author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT SANDERS, Defendant-Appellant.
    First District (5th Division)
    No. 80—2829
    Opinion filed December 10, 1982.

      Ralph Ruebner and Daniel D. Maynard, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Mark R. Fuller, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(1)) and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18—2(a)) and was sentenced to prison terms of 50 and 30 years, to run concurrently. On appeal, he contends that: (1) the trial court’s admission of his wife’s testimony violated the husband-wife privilege; (2) the trial court failed to clarify questions from the jury and failed to provide the jury with a requested transcript of his wife’s testimony; (3) the trial court failed to instruct the jury on lesser-included offenses and failed to give a proper instruction on circumstantial evidence; (4) the trial evidence was insufficient to support a verdict of guilty of murder; (5) statements made during the State’s closing argument constituted reversible error; and (6) an investigation by the State’s Attorney’s office of the public defenders who were assigned to defendant’s case, which resulted in a replacement of defense counsel, violated defendant’s right to effective assistance of counsel and due process. We reverse and remand. The pertinent evidence follows.

Robert Sanders resided at the Boulevard Hotel, room 39, 2801 West Warren Street, Chicago. On October 13, 1978, at some time prior to 2 a.m., he and Milton Walker (“Greek”) knocked on 67-year-old Cutis Lovelace’s apartment door in the same building, room 37. Lovelace shared his apartment with a woman friend, Louise Drake. Ms. Drake was not in the apartment at the time. Lovelace apparently recognized Sanders and Walker and he invited the two men in. A few moments later, Sanders struck Lovelace on the head with a brick. Lovelace fell to the floor unconscious. The two assailants bound Lovelace’s ankles and arms with a necktie, rummaged through his dresser drawers, searched his pockets and scavenged his apartment.

Lovelace’s body was taken to Cook County Hospital, where he was pronounced dead. An autopsy revealed scalp lacerations, caused by a blunt instrument, as well as abrasions and contusions on his head and shoulders. None of the blunt trauma injuries were sufficient to cause Lovelace’s death, however. Instead, Lovelace died by ligature strangulation. Robert J. Stein, Chief Medical Examiner of Cook County and an expert in the field of forensic pathology, testified that Lovelace’s strangulation could have occurred 5 to 10 minutes after the blows were inflicted. A tie found on Lovelace could have been used to strangle him.

During their investigation of the murder scene, the police were given a pair of men’s slacks by George Robinson, who resided at the Boulevard Hotel with his wife. Robinson said he had found the slacks behind the hotel. The police found a coat and a white cloth with blood on them below Lovelace’s hotel room window. Photographs and blood samples were taken for evidence along with a brick with bloodstains on it and glass fragments. The only items that were processed for fingerprints were glass fragments, a glass bottle and a glass jar.

The next evening, Saturday, October 14, 1978, police responded to a radio call to investigate a fight at 2145 Lake Street, apartment 702. There they spoke with Beverly Sanders, defendant’s wife. (Defendant visited and spent the night with Beverly about three times a week.) Beverly gave them a pillowcase containing men’s clothing, a wedding band and a watch. She told the police that she had gotten the items from her husband, Robert Sanders, and that Robert had told her about robbing Curtis Lovelace. She went with the officers to look for her husband, whom they found and arrested one block from the Boulevard Hotel.

At the preliminary hearing, defendant objected to Beverly Sanders’ testimony as to what he had told her about his involvement in the murder. Defendant argued that the presence of family members, in this case, three of the four children of Robert and Beverly Sanders, did not destroy the confidential nature of a marital communication between husband and wife. In rebuttal, the State argued that defendant sought to enlarge a “narrow privilege to include a family privilege” and that there was no family privilege when a husband and wife are not alone or when they know that other people will hear their conversation. The court sustained defendant’s objection and found no probable cause. Later that day, defendant appeared before a grand jury, which refused to return an indictment against him.

Milton Walker (“Greek”) was arrested on October 25, 1978, 12 days after the murder. A police officer testified before a grand jury that Walker’s arrest report had charged him with murder but that the report had later been altered in writing by someone to change the offense to armed robbery. The police found Walker asleep in a Volkswagen van behind a drugstore on a vacant lot. Walker testified at trial that he had been drinking since 7 a.m. that morning and had consumed 15 pints of wine by the time he was arrested — at approximately 11 p.m. Walker also testified that he had been addicted to narcotics for 30 years. After his arrest, he was held in custody in a police station lockup cell.

The following morning, Walker appeared before a grand jury. He later testified at a pretrial hearing that a State’s Attorney spoke to him after his arrest and told him that if he (Walker) appeared before the grand jury, “it would go easier” with him. Walker said that the State’s Attorney treated him like a child by telling him exactly what to say when asked a question before the grand jury. Walker also said he was made to feel that he would not be charged with a crime if he testified. Walker confessed to having been involved in the murder and the grand jury returned an indictment against him for armed robbery, aggravated battery and armed violence. An indictment was also returned charging Sanders with murder and armed robbery.

During pretrial discovery, defendant filed a motion in limine in a second attempt to prevent Beverly Sanders from testifying as to any conversations she had with her husband. The motion, based on the husband-wife privilege (Ill. Rev. Stat. 1981, ch. 38, par. 155—1), was not ruled on.

Two weeks later, the prosecution informed defendant’s attorneys that based on their alleged bribing of witnesses, they were under investigation and that charges may be filed against them for obstruction of justice. Because of this investigation and the possibility that defendant’s attorneys would have to refute the allegations made against them under oath during trial, they withdrew from the case. A bar association attorney was substituted, who participated in the jury selection and thereafter represented defendant.

Defendant’s trial began September 25, 1980. The State called Roy Gibson, a handyman at the Boulevard Hotel, as its first witness. Gibson explained that at approximately 4 a.m. on October 14, 1978, he saw Louise Drake enter the lobby of the hotel and go to her (Lovelace’s) room. Ms. Drake immediately returned to the lobby and told Gibson that she believed Curtis Lovelace was dead. Gibson went up to the room, noticed that the door was ajar and walked in. Lovelace was lying face down and had on nothing but undershorts. His feet were tied together with a necktie. The police were then notified. Gibson further testified that he noticed a trail of blood on the carpeting that led from Lovelace’s apartment to the washroom, about 40 feet away. In the washroom, blood was on the bathtub and on the window sill. The bathroom window was open. Gibson said he asked the police to shine a flashlight on the ground, directly below the bathroom window. There he saw a bloody trench coat. The police took the coat as evidence.

On cross-examination, Gibson testified that he was in the hotel lobby from 9 p.m. on October 13 until 4 a.m. October 14 and that he did not see defendant enter the hotel during that period. He said that the hotel had only one front entrance and that everyone, including the hotel residents, had to be buzzed in by the front desk. The hotel residents’ keys would not unlock the front door. Gibson testified further that there were bricks in the yard outside the hotel.

On redirect examination Gibson testified that when Ms. Drake came from her room upstairs she was excited and in a hurry.

Next to testify for the prosecution was Dora Husband, desk clerk at the Boulevard Hotel. Dora testified that on Friday, October 13, she saw Robert Sanders come into the lobby and make a telephone call. He was with a boy about 9 or 10 years old who he said was his son. Dora testified further that on Saturday, October 14 between 8:30 and 9 a.m., George Robinson came into the hotel office carrying a pair of pants he had gotten from the alley. Dora recognized the pants as those belonging to Curtis Lovelace.

On cross-examination, Dora stated that she did not see Curtis Lovelace on Friday, October 13. She recognized a sweater she was shown by defendant as one that Curtis Lovelace had worn.

On redirect examination, Dora testified that Robert Sanders was registered in room 39 and Curtis Lovelace in room 37.

The prosecution next called George Robinson and then Isaac Orr, who was a part-time desk clerk at the Boulevard Hotel. They were questioned extensively by the prosecution and by defendant.

After George Robinson identified Robert Sanders in the courtroom, he testified that on the night of the murder he observed Sanders throwing clothes over a fence behind the hotel. The next morning he retrieved a pair of pants that he found and gave them to Dora Husband, the desk clerk. He testified further that he had seen Curtis Lovelace wearing the same pants.

On cross-examination, Robinson testified that he had a drinking problem and had been hospitalized four or five times in 1978. He testified that his eyes “were bad” and that he should wear glasses, but didn’t because he disliked them. Robinson testified further that at 9 a.m. on October 13, 1978, he and Curtis Lovelace went to a currency exchange to cash Curtis’ government check. They took a walk for the rest of the morning. At 4:30 p.m. they began drinking. Robinson testified that later that evening in the hotel lobby he heard people talking about robbing Curtis.

The prosecution’s remaining witnesses were police officers, the evidence technician who photographed and fingerprinted Lovelace’s room, the Cook County medical examiner, Louise Drake and Beverly Sanders, whose testimony comprised over 120 pages of record transcript.

