author: JUSTICE PERLIN

text:
    DONALD P. HORWITZ, Cotrustee of the Lorelei P. Ritholz Trust, et al., Plaintiffs-Appellants, v. SYLVIA RITHOLZ, Defendant-Appellee.
    First District (2nd Division)
    No. 83—1451
    Opinion filed June 19, 1984.

      Foran, Wiss & Schultz, of Chicago (Richard G. Schultz and Jack J. Car-riglio, of counsel), for appellants.
    Henry W. Kenoe, of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Plaintiffs Donald Horwitz and Norman Newman, cotrustees of the Lorelei P. Ritholz Trust (Trust), brought an action for an accounting and distribution of the interest of the Trust in the Sylvia Ritholz Limited Partnership (Partnership). Defendant Sylvia Ritholz, general partner of the Partnership, contends that the Trust had already received a full accounting and had refused to accept its share of the final partnership distribution.

The sole asset of the Partnership consisted of an interest in a Canadian enterprise, King Optical Company, which originally was an asset of the estate of Samuel Ritholz. Samuel Ritholz, who died in 1971, was the husband of defendant and the father of Richard Ritholz and Gerald Ritholz. Samuel Ritholz’ will, admitted to probate in 1971, provided that after payment of “all estate, inheritance, succession and transfer taxes, of every nature whatsoever,” defendant was to be the sole beneficiary of his estate, “it being the intention hereof that the ultimate burden of all such taxes be borne by my estate.”

In April 1972, defendant disclaimed 20 shares of stock in SJS Optical Ltd., a Canadian corporation which operated under the King Optical Company, “in favor of her sons, Richard Ritholz and Gerald Ritholz.” Richard and Gerald accepted the stock pursuant to the disclaimer. The effect of the disclaimer was to give Richard and Gerald a partial interest in King Optical Company.

Later in 1972, the Ritholz family decided to dissolve their various Canadian corporations, including SJS Optical Ltd., and to thereafter operate under the King Optical Company Partnership. As a result, Sylvia Ritholz, together with Richard and Gerald, held a direct interest in the Canadian partnership, King Optical Company. In order to protect themselves from “possible [King Optical Company] partnership liability exposure,” defendant and her two sons, Richard and Gerald, formed the Sylvia Ritholz Limited Partnership. Defendant became general partner, and Richard and Gerald were limited partners. Each of the sons contributed their respective interest in King Optical Company to the Partnership, for which they each received a 17.857% interest in the Partnership. Defendant retained a 64.286% interest in the Partnership.

Richard Ritholz died in November 1972, and letters of trusteeship were issued under Richard’s will to Donald Horwitz and Norman Newman. Under the terms of Richard’s will, the Lorelei P. Ritholz Trust was established and the Trust succeeded to the interest of Richard in the Partnership.

A final accounting for the Samuel Ritholz estate as entered in the circuit court of Cook County and approved by the probate court in November 1975. Pursuant to this final account, estate taxes and expenses were paid by the estate. The total estate assets available after payments of taxes and expenses amounted to $379,926.44.

In 1976, Mr. John Brockhouse, accountant for defendant and for the Partnership, prepared for the windup and dissolution of the Partnership. Brockhouse reviewed the accounting methods used in the final account of Samuel Ritholz’ estate bécause defendant was “dissatisfied with the cash which she had received” from the Samuel Ritholz estate.

In January 1977, the Partnership was dissolved. At dissolution, the cash available to the Partnership for distribution totalled $290,994. According to the ownership percentages, defendant was to receive $187,068 (64.286%), and Gerald Ritholz and the Trust were each to receive $51,963 (17.857%). Distributions in these amounts, however, were never made. Brockhouse, in analyzing the final account of Samuel Ritholz’ estate and preparing for the windup of the Partnership, determined that $34,438 of the taxes and expenses paid by Samuel Ritholz’ estate should be ‘‘reallocated” to the Trust’s partnership in the King Optical Company. Pursuant to Brockhouse’s proposed reallocation, defendant charged $34,438 against the Trust’s interest in the Partnership, and retained $68,876 as a payment to herself for taxes and expenses previously paid by the Samuel Ritholz estate. This reallocation reduced the amount available for distribution by the Partnership to the Trust from $51,963 to $17,525.

Brockhouse forwarded his reallocation figures to Donald Horwitz and Norman Newman, trustees of the Lorelei P. Ritholz Trust, and to Mr. Joshua Kaufman, the trustees’ attorney, proposing a final partnership distribution of $17,525. The plaintiffs-trustees have demanded a full accounting of the Partnership, claiming that they have received only Brockhouse’s “schedules” for the Partnership dissolution. The Trust has accepted no payment from its share of the Partnership funds.

On May 12, 1977, Mr. Kaufman, the trustees’ attorney, wrote a letter to Mr. Henry Kenoe, defendant’s attorney, stating that the trustees “had no objection to the proposed adjustment,” but that “an amendment to the final accounting of the Estate of Samuel Ritholz” would be necessary.

On December 29, 1977, apparently concerned about the personal liability of the trustees, Kaufman again demanded an indemnity agreement be signed by defendant and by Gerald Ritholz.

On April 10, 1978, Lorelei Ritholz, beneficiary of the Lorelei P. Ritholz Trust, wrote to trustee Horwitz, expressing the hope that “court proceedings are not necessary” and advising him of her desire for “a more peaceful and less expensive settlement.” Lorelei even herself offered to sign the indemnification agreement.

On May 9, 1978, Horwitz wrote to defendant, advising her that Lorelei had asked him to approve the distribution proposed by Brock-house, relying solely upon Lorelei’s indemnity agreement and not requiring an indemnity agreement from defendant. Horwitz would not agree to this arrangement, fearing “personal exposure for me and my own personal estate.” He again expressed his willingness to approve the distributions, but only if defendant executed an indemnification agreement to hold Horwitz “harmless, in the event the distribution proposed by you [Sylvia], with the advice of your lawyer and your accountant, proves wrong and your grandchildren become entitled to a larger distribution from the partnership.”

Defendant refused to sign an indemnity agreement, and plaintiffs (trustees) thereupon brought this action for an accounting and distribution of the Partnership assets. Plaintiffs moved for summary judgment and defendant filed a cross-motion for summary judgment. Plaintiffs’ motion was denied, and defendant’s motion for summary judgment was granted.

Plaintiffs appeal and seek reversal of this order.

I

Plaintiffs contend that the trial court “has erred in applying equitable apportionment and in condoning the instant reallocation of Estate taxes and expenses.” Plaintiffs argue that “equitable apportionment is to provide the recipients of probate assets with a contribution from the beneficiaries of non-probate assets for expenses attributable to the non-probate assets”; “the doctrine [equitable apportionment] does not allow for apportionment among probate assets alone”; “the disclaimed asset [10 shares of SJS Optical Ltd.] which is owned by the Trust is a probate asset”; and the proposed apportionment in this instance “is contrary to the express language of the will of Samuel Ritholz.”

Defendant argues that her “disclaimer” of “specific” shares of stock to Richard Ritholz, which transferred to the Trust upon Richard’s death, was not a probate asset of Samuel Ritholz’ estate, but were “simply shares of stock which represented a portion of the equity value of the corporation,” and that defendant’s disclaimer did not insulate the beneficiaries from taxes and expenses attributable to this stock.

In granting defendant’s motion for summary judgment, the trial court held:

“I’m satisfied, however, from a review of all the pleadings that this is not simply a matter of probate concern. I believe that the eases involving equitable apportionment are appropriate to this litigation. I believe that there are no genuine issues of material fact, and I believe that summary judgment for the defendant must be granted and summary judgment for the plaintiff denied.” (Emphasis added.)

“Equitable apportionment is the term which is used to describe the process of distributing the burden of certain estate expenses among those beneficiaries in the same proportion as they respectively cause such expenses to be incurred. It is most commonly used to describe the apportionment of taxes among the beneficiaries of the estate.” (2 R.S. Hunter, Estate Planning & Administration in Illinois sec. 165.1, at 617 (2d ed. 1981).) The purpose of the equitable apportionment rule “is to fairly distribute the Federal estate tax between probate and nonprobate assets.” In re Estate of Rosta (1982), 111 Ill. App. 3d 786, 793, 444 N.E.2d 704, 710.

The doctrine of equitable apportionment, permitting apportionment of Federal estate taxes among recipients of probate and nonpro-bate assets, was applied in Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662, where a decedent died intestate, leaving property subject to probate as well as property held in joint tenancy and outside of probate; and also in In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266, where the decedent did not provide any direction as to the payment of taxes. Roe and Gowling, however, each involved both probate and nonprobate assets.

