author: Mr. JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MITCHELL J. WEINGER, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1936
    Opinion filed October 27, 1981.

      Donald Page Moore and Sherman C. Magidson, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE PERLIN

delivered the opinion of the court:

Defendant, Mitchell Weinger, was charged in a four count indictment with the murders of Mark Demetrius and Marigray Jobes. (Ill. Rev. Stat. 1975, ch. 38, par. 9 — 1.) In a jury trial defendant was found guilty of both murders and, after a hearing in aggravation and mitigation, was sentenced to serve concurrent terms of 30 to 40 years in the Illinois Department of Corrections.

On appeal defendant contends: that prosecutorial misconduct deprived defendant of a fair trial; that the trial court erred in admitting evidence of prior consistent statements of the State’s principal witness; that the trial court erred in excluding defense counsel from direct participation in the examination of potential jurors; and that this court should reconsider its prior decision in People v. Weinger (1978), 63 Ill. App. 3d 171, 379 N.E.2d 810, which upheld the validity of a search warrant issued in this cause. For the reasons which follow, we reverse defendant’s convictions and remand the cause for a new trial.

Shortly after 11:30 p.m. on Monday, March 1,1976, Mark Demetrius and his girlfriend, Marigray Jobes, were stabbed to death in Marigray’s apartment at 2970 North Sheridan Road in Chicago. The State’s principal witness was Cedric Sberna.

Sberna testified that he knew both victims and that he had been a “close” friend of Mark for about six weeks before the murders. On Tuesday, February 24, 1976, Sberna loaned Mark $3,000 in cash and told him that he “needed it back within 30 days.” Sberna stated that he did not know what Mark intended to do with the money. On Sunday morning, February 29, Sberna, Mark and Mark’s girlfriend, Marigray Jobes, went to brunch together. Early that afternoon, William P. Wright, Jr., a professional pilot, met Mark, Marigray and defendant at the Palwaukee airport.

Wright testified that he flew the threesome to the Playboy Club in Lake Geneva, Wisconsin. Mark met for a few minutes with an “older man” with whom he appeared to be having an argument near one of the hangars. Mark was carrying a 9 mm pistol at the time. Wright, Marigray and defendant remained in the plane and talked while they waited for Mark. When Mark returned, all four flew back to Palwaukee. Late Sunday night Wright and a friend, Carlo Nelson, visited Mark at Mari-gray’s apartment. Wright and Nelson arrived sometime between 10:30 and 11 p.m. and stayed for two and one-half hours. The only persons present in the apartment were Wright, Nelson, Mark and Marigray.

Sberna testified that at approximately 10 p.m. on Monday, March 1, 1976, he telephoned Mark at Marigray’s apartment. He then drove the 30 miles from his home in Lake Forest to Marigray’s apartment on North Sheridan Road. Mark’s sister, Cynthia Demetrius, testified that Mark called her at 11 p.m. and mentioned that he had spoken with Sberna on the telephone. Mark told Cynthia that he (Mark) was “high.”

Sberna testified that he arrived at Marigray’s apartment at 11 p.m. Mark appeared to be intoxicated but was “in a good mood.” On the table in the apartment were a bag of cocaine, a small cylindrical glass vial, a large mirror, a large bowl of water and a cocked 9 mm pistol which Sberna had, on other occasions, seen in Mark’s possession. Mark instructed Sberna to throw the cocaine into the water in the event the police raided the apartment. Sberna knew that Mark used and dealt in cocaine and that Marigray assisted him.

A conversation ensued during which Sberna advised Mark to “calm down” and stop “acting crazy.” According to Sberna, Mark had been using “quite a bit” of cocaine and was “out of control” “flying around throwing parties, wasting money.” Mark admitted that he had been wasting a lot of money (which Sberna believed was the money he had recently loaned him) but assured Sberna that he would be able to pay back immediately at least part of the. amount he owed him by selling some cocaine. Mark told Sberna that he knew someone who would pay $125 per gram of cocaine which was substantially more than its street value. Mark made a telephone call which he told Sberna was for the purpose of arranging a drug sale. After the call, Mark removed the bag of cocaine from the table and prepared two smaller glassine bags of cocaine. He then gave the larger bag to Sberna and asked him to hold it for him and keep it away from him. As collateral for Sberna’s loan of February 24, Mark also handed him his wristwatch which was made from a $20 gold piece. Mark’s sister, Barbara Demetrius, testified that Mark called her at approximately 11:30 p.m. and sounded as if he was “high” on drugs.

At 11:30 p.m., which was 20 minutes after Mark had made his call to arrange a drug sale, defendant arrived at Marigray’s apartment. Sberna testified that defendant was wearing an Antarctic parka with a hood and fur trim, and brown gloves. Defendant did not remove his parka while he was in the apartment. Mark informed defendant that the cocaine on the table was the same cocaine that defendant had tried before and invited him to test it. Defendant, however, picked up Mark’s pistol and waved it in the air, but Mark took it away from him and put it on a shelf next to the table in the apartment. Defendant then tested a small sample of the cocaine by placing it in a vial filled with water and watching the resulting solution.

According to Sberna, he and Mark had an understanding that Mark would not engage in any drug deals in Sberna’s presence. In keeping with that understanding, Mark took defendant into the bathroom. Sberna and Marigray remained in the living room and saw Mark come out once to get his wallet. Mark “seemed to be in a very good mood. He was skipping and hopping and smiling.” He then returned to the bathroom. “Two seconds later,” Sberna heard a “choking and gurgling” sound. Sberna and Mari-gray ran to the bathroom door. Sberna opened the door a crack, looked in and saw defendant standing by the door and Mark lying on the floor in a pool of blood. Sberna also saw what appeared to be a very large butcher knife in defendant’s hand. Sberna backed away and yelled to Marigray to get Mark’s pistol. Marigray handed the gun to Sberna who then told defendant to come out. Defendant said that they (defendant and Mark) had just “got into a little bit of an argument and that he’ll be okay and they’ll both be right out.” Neither came out of the bathroom. Sberna ordered defendant to drop the knife and come out. Defendant said, “I won’t come out unless you drop the gun.” Sberna refused and repeated his order to defendant to drop his knife and leave the bathroom.

While Sberna was trying to make defendant leave the bathroom, Marigray was screaming, “Mitchell, Mitchell, get out of there, leave the apartment, let’s take care of Marky. Get out of here.” Sberna asked Mari-gray to call the police. She picked up the telephone but then set it down without dialing. Defendant told Sberna that he was a narcotics agent and that there were three more narcotics agents waiting outside. Upon hearing this, Sberna took the bag of cocaine Mark had given him and threw it to Marigray, expecting her to place the cocaine in the bowl of water. Instead, Marigray placed it under her leotards at her crotch. Sberna advised Marigray that he was going to leave the apartment and asked her to go with him. Marigray refused to leave and kept shouting at defendant, calling him “Mitchell.” Sberna assured Marigray that he “would call her right back immediately.”

Sberna left the apartment with the loaded gun and did not try to summon help from any of the nearby apartments or from passersby on Sheridan Road. Sberna walked to his car which was parked a half block away and drove to a nearby tavern. He called the apartment but received no answer. He did not call the police at that moment because he “thought the police were already there, being that he [defendant] was a narcotics agent.” Sberna drove back to the area of the apartment to see if there was any activity. He drove up and down five streets in the neighborhood but saw no activity of any kind.

Sberna then drove downtown to the Ritz-Carlton Hotel at Water Tower Place where his girlfriend, Micky Carlyle, was employed as a cocktail waitress. He arrived at the hotel at 12:15 a.m. and parked his car. Sberna went up to “The Bar” on the twelfth floor where Carlyle worked, ordered a cognac and waited a couple of minutes until she appeared. Sberna related certain facts to Carlyle. Carlyle testified that Sberna was “extremely upset” and had told her that “Mark had been stabbed and he didn’t know what to do.” Both Carlyle and another waitress confirmed that there were no bloodstains on Sberna’s clothes.

Carlyle suggested that Sberna talk with a friend of hers who attended medical school. She dialed the number and Sberna spoke with the student for a few minutes. Sberna then called the Chicago Police Department’s emergency number, 911, at 12:30 a.m.