On direct examination, Beverly Sanders testified that between October 13 and 14, 1978, she had three conversations with her husband. She said that during the first conversation, her husband told her, in the presence of one or more of their children, that he was going to rob Curtis Lovelace. Beverly testified further that the second conversation occurred on October 14 at approximately 3 a.m. when Robert returned home. Beverly had gone to bed. Robert awakened her and placed a watch on her left arm and a ring on her right finger. She testified that she had never seen those items before. She and Robert were the only ones in the bedroom at this time. The third conversation took place later that morning, between 11:30 a.m. and 12 noon. Beverly testified that in the presence of their three sons, Robert told her that he had robbed Curtis Lovelace by hitting him with a brick and that “Greek” put a tie around Lovelace’s neck. The State then showed Beverly a sweater and two pairs of pants. Beverly identified them as items that Robert told her he had stolen from Lovelace. Beverly further testified that Robert said he had bragged about robbing Lovelace, that he had told other people that he and “Greek” had just killed somebody and that Robert didn’t appear nervous until he found out that Curtis Lovelace had died.

On cross-examination, Beverly testified that the State had put her and her children in a Holiday Inn for about 10 days and that they gave her $10 a day for cab fare and meals. Defendant read into evidence the bill for this expenditure, which totalled $1,916.41.

Beverly testified on redirect examination that defendant’s attorneys (public defenders) who first handled his case, told her to avoid testifying in court, to pretend that she was an alcoholic and had amnesia, to hide from the State’s Attorney and that if she was convicted for perjury they (the public defenders) would get her out and would get her a job.

The defense called Michael Morrissey to testify. Morrissey had been one of the attorneys who initially handled Sanders’ case but who resigned when the prosecution began its grand jury investigation. Morrissey invoked the fifth amendment testimonial privilege and thereafter refused to answer questions. A law clerk and a second public defender who both had been involved with Sanders’ case also refused to testify.

The court then permitted defendant to reopen his cross-examination of Beverly Sanders, who testified that on November 17, 1978, approximately one month after Lovelace was murdered, two men entered her apartment and injected a hypodermic needle filled with “T’s and Blue’s” (Talwin and Parabenzamine) in her back. The men told her they were instructed by Curtis Brown, Beverly’s boyfriend at the time, to inject her with drugs so that she would not be able to appear in court. Beverly further stated that she had to be hospitalized for four days.

Further testifying, Beverly said that four months later, on March 26, 1979, Curtis Brown himself injected her with “T’s and Blue’s” because he didn’t want her to be involved in her husband’s trial. Beverly was again hospitalized.

Last to testify was Mary Ann Mohan, an attorney for the U.S. Department of Justice in Washington, D.C., who, at the time of the murder, was a microanalyst in the crime laboratory of the Chicago Police Department. On direct and cross-examination, Ms. Mohan testified that she had analyzed blood, hair samples and other items that were obtained as evidence from Curtis Lovelace’s clothes and body. She further stated that Curtis Lovelace had blood type B and that type B blood was found on the brick which defendant used to strike Lovelace as well as on the front of defendant’s pants.

After both sides rested and gave their closing arguments, the jury found Robert Sanders guilty of robbery and murder. Sanders was sentenced to concurrent terms of 30 years for armed robbery and 50 years for murder. Defendant appealed.

Opinion

Defendant specifies certain errors that he contends denied him a fair trial. We will address the first assignment of error in length, since it is dispositive of the others.

Defendant first contends that the trial court’s admission of Beverly Sanders’ testimony violated the husband-wife testimonial privilege (Ill. Rev. Stat. 1981, ch. 38, par. 155—1). To exclude his wife’s testimony, defendant filed a motion in limine prior to trial, however, the court never ruled on the motion and defendant did not object to the conversations. The general rule here, as the prosecution argues, is that on appeal, an issue is considered waived when a defendant failed to either make a timely objection at trial (People v. Ferguson (1981), 102 Ill. App. 3d 702, 429 N.E.2d 1321) or to raise the issue in a post-trial motion (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6). Defendant argues in rebuttal, however, that in spite of his failure to object to Beverly Sanders’ testimony and in spite of his failure to renew his motion in limine to exclude her statements, the trial court committed plain error by allowing her to testify. We agree. As far as the first and second conversations are concerned, their admission was, in fact, reversible error.

The principle cases cited by defendant regarding the applicability of the plain error doctrine to the case at bar are on point. One such case is People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

The Illinois Supreme Court held in Carlson that although the failure to object to the admission of evidence at trial generally operates as a waiver of the right to consider the question on appeal, this rule is not absolute. The court stated:

“Our Rule 615(a) embodies the exception to the waiver rule. It provides, in part:
‘Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.’ 73 Ill. 2d R. 615(a).” People v. Carlson (1980), 79 Ill. 2d 564, 576.

A court of review will grant relief, therefore, if an error is so prejudicial and of such magnitude that the commission thereof denies the accused a fair and impartial trial. People v. Carlson (1980), 79 Ill. 2d 564, 577.

Applying the above to the present case, we find that because Beverly Sanders’ testimony regarding the first and second conversations clearly violated the marital communication privilege, the trial court committed error by admitting them into evidence. Mrs. Sanders’ testimony was prejudicial and it could have contributed to the jury’s guilty verdict. Its admission therefore denied defendant a fair trial.

People v. Velillari (1980), 84 Ill. App. 3d 333, 405 N.E.2d 466, the second case cited by defendant, affirms the general rule that a reviewing court is authorized to relax the general waiver rule as a matter of grace to consider plain errors affecting substantial rights. This case, like Carlson, reiterates a rule of procedure which finds its justification upon the interest of a fair, orderly and expeditious administration of justice. See People v. Harrawood (1978), 66 Ill. App. 3d 163, 383 N.E.2d 707.

Reversible error was also found in People v. Morris (1980), 81 Ill. App. 3d 288, 401 N.E.2d 284, defendant’s third case. The trial court held in Morris that in spite of the defendant’s failure to object at trial or in a post-trial motion to the court’s failure to give additional jury instructions, the interests of justice required that the issue be considered. Like Carlson and Velillari, Morris restates the proposition that a reviewing court may use its discretion and apply the plain error doctrine as embodied in Supreme Court Rule 615 (73 Ill. 2d R. 615) when errors affecting substantial rights are noticed although they were not brought to the attention of the trial court.

In the case at bar, a trial error resulted in substantial prejudice to defendant. The prejudicial trial error was Beverly Sanders’ testimony concerning her first two conversations with her husband which was vital evidence in the prosecution’s case. The court’s admission of the testimony was in contradiction to Illinois law, which states that in criminal cases neither spouse may testify concerning any communication or admission made by either of them to the other, or as to any conversation between them during marriage, subject to certain exceptions not relevant to this case. (Ill. Rev. Stat. 1981, ch. 38, par. 155—1; People v. Dubanowski (1979), 75 Ill. App. 3d 809, 394 N.E.2d 605.) Moreover, a statement made in private by one spouse to the other is presumed to be confidential, and is therefore privileged, unless the contrary is evident. (People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792, cert. denied (1973), 411 U.S. 937, 36 L. Ed. 2d 399, 93 S. Ct. 1917; People v. Palumbo (1955), 5 Ill. 2d 409, 125 N.E.2d 518.) Admission of Mrs. Sanders’ testimony violated State law and contributed to the jury’s guilty verdict as well. It is therefore the type of substantial, prejudicial error which Supreme Court Rule 615 is meant to correct.

To clarify our reasoning, we will set forth the pertinent portions of Beverly Sanders’ damaging testimony.

I

Beverly testified that between Friday, October 13, 1978, and Saturday, October 14, 1978, she and Robert Sanders had three separate conversations regarding the robbery and murder.

The first conversation took place Friday evening, October 13, 1978. On direct examination by the State, Beverly testified that Robert told her, in the presence of their children, that he was going to rob Curtis Lovelace. Beverly’s testimony as to the first conversation was as follows:

“Q: Before he [defendant] left did you have a conversation with him in the presence of any one of your children?
A: Yes.
Q: Did he tell you what he was going to do that evening?
A: Yes, he did.
Q: Tell the jury, please, what your husband, Robert Sanders, told you he was going to do.
A: He said he was going to rob Curtis.”
(Emphasis added.)