With further regard to the characterization as probate or nonprobate of the disclaimed stock here involved, section 2 — 7 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 1101/2, par. 2 — 7) provides as follows:

“Sec. 2 — 7. Disclaimer, (a) An heir, legatee, person succeeding to a disclaimed interest, beneficiary under a will or person designated to take pursuant to the power of appointment exercised by a will may disclaim in whole or in part the succession to any real or personal property or interest therein by filing a written disclaimer within the time and at the place provided in this Section. A disclaimer may be of a fractional share or of any limited interest or estate. The right to disclaim of a decedent may be exercised with leave of court by his representative.
(b) The disclaimer must (1) describe the property or part thereof or interest disclaimed, (2) be signed by the disclaimant and (3) declare the disclaimer and the extent thereof.
(c) The disclaimer must be delivered (1) if of a present interest, within 9 months after the death of the decedent or the do-nee of the power, as the case may be, or (2) if of a future interest, not later than 9 months after the event which determines that the taker has become finally ascertained and his interest has become indefeasibly fixed both in quality and quantity; except that with respect to a transfer creating an interest in the disclaimant made after December 31, 1976 and subject to tax under chapters 11, 12 or 13 of the Internal Revenue Code of 1954 as amended, a disclaimer made for the purpose of constituting a qualified disclaimer thereunder shall be delivered not later than 9 months after the date on which the transfer subject to tax is made.”

The effect of a valid disclaimer is specified in section 2 — 7(e), which provides, in relevant part:

“(e) Unless the decedent or donee of the power has provided for another disposition, the property or interest disclaimed descends or shall be distributed (1) if a present interest, as if the disclaimant had predeceased the decedent, or if the disclaimant is one designated to take pursuant to a power of appointment exercised by a will, as if the disclaimant had predeceased the donee of the power or (2) if a future interest, as if the disclaim-ant had predeceased the event which determines that the taker has become finally ascertained and his interest has become in * * * >>

“The right to disclaim is founded on the principle that a party does not have to accept an estate against his will; the motive of the disclaimant is immaterial provided he does not fraudulently receive a benefit for his action; *** and the disclaimer prevents passage of title to the disclaimant and is not a conveyance.” In re Detlefsen (8th Cir. 1979), 610 F.2d 512, 514 (construing Illinois law).

Pursuant to section 2 — 7 of the Probate Act of 1975, the disclaimed sháres of SJS Optical passed to Gerald and Richard as probate assets under the will of Samuel Ritholz. “[EJquitable apportionment of estate taxes or fees does not apply where a contrary intent has been manifested by the testator in his will ***.” (In re Estate of Fenton (1982), 109 Ill. App. 3d 57, 62, 440 N.E.2d 222, 225.) In the instant case, the testator specifically expressed his intent with regard to the payment of taxes and expenses. Article II of his will provides, “it being the intention hereof that the ultimate burden of all such taxes be borne by my estate.” It therefore appears clear that all taxes were to be borne by his estate and not apportioned to any particular assets or bequests.

In our opinion, therefore, the trial court erred in applying the doctrine of equitable apportionment.

II

Plaintiffs contend also that defendant has wrongfully “intermingled estate and partnership obligations.” Plaintiffs again allege that the reallocation is contrary to the language of Samuel Ritholz’ will; that defendant’s reallocation has utilized Partnership assets to reimburse herself for estate obligations; and that the estate expenditures (Canadian estate and income taxes, United States estate and income taxes, Illinois inheritance taxes, court costs and fees) were not Partnership responsibilities or obligations.

Defendant argues that the language of the will does not direct that Canadian taxes be paid by Samuel Ritholz’ estate; that the beneficiaries of the Trust have expressed their willingness to accept her proposed reallocation; and that defendant has given money gifts to Lorelei (defendant’s daughter-in-law) and to her grandchildren, and that “a court of equity may take into consideration all [such] circumstances and equities affecting the parties.”

Certainly, principles of equity and fairness underlie the doctrine of equitable apportionment. The doctrine of equitable contribution which has been applied by Illinois courts is described in J. Pomeroy’s Equity Jurisprudence (5th ed. 1941):

“*** the most important doctrine, perhaps, which results from the principle, Equality is equity, [emphasis added] is that of contribution among joint debtors, co-sureties, co-contractors, and all others upon whom the same pecuniary obligation arising from contract, express or implied, rests. This doctrine is evidently based upon the notion that the burden in all such cases should be equally borne by all the persons upon whom it is imposed, and its necessary effect is to equalize that burden whenever one of the parties has, in pursuance of his mere legal liability, paid or been compelled to pay the whole amount, or any amount greater than his proportionate share.” (2 J. Pomeroy, Equity Jurisprudence sec. 411, at 157-58 (5th ed. 1941).)

This doctrine, however, has not been invoked when a contrary intention is expressed by the decedent in a will. Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662; In re Estate of Van Duser (1974), 19 Ill. App. 3d 1022, 313 N.E.2d 228.

“The cardinal rule of will construction, to which all other rules yield, is the ascertainment of a testator’s intention from the will itself. [Citation.] That intention must be drawn from the will language where it has a settled legal meaning; in the absence of an ambiguity or uncertainty, evidence of the facts and circumstances surrounding the testator when he made the will may not be considered to impart a meaning other than that expressed in the will.” In re Estate of Rosta (1982), 111 Ill. App. 3d 786, 796, 444 N.E.2d 704, 712.

We find no ambiguity in the will of Samuel Ritholz as to his intent. In article II of the will, the testator stated:

“I direct my executors to pay out of my estate all estate, inheritance, succession and transfer taxes, of every nature whatsoever, federal, state and local, becoming due by reason of my death or with respect to insurance on my life or with respect to property passing under this will or which has passed otherwise than by the terms of this will, and my executors shall not be entitled to reimbursement therefor from any persons against whom such taxes may be levied or assessed, or from any who may have received any property so taxed, it being the intention hereof that the ultimate burden of all such taxes be borne by my estate.” (Emphasis added.)

We can hardly imagine a more explicit expression of a testator’s intent that all taxes attributable to his estate be paid from it. The words used did not except Canadian taxes resulting from the passing of property under the will. We note also that the expenditures reallocated to the Trust by Brockhouse included not only Canadian taxes, but also United States estate taxes, Illinois inheritance taxes and court costs and fees.

Defendant’s contention that the reallocation was approved by beneficiaries of the Trust is not entirely accurate. The trustees expressed their willingness to accept the distribution according to the reallocation only if defendant and Gerald signed an indemnity agreement to protect the trustees from personal liability. Since defendant refused to sign such an indemnity agreement, no distribution was accepted by the Trust.

Defendant has sought also to justify the reallocation by claiming she has made “payments” to her daughter-in-law and grandchildren. These “payments,” however, were not distributions of Partnership assets, but rather were personal gifts. Although defendant’s generosity is admirable and has presumptively earned the devotion and gratitude of the recipients, we do not believe these “payments” can now be characterized as payments to be charged against the proper distribution of Partnership assets.

Ill

Plaintiffs contend also that the trial court erred in not ordering a complete partnership accounting.

Defendant concedes that plaintiffs have a right to an accounting, but argues that they have, in fact, received such an accounting.

The Uniform Partnership Act provides, in relevant part:

“The right to an account of his interest shall accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.” Ill. Rev. Stat. 1981, ch. 1061/2, par. 43.

“An accounting is a statement of receipts and disbursements. A final account of a partnership or co-venture should show all of the detailed financial transactions of the business and the true status of the firm’s assets. *** The account should list all receipts and disburse- - ments made and the original vouchers, bills and cancelled checks should be tendered or available for inspection to support the items listed. It should include a listing of original contributions and current assets and liabilities.

*** in order for the account to be of any value or to fulfill the duty of accounting it cannot be merely a summary or lump listing of types of items. * * * While the burden may be considerable, this does not eliminate the requirement of a proper account where a duty to account exists.” Polikoff v. Levy (1971), 132 Ill. App. 2d 492, 500, 270 N.E.2d 540, 547.

In the instant case, defendant’s accountant prepared schedules of the cash to be distributed from the Partnership but failed to detail the financial transactions of the Partnership. Brockhouse’s schedules are “summary in nature” and are concerned as much with the Samuel Ritholz estate as with the Partnership. The accounting does not satisfy the requirements of Polikoff, and the trial court’s summary approval was in our opinion error.

Finally, plaintiffs contend that without reallocation Brock-house’s “schedules reveal that the [Trust’s] cash interest in the Partnership at dissolution was at least $51,963,” and that they are entitled to this full partnership share plus interest from the date of dissolution.

Defendant argues that after reallocation, the Partnership distribution should be in the amount of $17,525 plus interest of $1,799 (total-ling $19,324) which she claims is on deposit at the American National Bank (Chicago) and available for distribution to plaintiffs.