Sberna testified to the contents of the two minute call. The call was recorded and a tape of it was played to the jury. In the call, Sberna told the police that he had witnessed a murder or attempt murder by a man with an 11-inch knife. He said that he had seen his friend lying on the bathroom floor with blood all over and left because he was in fear for his life. Sberna did not tell the police that he had a fully loaded pistol with, him at the time of the crime. Sberna said, “I don’t even know what the hell is going on here, but this guy is nuts. He is nuts.” Sberna gave the police the address where the stabbing took place and advised them that the apartment was under the name of “M. Jobes.” He also said that he was calling from the Ritz-Carlton but hung up without giving his name. In the call, Sberna did not identify the attacker by the name “Mitchell” and said that he did not know “the chick” who leased the apartment. At trial, Sberna attributed this omission to the fact that he was nervous, but in another part of his testimony he said that he had lied because he was “in confusion.” Sberna did not tell the police that the man in the apartment had identified himself as a narcotics agent because by the time he made the telephone call, Sberna had time to think and “assumed that he [defendant] was not a narcotics officer.”

Sberna and Carlyle drove back to Marigray’s apartment but saw no police cars there. The police communications officer, James McNichol, testified that he had not ordered any police units to report to the scene because he thought Sberna’s call was a “prank.” Sberna looked into the window of the apartment and saw Marigray’s body lying on the floor covered with blood. According to Carlyle, Sberna said, “Tinker [Mari-gray] got it. She’s lying in a pool of blood.” Carlyle also stated that after viewing Marigray’s body, Sberna became ill and vomited. Carlyle and Sberna drove back to her apartment where she called a lawyer she knew, Jared Kelner.

Kelner also testified for the State. At the time of trial Kelner had been suspended from the practice of law for reasons unrelated to this case. Kelner arrived at Carlyle’s apartment at approximately 1:30 a.m. and spoke with Sberna privately in the bathroom where Carlyle could not hear them. Sberna testified that Kelner told him that he was doing his laundry and had to get back to his building to change machines. Sberna dropped Kelner off at his apartment, then drove around the neighborhood for a few minutes looking for a place to dispose of the pistol which he had left in his car. Finally, he threw the gun down a sewer on Astor Street. The weapon was ultimately recovered, identified and admitted into evidence. Sberna picked Kelner up and drove back to Carlyle’s apartment where they talked further. Kelner testified that he advised Sberna not to call the police. Kelner also advised Carlyle not to speak with the police.

Mark’s father, Andrew Demetrius, testified that at approximately 9:30 a.m. on Wednesday, March 3, 1976, two days after the killings, he telephoned Sberna looking for Mark. Demetrius had a business appointment with Mark on Tuesday, but Mark did not appear and could not be reached by telephone. Demetrius asked Sberna if he knew where his son was. Sberna told him he did not know, that he had tried to call Mark on Monday evening but was unable to reach him. At trial Sberna admitted that he had lied to Demetrius. Demetrius testified further that since he was still worried about his son after speaking with Sberna, he drove to Marigray’s apartment. He had the custodian open the door and found Marigray’s body in the living room and his son Mark’s body in the bathroom. The custodian called the police.

In court Demetrius identified for the State two items of physical evidence offered to connect defendant with his son. One was Mark’s appointment book which was discovered inside Marigray’s apartment. That book contained the name “Mitchell” and defendant’s telephone number. Demetrius also identified a photograph of defendant and defendant’s wife which was found among his son’s belongings at the Demetrius’ home in Glenview.

Investigator Richard Morask testified that he went to Marigray’s apartment after the bodies were discovered. He observed blood “all over the apartment” but saw no signs of forced entry. On Mark’s body Morask found a wallet with seven $100 bills. On the dresser he found another $100 bill and a watch made from a $20 gold piece. The bodies were removed to the morgue where the medical examiner, Dr. Robert Stein, performed the autopsies.

Dr. Stein testified that there were multiple stab wounds and cuts on both bodies, including defensive wounds on Marigray’s left hand. Both victims died of stab wounds to the chest. Chemical analysis of the body fluids revealed that both victims had consumed significant quantities of alcohol, cocaine and Quaaludes. A small bag of cocaine was found in Demetrius’ shirt pocket and another bag of cocaine was discovered in Jobes’ vagina.

The police called Sberna at his residence in Lake Forest about 5 p.m. on Wednesday, March 3, 1976. According to Sberna, the police advised him that Mark Demetrius and Marigray Jobes were dead and that the police wanted to speak with him at Area 6 headquarters. After this telephone conversation, Sberna called Kelner and asked him to meet him at Area 6. Before he left for the police station, Sberna called Andrew Demetrius and related to him what the police had just told him on the telephone. Sberna did not inform Demetrius of what he knew about the incident. Instead, he asked Demetrius to tell him what the police had told Demetrius regarding the crimes. Sberna’s recollection of his conversation with Demetrius was hazy. Demetrius, however, testified that Sberna told him that the police were accusing him of the murders. According to Demetrius, Sberna said, “I think the police think I did this.” Investigator Skelly confirmed that Demetrius later reported this to him. Demetrius assured Sberna that he would “back him up” because he could not believe that Sberna had anything to do with the murders.

Sberna arrived at the police station at 8 p.m. Present were his father, his brother and sister-in-law and Kelner who was then acting as Sberna’s attorney. Sberna testified that he had not seen Mark and Marigray since brunch on Sunday, February 29. When the police asked Sberna. if he had seen either of them after Sunday, Sberna declined to answer on the advice of his attorney and refused to respond to any more questions. Sberna, however, did inform the police that he knew of no illegal activities in which Mark and Marigray were involved. At trial he admitted that this statement was untrue since he knew that both used and dealt in drugs.

Late Wednesday or Thursday evening (March 3 or 4) the police attempted to interrogate Carlyle at Area 6 headquarters. In testimony which was corroborated by homicide investigator John Toenings, Kelner stated that he met Carlyle at the station and advised her not to speak with the investigators. Carlyle testified that she refused to answer any questions at that time.

Kelner testified that on Friday, March 5, 1976, Micky Carlyle told him that she had changed her mind and was going to cooperate with the police investigation. Kelner then withdrew from representing Carlyle but was present at Area 6 when Carlyle gave an oral statement to the police. On the same date investigator Philbin told Kelner that he had obtained a tape recording of Sberna’s call to the police the night of the murders. After Kelner informed Sberna of these developments, Sberna decided, against Kelner’s advice, to speak with the police. Sberna testified that on Friday evening, March 5, he related to the police “substantially the same things” he later testified to at trial.

The police traced the telephone number found in Mark’s appointment book at Marigray’s apartment to defendant’s address and arrested him there as he drove into his parking garage at approximately 12:30 a.m. on Saturday, March 6. Sberna identified defendant in a lineup.

Investigator Theodore O’Connor testified that after defendant was arrested, he waived his Miranda rights and told O’Connor that he knew Mark Demetrius but did not know a girl named Marigray Jobes. He had, however, read newspaper accounts of the murders. Defendant told O’Connor that he had last been at the scene of the murders on Sunday night, February 29. Mark had called defendant at home and asked him to come to Mark’s girlfriend’s apartment. Defendant went there because he wanted to repay Mark $40 that he owed him. When defendant arrived at the apartment, Mark, his girlfriend and another person were present. Defendant tried some cocaine Mark’s girlfriend offered him, had a brief conversation with Mark, then left.

O’Connor testified further that defendant denied being at the apartment late on the evening of March 1 or in the early morning hours of March 2. Defendant stated that he was playing cards with his friend, Steven Classman, between 10 p.m. on March 1 and 2 a.m. on March 2. Defendant invited the police to contact Classman to verify his alibi. They did, and Classman denied that defendant was with him.

Classman testified that on Wednesday or Thursday, March 3 or 4, before defendant had been arrested, defendant telephoned him and asked Classman to tell anyone who called, “like my wife,” that on Monday night he was playing cards at Classman’s house. On other occasions Classman had agreed to “cover” for defendant and assured him that he would this time also. Classman, however, testified that defendant was not with him at the time of the murders.

Investigator John Toenings testified that after obtaining a search warrant, he and four other officers searched defendant’s apartment. They recovered a message form on which the name “M. Demetrius” and Mari-gray Jobes’ telephone number were written; an article about the murders cut from the front page of the three star final edition of the Chicago Tribune for March 4, 1976; 13 keys; and a beaded choker. In the jury’s presence Toenings identified each one of these items, including the choker.

Defendant did not testify in his own behalf but called two Chicago police investigators, Thomas Skelly and James Philbin, to perfect impeachment of Sberna. Skelly testified that Andrew Demetrius had told him that he had called Sberna on Wednesday, March 3, 1976, looking for Mark, and that Sberna informed Demetrius that he had not seen Mark or been at the home of Mark’s girlfriend since Sunday, February 29. Philbin testified that Sberna had told Philbin that he expected Mark “to make up the money” he owed him by selling cocaine. Philbin also related some minor inconsistencies in Sberna’s account of the murders themselves.

Defendant was found guilty of both murders and was sentenced to serve concurrent terms of 30 to 40 years in the penitentiary.

