendant, and in Reese the victim viewed her assailant’s face for only a few seconds.

The record demonstrates that defendant was proved guilty beyond a reasonable doubt. The jury could have believed that the victim observed defendant at close range, in her bedroom, and under conditions of adequate lighting. She gave two descriptions to the police which were essentially in harmony and identified defendant at pretrial visual and vocal lineups as well as in court. Both People v. Thomas (1979), 72 Ill. App. 3d 186, 389 N.E.2d 1330, and People v. Patterson (1980), 90 Ill. App. 3d 775, 413 N.E.2d 1371, are instructive in this regard. In Thomas, the victim’s positive identification of her assailant at trial, coupled with the fact that she had observed him over a period of time under good lighting, was sufficient evidence to support a conviction. In Patterson, the victim’s in-court identification of defendant, along with her opportunity to observe her assailant, supported defendant’s conviction, even though she had merely identified defendant during a lineup as the one who “looked the closest” to her assailant. Further, the jury could have disbelieved certain of defendant’s alibi evidence because of inferable discrepancies. From the foregoing, we cannot say that defendant’s guilt was not proved beyond a reasonable doubt.

II

Defendant next argues he was denied due process of law when the prosecution failed to advise his attorney of Londo’s question to prosecution attorneys, which was discoverable as favorable to the defense, namely, how anyone could make a positive identification of an individual if his face was completely covered. Defendant contends he should have been informed of this favorable query, since it implies that Londo had been previously told no identification could be made. Defendant cites authority for the principle that exculpatory material or information within the prosecution’s possession or control must be disclosed to the defense and urges that if Londo’s question had been provided to the defense prior to trial, it could have been used in corroboration of the police report which stated the assailant’s face was covered, as impeachment of the victim’s testimony, and as the basis of cross-examination of Londo.

The State contends Londo’s inquiry was unrelated to any prior knowledge or belief on her part that the assailant could not be identified and that Londo’s question was not discoverable because defendant’s right to disclosure applies only to written or recorded statements, substantially verbatim reports of oral statements and memoranda reporting oral statements, citing People v. Witherspoon (1979), 69 Ill. App. 3d 391, 388 N.E.2d 1, which so holds. The court in Witherspoon further stated that the accused must make a preliminary showing of the existence of such a statement and that the State is not under a duty to reduce an oral question to writing. The State also observes that the favorable aspect in the police report as to the victim’s ability to see defendant’s face had already developed by the time Londo took the stand and she could have been cross-examined at that time with respect to this issue, suggesting, nevertheless, that such examination would have been fruitless in any event since Londo had testified that she was busy with her little girl and did not hear the conversation between the victim and the police.

We note that defendant, in his motion for discovery, requested, inter alia, the names of witnesses favorable to the defense. Where a discovery request is specific, the failure to respond is seldom excusable; however, where a request is general, constitutional error occurs only if the omitted evidence creates a reasonable doubt that did not otherwise exist. (People v. Jones (1977), 66 Ill. 2d 152, 361 N.E.2d 1104, citing United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392.) The instant request is general. (See People v. Fitzgerald (1977), 55 Ill. App. 3d 626, 631, 370 N.E.2d 1207, in which a request for the names of persons who identified “ ‘anyone other than the accused as the perpetrator or participant’ ” was deemed general; People v. Ruffalo (1979), 69 Ill. App. 3d 532, 388 N.E.2d 114, wherein a request for all physical evidence was construed as a general request; and People v. Witherspoon in which a request for any statements made by State witnesses which recanted prior statements was considered general.) Finally, the State correctly urges that Londo’s inquiry did not create a reasonable doubt which did not otherwise exist, since the information contained in the police report as to that point was already in evidence, all relevant witnesses were cross-examined as to the source of that statement, and Londo could have been questioned as to whether she had heard that statement when she testified at trial.

Ill

Defendant maintains that the court erred in allowing into evidence certain inadmissible hearsay. At trial, Officer Kluk, who had arrived at Londo’s apartment after the rape, testified over objection as to the details of the victim’s statement to him. Defendant contends the testimony did not qualify as a spontaneous declaration or corroborative complaint, both of which exceptions to the hearsay rule are discussed in People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25, and that the testimony was thus improperly admitted to bolster the victim’s in-court testimony. Defendant argues that the victim’s statement cannot fall within the excited utterance exception for several reasons: the police arrived between six and 30 minutes after the victim arrived at Londo’s apartment (depending upon whether Londo’s or the police officers’ version of events is accepted); her statement was given after a series of questions; the prosecutor had stated at trial that he was presenting the statement to “set the scene”, not for its truth, and not as an “outcry” statement; and the victim had spoken to Londo before police arrived at the scene. Defendant insists further that the statement was not properly admitted as a corroborative complaint since it contained the details of the alleged rape, which are not admissible under that exception. See People v. Buckley (1976), 43 Ill. App. 3d 53,356 N.E.2d 1113.