“ ‘Ordinarily interest is not allowed on an unascertained balance after dissolution of the firm in the absence of an agreement to the contrary, but where the circumstances are such as equitably to demand payment of interest it will be allowed from the time when the partnership should have been settled, as where one partner retained the money an unreasonable length of time or where he is wrongfully withholding it.’ ” (Emphasis added.) Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 243-44, 148 N.E.2d 727, quoting 68 C.J.S. Partnership sec. 397.

To justify a recovery of interest for delay of payment upon dissolution of a partnership, the delay must be both unreasonable and vexatious. (Maynard v. Richards (1897), 166 Ill. 466, 46 N.E. 1138.) “Whether payment of a sum due and owing is delayed by unreasonable and vexatious conduct depends upon the circumstances of each case.” Dolce v. Dolce (1982), 108 Ill. App. 3d 817, 822, 439 N.E.2d 1028, 1032.

In the instant case, the amounts due to plaintiffs upon dissolution of the Partnership were apparently questioned by the parties in good faith. Since we remand for a proper accounting, the trial court will then determine the extent, if any, of interest due.

For the reasons herein stated, the trial court’s order granting defendant’s motion for summary judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

HARTMAN, P.J., and STAMOS, J., concur.

      Lorelei is the widow of Richard.

      The tax expenditures were for Canadian estate and income taxes, United States estate and income taxes and Illinois inheritance taxes. The expenses were paid for court costs and fees, miscellaneous costs and additional Canadian fees.

      $34,436 was reallocated also against Gerald Ritholz’ Partnership interest for a total adjustment of $68,876. Gerald Ritholz, however, accepted the calculations proposed by Brockhouse and is not involved in this litigation.

      Estate assets (sometimes called “probate assets”) “are those which are subject to the control of the probate court. They are normally subject to the claims against [the testator’s] estate. They are distributed to his heirs, if there is no valid will, or in conformity with his will if there is one. Generally, estate (or probate) assets are those which are solely owned by the [testator]. They also include his share of property held as a tenant in common with one or more others, and life insurance and other property payable to the estate. All other assets and property rights of the [testator] are included in the term “non-probate assets.” 1 R.S. Hunter, Estate Planning & Administration in Illinois sec. 6.7, at 47 (2d ed. 1981).


source: Caselaw Access Project

author: PRESIDING JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS CIHLAR, Defendant-Appellant.
    First District (2nd Division)
    No. 83—743
    Opinion filed June 19, 1984.

      Dennis M. Doherty, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Lieehty, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant’s previous conviction of rape, burglary, and home invasion was affirmed by this court. (People v. Cihlar (1982), 106 Ill. App. 3d 824, 436 N.E.2d 1041.) Defendant now appeals the circuit court’s dismissal without evidentiary hearing of defendant’s post-conviction petition for a new trial. (Ill. Rev. Stat. 1981, ch. 110, par. 72, now Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401 (section 72), and Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq. (article 122).) Defendant raises as issues on appeal that the circuit court erred in denying and dismissing his petition and accompanying motion without an evidentiary hearing.

Details regarding defendant’s trial and direct appeal are fully set forth in People v. Cihlar (1982), 106 Ill. App. 3d 824, and will be repeated herein only as necessary.

Defendant filed his timely post-conviction petition for a new trial based on newly discovered evidence and additional grounds on May 21, 1982, claiming: he had recently located Ronda Balia, a former neighbor of the complainant, who stated that the complainant had told her shortly after the subject rape that her assailant wore a pair of panties over his head so that he could only see through the leg-holes; that this directly conflicted with the complainant’s trial testimony that the offender wore the panties around the outside of his face, so that his whole face was visible to her; and, although interviewed by police the day of the attack, Balia had changed her residence four times since the incident and had not been available to the parties until May 1982, despite defendant’s exercise of due diligence in attempting to locate her. Defendant’s petition was accompanied with his counsel’s affidavit, and with a handwritten statement dated May 1, 1982, and signed by Balia. In that statement Balia said that at the time of the offense she lived across the hall from the complainant and also worked with her at the Work Shop Lounge. A day or two after the incident, the complainant told her

“that the person that raped her had a pair of panties or underwear over his head[.] I asked her how could he see then? (I thought she meant it was pulled over his entire head.) She said he was able to see with his eyes through the leg holes. I am positive that she said the rapist looked through the leg holes of the underwear. I got the impression that she could not really identify him.
* * *
I seem to specifically recall that *** [she] made a descriptive gesture describing how the rapist was able to see through the leg holes by making her fingers into a circle (touching her thumb) and placed them up to her eyes as though one would mimic one looking through a pair of binoculars. She and I then laughed about him looking through the holes.”

Defendant subsequently filed a motion to admit the results of his polygraph examination or, in the alternative, to hold an evidentiary hearing as to the admissibility of this examination, because he had voluntarily submitted to a polygraph test on November 17, 1982, the results of which substantiated his innocence.

A hearing on the petition and motion was conducted on February 24, 1988. Defense counsel stated that four witnesses were present and prepared to testify that they spoke to the complainant shortly after the attack and that what she then told them concerning her ability to identify her attacker was at variance with her trial testimony. Three of the foregoing witnesses were not available at the time of trial. At the court’s request, defense counsel summarized their proposed testimony in an offer of proof. Noting that one of the witnesses was Marcia Londo, who did testify at trial, the court observed that the proposed testimony of defendant’s witnesses would only duplicate Londo’s trial testimony. Because the jury had already assessed the complainant’s credibility in light of Londo’s testimony, the court saw no reason to disturb the verdict. Defendant’s petition was dismissed and his motion with regard to the polygraph examination denied, with no testimony being heard.

I

Defendant initially contends that the circuit court erred by dismissing his post-conviction petition without an evidentiary hearing. The instant petition was based in the alternative on section 72 and article 122. The use of section 72 for post-conviction relief closely parallels that of article 122, and many of the same standards apply equally to both. Article 122 permits an accused to petition the trial court for a hearing on the issue of whether his conviction entailed a “substantial denial” of his constitutional rights. (Ill. Rev. Stat. 1983, ch. 38, par. 122 — 1.) The provisions of the article are to be liberally construed, and all well-pleaded facts in the petition and in any accompanying affidavits are to be treated as admitted; the accused nevertheless bears the burden of making a substantial showing of a constitutional violation. (People v. Reeves (1952), 412 Ill. 555, 560, 107 N.E.2d 861; People v. Pier (1972), 51 Ill. 2d 96, 98, 281 N.E.2d 289; People v. Reed (1980), 84 Ill. App. 3d 1030, 1040, 405 N.E.2d 1065.) To require an evidentiary hearing, the petition must be based on clear factual allegations and not on mere conclusional statements. (People v. Hysell (1971), 48 Ill. 2d 522, 527, 272 N.E.2d 38.) In the context of a conviction alleged to have been obtained through the use of perjured testimony, a violation of an accused’s due process rights, such a petition must specify the nature of the evidence of perjury, its source, and its availability. People v. Ashley (1966), 34 Ill. 2d 402, 411, 216 N.E.2d 126.

The instant petition, alleging that a newly discovered witness, Balia, unavailable at the time of trial, would testify that the complainant herein had told her, shortly after the rape, that her attacker’s face was covered by a pair of panties and that he could only look through the leg-holes, thereby directly contradicting the complainant’s trial testimony, was sufficiently particular as to the nature, source, and availability of the evidence of perjury. In Illinois, “[a] person commits perjury when, under oath or affirmation * * * he makes a false statement, material to the issue or point in question, which he does not believe to be true.” (Ill. Rev. Stat. 1983, ch. 38, par. 32— 2(a).) In the case at bar, the complainant’s identification testimony was the only evidence connecting defendant to the crime; therefore, any evidence reflecting on her ability to make this identification is necessarily “material.” The inconsistency between her trial testimony and her alleged post-occurrence statement, moreover, is so significant as to raise the inference that one or the other is untruthful.

The State argues that this was only a minor inconsistency which goes to the complainant’s credibility and does not constitute perjury. The cases cited by the State, however, are distinguishable from the instant situation. In People v. Somerville (1969), 42 Ill. 2d 1, 245 N.E.2d 461, perjury was not established where a witness variously testified that he “expected” leniency at sentencing and that he “hoped for” leniency. In People v. Rose (1969), 43 Ill. 2d 273, 253 N.E.2d 456, the supreme court found only a “superficial contradiction” in the testimony of a complainant that she was “forced” to eat pizza and drink and her statement that the rape at issue there was accomplished without “force.” In these cases, the “inconsistencies” could be readily reconciled; here, however, the alleged contradiction goes to the heart of the State’s case against defendant and challenges the complainant’s ability to identify her assailant. Moreover, in the cited cases, unlike here, the trial courts held evidentiary hearings before dismissing the petitions. Finally, in People v. Orndoff (1968), 39 Ill. 2d 96, 233 N.E.2d 378, defendant’s petition was dismissed because the facts allegedly establishing perjury were available to defendant there at the time of trial, unlike the situation here.