I

Defendant’s principal argument on appeal is that the misconduct of the prosecutors deprived defendant of a fair trial. We are constrained to agree. In our judgment the prosecutors in this case failed to manifest a proper regard for the trial court’s evidentiary rulings and for the defendant’s constitutional right to a fair and impartial trial. In a veritable litany of errors, defendant cites 35 instances of alleged prosecutorial misconduct. While no single act would necessarily require reversal and not all are worthy of individual comment, we are unable to conclude that the cumulative impact of the following errors did not affect the jury’s verdicts:

(1) In his opening statement the prosecutor told the jury that the only eyewitness, Cedric Sberna, would testify that when defendant arrived at Marigray’s apartment, he was wearing “a turquoise necklace, shell necklace, * * The prosecutor then informed the jury that the police had recovered “a turquoise shell necklace” from defendant’s apartment. Sberna, however, did not testify that defendant wore a necklace. The prosecutor’s suggestion that he would so testify was therefore error. “[T]he prosecutor cannot comment during his opening statement upon what testimony will be introduced at trial and then fail to produce such testimony. Such arguments and comments effectively assert the prosecutor’s own unsworn testimony in lieu of competent evidence.” People v. Rogers (1976), 42 Ill. App. 3d 499, 502-03, 356 N.E.2d 413.

We recognize, as the State observes, that the prosecutor’s failure to produce evidence referred to in the opening statement does not invariably prejudice a defendant. (People v. Sanders (1980), 81 Ill. App. 3d 1001, 1004-05, 401 N.E.2d 1103; People v. Allen (1959), 17 Ill. 2d 55, 63, 160 N.E.2d 818.) The error in this case, however, was particularly egregious because of what transpired later in the trial: over the strenuous objections of defense counsel and only after the prosecutors intimated that they would “tie it up,” investigator Toenings was allowed to testify that investigator Philbin had found “a choker, a beaded choker” in defendant’s apartment. The prosecution then produced the turquoise choker and Toenings identified it for the jury. Subsequent to this identification, however, the State introduced no evidence that defendant had worn the necklace.

We believe that the prosecutors’ conduct was improper and prejudicial. The State offered no testimony to substantiate the prosecutor’s representation in his opening statement that defendant was wearing “a turquoise necklace, shell necklace.” Despite the absence of such testimony, the prosecutors insisted upon bringing to the jury’s attention evidence that a turquoise “beaded choker” had been discovered in defendant’s apartment. We are aware that the necklace was ultimately excluded from evidence and was not argued to the jury. Nevertheless, the prosecutors succeeded in creating the erroneous impression that Sberna’s identification of defendant had been independently corroborated by the seizure of an article of jewelry from defendant’s apartment. Thus, the jury reasonably could have believed that there was a critical piece of physical evidence placing defendant at the scene of the crimes when, in fact, no such evidence was introduced.

(2) In closing argument, the prosecutor stated:

“° * e [T]hey [the police] look through this phone book and find the name Mitchell with a phone number. They trace the phone number and they go and arrest the defendant who fits the physical description given by Cedric Sberna.
Mr. Magidson: Objection, if the Court please.
The Court: Sustained.
[Assistant State’s Attorney]: If there was anything different about any kind of description, you’d have heard about it, ladies and gentlemen, I guarantee you that.”

In rebuttal, the prosecutor argued:

“The most interesting aspect of all the evidence in the case, and especially the arguments, is that Mr. Magidson and his fellow attorneys never once, from the beginning to the end, asked Mr. Sberna to describe the man who came in that apartment. Not once. They didn’t want that description to come out.
Mr. Magidson: Object.
[Assistant State’s Attorney]: They didn’t want you to hear that description—
The Court: Sustained.
[Assistant State’s Attorney]: —because, see, that’s him. That’s Mitchell Weinger. That’s what the description was. Mitchell Weinger.”

In our opinion, these comments were improper since there was no testimony that Sberna gave a physical description of defendant to the police. To suggest otherwise, then “guarantee” that defendant fit “the description” was prejudicial. “[I]t is error sufficient to reverse a judgment to permit counsel to state, against objection, matter not in evidence and pertinent to the issue or to assume arguendo facts to be proven when they are not.” People v. Connors (1980), 82 Ill. App. 3d 312, 320, 402 N.E.2d 773.

The State, however, argues that the foregoing remarks were a reasonable inference from the evidence that the police arrested defendant as soon as he drove into the parking garage of the building in which he lived: “Obviously the police had obtained a description of defendant from someone, 6 ” Since the police started looking for defendant only after talking to Cedric Sberna it was a reasonable inference from the evidence that Sberna had given the police an accurate description of defendant.”

It would be equally reasonable to infer that the police had obtained the license plate number and a description of defendant’s vehicle, or that the parking attendant at the garage with whom the police spoke prior to the arrest described or identified defendant for the officers. Reasonable inferences must be based on facts properly in evidence. The State could not argue the inference that Sberna’s description was accurate when the factual predicate for that inference, i.e., that Sberna provided a description, was never proved.

(3) Again, in rebuttal, the prosecutor stated:

“* a e Much is said by Mr. Magidson [defense counsel] about what the witnesses testified to, but very little is said about what they were not allowed to testify to.
Mr. Magidson: Object to what they were not allowed to testify to.
The Court: Sustained.”

By this comment the prosecutor apparently implied that defense counsel had prevented the State from eliciting evidence which would have proved damaging to defendant if it had been admitted. (From the context of his argument, the prosecutor was referring to Sberna’s conversations with Carlyle and Kelner on the night of the murders.) This reference to excluded evidence was error. “The remarks that the jury was not allowed to hear certain evidence because of defendant’s objections were utterly improper and have been repeatedly held to be reversible error.” People v. Hovanec (1976), 40 Ill. App. 3d 15, 18, 351 N.E.2d 402.

We cannot accept the State’s contention that the prosecutor’s comment was invited by defense counsel’s closing argument. We have examined that argument and find nothing in it which would justify the prosecutor’s allusion to evidence not properly before the jury.

(4) In rebuttal, the prosecutor also stated:

“Ladies and gentlemen of the jury, the evidence that we, the representatives of the People of this State, have presented to you is uncontradicted and undenied.”

This remark was erroneous and improper. At trial the defense called two homicide investigators to complete the impeachment of Sberna by his prior inconsistent statements. One of these officers also related certain discrepancies between Sberna’s trial testimony and his earlier statements to the police regarding the circumstances of the murders themselves.

In light of this testimony, the prosecutor could not properly make the unqualified statement that the State’s evidence was “uncontradicted.” “Where the State’s case is not in fact unchallenged, the suggestion that it is becomes suspect; it is not ‘an accurate summary of the evidence.’ [Citation.] The only reasonable point to the comment is the defendant’s silence.” (People v. Escobar (1979), 77 Ill. App. 3d 169, 178, 395 N.E.2d 1028.) The State, of course, may not comment on a defendant’s silence. Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Ill. Rev. Stat. 1979, ch. 38, par. 155 — 1.

The error here was exacerbated by the prosecutor’s use of the word “undenied,” which the State makes no attempt to justify on appeal. “[W]hile ‘uncontradicted’ is a colorless word, and could apply to almost anyone, ‘undenied,’ though not per se impermissible [citation] points more at the defendant: anyone can contradict anything, but one denies an accusation.” (Escobar, at 178.) The prosecutor’s comment may well have suggested to the jury that its attention should be focused on the defendant’s failure to take the stand. (People v. Connors (1980), 82 Ill. App. 3d 312, 322, 402 N.E.2d 773.) Such a suggestion is not permissible.

(5) On cross-examination, Jared Kelner, who had advised both Sberna and Carlyle not to speak with the police, volunteered the fact that he had once attended a course in law school taught by defense counsel Sherman Magidson. On redirect, the prosecutor examined Kelner as follows:

“Q. Mr. Magidson was one of your teachers in law school, is that it?
A. That’s correct.
o a a
A. Initially, I felt responsible to Mr. Sberna and Miss Carlyle.
Q. And on Friday, you terminated your feelings of responsibility for Miss Carlyle, is that right?
A. Yes, that’s true.
Q. And you were acting as a criminal defense attorney, weren’t you, sir?
Mr. Magidson: Objection—
The Court: He may answer—
The Witness: Yes, I was.
[Assistant State’s Attorney]: Much the same way Mr. Magidson is acting in this case, your former teacher?
Mr. Magidson: I’ll object and move that that be stricken, if the Court please, and I’d like to be heard.
The Court: We’ll strike that.
Mr. Magidson: May I be heard?
The Court: Not at this time. You may proceed.
[Assistant State’s Attorney]: So, on that day, throughout that entire week, the only person you felt responsible for was your client, Mr. Sberna, is that right?
A. Basically, that is true.
Q. And ethically speaking, isn’t that what criminal defense attorneys are all about?
Mr. Magidson: I’ll object to that.
The Court: Sustained. Strike that.”