Defendant has waived this argument by failing to include it in his post-trial motion (People v. Agee (1980), 85 Ill. App. 3d 74, 84,405 N.E.2d 1245); however, we examine this issue from the standpoint of determining whether to apply the “plain error” exception to these circumstances. The statement may be qualified as a spontaneous declaration insofar as Londo’s testimony was concerned but not as to Officer Kluk. A similar situation occurred in People v. Coleman (1980), 83 Ill. App. 3d 429, 403 N.E.2d 1266, in which the court held that a rape victim’s statement to police was not a spontaneous declaration after she discussed the rape with her cousin before police arrived. Although the State argues that the statement was admissible, not for its truth, but as evidence of the “scene” Kluk encountered and to explain why Kluk acted as he did, citing People v. Thomas (1975), 25 Ill. App. 3d 88, 92, 322 N.E.2d 597, and People v. Daliege (1976), 40 Ill. App. 3d 706, 709, 352 N.E.2d 247, it must be noted that the motivation for Kluk’s activities was not in issue and it was unnecessary to admit into evidence the substance of the victim’s statement in order to set the scene. The statement was inadmissible hearsay; however, we find that error in its admission was harmless, since the statement to police was merely cumulative of testimony of the victim and Londo, who were subject to cross-examination as to this issue. People v. Coleman; People v. Daliege.

IV

As his final argument, defendant contends the trial court erred in failing to give the jury Illinois Pattern Jury Instruction, Criminal, No. 3.11 (1968) regarding prior inconsistent statements. Defendant argues that, whereas a police officer testified the victim told him she believed her attacker knew her boyfriend named “Al,” because of his comment that “Al” said she was a “good piece of ass” and she also told the officer her assailant’s voice was that of an uneducated person, and described it in terms of adjectives such as “dumb,” “slurred” and “monotone,” yet at trial she denied there was anything unusual about his voice and denied telling the officer she thought the offender knew her boyfriend.

The victim admitted the substance of the offender’s remark; whether she stated a belief that he knew her boyfriend or not is immaterial. Further, the record shows that when asked whether she had told the officer her assailant’s voice was slurred or dumb, the victim replied she had told him he “didn’t sound real intelligent like a college graduate.” An Illinois Pattern Jury Instruction regarding inconsistent statements need be given only where there is an inconsistency between two statements on a material matter. (People v. Svoboda (1979), 75 Ill. App. 3d 487, 489, 394 N.E.2d 72; People v. Villa (1981), 93 Ill. App. 3d 196, 416 N.E.2d 1226.) We find no material contradictions which would have warranted giving the instructions here.

For the reasons aforesaid, the jury’s verdict cannot be disturbed and the conviction accordingly must be affirmed.

Affirmed.

STAMOS, P. J., and PERLIN, J., concur.


author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF JUDITH BUTLER, Petitioner-Appellant, and LEONARD BUTLER, Respondent-Appellee.
    First District (1st Division)
    Nos. 81-0145, 81-0667 cons.
    Opinion filed February 8,1982.
    Rehearing denied June 21,1982.

      Joseph G. Bisceglia, James H. Feldman, and Mary Katharine Ryan, all of Jenner & Block, of Chicago, for appellant.
    Howard H. Rosenfeld and Alan M. Goldberg, both of Rosenfeld, Hafron & Shapiro, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is a consolidated appeal. In case No. 81-0145 Judith Butler appeals from a judgment entered October 31,1980, ordering her to pay $250 per week in child support to Leonard Butler and from an order entered December 18, 1980, denying her motion to vacate the October 31, 1980, judgment. In case No. 81-0667 Judith Butler appeals from an order entered March 5,1981, denying her petition for modification of the October 31, 1980, judgment.

Judith and Leonard Butler were married on August 18, 1962. There were three children born during the marriage: Leslie, Valerie and Adam. On July 24,1972, a divorce decree which incorporated a property settlement agreement dissolved their marriage.