Defendant asserts that this was a confidential marital communication because Beverly did not specify which child was in the apartment at that time nor did she say whether any one of the children actually heard the conversation. Defendant further contends this testimony is unclear because Beverly used the same word, “present,” to mean that during her second conversation with Robert in their bedroom, the children were somewhere in the apartment. The pertinent testimony as to Beverly’s use of the word “present” regarding the second conversation follows:

“Q: Did you have occasion to go to bed that evening, Friday, October 13, yourself?
A: Yes.
Q: At the time that you went to bed on that evening, who was present in your apartment?
A: Myself and my children.
* * *
Q: Could you tell the jury, please, what rooms were occupied by these persons that you named, including yourself, when you went to bed that night?
A: I was in the bedroom and the boys were in one room. Nobody was in the other room.
Q: Was your daughter present that evening?
A: No. .
Q: Was there anyone occupying her bedroom?
A: When I went to bed?
Q: Yes, Ma’am.
A: No.
Q: Now, did you have occasion to become awakened sometime during the night after you went to bed?
A: Yes.
Q: Could you tell the jury do you know about what time it was that you went to sleep on that evening?
A: No, I don’t know what time it was exactly.
Q: Do you know whether it was before or after midnight?
A: I think it was after, I don’t know.
Q: Now, you said that you had occasion to become awakened, is that correct?
A: Yes.
Q: As you were sleeping in you bed, is that right?
A: Yes, I was.
Q: Could you tell the jury, please, what happened when you were awakened?
A: My husband was in the bed with me, messing with me.
Q: What did he do?
A: He was trying to, you know, messing with me, and then he gave me something.
Q: Tell the jury, please, what he gave you at that time?
A: A watch and a ring.
Q: Would you tell the jury what he did with the watch and what he did with the ring?
A: Put them on my arm and on my ringer, on my right finger.
Q: Did he have anything else with him at that time?
A: He say he had some lady’s clothing for me and something else, and I told him to go on out of my room.
Q: Did he leave your room?
A: Yes.
Q: At that time did you see where he went?
A: No, I didn’t.
Q: Now, did you have occasion to wake up in the morning?
A: Yes, I did.
Q: Tell the jury approximately what time it was that you woke up?
A: It was after seven in the morning.
Q: At that time were you wearing anything that you weren’t wearing when you went to sleep?
A: The ring and the watch.”
(Emphasis added.)

Upon analyzing Beverly’s testimony, we find that her use of the words “presence” in one instance (that is, her reply to the word “present” as used by the prosecution) and “present” in another, are ambiguous. First, Beverly was asked whether Robert talked to her in the presence of the children. She answered yes, though she didn’t explain exactly where the children were — either in the same room or somewhere in the apartment. After further testimony and additional questions, Beverly used the same word, “present,” to mean that during her second conversation with defendant the children were in the apartment when she went to bed. We conclude, therefore, that Beverly’s generic usage of the word “present” is unclear. The first marital communication may well have transpired out of the hearing range of the children. They may have been at home, but that does not necessarily mean that they heard what their parents said. Since no conclusive showing to the contrary was made, Beverly’s testimony concerning the first conversation was erroneously admitted into evidence. It was a privileged, confidential communication between husband and wife and therefore protected by statute. Ill. Rev. Stat. 1981, ch. 38, par. 155—1.

II

The second conversation between Beverly and Robert Sanders occurred in the early morning hours of October 14. There is no evidence in the record to suggest that any of the children were present (in the same room) at this time. According to Beverly’s testimony, she was alone in her bedroom. Her three sons were in a second bedroom. Her daughter was not at home. Robert entered Beverly’s bedroom, climbed into bed with her and gave her a watch and ring. Beverly testified that Robert then told her that he had some lady’s clothing as well as other items for her. She thereafter told Robert to leave, and he did. He slept in another room. When Beverly awoke, she was still wearing the ring and watch.

As with the first conversation, the State had the burden of rebutting the presumption of confidentiality of this marital communication (that is, the presumption of confidentiality of the conversation between defendant and his wife). In State v. Smith (Me. 1978), 384 A.2d 687, the court stated:

“*** [0]nce the defendant established that he had ‘communicated’ with his wife, the burden was then upon the State to show that either because of the nature of the communication or the circumstances under which it was made the communication was not intended to be, or should not be considered, confidential.” 384 A.2d 687, 691.

The State argues that Robert Sanders gave the watch and ring to his wife “knowing” that she would eventually wear and display them in public and that he therefore did not intend for this act to be confidential. We disagree.

Although an act, unlike a statement, cannot be presumed to be confidential (People v. Burton (1972), 6 Ill. App. 3d 879, 286 N.E.2d 792, cert. denied (1973), 411 U.S. 937, 36 L. Ed. 2d 399, 93 S. Ct. 1917), the facts surrounding this predawn exchange between Beverly and Robert in their bedroom lead us to conclude that Robert’s act of giving Beverly a watch and a ring, as well as his conversation with her, was, without a doubt, intended to be a confidential communication. The communication was made in a private bedroom, between husband and wife and there was no evidence introduced at trial to suggest that the children heard or saw what transpired. Clearly, under these circumstances, Robert Sanders had a reasonable expectation of confidentiality. The standard for claiming the privilege as expressed by the highest court of Maine is that where there has not been an express invocation of confidentiality, the party claiming the privilege must have acted in reliance upon an expectancy, reasonable under all the circumstances, that the conduct itself, or other consequences which it might convey, will be transmitted only to the spouse and to no other person (such that a confidentiality confined to husband and wife can be a reasonable possibility under the circumstances). State v. Benner (Me. 1971), 284 A.2d 91.

We agree with defendant, therefore, that the State failed to prove that Robert Sanders’ words and acts were not intended to be privileged. Because of the confidential nature of this and the first marital communication, it was plain error for the trial court to permit Beverly Sanders to testify as to their details.

Ill

Having now established that the first two conversations between defendant and his wife were privileged communications, we address the next issue, whether the presence of at least one of the Sanders’ children during the third conversation destroyed its confidential character. For the following reasons, we find that confidentiality was in fact destroyed.

The presence of third parties generally shows that a marital communication was not intended to be confidential. (U.S. ex rel. Torres v. Brierton (N.D. Ill. 1978), 460 F. Supp. 704.) However, the presence of children during a marital communication presents unique problems, because of their age, level of comprehension and what they are doing when the communication takes place naturally vary with each case. This issue has been addressed by our legal system at least as early as 1891, as we will show, because of the variables just mentioned, a child’s presence may or may not destroy the confidential nature of a communication between husband and wife.

In Lyon v. Prouty (1891), 154 Mass. 488, 28 N.E. 908, a conversation occurred between the husband and wife in the presence of their 14-year-old daughter. In reaching its decision that the conversation was not confidential, the court considered the place where the marital communication occurred, its subject matter, the age of the child, coupled with the fact that the child could have been a competent witness to testify as to what she heard. 154 Mass. 488, 490-91, 28 N.E. 908, 909.

The supreme court of New York in 1891 also held that a marital communication which occurred in the presence of a child (whose age was not cited in the opinion) was not confidential. (People v. Lewis (1891), 16 N.Y.S. 881, affd (1892), 136 N.Y. 633, 32 N.E. 1014.) Placing emphasis on the topic of the communication, the court stated that it was not confidential since it was a discussion about stocks and money. 16 N.Y.S. 881, 884.

In Freeman v. Freeman (1921), 238 Mass. 150, 130 N.E. 220, the Massachusetts supreme court held that the trial judge should first determine whether a child who hears a martial communication is of sufficient intelligence to pay attention and to understand what is being said. The court held that the marital communication in that case was not confidential because it took place in the presence of the couple’s children, the eldest of whom was nine years old. (238 Mass. 150, 161, 130 N.E. 220, 222.) In Linnell v. Linnell (1924), 249 Mass. 51, 54, 143 N.E. 813, 814, the supreme court of Massachusetts again held that a communication was not confidential and was therefore admissible simply because the 10-year-old daughter overheard her parents’ conversation in the next room.

West Virginia and Maryland have held that the presence of children who are old enough to understand what is being said destroys the confidential nature of a marital communication. (Fuller v. Fuller (1925), 100 W. Va. 309, 130 S.E. 270; Master v. Master (1960), 223 Md. 618, 166 A.2d 251.) We also note that the supreme court of Wisconsin decided a novel case wherein the defendant told his wife in the presence of two boys (ages 15 and 14) who were not defendant’s children that he and the youths had just committed two burglaries. The court held that this communication was not confidential. (Abraham v. State (1970), 47 Wisc. 2d 44, 176 N.W.2d 349.) More recently, the issue of the presence of children during a martial communication has been decided by the appellate courts of Washington and Tennessee and by the supreme court of Indiana. State v. Wilder (1974), 12 Wash. App. 296, 529 P.2d 1109; Martin v. State (Tenn. Crim. App. 1979), 584 S.W.2d 830; Robinson v. State (1981),_Ind._, 424 N.E.2d 119.

Although in all of these cases the presence of children destroyed the confidential character of a marital communication, we note that a minority of jurisdictions have decided differently.