On further redirect, the prosecutor inquired:

“Well, let’s see. Was it a criminal case you were taught by Mr. Magidson?
A. Yes, it was.
Q. It was criminal?
A. The example was a criminal case, yes, it was.
[Assistant State’s Attorney]: I probably thought it was. No further questions.
Mr. Magidson: Well, may counsel’s comments about what he thinks be stricken?
The Court: We’ll strike both counsels comments. Jury is to disregard both.* *

In closing argument, the prosecutor returned to the theme of his redirect examination:

“You also heard from Kelner, former attorney. Suspended attorney. What kind of advice, what kind of course did you learn in law school that teaches you to subvert a police investigation. To stonewall it. To disallow witnesses to a murder, to a double homicide to talk and tell the police what they know.”

In rebuttal, the prosecutor stated, “* ° ” I’m not going to dwell on Kelner. He [Magidson] was his [Kelner’s] teacher, not mine.”

The foregoing questions and comments were, in our judgment, improper. Regardless of the professional propriety and evidentiary significance of Kelner’s advice, which is not in issue here, the prosecutors’ statements may well have had the effect of discrediting defense counsel Magidson in the eyes of the jury. First, the prosecutors informed the jury that neither Kelner, nor Magidson, nor any other defense attorney feels any ethical responsibility to anyone except his own client. Then, the prosecutors insinuated that Magidson had taught Kelner how “to subvert a police investigation.”

We cannot accept the State’s argument that “the whole matter was too trivial to have had any effect on the trial.” The State bases this argument on the fact that at the time the case was tried, Kelner had been out of law school for at least six years. According to the State, “[n]o juror was going to blame Kelner’s corruption of spirit, if any, on the fact that he had taken one course from Sherman Magidson.” We question, however, what the prosecutor intended the jury to believe when, in closing argument, he asked, “What kind of advice, what kind of course did you learn in law school that teaches you to subvert a police investigation * # # ”

(6) On more than 20 occasions in this trial the prosecutors persisted in asking witnesses to answer questions to which the trial court had already sustained defense objections. Most of these questions apparently were intended to elicit evidence which, either directly or indirectly, would support the credibility of the State’s principal witness, Cedric Sberna. The prosecution’s tactic of repeating questions ruled objectionable by the trial court was evidently calculated to cast defense counsel in the role of obstructionists who were trying to keep damaging evidence from the jury. This type of conduct has been condemned as “reprehensible.” People v. Hovanec (1976), 40 Ill. App. 3d 15, 18, 351 N.E.2d 402.

The State initially maintains that the repetition of the questions was not improper or prejudicial because the trial court’s rulings excluding the evidence were in error. But as the court noted in Snyder v. Sotta (1970), 3 Wash. App. 190,_, 473 P.2d 213, 215, “[t]he proper procedure upon the sustaining of an objection is to present the anticipated response by an offer of proof outside the presence of [the] jury — not by continuing to question in a vein held objectionable by the court.” The State, however, argues that in the instant case the expected answers were obvious and, therefore, no offers of proof were necessary. The State argues further that since it cannot appeal from a not-guilty verdict which may result from the improper exclusion of evidence, offers of proof, if made by it, would have served no useful purpose.

Stripped of its rationalizing veneer, the State’s argument asserts, in effect, an absolute, unilateral right to determine questions of admissibility: since the State cannot appeal a verdict of not guilty, it should be free to override the evidentiary rulings of the trial court when, in the State’s opinion, those rulings are in error. This argument is an invitation to anarchy in the courtroom and should not be countenanced. No party in a lawsuit, civil or criminal, may assume the right to violate or ignore the court’s rulings and orders. “Right or wrong, the ruling of the court is the law of the trial, and it is the duty of parties and counsel to accept it as such. This is recognized as the law everywhere.” State v. Felch (1918), 92 Vt. 477,_, 105 A.2d 23, 27. See also In re Dellinger (7th Cir. 1974), 502 F.2d 813, 816.

The State has offered no acceptable justification for the prosecutors’. refusal to abide by the trial court’s rulings, and we are aware of none. The prosecutors’ persistent defiance cannot be excused on the ground that they may have believed the trial court to be in error. That excuse is refuted by the State itself when it acknowledges that “a prosecutor cannot decide for himself what is admissible evidence.”

We have carefully examined the entire record in light of defendant’s contentions and are compelled to conclude that the misconduct of the prosecutors deprived defendant of his constitutional right to a fair and impartial trial. We have no doubt that the evidence presented by the State was sufficient to sustain defendant’s convictions in a trial free from prejudicial error. When considered as a whole, however, we cannot say that the many trial errors which we have reviewed were harmless beyond a reasonable doubt or that they did not contribute to the convictions. (People v. Weathers (1975), 62 Ill. 2d 114, 120-21, 338 N.E.2d 880.) For that reason, defendant’s convictions must be reversed and the cause remanded for a new trial.

II

Defendant also contends that the trial court erred in receiving evidence of four prior consistent statements of Cedric Sberna. The four statements were: (1) Sberna’s testimony relating the substance of his emergency call to the police at 12:30 a.m. on Tuesday morning, March 2, 1976; (2) a tape recording of that call; (3) Sberna’s testimony that his statements to the police on Friday, March 5, 1976, were “substantially similar” to his testimony in the courtroom; and (4) Jared Kelner’s testimony that Sberna’s statements to the police on Friday, March 5 “about what he knew about this case” were “nothing different” from what Sberna had told Kelner in Mary Carlyle’s bathroom when Sberna first consulted Kelner early Tuesday morning, March 2,1976.

The State does not dispute defendant’s contention that the third statement was improperly admitted into evidence. The State, however, vigorously takes issue with defendant’s contention regarding the admissibility of the other three. The State contends that the first two statements were admissible either as excited utterances, or, in the alternative, as prior consistent statements to rebut a charge of recent fabrication, and that the fourth statement was also admissible as a prior consistent statement. The State contends further that all of Sberna’s statements on the night of the murders, including the ones he made to Carlyle and Kelner which the trial court excluded, were admissible as prior consistent statements.

Whether any of these statements, including the ones which the trial court excluded, should, if offered, be admitted on retrial cannot be determined by reference to the trial record which is now before us. Since we are remanding this cause for a new trial on other grounds, we do not consider further the admissibility of these statements but merely enunciate the applicable general principles which may guide the trial court in a new trial.

To bring a statement within the spontaneous declaration (“excited utterance”) exception to the hearsay rule, three factors are necessary: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804.) In determining spontaneity, both the time which elapsed between the occurrence and the declaration, and the distance which the declarant traveled from the scene are material, but neither factor is controlling. (People v. Cherry (1980), 88 Ill. App. 3d 1048, 1053, 411 N.E.2d 61.) The pertinent point is whether there was a lack of sufficient time to allow an opportunity for reflection and invention. (Poland, at 181.) The court must consider all the circumstances surrounding the statement to determine whether it is reasonable to believe that the declarant acted without thought, or whether there existed the possibility that the declarant had deliberated in making a false statement. (Cherry, at 1054.) A statement which qualifies as a spontaneous declaration is admissible to prove the truth of what was said. People v. Damen (1963), 28 Ill. 2d 464, 471-72, 193 N.E.2d 25.

To rebut a charge or an inference that a witness is motivated to testify falsely or that his testimony is a recent fabrication, evidence is admissible that the witness told the same story before the motive came into existence or before the time of the alleged fabrication. (People v. Clark (1972), 52 Ill. 2d 374, 389, 288 N.E.2d 363; People v. Powell (1973), 53 Ill. 2d 465, 292 N.E.2d 409.) Such evidence may be considered only as corroboration and not as substantive evidence of guilt. People v. Hudson (1980), 86 Ill. App. 3d 335, 340, 408 N.E.2d 325.

Ill

Defendant contends further that the trial court erred in excluding defense counsel from direct participation in the examination of potential jurors. Since this argument concerns the proper interpretation of Supreme Court Rule 234 (Ill. Rev. Stat. 1979, ch. 110A, par. 234) and may also arise in a retrial, we address it here.

Supreme Court Rule 234 provides:

“The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper. Questions shall not directly or indirectly concern matters of law or instructions.”

Rule 234 is made applicable to criminal trials by Rule 431. Ill. Rev. Stat. 1979, ch. 110A, par. 431.