Under the terms of the decree and agreement, Judith Butler was given custody of the couple’s children. Pursuant to a subsequent order entered on July 31,1973, Leonard Butler assumed custody of the couple’s three children. Seven years later, on September 29, 1980, Leonard Butler filed a petition requesting that Judith Butler be ordered to pay him child support.

On October 14,1980, a hearing was held on Leonard Butler’s petition for child support. The parties stipulated to the following facts: Leonard Butler had a net monthly income of $1371.04. Judith Butler’s gross income was $30,899 in 1977, $47,742 in 1978, $63,628 in 1979 and during the first 9% months of 1980 her gross income was $32,882. Judith Butler’s net income was $25,599 in 1977, $37,368 in 1978 and $47,840 in 1979. Because Leonard Butler was employed on a full-time basis, he chose to place the children in a learning center, where they stayed and slept all week long, returning home only on weekends. The children’s school expenses for a period of 10 months in 1980 totaled $9100. The ages of the children at the time of the hearing were 14, 12 and 10.

Leonard Butler testified that his total monthly living expenses were about $3000, $2000 of which, he concluded, were expenses “directly or indirectly” attributable to the children. He had submitted to the court an affidavit listing $3722 in monthly expenses. The affidavit set forth that $1460 per month were expenses attributable to the children. He testified that he did not presently pay his sister the $750 per month listed in the affidavit to be applied toward the $29,600 he borrowed from her to maintain and support the children.

Leonard further testified that Judith had given him a total of $3000 in child support over the prior 3-year period; further, that he received unemployment insurance for approximately six months in 1980 and received Aid to Dependent Children during February of 1980 because he could not find a job. At the time of the hearing he did not have any money in the bank or own any stocks or bonds.

On cross-examination, when asked how he determined that two-thirds of his expenses were attributable to the children, Leonard responded that when he first assumed custody of the children in 1973, their expenses were $10,000 to $11,000 a year, but that those expenses had increased to about $22,000 or $23,000 a year at the time of the hearing. Leonard stated that he no longer had title to the parties’ marital home and that he had conveyed his share of their equity to his sister in 1972. He stated that between 1977 and 1978 Judith sent him $50 a week in response to his requests for her assistance in supporting the children.

Judith Butler testified that she is employed as a full-time salesperson for Shaker Advertising Agency, receiving approximately $300 per week against a commission dependent upon her sales. She had approximately $5000 in the bank, a $34,000 mortgage on a house valued at approximately $60,000 and stock purchased at $2000.

During a 14-month period in 1979 and 1980, Judith had the sole care and custody of Leslie, one of the couple’s three minor children. Judith stated that except during the period when she had custody of Leslie, she paid Leonard child support in the amount of $50 per week for 2M years. During this period, in addition to the weekly payments, she bought clothing, shoes and glasses for the children. In June of 1979, Leonard told her that if she would take care of Leslie he would not require her to pay $50 per week. In 1977 she had a conversation with Leonard at which time he told her that he needed only $50 per week from her in meeting the children’s expenses. Besides those two conversations Leonard never asked her for child support and never asked her for more than $50 per week.

Judith testified further that her present living expenses were about $1570 per month. Her 1980 earnings to and including September of 1980 equalled approximately $32,882. She projected her remaining 1980 earnings might be as little as $3000 due to the fact that the advertising business had declined in view of the economy and the fact that she had lost some accounts. She further testified that she determines how many people she sees in her job and how hard she works. She agreed with the conclusion that she was earning about $3200 monthly at the time the child-support proceedings were instituted as opposed to about $4000 a month earlier.

On October 31,1980, the trial court granted Leonard Butler’s petition for child support and ordered Judith Butler to pay him a total of $250 per week in child support.

Judith then filed an emergency motion to vacate the order of October 31, 1980, and for a rehearing on the child-support petition pursuant to section 68.3 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 68.3.) After argument, the trial court denied Judith’s petition, stating that “as soon as she sits down and prepares her tax returns for the year 1980, we would have documentary evidence [of her income for the year 1980] and she can come back in.”

On February 11, 1981, Judith filed a petition for modification of the October 31, 1980, child support order. At a hearing on the petition on February 27, 1981, Morris Skall, vice-president and general manager of Shaker Advertising Agency, testified that the agency places recruitment advertising for its clients. Skall supervises the entire sales staff of Shaker Advertising, including Judith Butler. He described Judith’s duties to include securing accounts, calling her accounts on the telephone, visiting them in person and assisting them with their recruitment needs as they relate to advertising.