The supreme court of Massachusetts held in Jacobs v. Hesler (1873), 113 Mass. 157, that a conversation between a husband and wife was a confidential communication because their young children (ages not given) neither participated in nor paid any attention to what was being said. Forty-eight years later, in Freeman v. Freeman (1921), 238 Mass. 150, 130 N.E. 220, and Linnell v. Linnell (1924), 249 Mass. 51, 143 N.E. 813, cited above, the court held that the presence of children destroyed confidentiality. We factually distinguish Jacobs from the later Massachusetts cases. In Jacobs, the court determined that because the children were so young, they were incapable of understanding what was said. Confidentiality was therefore not disturbed. In Freeman and Linnell, the children were 10 and nine years old, respectively. Apparently, because of their age, the court believed that in each case they were old enough to understand what was being said and confidentiality was destroyed. The court’s reasoning in Jacobs on one hand, and Freeman and Linnell on the other, does indeed support our holding in the case at bar in that a child’s age and what he was doing at the time are relevant and must be taken into consideration by the trier of fact. In Hopkins v. Grimshaw (1897), 165 U.S. 342, 351, 41 L. Ed. 739, 742, 17 S. Ct. 401, 404, a “young daughter ” (no age given) was present but since she did not appear to have taken any part in her parents’ conversation, its confidentiality was not destroyed. Amer Realty Co. v. Spack (1932), 280 Mass. 96, 181 N.E. 753 (no ages of children given), and Hicks v. Hicks (1967), 271 N.C. 204, 155 S.E.2d 799 (eight-year-old child), also held that the presence of children did not destroy confidentiality. The court in Amer Realty upheld a lower decision to exclude the marital conversation because the record did not disclose whether the children’s ages had been proven. (280 Mass. 96, 100, 181 N.E. 753, 754.) Presumably, had it been shown that the children were of an age to understand and to testify as to the nature of the conversation, its confidentiality would have been destroyed. The supreme court of North Carolina in Hicks held that the presence of an eight-year-old daughter did not destroy the “veil of confidence” of the marital communication because she was singing or playing in the area where the communication occurred. 271 N.C. 204, 207,155 S.E.2d 799, 802.

It is clear that in these four cases, Jacobs, Hopkins, Amer Realty and Hicks, confidentiality was not destroyed by the presence of children because they either did not participate in, pay any attention to or were too young to understand what was being said.

Applying these principles to the third communication between Beverly and Robert Sanders, we conclude that the presence of at least one child, Robert Vaughn, destroyed its confidentiality. The conversation occurred between 11:30 a.m. and 12 noon on Saturday, October 14, 1978. Beverly’s testimony regarding the conversation was as follows:

“Q: Now, at that time, Beverly, did you have occasion to have a conversation with your husband in the presence of your son, Robert Vaughn?
A: Yes, I did.
Q: Now, could you tell the ladies and gentlemen of the jury who was present during this conversation between your husband and yourself?
A: My son, Robert, my son, Albert, and my son, William.
Q: Is your son, Robert, a son that was bom out of your marriage with the defendant, Robert Sanders?
A: Is he his child?
Q: Yes.
A: He is not.
Q: Is that from a previous marriage?
A: I wasn’t married.
Q: Now, would you tell the jury, please, what, if anything, was said between yourselves at that time?
A: My husband told me that he had robbed Curtis.
Q: Did he tell you who robbed Curtis?
A: He told me him and Greek went to the mans’ house. He told me he told Greek to throw a coat over the man’s head and hit him in the head with a brick and he said the man fell and they took the things and the clothes out the window to him.”

Although Beverly did not state and the record does not disclose what the children were doing at the time they heard the conversation, each child was old enough to understand and to possibly testify as to what he heard. Because of the children’s ages (Robert, 13; Albert, 10; William, 8), their presence negated confidentiality which, as a rule, underlies a marital communication. See U.S. ex rel. Torres v. Brierton (N.D. Ill. 1978), 460 F. Supp. 704.

On the basis of the foregoing case law analysis, we feel compelled to conclude that the third marital conversation between Robert and Beverly Sanders was, rightfully admitted into evidence by the trial court. We therefore join other State courts in holding that statements between spouses are presumed to be confidential, but this presumption can be rebutted by the presence of children who are old enough to understand what is being said and who could possibly testify as to what they heard, or, who participated in the marital communication itself. A child can in fact be considered a third party who, like an adult, breaks the marital privilege, but the child’s age, what he was doing when the communication was made, and his level of comprehension must be considered. A very young child of tender age, for example, clearly would not destroy the confidential nature of a marital communication. 81 Am. Jur. 2d Witnesses sec. 155 (1964).

Although our ruling today is in accord with the weight of authority, the issue is of first impression in Illinois. It will necessitate a case-by-case analysis by the trier of fact to ascertain whether the child or children were attentive to the marital communication in question, what their comprehension level is in light of their age, their capacity to testify as to what they heard, the intent of the spouses, where the conversation was held, as well as any additional relevant evidence to prove that the marital privilege was or was not destroyed.

Defendant takes an opposite view regarding the third conversation and contends that there is conflicting evidence as to the presence of the Sanders’ children. Defendant argues that the children’s presence in the apartment does not necessarily mean they were privy to their parents’ conversation. Defendant relies on a written statement by 13-year-old Robert Vaughn, in which he says that although he was at home, he and his friends were in another room upstairs. He told his friends to leave when he heard his parents arguing. Robert Vaughn specifically denied hearing what his parents said. In his written statement, he admitted that his mother told him what happened, that he “went along with her story” and that he told the police “what my mother said to be about it.”

We cannot accept defendant’s argument. First, Robert Vaughn’s statement was never authenticated or admitted into evidence. It was merely filed with the circuit court clerk and thereby became an addition to the trial record. Second, although defendant interviewed Robert Vaughn before trial, he was never called to testify. The veracity of Robert’s earlier written statement concerning defendant was therefore never challenged nor was the extent of his knowledge of his parents’ conversation ever questioned even though defendant informed the court during a trial recess that he was prepared to show that the police pressured and harrassed Robert Vaughn to make an earlier incriminating statement. Defendant never produced any persuasive evidence, however. And, most importantly, Beverly Sanders’ testimony on direct examination that her three sons were present when Robert told her of the robbery was never rebutted. In fact, Beverly reiterated on cross-examination that her son, Robert Vaughn, was present during the third conversation with her husband. The presence of the other two sons was not addressed. Simply stated, defendant did not produce rebuttal witnesses or evidence of any kind on this point. In essence, Beverly’s testimony remained unimpeached.

We observe further that Beverly’s use of the word “presence” in this instance and her use of these words as previously set forth in her prior testimony regarding the first and second communications are clearly distinguishable. During its examination of Beverly about the third communication, the prosecution queried with specificity: “*** did you have occasion to have a conversation with your husband in the presence of your son, Robert Vaughn?” which question was immediately reinforced with a second question, “*** who was present during this conversation between your husband and yourself?” Because of the exactness of the prosecution’s questions, coupled with the fact that Beverly’s testimony was not shaken on cross-examination, we again reach the conclusion that the third conversation was not privileged and the trial court properly admitted it into evidence.

Because of our disposition of the issue of admitting Beverly Sanders’ testimony of the first and second conversations, it will not be necessary to address the other matters raised on appeal. Accordingly, the judgments of conviction on the charges of murder and armed robbery are reversed and the cause is remanded for a new trial.

Reversed and remanded.

LORENZ and MEJDA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MEJDA

license: Public Domain

text:
    GERALD SYPIEN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    First District (5th Division)
    No. 81—442
    Opinion filed December 10, 1982.
    William E. Reynolds and Bruce M. Bozich, both of Chicago, for appellant.
    Victor J. Piekarski and Glen E. Amundsen, both of Querrey, Harrow, Gulanick & Kennedy, Ltd., of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff brought an action for declaratory judgment to establish that defendant’s automobile liability insurance policy issued to plaintiff provided uninsured motorist coverage as a result of the death of Beatrice Aguirre. Defendant’s motion for summary judgment was granted and plaintiff appeals. We affirm.

The issues presented are whether Maria Aguirre, mother of the minor decedent, was the “spouse” of plaintiff, and whether decedent was a “relative” as those terms are defined in the automobile insurance policy.

The facts are not in dispute. On September 22, 1979, plaintiff was the named insured in an automobile liability insurance policy issued by defendant which provided uninsured motorist benefits to persons therein designated as "insured.” The relevant portions of the policy stated that the person or persons covered by uninsured motor vehicle coverage include the named insured, “his or her spouse” and “their relatives" The words “spouse” and “relative” are therein defined as follows:

“Spouse — means your husband or wife living with you.” (Emphasis added.)
“Relative — means a person related to you or
your spouse by blood, marriage or adoption who lives with you *'*'*.” (Emphasis in text.)

On September '22, 1979, while plaintiff was residing with Maria and her minor daughter Beatrice, Beatrice was struck and killed by an automobile operated by an uninsured motorist. Plaintiff submitted a claim for uninsured motorist benefits and a demand for arbitration pursuant to the policy issued by defendant. Defendant denied the claim and demand, contending that decedent did not qualify as an insured under the policy.

Plaintiff’s complaint alleged that Maria and plaintiff lived as husband and wife, that Beatrice resided with them, and that plaintiff assumed all obligations of support and care for Beatrice, acting in all respects as guardian for such minor. Defendant filed an answer and affirmative defense which denied uninsured motorist coverage to decedent. Plaintiff filed a reply. In response to defendant’s request to admit facts, plaintiff stated that on September 22, 1979, plaintiff and Maria were living and consorting together as husband and wife on a permanent conjugal basis, and were for all intents and purposes married; further, that a marriage license was thereafter issued on October 25, 1979, and their marriage legally recognized and confirmed on November 3, 1979.