The State also contends that the alleged inconsistency was already litigated at trial, at the hearing on defendant’s post-trial motion, and on direct appeal, and that the present evidence is only cumulative; consequently, defendant is now precluded from raising this matter in a post-conviction proceeding. (See People v. Meeks (1975), 31 Ill. App. 3d 396, 400, 334 N.E.2d 253 (article 122); Brunswick v. Mandel (1974), 59 Ill. 2d 502, 504, 322 N.E.2d 25 (section 72).) At trial, the inconsistency appeared in a police report which noted that the rapist “was wearing a woman’s panty over his head covering his facial features.” On cross-examination, the complainant denied telling police that her attacker’s features were covered. Officer Stanley Augustyniak, called to testify by defendant, acknowledged that he wrote the report based on his “interpretation” of the complainant’s statements, but denied that she said specifically that the rapist’s features were covered. Although the jury was thus exposed to the inconsistency, the complainant’s and the officer’s denials made it appear that the inconsistency was attributable to the officer, who wrote the report some time after interviewing the complainant; there was no testimony that the complainant actually made an inconsistent statement. Londo, who testified to the inconsistency at the post-trial hearing, did not do so at trial, although conceivably she could have been cross-examined as to the statement in the police report, since she was present when police interviewed the complainant. On appeal, the matter of the inconsistency arose in a different context, that of the State’s failure to produce Londo’s “favorable” question to a prosecutor in response to defendant’s general request for discovery. People v. Cihlar (1982), 106 Ill. App. 3d 824, 828-29.

Although the inconsistency was known to defendant at the time of trial, the witnesses who could have testified to it were unknown, despite defendant’s alleged exercise of due diligence. Defendant’s failure at trial to elicit Londo’s knowledge of the inconsistency, considering the likelihood that she may have been privy to such statement, may have been his own fault. The testimony of the other witnesses knowing of the inconsistency would have only corroborated Londo’s testimony at the post-trial hearing, and in this sense would have been merely cumulative. The question is thus whether defendant should have been denied a post-conviction hearing because he was able to but failed to cross-examine Londo based on the complainant’s inconsistent statement in a police report. Troubling here is the circuit court’s apparent assumption, in dismissing defendant’s petition, that the jury heard Londo’s direct contradiction of the complainant. In the hearing on the post-conviction petition, the court remarked that the additional witnesses found by defendant “would again say nothing more than what the witness Marcia Londo said to twelve good people sitting in that jury box there.” The court reasoned that the jury evaluated the credibility of the complainant and Londo, and chose to believe the complainant. The court concluded that “[njothing in this record, in my opinion, would change the jury’s verdict, and therein lies the flaw or fatal defect in this motion.” When advised that Londo never contradicted the complainant before the jury, the court responded, “You may be correct, I don’t know,” but nevertheless denied the petition, again noting the jury’s superiority in assessing credibility.

The State also urges that an evidentiary hearing was properly denied because the circuit court, having heard the testimony at trial and having before it the defendant’s petition, affidavit, and offer of proof, could assess the witnesses’ credibility and determine whether penury had been committed. (See People v. Reed (1980), 84 Ill. App. 3d 1030, 1041.) The circuit court based its dismissal of defendant’s petition on the jury’s assessment of the complainant’s credibility; the court’s reliance on the jury’s finding, however, was apparently premised on the mistaken belief that her testimony had been directly contradicted at trial. It cannot be said that, had the jury heard a parade of witnesses testify to the inconsistent statement, its decision would have been the same. The instant case hinged entirely on the complainant’s identification testimony implicating defendant. This is not a case, therefore, where defendant is not entitled to post-conviction relief because other ample evidence established his guilt. People v. Moore (1975), 60 Ill. 2d 379, 386, 327 N.E.2d 324.

Although an evidentiary hearing is not a matter of right (People v. Meeks (1975), 31 Ill. App. 3d 396), and a circuit court’s denial of such a hearing will not be reversed absent an abuse of discretion (People v. Reed (1980), 84 Ill. App. 3d 1030, 1040), the circuit court’s mistaken reliance on the jury’s assessment here requires a full hearing, in which the court itself would determine whether perjury was committed. Where a claim of substantial denial of constitutional rights is based on evidence outside the record, as here, article 122 contemplates an evidentiary hearing to resolve the claim. People v. Sigafus (1968), 39 Ill. 2d 68, 70, 233 N.E.2d 386.

Finally, the State maintains that a constitutional violation was not established because defendant did not allege that the State had knowingly used perjured testimony. In Federal court, a defendant must show that material perjured testimony was used knowingly and intentionally by prosecuting authorities. (E.g., United States ex rel. Burnett v. Illinois (7th Cir. 1980), 619 F.2d 668, 674; Anderson v. United States (7th Cir. 1968), 403 F.2d 451, 454.) In Illinois the foregoing position is taken by the fifth district appellate court (People v. Oswalt (1975), 26 Ill. App. 3d 224, 227, 324 N.E.2d 666), and the fourth division of the first district (People v. Berland (1983), 115 Ill. App. 3d 272, 274, 450 N.E.2d 979). Contrariwise, the fourth district appellate court in People v. Sims (1972), 4 Ill. App. 3d 878, 282 N.E.2d 16, found that both knowing and unknowing use of perjured testimony amounted to constitutional error. This division has also adhered to this latter position. In People v. Shannon (1975), 28 Ill. App. 3d 873, 878, 329 N.E.2d 399, we observed:

“Known to the State or not, the use of *** perjured testimony is a miscarriage of justice which is abhorrent to fundamental fairness and as such is intolerable. Perjury is the mortal enemy of justice, and the battle between them must be waged at every level, including the constitutional.”

This position has been maintained in subsequent decisions. (People v. Bland (1978), 67 Ill. App. 3d 716, 720, 384 N.E.2d 1380; People v. Alfano (1981), 95 Ill. App. 3d 1026, 1031, 420 N.E.2d 1114 (under section 72).) The third division of the first district has adopted this stance with respect to section 72 petitions. People v. Hilliard (1978), 65 Ill. App. 3d 642, 647, 382 N.E.2d 441.

The supreme court has not squarely addressed this split of authority. In People v. Frank (1971), 48 Ill. 2d 500, 272 N.E.2d 25, defendant’s post-conviction petition there failed because, among other things, it did not allege a knowing use of perjured testimony. In People v. Shannon (1975), 28 Ill. App. 3d 873, we did not find this to be binding precedent since Frank involved the knowing use of such testimony. This reading of Frank was noted but not rejected by the supreme court in People v. Cornille (1983), 95 Ill. 2d 497, 511, 448 N.E.2d 857, which held that it did not have to adopt the Shannon approach to find a constitutional violation in the State’s use of an expert witness who had falsified his credentials. Under the continuing authority of Shannon, therefore, it was not necessary for defendant here to allege knowing use of perjured testimony in order to avail himself of post-conviction relief.

Through his petition, affidavit, and offers of proof, defendant established the existence of a factual question regarding the use of perjured testimony in his conviction. Because such issue had not been raised in substance before, and since the evidence allegedly had not come to light until after defendant had been found guilty, despite the alleged exercise of due diligence, an evidentiary hearing is necessary to determine both whether this evidence was unavailable at trial and, if it was not available, whether the complainant had committed perjury. The circuit court’s mistaken deference to the jury’s assessment of the complainant’s credibility cannot substitute for such a hearing contemplated by statute to vindicate an accused’s constitutional rights: the court, not the jury, is the fact finder at such a hearing in which defendant has the burden of showing by clear and convincing proof that perjured testimony was used against him; if defendant succeeds, the burden shifts to the State to show beyond a reasonable doubt that this tainted testimony did not contribute to his conviction. People v. Bracey (1972), 51 Ill. 2d 514, 519-20, 283 N.E.2d 685; People v. Cornille (1983), 95 Ill. 2d 497, 514.

II

Defendant also assigns error to the circuit court’s denial of his motion to hold an evidentiary hearing to determine the admissibility of his polygraph examination. Under Illinois law, such a hearing would have been futile. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070; see also People v. Yarbrough (1982), 93 Ill. 2d 421, 426-27, 444 N.E.2d 493.) Such evidence also has been held inadmissible in post-conviction proceedings. People v. Hilliard (1982), 109 Ill. App. 3d 797, 801, 441 N.E.2d 135.

Defendant analogizes the acceptance of polygraph evidence to that of fingerprint evidence, arguing that he was denied an opportunity to demonstrate the current scientific reliability of polygraph examinations. This contention must also be rejected. Our supreme court has very recently held that polygraphy “has not reached a level of sophistication that makes it generally more probative than prejudicial.” People v. Baynes (1981), 88 Ill. 2d 225, 239.