Skall testified as to the condition of the recruiting advertising industry in the Chicago metropolitan area in 1980. During that year the advertising industry experienced a dramatic decrease in business resulting from the state of the national economy and the level of national unemployment. The general condition of the industry adversely affected Judith Butler’s business during the latter portion of 1980 and her business decreased dramatically in comparison to the business she procured in 1979 and prior years. Her greatest loss of business occurred in the last quarter of 1980. Judith Butler’s work efforts in 1980 and 1981 were stronger than her work efforts in 1979 because she had to work harder for 1980 and 1981 business. Further, Mr. Skall stated he did not believe Judith Butler had deliberately held down her earnings, nor would Shaker Advertising tolerate such behavior.

Mr. Skall testified to Judith Butler’s current income as follows:

Time Period Earnings
8/16/80-12/31/80 $11,712.50 gross
1/01/81- 2/11/81 3,801.89 gross
8/16/81- 2/11/81 2,508.73 average
monthly gross 2/12/81- 2/20/81 600.00 gross
1/01/81- 2/20/81 4,400.00 gross, or
628.00 per week.

For the current year to date (January 1, 1981, through February 20, 1981), Judith Butler’s gross income was thus $4400, or approximately $628 per week. Because 22% of her gross income is withheld for Federal and State taxes and social security payments, Judith Butler’s income net of taxes from January 1 to February 20, 1981, averaged' about $460 per week.

Mr. Skall also stated that certain of Judith Butler’s other expenses which appeared on her 1980 Federal income tax return, including automobile and entertainment expenses, were reasonable, customary and necessary for her to generate sales. Judith Butler’s accounts require her to travel 25,000 miles a year for business purposes.

Mr. Skall stated that Judith Butler is reimbursed by Shaker Advertising for one tank of gas each week. He also testified that Judith Butler’s decrease in income between August 14, 1980, and October 14, 1980, resulted from the fact that she works straight commission and her billings dropped during that period. Finally, Mr. Skall stated that Judith Butler is ultimately responsible for her income in the sense that any commission salesman in any industry is responsible for his earnings.

Judith Butler testified that her total gross income for 1980 was $44,379 and her unreimbursed 1980 business expenses totaled $15,197. Her 1980 Federal income tax totaled $6,878; her 1980 social security tax totaled $1,588; and her 1980 Illinois tax she calculated at approximately $700. Thus, her total taxes for 1980 were approximately $9,166. Subtracting her unreimbursed business expenses and her 1980 taxes from her 1980 gross income, Judith Butler calculated that her net income available for personal expenses in 1980 equaled $20,016, or $385 a week.

According to Judith Butler’s 1979 income tax return, her unreimbursed business expenses for that year totaled $12,449. Her 1978 income tax return reflected that her unreimbursed business expenses for that year totaled $14,122.

Judith Butler further testified that in October of 1980 she had $5000 in the bank, but at the time of the February 1981 hearing her two bank accounts contained approximately $1500. Judith Butler owned the same house she owned in October of 1980. The current mortgage on her home was approximately $33,000. She stated it would be difficult to calculate or project her 1981 income. During the final 2% months of 1980 she earned approximately $10,000. Further, she testified, her earnings from January 1, 1981, to the date of the hearing (February 27, 1981) were substantially less than her 1980 earnings for the same period. She stated that her living expenses had not changed significantly since October 14,1980. In 1980 she spent $9262 on business meals and conferences. She did not keep weekly automobile mileage records, but, at a minimum, 80% of her total 1980 automobile mileage was for business purposes. On recross, she stated that 20% of her automobile mileage is attributable to transportation between her home and her office.

Leonard Butler testified that he was currently employed as a newspaper representative for Hurst Advertising Service, a job he had had since July of 1980. According to his 1980 W-2 form, he earned $12,016.91 in 1980. He was unemployed for about six months, from February until July 9, 1980. He received an additional $5688 in unemployment compensation during that period. Of the $12,000 he earned in 1980, Leonard Butler earned $10,080 between July 31, 1980, and the end of that year. Of that $10,080, $617.90 was withheld for FICA, $1384.68 was withheld for Federal income tax and $206.18 was withheld for State income tax.

Between January 1, 1981, and the February 1981 hearing, Leonard Butler’s gross income totaled $3,801.64. According to his pay stub for the two-week period ending February 6, 1981, his gross salary totaled $912-91. His net pay, after deductions, totaled $710.06. Leonard Butler stated that on October 31,1980, his net monthly income totaled $1,371.04. He testified that since that time his net monthly earnings have increased by approximately 8%.