Defendant concedes that these rules have been held constitutional (People v. Jackson (1977), 69 Ill. 2d 252, 260, 371 N.E.2d 602), but argues that exclusion of direct questioning by counsel is arbitrary unless there exists (a) some showing of delay or prejudice to the selection process resulting from permission to counsel to ask questions, or (b) a specific finding to that effect by the trial judge, if the basis for his conclusion does not otherwise appear of record. “Arbitrary exclusion,” according to defendant, “misconstrues the rules or else renders them unconstitutional as construed and applied.” We disagree.

The plain language of Rule 234 indicates that the trial court is to institute voir dire after which the court “may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, or may permit the parties to supplement the examination by such direct inquiry as the court deems proper.” (Emphasis added.) (See Committee Comments, Ill. Ann. Stat., ch. 110A, par. 234, at 178 (Smith-Hurd 1981 Supp.).) The Historical and Practice Notes point out that the amended rule was intended “to put the trial judge exclusively in charge of the voir dire examination unless he chooses to permit the parties or their attorneys to participate.” (Ill. Ann. Stat., ch. 110A, par. 234, at 178 (Smith-Hurd 1981 Supp.).) Consistent with the intent of the rule, the courts have uniformly held that the trial court has the primary responsibility for conducting the voir dire examination. People v. Sanders (1980), 87 Ill. App. 3d 708, 713, 410 N.E.2d 182; People v. Dallas (1980), 85 Ill. App. 3d 153, 165, 405 N.E.2d 1202; People v. Brumfield (1977), 51 Ill. App. 3d 637, 644, 366 N.E.2d 1130.

In light of the language, purpose and history of Rule 234, it is apparent that defendant’s interpretation of the rule is untenable. No showing of delay or prejudice is necessary for the trial court to exclude direct questioning of prospective jurors by counsel. Moreover, although defendant contends that such an interpretation renders the rules “unconstitutional as construed and applied” this contention was disposed of in People v. Jackson (1977), 69 Ill. 2d 252, 260, 371 N.E.2d 602. There the supreme court, citing numerous authorities, held that the constitutional right to an impartial jury does not require that the parties themselves be permitted to interrogate the jurors. See also People v. Lobb (1959), 17 Ill. 2d 287, 301, 161 N.E.2d 325.

IV

In 1977 Circuit Court Judge Albert Green quashed a search warrant for defendant’s apartment and suppressed the evidence seized under the warrant’s authority. On the State’s appeal we reversed that order. (People v. Weinger (1978), 63 Ill. App. 3d 171, 379 N.E.2d 810.) Defendant’s subsequent petitions for leave to appeal and certiorari were denied. (People v. Weinger (1978), 71 Ill. 2d 621; Weinger v. Illinois (1979), 441 U.S. 923, 60 L. Ed. 2d 396, 99 S. Ct. 2032.) Defendant asks us to reconsider and overrule our prior decision. This we decline to do.

Under the “law of the case” doctrine, this court is now bound by the particular views of law announced in our prior opinion in this case, unless the facts presented in the subsequent proceedings are so substantially different as to require a different interpretation (Turner v. Commonwealth Edison Co. (1978), 63 Ill. App. 3d 693, 698, 380 N.E.2d 477; City of Lockport v. County Board of School Trustees (1976), 42 Ill. App. 3d 578, 580, 356 N.E.2d 420), or unless, in the interval between appeals, a higher court has made a contrary ruling on the precise issues of law on which we based our earlier opinion. (Yonan v. Oak Park Federal Savings & Loan Association (1975), 27 Ill. App. 3d 967, 971, 326 N.E.2d 773; Presbyterian Distribution Service v. Chicago National Bank (1962), 36 Ill. App. 2d 1, 4, 183 N.E.2d 525.) Neither exception is applicable here. We therefore refrain from reconsidering our earlier opinion upholding the validity of the search warrant issued in this cause. See Department of Transportation v. Western National Bank (1978), 69 Ill. 2d 576, 581, 373 N.E.2d 14.

For the foregoing reasons, the judgments are reversed and the cause is remanded for a new trial.

Reversed and remanded.

HARTMAN, P. J., and DOWNING, J., concur.

       At trial Kelner disputed Sberna’s reason for going back to Kelner’s apartment. Kelner said they went to his apartment so that he could make himself look more presentable professionally. Before they left Carlyle’s apartment, Kelner also asked Sberna if he had a weapon on his person. Once Sberna admitted that he did, Kelner told Sberna that he would not speak with him until Sberna had rid himself of the gun.

       Although the trial court sustained defense counsel’s objection, it refused counsel’s request to instruct the jury to disregard the remark. See People v. Thomas (1980), 89 Ill. App. 3d 592. 603. 411 N.E.2d 1076.

       The questions focused on Sberna’s statements to Kelner and Carlyle after the murders and on Sberna and Carlyle’s explanation for refusing to aid the police investigation.


source: Caselaw Access Project

author: Mr. JUSTICE O’CONNOR

license: Public Domain

text:
    RICHARD ISAACS, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER, Defendant-Appellee.—TONI GROSSMAN FENCHEL, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER, Defendant-Appellee.
    First District (1st Division)
    Nos. 80-1848, 80-2555 cons.
    Opinion filed November 2, 1981.
    — Rehearing denied December 7, 1981.
    Berger and Herman, Ltd., of Chicago (Marvin L. Herman, of counsel), for appellant Richard Isaacs.

      Alan D. Katz, David S. Pochis, Ltd., and Joel H. Fenchel, all of Chicago, for appellant Toni Grossman Fenchel.
    Lord, Bissell & Brook, of Chicago (William P. Dorr, Harold L. Jacobson, and Hugh C. Griffin, of counsel), for appellee.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

This appeal is a consolidation of two judgments of the circuit court of Cook County dismissing medical malpractice complaints by reason of the statute of limitations. Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

On May 16,1978, Richard Isaacs filed suit against defendants Michael Reese Hospital and Medical Center and Dr. Joseph K. Calvin. Dr. Calvin was dismissed and is not a party to this appeal. The complaint alleges Isaacs received X-ray treatments for inflamed tonsils in 1940. Isaacs was 4 years old at the time. It further alleges that he developed growths on his thyroid gland which were removed surgically by a thyroidectomy.

First knowledge of this condition is alleged to have occurred in May 1977, when defendant notified Isaacs of the possible dangers resulting from the X-ray treatments. It was shortly after this notice that Isaacs underwent the corrective surgery.

Toni Grossman Fenchel filed a similar malpractice action against defendant on January 29, 1980. From 1941 to 1943 she underwent X-ray treatment for tonsilitis. Because of this treatment, it is alleged, tumors developed on the thyroid gland which had to be surgically removed. It is alleged that knowledge of the condition was discovered on January 31, 1978.

Defendant filed motions to dismiss in both cases based upon the 4-year maximum limitation period for medical malpractice actions. (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.) In both instances the trial court’s decision was based upon Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560.

Plaintiffs have raised many issues in their briefs. These include due process and equal protection arguments based upon both our State and Federal constitutions. (Ill. Const. 1970, art. I, §§2,12,16; art. IV, §13; U.S. Const., amend. XIV.) The arguments presented here were also addressed to our supreme court in Anderson v. Wagner. In Anderson, the supreme court rejected the claims that the medical malpractice statute of limitations violated any provision of either the Illinois Constitution or the United States Constitution. In this regard, not only are we bound by Anderson but we are also in agreement with its holdings.

However, the constitutional issues raised by plaintiffs and the rationale found in Anderson are not the primary issue before us. Section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) was amended and became effective on September 19, 1976. Section 21.1 limits actions for damages against physicians and hospitals to a maximum of 4 years after the date of the “act or omission or occurrence” alleged to have caused the injury. It is obvious that application of this amended statute would have barred the plaintiffs’ actions before each knew it existed.

The issue is whether an action for an alleged malpractice occurring in the 1940’s but not discovered until 1977 or 1978 may be maintained where a 1976 amendment has reduced the applicable statute of limitation.

The general rule in Illinois, and elsewhere (51 Am. Jur. 2d Limitation of Actions §38 (1970)), is that an amendment shortening a statute of limitation will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment’s effective date in which to file his action. (Anderson v. Wagner; Jones v. Brill (1981), 97 Ill. App. 3d 943, 423 N.E.2d 930, and the cases cited therein; see generally 2 A. Sutherland, Statutory Construction §41.09 (4th ed. 1973).) The time period examined for its reasonableness is that time between the statute’s effective date and the date on which the pre-existing cause of action would be barred under the new statute as applied. (Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 427 N.E.2d 999, and the cases cited therein.) It also appears that a determination of whether a statute will be applied is to be made on a case-by-case analysis. Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 1073, 427 N.E.2d 999, 1000.