The trial court granted defendant’s motion for summary judgment and held that Maria did not qualify as plaintiff’s “spouse,” finding that since Maria and plaintiff were not husband and wife on September 22, 1979, Beatrice did not qualify as a “relative” of plaintiff’s spouse under the terms of the policy. Plaintiff appeals.

Opinion

Plaintiff contends that the trial court erred in holding that Maria was not the spouse of plaintiff under the terms of the policy. He urges that his cohabitation with Maria on a resident continuing conjugal basis, notwithstanding the absence of a legal marriage, should • be equated with “husband and wife” and suffice to bring Maria within the definition of “spouse.” He argues that the policy does not expressly or by inference require a legal marriage nor exclude couples who hold themselves out to society as husband and wife without such marriage, nor does it refer to the Illinois statute which invalidates common law marriages after June 30, 1905 (Ill. Rev. Stat. 1981, ch. 40, par. 214) as controlling or limiting the definition of a spouse, husband or wife. Plaintiff therefore concludes that an ambiguity exists as to those definitions which should be construed in favor of the insured and against the defendant insurance company. Defendant responds that the terms are not ambiguous and that a valid and legal marriage is required.

Initially, whether an ambiguity exists in a policy is a question of law to be determined by the court. (Ohio Casualty Insurance Co. v. Tyler (1980), 85 Ill. App. 3d 410, 407 N.E.2d 77.) The rule that insurance contracts be liberally construed in favor of the insured and strictly against the insurer applies only where the language used is ambiguous. (Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539; Margie Bridals, Inc. v. Mutual Benefit Life Insurance Co. (1978), 62 Ill. App. 3d 542, 379 N.E.2d 62.) In the absence of ambiguity, the words are to be given their plain, ordinary and popular meaning. (Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 400 N.E.2d 921; Weiss v. Bituminous Casualty Corp. (1974), 59 Ill. 2d 165, 319 N.E.2d 491.) It is the function and duty of the court to construe the contract as made by the parties and not to make a new contract under the cloak of construction. (Polzin v. Phoenix of Hartford Insurance Companies (1972), 5 Ill. App. 3d 84, 283 N.E.2d 324; Mid-Century Insurance Co. v. Safeco Insurance Co. of America (1972), 7 Ill. App. 3d 408, 287 N.E.2d 529.) Finally, questions of the applicable coverage provided by the automobile policy can be determined only as of the time of the accident. Allstate Insurance Co. v. Wallace (Tex. Civ. App. 1968), 435 S.W.2d 537.

We recently held in Sostock v. Reiss (1980), 92 Ill. App. 3d 200, 205, 415 N.E.2d 1094, 1097, that a mere engagement to marry did not provide marital rights and that prior to a marriage ceremony, the status of husband and wife did not exist. We there observed that the Illinois Marriage and Dissolution of Marriage Act sets forth the procedure for the solemnization and registration of marriage (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) and that under the present statutory scheme, common law marriages contracted in this State after June 30,1905, are invalid. 111. Rev. Stat. 1981, ch. 40, par. 214.

Although no Illinois cases have been cited nor found, other jurisdictions have determined that the term “spouse” as used in insurance statutes and policies is not ambiguous and is defined as a legal wife or husband. We find those cases persuasive and adopt the rationale therein.

In Menchaca v. Farmers Insurance Exchange (1976), 59 Cal. App. 3d 117, 130 Cal. Rptr. 607, Lara, the cohabitant of the named insured Menchaca, sought recovery under the latter’s uninsured motorist coverage for personal injuries sustained as a pedestrian when struck by an automobile. The policy and pertinent statute defined “insured” as including “the spouse of the named insured” and provided that the provisions be liberally construed. Lara and Menchaca lived together for several years as husband and wife without the benefit of a formal marriage ceremony. The court noted that in California the common-law marriage is not recognized and that certain conditions, including a formal ceremony, must be met before the marriage is considered “lawful.” In holding that Lara was not the “spouse” of Menchaca within the meaning of the statute or the policy, the court stated that the policy of liberal construction does not require that the ordinary meaning of the term “spouse” be distorted. The court noted that the case did not concern the property rights of a meretricious couple, but rather it involved the rights of one party to the relationship under an insurance policy issued to the other party. Therefore the Family Law Act (Cal. Civ. Code secs. 4000-5138) under which a meretricious spouse has the same property rights as a putative spouse was not applicable. The court stated:

“Certainly that third party, here [the insurer], is entitled to rely upon the usual meaning to be given the words that they have used in their standard form insurance policies. In this respect, the word ‘spouse,’ as used in insurance statutes and insurance policies, has been defined as follows: ‘A spouse is a legal wife or husband.’ (United States v. Robinson (5th Cir. 1930) 40 F.2d 14, 16.) ‘An existing legal marriage, arising from lawful wedlock, is an essential element of the status of being a “spouse” according to the legal as well as the usual and ordinary meaning of the word. A spouse is a lawful wife or husband.’ (Harleysville Mutual Casualty Ins. Co. v. Carroll, 50 Del. 67, [123 A.2d 128, 131]; see also Lopez v. Santiago, 125 N.J. Super. 268, [310 A.2d 500]; United States Fire Insurance Company v. Cruz, 35 Misc. 2d 272, [230 N.Y.S.2d 779].” 59 Cal. App. 3d 117, 127-28,130 Cal. Rptr. 607, 613-14.

In Harleysville Mutual Casualty Insurance Co. v. Carroll (Del. Super. Ct. 1956), 123 A.2d 128, the insurer brought action for a declaratory judgment that the defendant Ruby was not the “spouse” of its insured within the terms of the liability coverage policy. Ruby and the insured had never engaged in a ceremonial marriage but cohabited for some six years and had been known and considered themselves as husband and wife. The court stated that “common law” or “informal” marriages are not recognized as legal and valid marriages under the law of New Hampshire which governed, and there held that an existing legal marriage is an essential element of the status of being a “spouse” according to the legal as well as the usual and ordinary meaning of the word.

In Lopez v. Santiago (1973), 125 N.J. Super. 268, 310 A.2d 500, Gloria, an injured passenger, was held not to be the spouse of the uninsured driver Renaldo and therefore not barred from recovering from New Jersey’s Unsatisfied Claim and Judgment Fund. Gloria was never married to Renaldo although she bore him four children, lived with him and the children as a family, and used his name. The court there stated that the words in a statute are to be given their ordinary and well-understood meaning in the absence of special meaning, and that where the language of a statute is plain there is no need for interpretation. The court further stated:

“The meaning of ‘spouse’ is clear: '*** a man or woman joined in wedlock, a married person: HUSBAND, WIFE.’ Webster’s Third New International Dictionary (1961), at 2208. Gloria and Renaldo were not married. Renaldo was not Gloria’s ‘spouse.’ ” 125 N.J. Super. 268, 270, 310 A.2d 500, 501.

Plaintiff also contends that section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(b)) and its judicial interpretation in In re Support of Halford (1979), 70 Ill. App. 3d 609, 388 N.E.2d 1131, require that his cohabitation with Maria be accorded sufficient legal recognition so as to qualify Maria as his “spouse” herein. Section 510(b) terminates the maintenance of an ex-spouse who cohabits with another person on a resident continuing conjugal basis. Halford stated that it was the intention of the legislature that the section apply “whenever the spouse receiving the maintenance has entered into a husband-wife relationship with another, whether this be by legal or other means.” (70 Ill. App. 3d 609, 612, 388 N.E.2d 1131, 1134.) We agree with defendant that the foregoing fail to support plaintiff’s position. In Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 64, 394 N.E.2d 1204, 1210, the court stated that the legislature extended legal recognition to a class of nonmarital relationships, but only to the extent of a party’s good faith belief in the existence of a valid marriage. No such belief is present in the instant case. Furthermore, we are not concerned with the property-rights of the cohabitants inter se but rather with the rights of one of them under an insurance policy issued to the other. Here the defendant insurer, a third party, is entitled to rely upon the usual meaning of the words used in its insurance policy. Menchaca v. Farmers Insurance Exchange (1976), 59 Cal. App. 3d 117, 128, 130 Cal. Rptr. 607, 613.

Plaintiff also claims that Beatrice should be considered his relative as defined in the policy. The policy provides that “Relative-means a person related to you or your spouse by blood, marriage or adoption who lives with you.” Since Maria is not the spouse of the insured, Beatrice is not related to plaintiff by marriage. Plaintiff does not contend that Beatrice was related to him by blood or adoption but states that he raised, supported and treated her as his daughter and in effect acted as a guardian which qualifies as a legal relationship.

Plaintiff relies on Brokenbaugh v. New Jersey Manufacturer’s Insurance Co. (1978), 158 N.J. Super. 424, 386 A.2d 433, in which the policy defined “relative” as “a person related to the named insured by blood, marriage, or adoption (including a ward or foster child) who is a resident of the same household as the named insured.” The rationale of the court’s holding was that the plaintiff was a "ward” and “foster child” of the insured. (See Wood v. State Farm Mutual Automobile Insurance Co. (1981), 178 N.J. Super. 607, 429 A.2d 1082.) No such terms are employed in the instant policy.