Accordingly, we reverse and remand for an evidentiary hearing on the issue of whether the newly discovered evidence was unavailable at trial despite the exercise of due diligence, and, if unavailable, whether perjured testimony was used to convict defendant.

Reversed and remanded.

STAMOS and PERLIN, JJ., concur.

      Although Londo’s trial testimony contained no contradictions of the complainant’s testimony, she subsequently testified at the hearing on defendant’s post-trial motion that the complainant had told her the panties covered her attacker’s face.

      Although the petition mentions only Balia, the representation by defense counsel at argument was that two other witnesses, not available at trial, would also so testify.

      In an analogous context, one appellate court observed: “A witness who can testify positively that a slain victim did not have a gun would be committing perjury if he were to testify that he did not know whether the victim had a gun.” People v. Moretti (1952), 349 Ill. App. 67, 74, 109 N.E.2d 915.

      SignificantIy, defendants’ petitions in these cases were not dismissed until after evidentiary hearings had been held.


author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE PEEBLES, Defendant-Appellant.
    First District (1st Division)
    No. 82—1443
    Opinion filed June 4, 1984.
    Rehearing denied July 9, 1984.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Mary Ann Sullivan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant Eugene Peebles was convicted of theft by deception (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(b)) and sentenced to a term of three years and four months to 10 years’ imprisonment. The court ordered that the sentence would run consecutively to defendant’s prior five-year sentence for an unrelated theft and conspiracy conviction. On appeal defendant raises the following issues: (1) whether the jury was properly instructed as to the meaning of deception; (2) whether the jury was properly advised of the charges against defendant; (3) whether the trial court erred in not declaring a mistrial on the basis of jury confusion; (4) whether defendant was proven guilty beyond a reasonable doubt; (5) whether the prosecutor’s final argument deprived defendant of a fair trial; (6) whether defendant was properly charged; and (7) whether the trial court erred in imposing a consecutive sentence.

The record discloses that defendant, along with his wife, Alberta Peebles, was indicted on 111 counts of theft and one count of conspiracy for acts committed during the period between December 29, 1967, and September 20, 1978. The two codefendants’ cases were severed, and Alberta Peebles was convicted of conspiracy. Her conviction was affirmed by this court in People v. Peebles (1983), 120 Ill. App. 3d 376, 457 N.E.2d 1318. Defendant was charged with the theft of the following items of property valuing approximately $130,000 and belonging to the Illinois Department of Public Aid: public aid warrants, authorizations for medical services and authorizations for the purchase of food stamps. The State called seven witnesses to testify and presented extensive documentation, generally by way of stipulation, to show that defendant and his wife created a false impression with the State of Illinois that defendant was not residing with his wife and family during the period charged. A department application for public aid filed by Alberta indicated that defendant had “deserted” his wife. Documentary evidence introduced by the department, however, refuted the above information that was provided by Alberta to the department. Such evidence included defendant’s signature card which was used to cash welfare checks at a currency exchange and which listed defendant’s residence as that of his wife. Additionally, three unemployment checks, made payable to defendant, listed the residence of defendant’s wife and one of the checks had been cashed by Albertá. Other documents, too numerous to specify, showed that defendant had endorsed checks made payable to Alberta; that defendant and Alberta together, maintained bank accounts; applied for a lease; filed a mortgage; filed a tax return and held loans. Finally, a department caseworker testified that in August 1977, upon a visit to Alberta’s residence, she noticed a man who resembled the children and when asked about him, Alberta stated that she and her husband had reunited and that the case should be terminated. At that time, Alberta had been receiving a full grant.

I

Defendant first contends he was denied his right to a fair trial since the jury was not instructed as to the various meanings of the term “deception” as used in section 16 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1). At the instruction conference, defendant asserted that the jury should be given an instruction as to the specific form of deception that the State had charged in the indictment. The defendant then tendered an oral non-IPI instruction which included the definition of deception that defendant claimed the jury was to consider. The State claimed, however, that the form of deception was not an element of the offense of theft and therefore the jury was not required to be instructed as such. The trial court ruled that the jury would be instructed as to the State’s tendered Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 13.01A, 13.04 (2d ed. 1981).

The function of instructions is to convey to the jury the correct principles of law applicable to the evidence so the jury can apply the proper legal principles to the facts and arrive at a proper conclusion based on the law and the evidence. Instructions will be modified only where the facts make the uniform instructions inadequate (People v. Dordies (1978), 60 Ill. App. 3d 621, 377 N.E.2d 245), and it is within the sound discretion of the trial court whether to give a non-IPI instruction. People v. Moore (1980), 89 Ill. App. 3d 202, 411 N.E.2d 579.

In the instant ease, defendant concedes that defendant was charged with the form of deception defined in sections 15 — 4 (a) and (b) (Ill. Rev. Stat. 1977, ch. 38, pars. 15 — 4(a), (b)). Those sections define deception as:

“*** knowingiy to:
(a) Create or confirm another’s impression which is false and which the offender does not believe to be true; or
(b) Fail to correct a false impression which the offender previously has created or confirmed ***.”

Deception commonly refers to conduct which has caused another to believe something which is not true. (See Webster’s Third New International Dictionary of the English Language 584 (1976).) It appears that the two statutory definitions are sufficiently similar to the common usage of the term so as to allay any fear of jury confusion regarding the type of conduct which would constitute deception in this case. Moreover, it has been held that where a term of common usage is employed in an instruction, there is no need to give an additional instruction defining that term. (People v. McClellan (1978), 62 Ill. App. 3d 590, 378 N.E.2d 1221.) Therefore, the trial court did not abuse its discretion in declining to instruct the jury on the various definitions of the term “deception.”

II

Defendant also contends his due process rights were violated because the jury was not advised of the specifics of the 112-count indictment against him. Defendant claims the jury should have been advised of all 112 charges brought against him to insure that the jury would consider only whether defendant was guilty of those offenses. (See Stirone v. United States (1960), 361 U.S. 212, 4 L. Ed. 2d 252, 80 S. Ct. 270.) The State claims, however, that the jury was fully apprised of all the charges against defendant. We agree.

In the instant case, the record is clear that there were five different substantive charges against defendant which were committed repeatedly by defendant over a 10-year period. The 112-count indictment consisted of the five charges multiplied by the number of commissions of each charge over the period. The counts differed only as to the number, amount and date of issuance of each check and warrant. At the beginning of his opening statement, defense counsel requested permission to read the indictment to the jury. The State objected and a conference was held in which defense counsel stated that he did not want to read each count because “all of the counts are du-plicative,” but that the “jury has a right to know the guts of what the charges are.” The trial court determined that defense counsel could not paraphrase any part of the indictment but instead would be required to read each count in its entirety. Defense counsel responded that he would only read the four basic theft counts, plus the conspiracy count, in their entirety. Before reading the counts, defense counsel told the jury there were other counts but stated, “this is the nature of all of the counts. T mean, if I read all the counts in the indictment we would be here until 6:00 o’clock.” Based on this record, we are unpersuaded by defendant’s claim that the jury was not fully advised of the charges against him. It is clear that defense counsel was given the opportunity to read the entire indictment to the jury but chose to read only five counts of the indictment, conceding that the balance of the counts were duplicative. Defendant cannot now maintain that the trial court had the duty to make sure the jury had been informed of each count when defense counsel chose to read only the five basic counts to the jury. Moreover, the record shows that the jury was instructed by the trial court as to the elements of the offense for which defendant was convicted. (People v. Sansone (1981), 94 Ill. App. 3d 271, 418 N.E.2d 862.) Therefore there was no error in failing to read the entire indictment to the jury under the facts and circumstances of this case.

III

Defendant further contends the trial court erred in denying his motion for mistrial which was requested after the jury reported that it was deadlocked. Defendant claims the jury was coerced into returning a verdict by the trial court’s order that the jury would be sequestered for the night and directed to reconsider the issue the following morning. Defendant’s claim of coercion is based on the assertion that the trial court knew of the following circumstances at the time of the ruling: that one of the jurors could not be present the following day due to the funeral of a relative; that the jurors felt no decision could be reached by further deliberations; and that a compromise verdict was being considered by the jurors. Defendant also maintains the verdict was inconsistent and thereby proves the jury was forced into returning a compromise verdict. Defendant claims he could not have been convicted of theft by deception and acquitted of conspiracy since his wife had committed the acts of theft “with his complicity.”

A motion for mistrial is addressed to the sound discretion of the trial court and in the absence of a showing that defendant has been prejudiced, a reviewing court will not interfere in the exercise of that discretion. People v. DeBord (1978), 61 Ill. App. 3d 239, 377 N.E.2d 1308.