On March 5, 1981, the trial court entered an order denying Judith Butler’s petition for modification, finding that there was not a sufficient change in circumstances since the prior hearing to warrant a reduction in the support order.

In case No. 81-0145 Judith Butler contends that the trial court abused its discretion in its award of child support because it improperly considered her past earnings, gave no weight to her recent decline in earnings and failed to properly assess Leonard Butler’s ability to support the children.

The financial responsibility for the support of children is a joint and several obligation of each parent. (In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 416 N.E.2d 316.) The factors to be considered in determining the amount of child support are the financial resources of the child, the financial resources and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and his educational needs and the financial resources and needs of the noncustodial parent. (Ill. Rev. Stat. 1979, ch. 40, par. 505(a).) The determination of the proper amount of child support lies within the sound discretion of the trial court in each individual case and will not be set aside unless found to be contrary to the manifest weight of the evidence, thus showing an abuse of discretion. (In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641.) We find no abuse of discretion here.

It was stipulated that Judith’s gross income was $30,899 in 1977, $47,742 in 1978, $63,628 in 1979 and during the first 9K months of 1980 her gross income was $32,882. She had living expenses of $1,570 per month. She argues that the $250 per week award is excessive because the trial court improperly considered her past earnings and gave no weight to the recent decline in her earnings. However, a court may properly consider past earnings in a situation where current income is uncertain. (See In re Marriage of Reyna.) Judith did not submit any evidence regarding business expenses at the October 14, 1980, hearing. Furthermore, the parties stipulated before the trial court that Leonard’s net income was $1,371.04 monthly and Leonard testified that his monthly expenses were $3,000, $2,000 of which were attributable to the children. The court also heard evidence that Leonard left temporary employment in early 1980 and collected Aid to Dependent Children payments in February of 1980. We find that the trial court properly assessed Leonard’s current ability to pay when it ordered Judith to pay $250 per week child support.

Reviewing all the pertinent facts in the present case, we find that the award of $250 per week child support was not an abuse of discretion.

In case No. 81-0667, Judith contends that the trial court abused its discretion in refusing to modify the child-support award because Judith’s decline in income and Leonard’s increase in income since the October 14, 1980, hearing constituted a “substantial change in circumstances” sufficient to warrant a modification of the judgment.

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(a)) provides, inter alia, that a modification of a judgment respecting child support may be made “only upon a showing of a substantial change in circumstances.” The factors to be considered in making an award of child support are applicable to modification proceedings. (Ill. Ann. Stat., ch. 40, par. 510(a), Historical and Practice Notes, at 699 (Smith-Hurd 1980).) Petitions to modify child-support payments must be decided on the facts and circumstances of each case. Consequently, modifications of child-support payments rest within the sound discretion of the trial court, and this court will not interfere with that discretion in the absence of its abuse. Robin v. Robin (1977), 45 Ill. App. 3d 365, 359 N.E.2d 809.

At the hearing on the petition for modification, Judith Rutler testified that she had earned approximately $33,000 through September of 1980. She also testified that she earned approximately $10,000 during the balance of 1980. She stated that in 1980 her gross income was $44,379. Furthermore, she testified that her monthly expenses were about the same as they had been at the time of the October 14, 1980, hearing.

At the hearing on the petition for modification, Judith introduced evidence that her business expenses were over $15,000 in 1980 and argues that these expenses should be deducted from her gross income in determining her ability to pay child support. Without regard to the propriety of these business expenses, we note that an undetermined portion of the business expenses for 1980 had been incurred prior to the October 1980 hearing and therefore do not represent any change in circumstances occurring since the entry of the October 14, 1980, order. We find that the trial court properly found that a modification of the child-support order was not warranted because of a decline in Judith’s income. At the October 14,1980, hearing, Judith projected she would earn only $3000 during the final 2/á months of 1980. However, in fact she earned over $10,000 during that time period. During the period beginning January 1, 1981, and extending through February 20,1981, Judith earned $4,400 gross income. We find that the trial court could properly have determined that any decline in Judith’s income since the October 14, 1980, hearing was not a “substantial change in circumstances” sufficient to warrant modification of the order. Furthermore, we find that the trial court could properly have determined that the small increase in Leonard’s salary did not constitute a “substantial change in circumstances” sufficient to warrant a modification of the child-support order.

Therefore, we find that the trial court did not abuse its discretion in refusing to modify the child-support judgment.

The judgment and orders are affirmed.

Affirmed.

CAMPBELL, P. J„ and GOLDBERG, J., concur.