Plaintiff’s reliance on Hunter v. Southern Farm Bureau Casualty Insurance Co. (1962), 241 S.C. 446, 129 S.E.2d 59, and on Cobb v. State Security Insurance Co. (Mo. 1979), 576 S.W.2d 726, is also misplaced. In Hunter the insured had a living wife but lived with the intestate as man and wife during which relationship three children were born to them. It was held that the intestate was not within the coverage of the insurance policy which excluded “any member of the family of the insured residing in the same household.” The court there did not consider the terms here in issue. In Cobb, the insured had acknowledged that he was the biological father of the child borne by his cohabitant, and all of them lived together on a permanent basis functioning as a family notwithstanding the absence of a lawful union. Inasmuch as the child was a person related to the insured by blood and a member of his household, the court there held that the illegitimate child was entitled to coverage as a “relative” of the insured. In this case, although Beatrice was a member of the insured’s household they were not related by blood.

In Hartford Accident & Indemnity Co. v. Goossen (1978), 84 Cal. App. 3d 649, 148 Cal. Rptr. 784, defendant was unmarried and openly cohabiting with the insured’s daughter and regarded as a member of the family. In holding that defendant was not a relative of the insured by blood, marriage or adoption, the court concluded: “Whatever the social status, under present morality, of a paramour, he is not a ‘relative’ within any terminology of which we are aware.” 84 Cal. App. 3d 649, 654,148 Cal. Rptr. 784, 786.

The instant question of coverage is determined only as of the date of the fatal accident of September 22, 1979, and is not affected by the subsequent marriage. We therefore hold that on the accident date Beatrice was not a "relative” of the named insured nor of his “spouse” under the terms of the policy.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

SULLIVAN, P.J., and WILSON, J., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    THE VILLAGE OF HILLSIDE, Plaintiff-Appellant, v. THE ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.—(Commonwealth Edison Company et al., Intervening Defendants-Appellees.)
    First District (5th Division)
    Nos. 81—2656, 81—2657 cons.
    Opinion filed December 10, 1982.

      Schain, Burney and Kenny, of Chicago (Jerome S. Schain and Thomas R. Burney, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Hercules F. Bolos and Edward P. O’Brien, Assistant Attorneys General, of counsel), for appellee Illinois Commerce Commission.
    Laurence D. Lasky, Paul F. Hanzlik, and Sarah H. Steindel, all of Chicago (Isham, Lincoln & Beale, of counsel), for appellee Commonwealth Edison Company.
    Kirkland & Ellis, of Chicago (Daniel W. Vittum, Jr., Frank L. Winter, and Donald W. Rupert, of counsel), for John Sexton Sand & Gravel Corporation and Browning-Ferris Industries, Inc.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

These consolidated appeals are from the trial court’s affirmance of two orders entered by the Illinois Commerce Commission (Commission) (1) approving Commonwealth Edison Company’s (Edison) petition to sell Hillside Stone Quarry (Quarry) to John Sexton Sand and Gravel Corporation (Sexton) and Browning-Ferris Industries, Inc. (Browning-Ferris); and (2) determining that Edison had not violated section 27 of the Public Utilities Act (the Act) (ILLINOIS COMMERCE COMMISSION. Rev. Stat. 1979, ch. 1112/3, par. 27). Plaintiff contends (a) the order approving sale of the Quarry is against the manifest weight of the evidence because Edison failed to establish either that the sale served the public interest or that the proposed sale price reflected the fair market value of the land; and (b) the finding that Edison did not violate the Act is against the manifest weight of the evidence when Edison, without prior approval, transferred permits to Sexton, granted possession of the Quarry to Sexton, and effectuated a lease of the Quarry.

The Quarry, which is the subject matter of these proceedings, occupies approximately 75 acres of land adjacent to the intersection of the Eisenhower Expressway and Mannheim Road in the village of Hillside, Illinois. It was created by limestone mining, and an excavation covers about 62 of the 75 acres to a depth of 300 feet. Edison purchased the Quarry for $8,001,839 on August 12, 1976, for use as a fly ash and combustion byproduct disposal site. Because of additional development expenditures, the total original cost of the property was $11,675,994. Shortly after acquiring the Quarry, Edison determined that it would not need the entire site and began looking, without success, for a purchaser who would permit Edison to use a portion thereof for its disposal needs.

Upon further consideration of its requirements. Edison concluded that it was uneconomical to use any part of the Quarry to dispose of waste materials. When no alternative use in Edison’s business could be found, the Quarry was declared excess in July 1978 and offered for sale at $12,000,000. There were several inquiries, but only two offers to purchase were received — both from companies that planned to use the Quarry as a sanitary landfill; i.e., to dump garbage and inorganic matter. The first offer came from Sexton, but was rejected. Thereafter, an offer from Waste Management, Inc., was also rejected because the price and payment terms were even less attractive than Sexton’s initial offer.

Negotiations were conducted with both Sexton and Waste Management until November of 1978, when Edison and Sexton reached a tentative agreement on price. While the parties continued their negotiation of other terms, Sexton requested access to the property to do some work in anticipation of its purchase, and Edison granted a right of entry on November 16, 1978, later modified by letters dated December 14,1978, and December 4,1979.

On May 7, 1979, Edison executed a contract for sale of the Quarry to Sexton and Browning-Ferris for $9,550,000. Two days later it also joined in Sexton’s permit application requesting that the Illinois Environmental Protection Agency (EPA) transfer to Sexton permits held by Edison to develop the Quarry as a clean landfill; i.e., a dumping site for only inorganic matter. The EPA transferred these permits to Sexton on August 14,1979.

Edison filed a petition with the Commission on May 24, 1979, pursuant to section 27 of the Act (Ill. Rev. Stat. 1979, ch. 1112/3, par. 27), seeking approval of the sale to Sexton and Browning-Ferris. While this petition was pending, plaintiff brought to the Commission’s attention various alleged violations of the Act by Edison. In particular, plaintiff asserted that Edison, without the prior approval and consent of the Commission, transferred property rights and a right of entry to Sexton; petitioned the EPA for transfer of its permits to Sexton; provided in its contract for a lease that commenced on November 7, 1979; and permitted Sexton to engage in work activities beyond those contemplated in the right of entry agreements..

In response to these allegations, the Commission entered a citation order on February 20, 1980, requiring Edison to appear and show cause why it should not be found in violation of section 27 of the Act. A hearing was held for the taking of oral and documentary evidence, and both Edison and plaintiff submitted written briefs. On July 16, 1980, the Commission dismissed the citation order, finding that Edison had not violated the Act. Plaintiff’s application for rehearing was denied on August 27, 1980.

Fifteen days of hearings were held between June 19 and September 21, 1979, on Edison’s petition for approval of its sale of the Quarry. Sexton and Browning-Ferris participated in these proceedings by leave of the Commission, pending approval of their petition to intervene, and after all parties submitted written briefs and reply briefs, the Commission on July 16, 1980 issued an order approving the proposed sale.

Thereafter, pursuant to section 68 of the Act (Ill. Rev. Stat. 1979, ch. 1112/3, par. 72), plaintiff filed appeals in the trial court seeking review of the order finding no violation of the Act and the order approving sale of the Quarry to Sexton and Browning-Ferris. Both were affirmed by that court on October 2, 1981, and these appeals followed.

Opinion

Plaintiff initially contends that the Commission order approving sale of the Quarry to Sexton and Browning-Ferris was contrary to the manifest weight of the evidence because (a) it fails to give proper weight to the convenience and necessity of the community surrounding the Quarry in balancing the interests of Edison against the public interest and (b) the approved purchase price did not represent the fair market value of the property.

We first consider, however, the question raised by Edison as to whether those contentions are moot because reversal of the Commission’s order could not cause a change in the current ownership of the Quarry. Once having received Commission approval, Edison maintains that it could lawfully proceed with the sale even though an appeal was pending. Therefore, since it conveyed title to Sexton and Browning-Ferris on July 24, 1980, it argues that plaintiff’s failure to obtain a stay pending appeal has made the propriety of the Commission’s order irrelevant.

Edison relies on Mandel Brothers, Inc. v. Chicago Tunnel Terminal Co. (1954), 2 Ill. 2d 205, 117 N.E.2d 774, in support of its argument. There, the defendant charged freight rates which had been approved by the Commission. The order finding the rates just and reasonable was subsequently reversed, and plaintiff sought recovery of allegedly excessive charges made while the new rates were in effect. The supreme court held that while the order was in effect, defendant was required by statute to charge those rates in the absence of a stay, and it thus could not be said that defendant charged an excessive rate, since it merely charged what was required by law.