Here, the record indicates that the jury had deliberated approximately six hours before tendering the note indicating a deadlock. Apparently, in ruling that the jury should be given more time to deliberate, the trial court rejected defense counsel’s claim that the jury was being forced into a verdict. The court instead adopted the State’s contention that the jury should be given more time to deliberate in view of the numerous documents and sophisticated evidence involved in the case. Such procedure by the trial court has been found to be proper. (Huwe v. Commonwealth Edison Co. (1975), 29 Ill. App. 3d 1085, 332 N.E.2d 60.) Further, the record does not support defendant’s claim that the trial court had knowledge that a juror would be absent the following day. Defendant’s other claim, that the jury returned a compromise verdict, is based on mere speculation. From the evidence presented, it was possible for the jury to have found defendant acted of his own accord in defrauding the State of Illinois and therefore not guilty of conspiracy but guilty of theft by deception. The evidence established that defendant lived at the same address as his wife and family during the time in question although the contrary was reported .to the department. Moreover, defendant’s failure to correct the department’s false information regarding the family’s income and defendant’s knowledge that his wife was receiving aid based on that false information also support the jury’s verdict. (See People v. Gunn (1983), 112 Ill. App. 3d 1011, 446 N.E.2d 281.) Therefore, we find no error in the trial court’s decision to deny defendant’s motion for mistrial and to direct the jury to continue its deliberation on the following day.

IV

Defendant also contends that he was not proven guilty of theft by deception beyond a reasonable doubt. In support thereof, defendant argues that no evidence was adduced to show that he acted as a principal to deceive the department of public aid.

A court of review will not disturb a jury’s verdict unless that verdict is so palpably contrary to the manifest weight of the evidence as to raise a reasonable doubt of the defendant’s guilt. (People v. Young (1981), 97 Ill. App. 3d 187, 423 N.E.2d 221.) In the instant case, extensive documentary evidence was introduced to show that defendant failed to correct a false impression with the department that he earned less money than reported and that he was not separated from his wife. The numerous documents which included a mortgage, a check cashing card, a loan application, personnel records, bank accounts, articles of incorporation and an application for unemployment compensation supported the State’s contention that defendant knowingly failed to correct false financial information held by the department. The fact that defendant and his wife co-endorsed public aid checks could leave no inference but that defendant knew his wife was receiving public aid based on false information. Under the facts and circumstances in this case, vye are convinced that the jury could have found defendant was guilty of theft by deception beyond a reasonable doubt.

V

Defendant also contends he was denied a fair trial due to certain prosecutorial comments made during final argument. Defendant complains in particular of the prosecutor’s statement to the jury regarding the evidence that was needed to find defendant guilty. In response to an objection by defense counsel, the court admonished the jury that they were to decide the case based on the instructions that the court would provide. Defendant also complains that the prosecutor improperly diminished the importance of proving guilt beyond a reasonable doubt by arguing: “Every day in this building people are found guilty beyond a reasonable doubt.” Again, in response to an objection, the court directed the jury to “focus their attention on this case.” In light of defense counsel’s prompt objection followed by the court’s admonitions to the jury, as well as an instruction to disregard closing argument statements which were not based on the evidence, we find that any alleged error was cured. People v. Hampton (1969), 44 Ill. 2d 41, 253 N.E.2d 385.

VI

Defendant further contends that he cannot be convicted of a felony since no count in the indictment charged him with a theft of over $300 as required by section 16 — 1(e)(3) of the Criminal Code of 1961. (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(e)(3).) At the time of the commission of the offenses, and on the date of the indictment, theft of property exceeding $150 was a Class 3 felony. (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(e)(3).) Effective January 1, 1982, paragraph 16— 1(e)(3) was amended to increase the monetary amount to $300 from $150. (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1(e)(3).) Although defendant’s trial began March 8, 1982, the indictment was not amended to reflect this statutory change. Therefore, defendant claims he can only be convicted of a misdemeanor.

Initially we note that defendant raises the sufficiency of the indictment for the first time on appeal. The proper procedure to challenge a defective indictment is by means of a pretrial motion to dismiss the charge (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 1), or a motion for arrest of judgment. (Ill. Rev. Stat. 1983, ch. 38, par. 116 — 2.) If the defendant does not attack the indictment through one of those procedures, the objection is waived and the sufficiency of the indictment is determined by whether “it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (People v. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460; People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440.) We are convinced that the indictment accomplishes these purposes, and defendant has alleged no facts which indicate otherwise. Additionally, we note that extensive documentation was presented at trial to show that defendant had stolen in excess of $130,000 and that an instruction was given incorporating the amended statutory amount of $300 for convicting defendant of theft by deception. Therefore, we find that the indictment adequately apprised defendant that he was being charged with a felony.

VII

Defendant finally contends that the imposition of a consecutive sentence was improper. The trial court sentenced defendant to an indeterminate term of three years and four months to 10 years’ imprisonment in accordance with defendant’s election to be sentenced under the laws as they existed in 1976. (III. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1; People v. Lenninger (1980), 88 Ill. App. 3d 801, 410 N.E.2d 1157.) The court ordered that this sentence was to be served consecutively with a five-year determinate sentence imposed on defendant in 1981 for another unrelated felony theft conviction. Defendant argues that the consecutive sentence was improper under the 1973 provisions of section 5 — 8—4 of the Uniform Code of Corrections. (Ill. Rev. Stat., 1973 Supp., ch. 38, par. 1005 — 8—4 (c).) Before being amended in 1974, that section provided:

“The aggregate maximum of consecutive sentences shall not exceed twice the maximum term authorized under Section 5 — 8— 1 for the most serious felony involved. The aggregate minimum . period of consecutive sentences shall not exceed twice the lowest minimum term authorized under Section 5 — 8—1 for the most serious felony involved.”

Defendant claims that under the 1973 version of section 5 — 8—4, a three-year consecutive sentence was the maximum that could have been imposed. In addition, defendant argues that the trial court’s imposition of the consecutive sentence was not supported by the record.

Whether an indeterminate sentence can be made consecutive to a determinate sentence was addressed by our supreme court in People v. Dye (1977), 69 Ill. 2d 298, 371 N.E.2d 630. In Dye, defendant received an indeterminate sentence of two to eight years to be served consecutively to a determinate Federal sentence of five years. Treating the determinate sentence as having a five-year minimum, the appellate court found that the aggregate minimum period exceeded twice the minimum penalty for the offense of forgery, which was the most serious felony involved, and therefore violated provisions of section 5 — 8—4(c). (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 8—4(c).) The appellate court directed that the sentence imposed in Illinois should be served concurrently with the Federal sentence. In reversing the appellate court, the supreme court noted that the statutory provision for measuring a consecutive sentence was “clearly confine[d] * * * to situations where the aggregate minimum terms of imprisonment [could] be calculated.” (People v. Dye (1977) 69 Ill. 2d 298, 306-07, 371 N.E.2d 630, 634.) The court concluded that since Federal determinate sentences do not have maximum or minimum terms, the statutory provision limiting the imposition of consecutive sentences was inapplicable. Therefore, according to the court, the calculation of minimum and maximum terms to determine consecutive sentences was limited to indeterminate sentences under section 5 — 8—1. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1.) Upon the authority of Dye, then, defendant’s argument cannot prevail.

Further, as prescribed by section 5 — 8—4 (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—4), it is generally within the trial court’s discretion to determine whether or not multiple terms of imprisonment are to be served concurrently or consecutively. In the recent case, People v. Hicks (1984), 101 Ill. 2d 366, 374, the supreme court noted that the statutory requirement that the court “ ‘shall set forth in the record’ ” the basis for the court’s determination that a consecutive sentence is “ ‘required to protect the public from farther criminal conduct ***’ ” is permissive rather than mandatory. The supreme court determined that the requirement would be satisfied if the record showed that the trial court believed the consecutive term was necessary for the protection of the public.

In imposing the consecutive sentence in the instant case, the court stated that “a severe sentence is necessary *** to protect the public from further [similar] criminal conduct.” The court noted that defendant was a mature adult who engaged in calculated cheating and whose actions were of considerable harm to the taxpaying general public. The court also stated that the severe sentence was needed to deter others who may be tempted to engage in similar conduct believing that such offenses would go undetected. From our review of the court, it is clear that the sentencing judge was convinced in light of all the facts and circumstances before him that a consecutive term was necessary for the protection of the public. The statute requires nothing more. See People v. Hicks (1984), 101 Ill. 2d 366.

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

Judgment affirmed.

BUCKLEY, P.J., and GOLDBERG, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCO NUNEZ, Defendant-Appellant.
    First District (5th Division)
    No. 82—1542
    Opinion filed June 15, 1984.

      Steven B. Muslin and Ira A. Moltz, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Thalia B. Photos, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) and sentenced to 14 years’ imprisonment. He appeals and argues: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in admitting collateral impeachment testimony; (3) the trial court erred in denying his post-trial motion based on new evidence; (4) the prosecutor injected improper comment; and (5) the trial court imposed an excessive sentence. We affirm.