The 1976 statute, if applied here, would have barred plaintiffs’ actions some 34 to 37 years ago. Clearly, the plaintiffs did not have a reasonable amount of time after the amendment’s effective date in which to file their actions. Therefore, the 1976 statute cannot be applied in these cases.

Defendant argues that since each cause of action did not accrue until 1977 and 1978, when the injuries were discovered, this retroactive rule is inapplicable. Defendant claims that Anderson is on “all fours” and supports this contention. The supreme court in Anderson did state it was possible under the 1976 amended statute for an action to be barred before it was discovered without violating due process. (79 Ill. 2d 295, 312; see Jones v. Brill.) The Anderson court, however, also stated and applied the general rule. It applied the new statute since it determined that the plaintiffs had a reasonable time, 8 months after the effective date of the statute and 16 months after discovery, in which to file the action.

Defendant’s citation of Murphy v. Giardina (1980), 82 Ill. 2d 529, 413 N.E.2d 399, is inapposite to their stated position. There, the supreme court applied an amendment prospectively because of specific legislative intent that it be so applied.

Several recent cases are precisely on point with the issue before us. In Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177, the plaintiff discovered her injury, resulting from surgery in 1969, about the same time as the effective date of the amendment to section 21.1. There was some question whether the discovery date was immediately prior to (September 4, 1976) or after (October 7, 1976) the effective date (September 19, 1976) of the amendment. In either case, the appellate court decided, the new statute was inapplicable since the plaintiff did not have a reasonable time after the effective date of the amendment in which to file her action. 72 Ill. App. 3d 527, 530.

In Jones v. Brill, the alleged malpractice occurred in 1971 but was not discovered until 1979. The cause was dismissed based upon section 21.1 as amended in 1976 to 4 years. The application of this statute would have barred plaintiff’s action in 1975. Since the plaintiff clearly did not have a reasonable amount of time in which to file, the statute was not applied. 97 Ill. App. 3d 943, 945.

Balzer v. Inland Steel Co. involved the application of the statute of limitation applicable in product liability actions. (Ill. Rev. Stat. 1979, ch. 83, par. 22.2.) A product manufactured and delivered in 1960 caused plaintiff’s injury in 1978. The statute of limitation for products liability actions became effective on January 1, 1979, before the plaintiff could include the manufacturer in the action. The statute contained a 12-year maximum period from the date of delivery within which to commence an action. The appellate court refused to apply the statute retroactively “[s]ince there was no period of time whatsoever for Balzer to have filed the action after the statute’s effective date.” Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 1073, 427 N.E.2d 999, 1001.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

CAMPBELL, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE GOLDBERG

text:
    DARRELL R. WALKER, Plaintiff-Appellant, v. SHELL CHEMICAL, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2589
    Opinion filed November 2, 1981.
    — Rehearing denied December 7, 1981.
    Joseph F. Cerveny, of Pfeffer, Becker, Gabric & Cerveny, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellant.
    Nolan, O’Malley and Dunne, of Chicago (Patrick W. Dunne and Michael J. Fogarty, of counsel), for appellee Architectural Iron, Inc.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (Robert S. Soderstrom and Shaun McFarland, of counsel), for appellee Wendnagle and Company, Inc.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal arises from an action brought by Darrell Walker (plaintiff) and his wife Patricia A. Walker for damages from a fall suffered while Mr. Walker was working on the construction of a facility for Shell Chemical Company. The amended complaint includes four counts alleging in order liability based on the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.), ordinary negligence, strict liability in tort and damages to plaintiff’s wife for loss of consortium. The trial court denied plaintiff’s motion for leave to amend the amended complaint and allowed motions to dismiss with prejudice count III sounding in strict liability. Plaintiff appeals.

In considering a motion to dismiss, all facts properly pleaded in the complaint are accepted as true by this court. (Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 111, 395 N.E.2d 549.) “[T]he entire complaint must be construed as a whole rather than separately considering its individual portions.” (Gravitt v. Jennings (1979), 79 Ill. App. 3d 286, 288, 398 N.E.2d 395.) “A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” Johnston, 77 Ill. 2d 108, 113.

Although we are required to construe a complaint “liberally” this “of course, does not mean * * * that the plaintiffs are relieved of ‘the necessity of stating a cause of action.’ ” First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 9, 373 N.E.2d 1326, quoting Ill. Ann. Stat., ch. 110, par. 42, Historical and Practice Notes, at 98 (Smith-Hurd 1968).

In the case at bar, there are six corporate defendants. Plaintiff’s amended complaint alleges in count III that “the defendants” [without specification] were engaged in designing and manufacturing a “product commonly known as a fabricated guardrail.” These guardrails were to be used in construction of a building. The guardrails were not reasonably safe for their intended and foreseeable purposes.

It is further alleged:

(a) The defendants failed to provide adequate warnings;
(b) The rail was designed with inadequate welding to secure it in place;
(c) The rail was distributed with insufficient warning it would break;
(d) It was manufactured and designed with inadequate materials;
(e) Defendants failed to fabricate the rail to prevent it from breaking when foreseeably used;
(f) Defendants failed to inspect the rail prior to its installation into a building.

The amended complaint also alleged in count III that said fabricated guardrail was used by employees of Arthur G. McKee Co. in a certain building. Plaintiff in the course of his employment at the site sustained severe and permanent injuries.

Additional facts alleged in the amended complaint should also be considered. Count I, on structural work, alleged plaintiff Darrell Walker was employed by Arthur G. McKee Co. on the premises as a welder. Also, the defendants and each of them “erected, constructed, placed or operated a certain temporary support to facilitate and be used in the said erection or construction.” While said plaintiff was working the “aforesaid temporary support” broke and plaintiff fell.

The motions to dismiss the amended complaint averred the guardrails were installed into the building prior to the occurrence so that they lost their character as separate products and became part of the building.

In this court plaintiff contends the trial court erred in dismissing count III of the amended complaint when it determined that an object loses its identity as a product when attached to a structure. Plaintiff also contends the trial court erred and abused its discretion when it denied him the right to further amendment of the amended complaint. Two of the defendants have filed briefs. Both of them urge there was no abuse of discretion in denying plaintiff leave further to amend count III because the proposed amendment would not have cured defects in the pleading. In addition, defendant Architectural Iron, Inc., contends no cause of action is stated by the complaint on the theory of product liability where the product is alleged to be a fabricated guardrail installed, or being temporarily installed, in a building under construction. Defendant Wendnagle and Company, Inc., contends that a guardrail incorporated into a building may not properly be the subject of an action for strict liability.

In our opinion, a proper solution of this case will result from application of three decisions of this court, although reference to other cases may be of assistance: Heller v. Cadral Corp. (1980), 84 Ill. App. 3d 677, 406 N.E.2d 88; Immergluck v. Ridgeview House, Inc. (1977), 53 Ill. App. 3d 472, 368 N.E.2d 803; and Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376, 365 N.E.2d 923, appeal denied, (1977), 66 Ill. 2d 631.

In Lowrie, plaintiff’s decedent fell from an upper level of an open-air parking garage. The deceased was a patron of the garage. The allegations of the complaint were to the effect that the design of the structure did not allow sufficient space for persons to move about outside of their automobiles; there were no guardrails or.adequate warnings and the structure was not reasonably safe. (50 Ill. App. 3d 376, 378.) This court affirmed dismissal of the complaint on motion to dismiss. The court held specifically that a multi-level, open-air garage was not a product within the scope of section 402A of the Restatement of Torts. The opinion contains a complete analysis as to the definition of the term “product” as contained in the leading case of Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, and a number of later cases. Lowrie is also helpful for its development and comment upon the policy reasons which buttress the concept of strict product liability and the cogent reasons for preventing an inordinate expansion of product liability theory.

In Immergluck, plaintiff fell from a window in a sheltered-care facility. Plaintiff alleged she suffered from a mental illness and that the facilities were unreasonably dangerous because of absence of any device to prevent egress through the windows. (53 Ill. App. 3d 472, 473.) Dismissal of the complaint on motion was affirmed by this court. The case is important also for the policy considerations which impel the courts not to permit an undue expansion of the strict product liability concept.

In Heller, plaintiff purchased a condominium home. The sale agreement contained a warranty against latent defects resulting from faulty workmanship or material (84 Ill. App. 3d 677, 678). This court held that the complaint, predicated upon strict liability, was properly dismissed. The detailed opinion of this court cites Suvada, Lowrie and Immergluck and carefully analyzes the cogent policy restrictions which “support the imposition of strict liability * * *.” See Heller, 84 Ill. App. 3d 677, 679.