We find Mandel Brothers inapplicable, as it dealt with the propriety of utility action pending appeal; whereas, here, we are concerned with whether reversal could return the parties to the status quo. We note also that in Mandel Brothers the reversal of the Commission’s order did result in reinstatement of the former rates, thus effecting a return to the status quo. Moreover, plaintiff’s inability to recover was mandated by statute in Mandel Brothers, a circumstance not present in the case at bar.

Furthermore, the rate-making function of the Commission is inherently different from its function in approving dispositions of property under section 27 of the Act. Rate making involves establishment of rules which will be in effect over a period of time; thus, effective relief may be granted from an erroneous order. However, if we apply the holding in Mandel Brothers to cases arising under section 27, review in most cases could be frustrated by prompt action on the part of the utility following Commission approval, thereby rendering the statutory mechanism for judicial review of agency decisions meaningless.

For the foregoing reasons, we decline to apply Mandel Brothers to the instant action and must turn instead to the cases dealing with mootness, in the absence of any statutory standard to the contrary.

The failure to obtain a stay pending appeal does not, of itself, render an issue moot (Schaumburg State Bank v. Seyffert (1979), 71 Ill. App. 3d 630, 390 N.E.2d 388); however, when supervening events make it impossible for a reviewing court to grant effective relief to any party, the issue is moot (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316), since any finding made on the issue can have no practical legal effect on the controversy (Betts v. Ray (1982), 104 Ill. App. 3d 168, 432 N.E.2d 1222). Thus, in the instant action, the issue is moot only if we cannot order a return to the status quo; i.e., a return of the Quarry to Edison and divestment thereby of the title currently held by Sexton and Browning-Ferris.

Sexton and Browning-Ferris, having been parties to all of the agency proceedings in question and to the initial review thereof before the trial court, were aware of the controversy surrounding the Commission order, as well as of the instant appeal. While we know of no cases dealing with the rights of parties participating in an agency hearing pursuant to section 27 of the Act, we find their position analogous to that of a party to a lawsuit wherein a property interest is at issue. In that situation, “[a] party to a suit *** cannot acquire any rights or interests based on [an] erroneous decree that will not be abrogated by a subsequent reversal thereof.” (First National Bank v. Road District No. 8 (1945), 389 Ill. 156, 161-62, 58 N.E.2d 884, 887; accord, Schaumburg State Bank v. Seyffert (1979), 71 Ill. App. 3d 630, 390 N.E.2d 388.) Similar reasoning is applicable to both situations. One who is a party to proceedings before an administrative agency, just as a litigant in a lawsuit, is presumed to know all errors in the record. Armed with such knowledge, he proceeds at his own risk, taking his chances that the order will be reversed. Therefore, even in the absence of a stay pending appeal, a disposition of property made pursuant to an order of the Commission subsequently reversed does not render the issue moot when the purchaser was a party to the agency proceedings.

Furthermore, we find this result consonant with the purpose of the Act. It is the duty of the Commission to assure that efficient and adequate utility service is provided to the public at a reasonable cost. (Local 777, DUOC, Seafarers International Union of North America v. Illinois Commerce Com. (1970), 45 Ill. 2d 527, 260 N.E.2d 225.) When the Commission issues an order which is contrary to the manifest weight of the evidence, it has in a sense failed to protect the public interest, which requires that we take jurisdiction to correct that order unless it clearly appears that reversal thereof would be a useless act.

Having determined that the issue is not moot, we turn to consideration of plaintiff’s contention that the Commission’s approval of the sale was contrary to the manifest weight of the evidence.

Section 68 of the Act (Ill. Rev. Stat. 1979, ch. 1112/3, par. 72) provides that “[t]he findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; and a rule, regulation, order or decision of the Commission shall not be set aside unless it clearly appears that the finding of the Commission was against the manifest weight of the evidence ***.” The Act further provides that the burden of proof on issues raised by appeal shall be on the appellant.

Plaintiff first argues that the Commission failed to give adequate consideration to the convenience and necessity of the surrounding community in determining that sale of the Quarry was in the public interest. In support thereof, it refers to testimony that the impact on the surrounding community did not enter into Edison’s decision to sell to Sexton; that no studies were undertaken to determine the impact of the sale on the surrounding community; and that a report it published in 1976 established that development of the Quarry was of vital concern to its future welfare.

The considerations which plaintiff urges, however, are not of paramount importance in a Commission determination under section 27 of the Act. The supreme court has repeatedly held that it is the interests of the public as a whole, rather than the interests of a smaller group of individuals, which are to be protected. (Illinois Central R.R. Co. v. Illinois Commerce Com. (1947), 397 Ill. 323, 74 N.E.2d 545; Yowell v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1935), 360 Ill. 272, 195 N.E. 667; O’Keefe v. Chicago Ry. Co. (1933), 354 Ill. 645, 188 N.E. 815; Campbell v. Illinois Commerce Com. (1929), 334 Ill. 293, 165 N.E. 790; Roy v. Illinois Commerce Com. (1926), 322 Ill. 452, 153 N.E. 648.) Therefore, it is incumbent upon the Commission to make findings on the interests of the public as a whole. In that vein, the Commission found that the sale “enables Edison to dispose of an uneconomic asset and acquire substantial funds to be used to provide public utility services to its customers at a lesser cost ***.”

Plaintiff does not refer us to any evidence before the Commission which refutes this finding, and since we must accept it as true unless plaintiff meets its burden of proving the contrary, we cannot say that it is against the manifest weight of the evidence. In addition, the record contains uncontradicted evidence that the site was not being used by Edison for disposal purposes; that such use would be uneconomical; and that sale of the property would improve Edison’s financial position by reducing the amount of money it would have to raise through other sources and eliminating expenses required to maintain the Quarry.

Plaintiff contends, however, relying on Klopf v. Illinois Commerce Com. (1977), 54 Ill. App. 3d 491, 369 N.E.2d 906, that the Commission should have given considerable weight to its interests in deciding whether to approve the sale. This reliance is misplaced. In Klopf, a railroad proposed to sell a right-of-way it no longer needed to adjoining landowners. The Department of Conservation wished to acquire a portion thereof for a nature trail to be used by the public, and petitioned the Commission for permission to institute condemnation proceedings against the railroad. Although the railroad had proceeded to sell the property without prior approval, the Commission granted the Department’s petition and denied that of the railroad for approval of the sales. The Commission found that condemnation by the Department offered a substantially greater financial return than sale, and that the property was affected with a public interest although no longer required for the specific purposes of the utility.

In Klopf, an appeal was brought by the landowners who had lost title by reason of the Commission’s order. Therefore, contrary to plaintiff’s belief, the Commission was weighing the interests of the public as a whole as against the interests of a small group of individuals affected by the decision. Affirmance was based upon a finding that denial of the railroad’s petition was not against the manifest weight of the evidence or contrary to the authority granted to the Commission by the legislature. We do not read Klopf as requiring the Commission to speculate on whether property which a utility wishes to sell might conceivably be used by the public for some other purpose, since the Commission in Klopf had a specific petition before it. Here, the record does not disclose any alternative public use presented to, but not considered by, the Commission. While Klopf allows the Commission to consider such uses properly before it, it does not mandate consideration of factors not appearing in the record.

Furthermore, it appears that the Commission did consider the needs of the surrounding community. Its order approving the sale found that it provided “a much needed sanitary landfill site in close proximity to the communities requiring service of their garbage disposal at reasonable prices, and [provided] the means of restoring the property to a use or uses that will be most beneficial to the area • around it ***.”

While plaintiff contends that these findings are not supported by the record, the Commission had before it an uncontradicted report which concluded that sanitary landfills were needed in the area, a fact which is confirmed by plaintiff’s own expert witness. In addition, there was ample evidence that the Quarry was detrimental to the community and surrounding nearby residents and that only a sanitary landfill could remedy the situation within a reasonable time. Plaintiff asserts that there was no evidence that the Quarry was detrimental to the community, equating detrimental with hazardous and indicating that the record contains no evidence of accidents or deaths at the site. However, we think that it is clear that the Commission referred to economic as well as physical detriment and, in that regard, there was testimony, again uncontradicted, that the Quarry as it existed was unmarketable; that a land reclamation project was the only way to return it to future economic, viable and productive use; and that, due to the lack of sufficient clean dry fill, any filling operation other than a sanitary landfill was neither probable nor economically feasible.

Plaintiff also contends that the order approving sale is against the manifest weight of the evidence in its finding that the purchase price received represented the fair market value of the Quarry. In support thereof, plaintiff relies on the Commission’s finding that “the best indication of the market value of the property is *** the best price obtainable between a ready seller and a ready buyer based on the property’s highest and best permitted use.” It argues that the sale price was not the result of good faith negotiations between a ready seller and a ready buyer. In particular, plaintiff points to testimony that Edison had approximately 12 contacts with prospective purchasers, but actively solicited bids only from sanitary landfill operators; that Edison’s real estate department did not have experience in purchasing tracts of land in this price range; and that Edison lacked experience with quarries. From this, plaintiff reasons that Edison lacked the necessary experience and ability to market the property effectively, and asserts that Edison did not retain adequate professional help to do so. It further suggests that Edison unduly restricted itself in considering only sanitary landfill operators as potential purchasers.