At about 11 p.m. on May 1, 1981, Pedro Mendosa finished his shift as a restaurant cook and went to a nearby restaurant for coffee and conversation with friends. Mendosa left this restaurant at about 2 a.m., caught a bus, stopped at another restaurant for more coffee, and then left to go home. As he was walking, defendant approached from behind, then stood in front of him and asked for a cigarette. When Mendosa replied that he had none, defendant placed a knife on Mendosa’s chest, demanded his money, and took Mendosa’s knife and wallet.

Mendosa testified further that he had received his weekly wages that day, $240 consisting of one $100 bill, one $50 bill, eight tens, one five and five singles. In addition to the money, defendant took Mendo-sa’s yellow knife, which Mendosa said he used to “open potatoes and onions.” Defendant threatened to kill Mendosa if he said anything, then crossed the street to join a shorter man standing in front of a King Castle restaurant.

Mendosa immediately entered a restaurant where he saw Ronald Swick, whom he knew to be a police officer. After he explained what had happened, Mendosa and Swick went outside where, according to Mendosa, he pointed out defendant.

On cross-examination, Mendosa admitted that he did not remember the type of clothing that the robber wore, nor did he notice whether the robber had any scars on his face. He stated that the robbery took only about a minute and that he looked the robber up and down while the wallet and knife were extracted from his pockets. Mendosa lost sight of the robber when he went into the restaurant, but added that he and Swick “came out right away.” After defendant was apprehended, Mendosa was taken to the police station but did not view defendant in a lineup.

Office Swick then testified to events leading up to defendant’s arrest, substantially corroborating Mendosa’s testimony. He said that while he was in a restaurant, Mendosa reported that he had just been robbed, and that the perpetrators were outside. Swick followed Mendosa outside, where Mendosa pointed to two men across the street and said they had robbed him. Mendosa also specified defendant as the one who had threatened him and taken his money. Swick recalled that defendant was approximately seven inches taller than the other man. Swick entered the restaurant, called the police and then joined Mendosa outside.

When Swick and Mendosa approached the two men, they walked away rapidly, then broke into a run. Swick pursued them into a parking lot and saw them attempt to jump over a fence; defendant’s attempt was unsuccessful. Defendant then turned to exit the lot in Swick’s direction. Swick identified himself as a police officer and told defendant that he was under arrest. Defendant said that he did not believe Swick, and continued his approach with a pocket knife in his right hand. Swick further testified that he disarmed defendant and took a yellow knife from him. At the police station, Swick recovered $240 from defendant’s pocket in the same denominations as Mendosa had testified were stolen from him.

Louis Rodriguez testified on behalf of the defendant and stated that on the night of the incident, from about 9 p.m. until after midnight, he was at defendant’s apartment with defendant and his family. Shortly after midnight, Rodriguez accompanied defendant and two other friends to a poolroom. About half an hour later, Rodriguez and defendant left to continue drinking at a bar. Rodriguez ordered beer there while defendant went next door to King Castle for food. Rodriguez stated that he remained in the bar until 2 a.m., and did not learn that defendant had been arrested until the next day.

Defendant testified to the same events as Rodriguez and added that after he placed his order at King Castle, he went to the washroom and found that it was out of order. He went outside to a parking lot to relieve himself and while there, he saw two people running toward a nearby fence. As he walked away, a person wearing street clothes grabbed his arm and put a gun to his head. According to defendant, this person never identified himself as a police officer.

Defendant further testified that he was employed at the Brach Candy Company and that he had close to $300 that night because he had received his paycheck and because rent and utility bills were due. On cross-examination he said that he received and cashed his paycheck of about $250 on the day of the incident, and took all of his money, about $300, with him that night. He also said that he pulled his knife out of his pocket because Swick had a gun.

The parties stipulated that if called to testify, the court reporter would say that Mendosa’s preliminary hearing testimony recounted that the assailant wore a hat and a turned-up jacket, although at trial Mendosa could not recall how his assailant was dressed. The State recalled Swick who stated that the $240 had been inventoried.

Over defendant’s objection, the State called Robert Malone, payroll manager at Brach’s, in rebuttal. Malone testified that defendant worked for the company on April 29 and 30, 1981, and that defendant was paid for those two days on Friday, May 8, in accordance with payroll procedure. The State then rested its case. Following deliberations, the jury returned a verdict of guilty.

Defendant presented a post-trial motion for a new trial based on newly discovered evidence. The new evidence showed that defendant had been working for Oakwood Cemetery and was paid $96.67 on April 23 and $39.21 on April 30. The State argued that the cemetery had indicated defendant was paid for the week of April 30, but after May 1, the date of the incident. The trial court denied defendant’s motion. This appeal followed.

Opinion

Defendant first contends that he was not proved guilty beyond a reasonable doubt. He argues that Mendosa’s identification was conflicting and uncertain, and therefore insufficient to support defendant’s conviction. He posits that Mendosa pointed out the first person he saw after he found Swick, and that person happened to be defendant.

A reviewing court will not substitute its judgment for that of the trier of fact in matters of weight, credibility, or conflicting evidence, and will not reverse a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) The testimony of one identification witness is sufficient to sustain a conviction, even though contradicted by defendant, provided the witness is credible and viewed the defendant in circumstances permitting a positive identification. (People v. Stringer (1972), 52 Ill. 2d 564, 569, 289 N.E.2d 631.) The reliability of an identification is tested by the totality of the circumstances, including the witness’ opportunity to view the perpetrator, degree of attention, accuracy of description, certainty and time elapsed between commission of the crime and identification. People v. Manion (1977), 67 Ill. 2d 564; 571, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

In this case, the totality of circumstances supports Mendosa’s identification of defendant. Mendosa focused his attention on the perpetrator from the time he was asked for a cigarette until he entered the restaurant to get Swick. For about one minute of this time, the perpetrator was less than an arm’s length from Mendosa, and Men-dosa viewed the perpetrator almost continuously from the commission of the crime to defendant’s arrest and positive identification, a duration of minutes. Although a question arose concerning the consistency of Mendosa’s description as between the preliminary hearing and the trial, it is the province of the trier of fact to reconcile such inconsistencies. See People v. Johnson (1979), 74 Ill. App. 3d 1037, 1048, 393 N.E.2d 40.

Moreover, defendant’s theory collapses upon itself. The perpetrator was out of Mendosa’s sight only twice: when Mendosa entered the restaurant to get Swick, and when Swick chased the suspect into the parking lot. Even so, Swick viewed the suspect throughout the chase. Defendant maintains that when Mendosa exited the restaurant, he pointed out the first person he saw, defendant. Of course, defendant’s own testimony places him at the terminal point of the chase, the parking lot, and not at the point of origin, in front of the King Castle.

In our opinion, the jury was justified in relying upon Mendosa’s identification, if in fact they did. We note that the yellow knife and currency recovered from defendant were powerful indications of guilt. Adding defendant’s thoroughly impeached explanations, we are convinced that defendant was proved guilty beyond any reasonable doubt.

Defendant next contends that the trial court erred in permitting Robert Malone to testify, because the testimony was collateral and immaterial. Malone testified that defendant did not receive a paycheck from Brach Candy Company on May 1 as defendant claimed, but was paid on May 8, a week after the robbery.

Our supreme court addressed similar contentions in People v. Dennis (1970), 47 Ill. 2d 120, 265 N.E.2d 385, cert, denied (1971), 403 U.S. 907, 29 L. Ed. 2d 683, 91 S. Ct. 2212. Noting that defendant had raised the issue of his whereabouts on the night of the crime by testifying that he attended the theatre with his girl friend, the court ruled that no error was committed in allowing the State to establish an inconsistent alibi. (47 Ill. 2d 120, 131-33.) As in Dennis, defendant here raised a crucial issue which the State was entitled to rebut. Defendant testified that he worked for Brach, received a $250 paycheck on May 1, cashed the check at a certain facility, and held the cash in anticipation of paying his rent and utilities. If the jury believed that defendant came into possession of the money this way, it would not believe that the money was robbed from Mendosa by defendant. In our judgment, Malone’s testimony did not relate to a collateral issue; indeed, it went to the heart of defendant’s credibility concerning the source of the money. The trial court properly permitted the testimony.

Defendant next contends that his motion for a new trial based on newly discovered evidence was improperly denied. He maintains that the preferred evidence of his employment at the Oakwood Cemetery would successfully refute the State’s theory concerning the money in defendant’s possession at the time of arrest. This contention must also fail.