Predicated upon these three decisions, we conclude that if the guardrail involved in the instant case was actually a component and indivisible part of the entire building structure, it may not be considered as a product. Applying this reasoning to the amended complaint before us, we are confronted with a dilemma. On the one hand, count III of the amended complaint alleges the guardrails were to be used in construction of a building. Count III also alleges defendants failed to inspect the guardrail “prior to its installation into a building.” In our opinion, if this amended complaint is to be construed as alleging that the guardrail became an integral part of the building structure, the judgment of dismissal should be affirmed under the three authorities above cited.

In addition, count I of the amended complaint alleges with complete inconsistency that the guardrail was a “temporary support to facilitate and be used in the said erection or construction.” However, in any or either event we are impelled to affirmance of the trial court judgment because, as will be shown, this alternative must also fail. In Housman v. C. A. Dawson & Co. (1969), 106 Ill. App. 2d 225, 245 N.E.2d 886, the theory of strict liability was applied. Plaintiff there was using a piece of lumber as a support. It broke while plaintiff was standing on it and thus using it during the process of the work. (106 Ill. App. 2d 225, 227.) Therefore, the court held the law of product liability should be applied.

In Moorman Manufacturing Co. v. National Tank Co. (1980), 92 Ill. App. 3d 136, 414 N.E.2d 1302, a grain storage tank was manufactured and sold to plaintiff by defendant. During use a crack developed in a portion of the device. This court held the tank was a product under the law of strict liability (92 Ill. App. 3d 136, 146). We note that no injury was involved in that case but this court pointed out the economic loss was a sufficient factor to permit recovery under strict liability.

Plaintiff in the instant case depends upon Housman and Moorman, but we cannot agree that count III states a cause of action. The problem is a paucity of factual allegations in the amended complaint. Despite careful study of the entire amended complaint and all counts thereof, we are unable to ascertain how this incident occurred. We do not know what plaintiff was doing when the guardrail failed; where the guardrail was located; what was the cause or reason for its failure and how plaintiff actually used the guardrail at the time of the occurrence.

It is not sufficient for a complaint simply to allege a cause of action exists. Nor is it sufficient for á complaint to allege conclusions of law in order to support the allegation of a cause of action. In Wilson v. Hunk (1977), 51 Ill. App. 3d 1030, 1036, 367 N.E.2d 478, we held allegations that a statement made by plaintiff caused damages were “not magic words’ which create a cause of action [under defamation] without allegations of fact or factual inferences * 0 e.” In Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 375-76, 282 N.E.2d 723, the supreme court held the allegation the defendant “ ‘had charge of’ ” a demolition project, was a conclusory statement which, without supporting factual allegations, was not sufficient to state a cause of action under the Structural Work Act. Similar to the case at bar, the court in Van Dekerkhov noted the complaint contained apparently inconsistent factual allegations which clouded the conclusion that the action pleaded was within the purview of the Structural Work Act. The inconsistency was a factor in rendering the complaint legally insufficient. (51 Ill. 2d 374, 376-77.) We hold the complaint in the case at bar did not allege sufficient facts as distinguished from conclusions to establish a cause of action sounding in strict liability.

In addition to this important factor and the policy reasons set forth in the authorities above analyzed, we are also constrained to note that the remaining counts in plaintiff’s complaint are of a type which will not deprive plaintiff of the possibility of a remedy for his injuries. In view of these considerations, we have concluded that the motions to dismiss were properly granted.

The proposed amendment submitted by plaintiff is directed to paragraph 3 of count III of the amended complaint. The amendment is contained in plaintiff’s motion to vacate the order of dismissal and for leave to amend filed on the 30th day after the entry of judgment in favor of defendants on their motion to dismiss. Quite aside from the issue of whether plaintiff had the right to amend his amended complaint at that point in the proceedings (see First National Bank, 71 Ill. 2d 1, 8), we have concluded that the proposed amendment, if permitted, would make no change in the legal situation. The amendment alleged the guardrail “was being temporarily installed” and was in use by employees of McKee Company and that plaintiff Darrell Walker was injured in the course of his employment. This proposed allegation does not supply specific factual information as to the use of the guardrail at the time of the occurrence. It does not cure the lack of factual allegations in the amended complaint.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.


author: Miss JUSTICE McGILLICUDDY

text:
    THE VILLAGE OF ARLINGTON HEIGHTS, Petitioner-Appellant, v. ELSA C. GATZKE, Trustee, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 79-1376
    Opinion filed November 4, 1981.
    Burke, Weber & Egan, of Chicago (Jack M. Siegel, Thomas T. Burke, and Robert J. Weber, of counsel), for appellant.
    Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., of Chicago (Champ W. Davis, Jr., and Stephen A. Gorman, of counsel), for appellees.
   Miss JUSTICE McGILLICUDDY

delivered the opinion of the court:

The village of Arlington Heights filed a petition to condemn 67 acres of defendants’ property commonly known as Milbratz Farm for use as a drain and retention basin facility for flood control purposes. The farm is located on the east side of Windsor Drive, north of Palatine Road, in unincorporated Cook County. It is outside of but contiguous (except for its northern boundary) to the corporate limits of the village. The defendants, Elsa C. Gatzke and Adele M. Nitschke, filed motions to dismiss the petition. Following an evidentiary hearing, the trial court granted the motion to dismiss. The court found that the proposed project exceeded the power granted to the village and was thus an abuse of discretion and legally impermissible. The village appeals.

In 1972 exceptional rainfall caused substantial flooding throughout Arlington Heights. The village directed the engineering firm of R.J. Peterson & Associates to conduct a study concerning flood control. The firm prepared a comprehensive report suggesting several recommendations to prevent the reoccurrence of the flooding.

One section of the report discussed the problems in the McDonald Creek watershed, an area of 5.16 square miles which includes the Milbratz Farm. A watershed is a catchment area wherein rain that falls into it ultimately drains to a particular point. The report noted that a significant percentage of the watershed- is in unincorporated areas or part of neighboring communities.

According to the report, the McDonald Creek watershed area lacked an adequate outlet for storm runoff. The water level would rise in the creek to the point where there was no place for the water to go and flooding would ensue. The report proposed the construction of a permanent retention basin, Lake Arlington, at the bottom of the watershed to serve as an outlet for storm water runoff. The report referred to the possible secondary benefits of the proposal to the community, such as boating, fishing and general recreational activities. The project would require the village to acquire approximately 113 acres of land, including the Milbratz Farm.

The report also stated that many of the trunk sewers and natural water courses are inadequate to carry storm water to McDonald Creek. The report proposed the deepening and widening of the branches of the creek and the construction of additional sewers.

Robert J. Peterson, a consulting engineer for the firm which prepared the report, testified concerning the need for the proposed project. Peterson explained that the lake size would be approximately 73 acres. The remaining area would be dry and used for storage of water during an exceptional storm, for disposal of soil from the wet portion of the lake, and for landscaping. Peterson further explained that at the eastern end of the lake, a control facility would restrict the outlet of the water.

Ralph W. Lindley, an engineer and an expert in the area of storm water management, testified for the defendants concerning alternative engineering solutions to the village’s flood conditions. Lindley asserted that the proposed lake would primarily benefit property located outside the village’s boundaries. Lindley also testified that the purpose of a drain is to convey water downstream, while the purpose of a basin is to store the water at a specific location.

Allen J. Sander, the village’s director of engineering, testified in rebuttal that a detention basin is, in fact, an enlarged drain. He asserted that Lake Arlington would convey water, but at a lesser rate than McDonald Creek.

The village asserts that its attempt to condemn Milbratz Farm in order to construct Lake Arlington is authorized by the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 1 — 1—1 et seq.). Section 11_H0 — 1 (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 110—1) provides in pertinent part that:

“The corporate authorities of cities and villages for drainage purposes may lay out, establish, construct, and maintain drains, ditches, levees, dykes, pumping works, and machinery, and may acquire the necessary land and machinery therefor, ° °

Section 11 — 110—3 (Ill. Rev. Stat. 1977, ch. 24, par. 11 — 110—3) provides in pertinent part that:

“Whenever, in the judgment of the corporate authorities of a city or village, it becomes necessary or advantageous for the proper construction of improvements specified in Section 11 — 110—1 to enlarge, construct, or improve a natural or artificial drain outside the corporate limits of the city or village to obtain a proper outlet, the corporate authorities have the power to acquire the right of way therefor under the provisions of the statutes relating to the exercise of the right of eminent domain.”

A statute conferring the right of eminent domain must be strictly construed. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 335 N.E.2d 443.) The Illinois Municipal Code only authorizes the condemnation of property outside the village boundaries when the village determines it is necessary “to enlarge, construct, or improve a natural or artificial drain.” The village maintains that the proposed Lake Arlington is in fact a drain. The defendants strongly disagree and assert that the 73 acre lake is a retention basin and not a drain.