We believe, however, that the record contains sufficient evidence of arms length negotiations to support the Commission’s finding. It appears that Edison discussed sale of the Quarry with a number of parties in addition to sanitary landfill operators and that, besides its own contacts, five real estate brokers were active in seeking purchasers on Edison’s behalf; yet, the only offers to purchase, despite these efforts, came from sanitary landfill operators.

We also note that the finding quoted by plaintiff is not the sole basis for the Commission’s determination that the price received reflected the fair market value of the property. During hearings on the petition, each side presented an independent appraisal. Edison’s appraiser valued the property at $7,713,000, based on use as a landfill. According to the appraisal presented by plaintiff, the value of the property as a sanitary landfill was $11,200,000. The Commission found the former appraisal more credible, based on its examination of the qualifications of each expert, as well as the cross-examination of plaintiff’s expert which indicated that the figures used in arriving at his conclusion were in excess of rates currently charged in the market. Since the Commission based this finding on the credibility of the witnesses before it, we cannot say that its conclusion was against the manifest weight of the evidence.

We turn next to plaintiff’s contention that dismissal of the citation proceeding on a finding that Edison had not violated section 27 of the Act was contrary to the manifest weight of the evidence. Plaintiff, arguing that various dispositions of property actually took place before the Commission approved sale of the Quarry, refers to the fact that Edison transferred permits, entered into a lease, and granted possession of the Quarry to Sexton prior to obtaining Commission approval, and therefore it maintains that these dispositions of property rights, along with the contract which provided for them, should be declared void pursuant to section 27 of the Act. Ill. Rev. Stat. 1979, ch. 1112/3, par. 27(i).

Before reaching the merits of this contention, we must again consider Edison’s argument that this issue is moot, because the transactions cited as violations have already occurred and any finding we make on the issue will be meaningless. However, we reiterate that this is not the relevant standard; rather, we must determine whether a finding on this issue can have any practical legal effect on the controversy. (Betts v. Ray (1982), 104 Ill. App. 3d 168, 432 N.E.2d 1222.) It is therefore necessary to determine what the result would be if, in fact, we did find that the transactions in question violated section 27.

Section 27 provides, in relevant part, that “[ejvery *** transfer, lease, *** sale or other disposition or encumbrance of the whole or any part of *** property of any public utility *** and every contract *** made otherwise than in accordance with an order of the Commission authorizing the same, except as provided in this Section, shall be void.” (Ill. Rev. Stat. 1979, ch. 1112/3, par. 27(i).) Thus, if Edison had violated section 27, the transactions complained of could have been declared void. See Klopf v. Illinois Commerce Com. (1977), 54 Ill. App. 3d 491, 369 N.E.2d 906.

Since the actual sale of the Quarry was approved prior to conveyance of title, section 27(i) of the Act is inapplicable to that transaction, and it is therefore only necessary to determine whether there can be any practical legal effect to a declaration that the alleged transfer of permits, lease of the Quarry, and grant of possession thereof to Sexton and Browning-Ferris were void. Since provisions for these transactions were contained in the real estate sales contract, we must similarly determine the effect of declaring that contract void.

When a lesser estate or interest in real property and complete title to that property unite in the same person, the interests merge with the title, and the lesser estate or interest is extinguished. (18 Ill. L. & Prac. Estates sec. 9 (1956.) See also Community Discount Centers, Inc. v. Oakbrook Guido’s, Inc. (1978), 68 Ill. App. 3d 466, 386 N.E.2d 67; Kaufman v. 666 North Water Building Corp. (1971), 130 Ill. App. 2d 785, 267 N.E.2d 345.) Similarly, contracts as well as preliminary negotiations and agreements made before actual conveyance merge into the deed. Reimer v. Leshtz (1980), 90 Ill. App. 3d 980, 414 N.E.2d 114.

Thus, in the instant case, the alleged lease and grant of possession have merged with title to the Quarry and have ceased to exist. In addition, the contract in question has merged with the deed of conveyance. We recently declared an issue moot under analogous circumstances in Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316. In that case, defendant sought review of an order granting a preliminary injunction. While the appeal was pending, the injunction expired by its own terms. The issue was found moot because nothing we did could affect enforcement of that injunction. Similarly, here, nothing we do can now affect the lease, the grant of possession, or the contract, for they, like the injunction in Panduit, have ceased to exist.

It is important to note that plaintiff does not argue that voiding of these transactions would have any affect on the order approving sale of the Quarry, nor do we find that to be the case. Although plaintiff refers to section 27(i) as a “penalty,” it has not cited any case which so holds. The purpose of section 27, like that of the entire Act, is to assure both that the public is adequately served and that the utility receives a reasonable return for its services. (Local 777, DUOC, Seafarers International Union of North America v. Illinois Commerce Com. (1970), 45 Ill. 2d 527, 260 N.E.2d 225.) To that end, the Commission must determine whether retention of particular property is necessary or useful to the public. (Chicago & North Western Ry. Co. v. Illinois Commerce Com. (1970), 130 Ill. App. 2d 352, 264 N.E.2d 745.) Section 27(i) allows that determination to be made even after the utility purports to have disposed of the property in question. In addition, to be an effective penalty, section 27(i) would have to provide that, once an unapproved transaction occurred, it could never be approved by the Commission.

The transfer of landfill permits to Sexton and Browning-Ferris presents a separate question, for the permits have not been extinguished by merger, as is the case with the other transactions cited as possible violations of the Act. However, we must still determine whether a finding on this issue will have any practical legal effect on this controversy.

In the instant case, the permits in question are site-specific; that is, they can be used only in connection with ownership of the Quarry. Since that property has been sold with Commission approval, a return of the permits to Edison would serve no useful purpose. Indeed, there is some question whether, at this point, the permits can be retransferred to Edison, as an application therefore can only be made by the owner and operator of the site. (Pollution Control Board Solid Waste Rule 205(d).) Since it appears that Edison cannot recover the permit and would have no use for it even if it could, a finding that the transfer to Sexton and Browning-Ferris is void would not have any practical legal effect.

Furthermore, return of the permits to Edison would not serve the purpose of section 27, which was intended to allow the Commission to determine whether a proposed sale or encumbrance was in the interests of the public. Since the Quarry has been sold and the permits would only be useful to Edison if it owned the Quarry, there is simply no public interest left to protect.

We also note that nothing in this record indicates that a finding on this issue would affect the current operations of Sexton and Browning-Ferris. The permits transferred were for development of a clean landfill. The Quarry is currently being operated as a sanitary landfill pursuant to permits granted to Sexton and Browning-Ferris by the EPA. Therefore, it does not appear that operations must cease if the transfer of permits is declared void.

For the foregoing reasons, the appeal from the order finding that Edison had not violated section 27 of the Act (No. 81—656) is dismissed as moot; and the appeal from the order affirming the Commission’s approval of sale of the Quarry (No. 81—2657) is affirmed.

Affirmed.

LORENZ and WILSON, JJ., concur.

      The EPA’s actions were the subject of an appeal before this court. (Village of Hillside v. John Sexton Sand & Gravel Corp. (1982), 105 Ill. App. 3d 533, 434 N.E.2d 382.) Subsequent permit grants for use of the Quarry as a sanitary landfill are currently before us in a separate appeal. Village of Hillside v. John Sexton Sand & Gravel Corp., appeal docketed, No. 81— 2655.

      The petition was subsequently granted in the July 16, 1980, order approving the sale of the Quarry to Sexton and Browning-Ferris.

      Had Sexton and Browning-Ferris not been parties to these proceedings, they might have found protection in Supreme Court Rule 305(i) (73 Ill. 2d R. 305(i)), which provides that, in the absence of a stay within 30 days of entry of judgment, persons not parties to the action who acquire a right, title or interest in property after the judgment becomes final are not affected by subsequent reversal or modification thereof. However, we need not decide the applicability of this rule to agency proceedings, since both Sexton and Browning-Ferris have actively participated by intervention throughout these proceedings, before the agency and in the initial appeal to the trial court. But see Illinois Consolidated Telephone Co. v. Aircall Communications, Inc. (1981), 101 Ill. App. 3d 767, 428 N.E.2d 747 (harmonizing Supreme Court Rule 305 and sections of the Public Utilities Act dealing with stay pending judicial review).

      Assuming, only for purposes of this argument, that the invalidity of various provisions of the contract would necessarily lead to the conclusion that the entire contract was void.

      This is not to imply that there is no penalty for violation of section 27. Had the Commission found a violation of the Act, Edison could have been liable for a penalty pursuant to section 76. (Ill. Rev. Stat. 1979, ch. 1112/3, par. 80.) However, this issue was not raised by plaintiff, nor would plaintiff have any apparent interest therein.

      The propriety of granting these permits is the subject matter of a separate appeal now pending before this court, Village of Hillside v. John Sexton Sand & Gravel Corp., appeal docketed, No. 81—2655.