The standard of review for such a motion is as clear as it is longstanding. Denial of the motion will not be disturbed on review absent an abuse of discretion. The. burden is on the applicant to rebut the presumption that the verdict is correct, and to show that the evidence is of a conclusive character and that it could not have been discovered prior to trial in the exercise of due diligence. The closest scrutiny of the application is warranted in order to prevent the fraud and imposition which defeated parties might be tempted to practice. See People v. Miller (1980), 79 Ill. 2d 454, 464-65, 404 N.E.2d 199, and cases cited therein.

The trial court could reasonably conclude that defendant’s “newly discovered” evidence could have been discovered prior to trial in the exercise of due diligence. Defendant’s explanation, that the mistake was “understandable” given his movement from one job to the other, suggests that defendant did know of this evidence prior to trial, and either forgot who he worked for, or failed to obtain accurate information concerning his employment. This court has held that the failure to exercise due diligence in discovering evidence prior to trial is sufficient alone to deny a motion for a new trial without reaching the issue of whether the evidence proposed would have properly warranted the granting of a new trial. People v. Son (1982), 111 Ill. App. 3d 273, 283, 443 N.E.2d 1115.

Moreover, as the State pointed out, even if this evidence was admitted it would not have changed the trial result. Not only does the total amount paid by Oakwood, $135.77, fail to explain the source of $240, but an employee at the cemetery disclosed that by the time of the incident, defendant had only been paid $96.56 and that a week after the incident defendant received $39.21. Under these circumstances, we find that the trial court properly denied defendant’s motion because the newly discovered evidence was not of such a conclusive character that it would have changed the result on retrial and because this evidence could have been discovered prior to trial by the exercise of due diligence.

Defendant next asserts that he was fatally prejudiced by the prosecutor’s redirect examination of Mendosa, which colloquy in pertinent part, was as follows:

“Q. Sir, Mr. Nolan [defense counsel] asked you if you were scared today because defendant threatened to kill you?
Mr. Nolan:'Objection.
The Court: Sustained, leading.
Q. Why are you scared, sir?
A. Because, I don’t know, I never been in these things, this is the first time.
Q. Thank you, no further questions, your Honor.” (Emphasis added.)

In our opinion, although the prosecutor’s question to Mendosa as to whether he was “scared because defendant threatened to kill you” was improper, it did not constitute reversible error. First, we note that during direct examination of Mendosa, the State queried as follows:

“Q. After he [defendant] took these things from you, did he say anything to you?
A. Yes.
Q. What did he say to you?
A. That if I said anything, he was going to kill me.”

Then, during cross-examination, defense counsel asked that the court interpreter present the following question to Mendosa:

“Q. Ask him whether he testified before Judge Moran if he recalls being asked the question, was the man who robbed him on the street, was he wearing a jacket turned up like this?
* * *
[Mendosa]: I don’t remember, I don’t — I didn’t know what I was saying, I was too nervous.
[Defense Counsel]: Ask him if he is nervous today?
A. Yes, very much.”

The record further shows that on at least two additional occasions Mendosa testified under cross-examination that at the time of the incident he was nervous. In view of all of the above testimony, the prosecutor’s comment could not have changed the result which the jury reached. No further reference to Mendosa’s “nervousness” was made, and the trial court promptly sustained defendant’s objection. We believe that any prejudice which resulted from the contested colloquy was thereby sufficiently cured. People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233.

Defendant further assigns error to the prosecutor’s comment during closing argument where he characterized defendant’s defense as “that bunch of garbage” and queried as to why defendant’s friends “wouldn’t *** come in here [to testify].”

Initially, we do not believe that the prosecutor’s reference to “that garbage” was equivalent to calling defendant and his legal counsel a liar, as defendant contends. Defendant’s cited cases on this issue are clearly distinguished by the qualitative difference between the remarks of the prosecutor in the pending case and those in the cases defendant brings to our attention. In People v. Williams (1981), 99 Ill. App. 3d 919, 425 N.E.2d 1321, the defendant was characterized as a liar, rapist and pervert, and in People v. Broadnax (1975), 26 Ill. App. 3d 67, 325 N.E.2d 23, the defendant was called a liar several times during closing argument. We believe that the language in these cases is not comparable to the challenged statement before us.

Concerning defendant’s assertion that the prosecutor unfairly commented on defendant’s failure to produce certain witnesses, although this comment was improper, in view of the clear evidence establishing defendant’s guilt — the testimony of the victim, Mendosa, who saw defendant face to face and who pointed defendant out to Swick shortly after the incident, the physical evidence and the fact that Mendosa again identified defendant immediately after defendant was apprehended — we cannot say that the remark prejudiced defendant to the extent that it constituted a material factor in his conviction. (People v. Dowd (1981), 101 Ill. App. 3d 830, 848-49, 428 N.E.2d 894.) We further note that the trial court promptly sustained defendant’s objection to this comment and instructed the jury to disregard the argument. For these reasons, we feel that the court’s response was sufficient to cure any prejudice and therefore reject defendant’s contention on this issue. See People v. Baptist (1979), 76 Ill. 2d 19, 28, 30, 389 N.E.2d 1200.

As a final matter, defendant challenges his sentence of 14 years which he contends was improperly imposed because it bears no relation to the facts of the incident or defendant’s background. Defendant asks that his sentence be reduced to the statutory minimum for armed robbery, a Class X felony, which is punishable by imprisonment for a .period between six and 30 years. Ill. Rev. Stat. 1981, ch. 38, pars. 18-2(b), 1005-8-1(3).

The record shows that at the hearing in aggravation and mitigation, police officers who had dealt with defendant on prior occasions testified for the State. Defendant’s wife and mother provided testimony in mitigation. In rendering its sentence, the trial court considered the following evidence to be persuasive: “the testimony of the case” indicated that defendant approached Swick with a knife; approximately three months after the instant crime, in August, 1981, while defendant was out on bail, defendant tore a police officer’s badge off his shirt during a struggle and was found to be carrying a long knife in a sheath; after he was arrested for that offense he struggled with the police and kicked an officer on the shin with his heel; and approximately a year prior to the pending case defendant was found guilty of aggravated assault.

The court further observed that on a separate occasion in August of 1981 defendant was arrested for unlawful use of a weapon and was seen throwing an object under a car which turned out to be a gun holster. A gun was later discovered under the front seat of the car. The court concluded that defendant was a serious threat to the public in view of the fact that he had “a previous history of weapons violence” and added that it would not consider defendant as a first offender because of his previous misdemeanor convictions.

Based on the foregoing evidence, which, as the trial court properly observed, suggests that defendant had a pattern of carrying dangerous weapons and using them during the commission of a crime, we cannot say that the court abused its discretion in sentencing defendant to 14 years’ imprisonment. We further observe that in reaching its decision the trial court properly considered pending criminal charges against defendant (see People v. La Pointe (1982), 88 Ill.2d 482, 431 N.E.2d 344; People v. Siefke (1981), 97 Ill. App. 3d 14, 16, 421 N.E.2d 1071); and defendant’s contention that he is entitled to a minimum sentence because Mendosa was unharmed is without merit. See People v. Ivery (1979), 72 Ill. App. 3d 158, 162, 390 N.E.2d 608 (where we stated that the victim’s submission to defendant’s demands without a struggle “in no way exonerates defendant of the seriousness of the offense”).

The facts as shown in the record are clearly sufficient to distinguish this case from those cases defendant cites wherein criminal sentences for armed robbery were reduced on appeal. In People v. Dan-dridge (1973), 9 Ill. App. 3d 174, 292 N.E.2d 51, defendant had a previous theft conviction, had violated his parole for that sentence, and escaped from jail while being held on the pending armed robbery charge. The appellate court reduced the lower limit of defendant’s sentence from 14 years to 10 years “as a tolerable response to the aggravating circumstances” to allow defendant the chance of rehabilitation; the court affirmed the 28-year maximum. In the pending case, however, as the trial court observed, defendant demonstrated a pattern of armed violence, had two criminal convictions and had assaulted a police office while out on bond. In People v. Harris (1971), 1 Ill. App. 3d 22, 272 N.E.2d 403, the trial record was devoid of a motion for probation, presentence investigation or evidence in aggravation and mitigation. Also, in that case the State presented no evidence that the defendant had a prior criminal record. And, in People v. Brown (1971), 132 Ill. App. 2d 302, 270 N.E.2d 501, the sentences were reduced because the defendants did not have any prior criminal record. As previously stated, these facts clearly distinguish those cases from the circumstances before us.

For the foregoing reasons, and because the trial court had the unique opportunity to consider these factors, including defendant’s demeanor, habits and prior criminal record (People v. Cozzi (1981), 93 Ill. App. 3d 94, 100, 416 N.E.2d 1192), the trial court’s judgment is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.

       Justice Kenneth E. Wilson heard the oral argument in this case. Following his death, Justice John J. Sullivan was substituted, listened to the tapes of the oral argument, and read the briefs and record.