The Illinois Municipal Code does not define the word “drain.” In the absence of a statutory definition indicating a different legislative intention, we must assume that “drain” has its ordinary and popularly understood meaning. (Winfield Fire Protection District v. City of Wheaton (1975), 29 Ill. App. 3d 630, 332 N.E.2d 43.) Drain has been defined as “an artificial channel by means of which liquid or other matter is drained or carried off[;] ° ° 0 a watercourse esp. when narrow.” (Webster’s New International Dictionary 685 (3d ed. 1971).) Both Lindley and Sander explained that the purpose of a drain is to convey water downstream. We believe that the word “drain” is popularly understood to describe a passageway, usually narrow, which facilitates or allows the flow of water.

We disagree with the village’s assertion that Lake Arlington, when constructed, will be an enlarged drain. The purpose of the lake is not to facilitate the flow of the storm water but to store the water at a specific location. Peterson specifically testified that a control facility at the eastern end of the lake would restrict the flow of water from the lake. In our opinion, a drain and a lake are two distinct facilities with entirely different functions.

Pursuant to the Municipal Code, which we must strictly construe, the village may condemn property outside its boundaries in order to enlarge, construct or improve a drain. The statute is silent concerning the construction of a lake or basin. (But see Ill. Rev. Stat. 1977, ch. 34, par. 3106, which authorizes counties to construct and maintain reservoirs and holding basins, and Ill. Rev. Stat. 1977, ch. 42, par. 448, which empowers Surface Water Protection Districts to construct retention basins or other facilities necessary for the collection of surface water.) We cannot say that the proposed project is an attempt to enlarge or improve McDonald Creek, but rather it is a plan to convert a portion of the creek into a 73 acre lake. Thus, the village lacks the statutory authority to bring this condemnation action, and the trial court correctly dismissed the petition.

For this reason, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

RIZZI, P. J., and WHITE, J„ concur.

       However, see the Illinois Drainage Code where drain is defined as “any water course or conduit, whether open, covered or enclosed, natural or artificial, or partly natural and partly artificial, by which waters coming or falling upon lands are carried away.” Ill. Rev. Stat. 1977, ch. 42, par. 1 — 2(d).


author: Mr. JUSTICE WHITE

text:
    PURITAN FINANCE CORPORATION, Plaintiff-Appellant, v. GUMDROPS, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-192
    Opinion filed November 4, 1981.

      Liebling, Hauselman & Miller, Ltd., of Chicago, for appellant.
    Myron Minuskin, of Chicago (Marshall E. Winokur, of counsel), for appellees.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

This case involving a replevin action is before this court for the second time. Puritan Finance Co. brought suit against defendant, Gumdrops, Inc., seeking to recover possession of certain electronic sound equipment in which Puritan held a perfected security interest. Puritan had originally entered into a financing agreement with Bobolar Productions, Ltd., whereby Puritan made a loan to Bobolar in the amount of $21,000 for the purchase of the equipment which was thereafter installed in the Ivanhoe Theater. Following its failure to make any payments under the agreement, Bobolar vacated the theater premises, which were later occupied by Gumdrops, Inc. When Gumdrops refused Puritan’s demand to return the property, Puritan instituted the action.

At trial, Gumdrops asserted as an affirmative defense that if forced to return the property to Puritan, its business would be damaged far in excess of the value of the equipment. The trial court nonetheless determined that Puritan had a superior interest in the property and ordered the issuance of a writ of replevin in favor of Puritan. The court also set an appeal bond in the amount of $25,000. Gumdrops immediately appealed from this judgment but the appeal was dismissed for failure of Gumdrops to submit a brief. The case was thereafter remanded to the trial court to determine “whether judgment should be entered in favor of plaintiffappellee, Puritan Finance Corporation for interest, damages, or costs.” During the pendency of that appeal, Puritan had filed a second suit under a theory of conversion in the law division of the circuit court of Cook County. This suit was still pending at the time of this appeal.

On remand of the original suit to the trial court, Puritan filed in the trial court a petition which prayed, “A. For dispersal of the bond proceeds as whole or partial judgment, and B. For reasonable attorney’s fees.” The trial court denied the petition without an evidentiary hearing. The court also declined upon subsequent motion by Puritan to vacate its order. It did, however, order Gumdrops to deliver to Puritan the property which was the subject matter of the suit. Puritan subsequently made an oral motion for an evidentiary hearing and the motion was again denied.

The principal question presented on appeal is: did the trial court by denying without an evidentiary hearing Puritan’s petition for appeal bond proceeds and attorney’s fees, violate this court’s order remanding the case to the trial court for the purpose of determining whether judgment should be entered in favor of plaintiff-appellee Puritan Finance Corp. for interest, damages, or costs?

It is well established that “where the directives of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed.” (Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, 387 N.E.2d 312; Smith v. Farmers’ State Bank (1946), 392 Ill. 456, 64 N.E.2d 865.) The petition presented by Puritan was patently an inartfully worded request for implementation of this court’s mandate. It did not in the plain words of the mandate ask the trial court to hold a hearing to determine Puritan’s entitlement, if any, to interest, damages or costs. However, in denying Puritan the hearing the trial court was looking at form rather than substance. The Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 33(3)) provides that “[pjleadings shall be liberally construed with a view to doing substantial justice between the parties.” Section 42(2) states that “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) Puritan was successful in the replevin action and, as discussed above, was entitled to a hearing to determine its damages. We agree with Puritan that its petition taken in conjunction with its oral motion and our mandate served to reasonably inform the court and the defendants that Puritan was seeking a hearing on the issue of damages.

The trial court, in denying plaintiff’s subsequent oral motion for hearing, stated:

“Well, I obviously took the easy way out of that one. Counsel, because you had an on going suit, and I thought instead of tying up my room I’d let you try that case somewhere else. It’s true you have a right to determine your damages, if not in this action, then some place else. Inasmuch as you had filed that other action, I decided to allow you to proceed there. That was a matter of court convenience rather than any expression of my view that you had no right to a damage hearing.”

The decision to deny plaintiff’s motion appears to have been influenced by the pendency of the other related suit in the law division of the circuit court as well as by the judge’s interest in judicial economy. This does not give the trial court the right to refuse to exercise its jurisdiction over the matter and to comply with the dictates of our mandate. As the appellate court noted in Cousins Club, Inc. v. USA 1 Lehndorff Vermoegensverwaltung GmbH & Cie (1976), 39 Ill. App. 3d 227, 228, 353 N.E.2d 169:

“Where two actions between the same parties, on the same subject, and to test the same rights, are brought in different courts in Illinois having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the entire controversy to the exclusion of all coordinate courts.”

The fact that a second related law suit was pending in the law division does not relieve the trial court receiving the remand from its duty to conduct a hearing as directed by this court. We believe that under these circumstances, where a direct order with instructions has been issued by this court, a trial judge has no discretion in the matter and must follow the mandate. Failure to do so was error.

We also find error in the trial court’s finding as stated in its order of December 17, 1979, that “there is no basis under the Replevin Act, Ill. Rev. Stat. 1979, ch. 119, par. 1 etseq., more particularly section 23, for the assessment of damages in favor of plaintiff and against the defendant Gumdrops, Inc., for the alleged wrongful detention, conversion or deficiency judgment or loss of the plaintiff sustained.” Section 23 of the Act provides that: “If judgment is given for the plaintiff in replevin, he shall recover damages for the detention of the property while the same was wrongfully detained by the defendant.” (Ill. Rev. Stat. 1979, ch. 119, par. 23.) Moreover, several Illinois cases have held that damages are award-able under the Replevin Act for wrongful detention of property. In Welch v. Brunswick Corp. (1973), 10 Ill. App. 3d 693, 294 N.E.2d 725, the appellate court found that a successful replevin plaintiff was entitled to return of the subject property and damages and stated that damages awarded under section 23 of the Replevin Act are intended to provide full indemnity for damage suffered. Other cases have held likewise. Krick v. First National Bank (1972), 8 Ill. App. 3d 663, 290 N.E.2d 661; Cottrell v. Gerson (1938), 296 Ill. App. 412, 16 N.E.2d 529.

Under the law set forth above, it is clear that Puritan, whose property had been wrongfully detained by Gumdrops, as determined initially by the trial court, was entitled under the Replevin Act to recover any damages it may have suffered that were not compensated for by the return of its property.

For the foregoing reasons, the judgment of the circuit court of Cook County denying plaintiff’s petition for a hearing to determine its damages is reversed. The cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI, P. J., and McNAMARA, J., concur.