text:
    MADIGAN BROTHERS, INC., Plaintiff-Appellee, v. MELROSE SHOPPING CENTER COMPANY et al., Defendants (La Salle National Bank, Trustee, et al., Defendants-Appellants).
    First District (2nd Division)
    No. 83 — 1648
    Opinion filed April 24, 1984.
    Jerome H. Torshen, Ltd., and Boor stein, Freed & Zelechowski, both of Chicago (Jerome H. Torshen and Janet F. Gerske, of counsel), for appellants.
    Defrees & Fiske, of Chicago (Edward J. Griffin and Gary Schuman, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises from the entry of a permanent injunction against the lessor-defendants, Winston Plaza Associates, David Golstein, T.D.P. Corporation and La Salle National Bank as trustee under Trust No. 103971, on motion by the lessee-plaintiff, Madigan Brothers, Inc., for summary judgment. Defendants were enjoined, during the term of plaintiff’s store lease in the Winston Park Plaza Shopping Center in Melrose Park, from constructing a restaurant or other building in the shopping center’s parking area, -without the prior written consent of the plaintiff.

Defendants Winston Plaza Associates and La Salle National Bank are lessors of premises in Winston Park Plaza Shopping Center in Melrose Park, Illinois. In June 1981, Winston acquired all of the rights and interest formerly held by the Chicago Melrose Park Association and the Melrose Shopping Center Company with respect to the shopping center.

Sometime prior to March 1983, defendants Walgreen Company and Wag’s Restaurants of Illinois, Inc., entered into negotiations with Winston to build and operate a Wag’s Restaurant in the parking area of the shopping center. The plans called for the restaurant to be located approximately 500 feet from the front of plaintiff’s store.

Plaintiff Madigan Brothers, Inc., has, since 1960, leased a store in the shopping center. On March 4, 1960, when the shopping center was still being developed, plaintiff entered into a lease for 50,453 square feet of ground floor shopping space. The lease stated that the construction of the shopping center was substantially completed, but provided for the construction of an addition to plaintiff’s building which, along with two other stores in that building, would constitute plaintiff’s leased space. Pursuant to the lease, the construction of the addition was completed and plaintiff’s store was opened in March of 1961.

Article I — B of the lease is entitled “Parking Areas and Common Areas.” Section 1 of Article I — B states that, in addition to the store premises leased to plaintiff, “this lease includes the non-exclusive right to Tenant and its agents, servants, successors, assigns, licensees, invitees, customers, suppliers and patrons to use and enjoy throughout the term of this lease the ‘common areas’ of the Shopping Center, to-wit, the driveways, entrances, exits, roadways, parking areas, sidewalks, malls and other features and facilities provided for the general uses and purposes of the Shopping Center.”

Section 2 of Article I — B sets forth in detail the landlord’s duties and obligations with respect to the common areas. It provides, in part:

“The location and arrangement of said parking areas, sidewalks, pedestrian malls, entrances and exits and roadways will substantially conform with the plat attached hereto and shall be kept open at all times.
The Landlord further agrees that, at its sole cost and expense, subject to the provisions of Section 2 of Article III, it will provide, operate, manage and maintain during the term of this lease, and any extensions thereof, all of the parking areas *** together with any enlargement or rearrangement thereof required by enlarging the Shopping Center of the gross building area of the buildings thereon ***. The Landlord, at its sole cost and expense, shall place and maintain markings on the surface of the parking area and driveways in such a manner as to provide for the orderly parking of automobiles and shall provide adequate exits and entrances with signs directing traffic in and out of said parking areas ***.”

Article XVI of the lease provides that plaintiff shall “have, hold and enjoy the demised premises and the entire Madigan building together with all other improvements and all easements, rights and appurtenances which are part of the demised premises during the full term of the lease and any extensions thereof, without hindrance or ejection by any persons lawfully claiming under Landlord.”

Attached to the original lease agreement, and described in Article I — A of the lease, were exhibit A, a plot plan of the shopping center showing the leased space; exhibit B, a metes and bounds description of the shopping center; and exhibit B — 1, showing “the number and area of existing and proposed automobile parking spaces in the Shopping Center together with existing and proposed driveways, entrances, exits and roadways.”

Page 13 of the original lease inaccurately described the store space to be leased to plaintiff, and exhibit B — 1 to the original lease inaccurately showed the plot plan of the shopping center. Six days after the original lease was signed, the parties amended the lease by executing a “Memorandum of Agreement made as of March 4, 1960, but actually made the 10th day of March, 1960.” The memorandum corrected page 13 of the original lease and substituted a “corrected Exhibit B — 1” in place of the original exhibit B — 1. Corrected exhibit B — 1 showed not only the exact location of the parking area, but also indicated the specific number of parking spaces being provided in the shopping center.

In addition to the corrective modification executed on March 10, 1960, the original lease has been modified on three other occasions. Two of these modifications leased additional space to plaintiff in the building. The third modification, dated July 11, 1977, gave permission to Melrose Shopping Center Company, which was then the owner of the shopping center, to construct a bank building in the parking area of the shopping center. In exchange for permission to build the bank, the landlord gave plaintiff the right, previously denied by Article XIX of the lease, to open a new store within four miles of the shopping center.

On July 23, 1980, prior to Winston’s acquisition of its interest in the shopping center, plaintiff filed a one-count complaint for mandatory injunction and other relief against Winston’s predecessors in interest in the shopping center, alleging violations of certain terms of plaintiff’s lease. After learning of Winston’s negotiations with Walgreen, plaintiff filed its third amended complaint, joining Winston and Walgreen as defendants and adding count VI. Plaintiff alleged in count VI that certain provisions of its lease gave it a nonexclusive easement in and to the shopping center parking areas. Plaintiff further alleged that Walgreen had entered into an agreement with one or more of the defendants whereby Walgreen and Wag’s would be permitted to build a Wag’s Restaurant in a portion of the parking area currently used by plaintiff’s customers. Plaintiff contended that construction of the proposed Wag’s Restaurant would constitute an interference with plaintiff’s easement because it would, among other things, eliminate 71 parking spaces and require the use by the restaurant of 50 more. Plaintiff requested that the court enter an order temporarily and permanently enjoining defendants from building the restaurant or otherwise obstructing the parking areas of the shopping center.

Defendants admitted that they had entered into negotiations with Walgreen to build a Wag’s Restaurant in an area of the shopping center which previously had been used for parking, but denied that plaintiff had any easement rights and denied any interference with any of plaintiff’s rights.

Plaintiff then filed a motion for summary judgment on count VI, arguing that the lease as a matter of law granted plaintiff an easement in the parking areas designated in the attachments to the lease, and that any interference with that easement by defendants should be permanently enjoined. In addition to exhibits A, B — 1 and corrected B — 1 to the original lease, which were attached to the motion, plaintiff submitted several additional plot plans which demonstrated the effect the proposed construction would have on the parking areas.

Defendants opposed plaintiff’s motion for summary judgment on the grounds that the landlord had reserved the right under the lease to make changes in the location or configuration of any areas used for parking, and that the lease required only that the landlord maintain the specified ratio of parking spaces to leaseable area, which would be done under defendants’ construction plan. Defendants also argued that, because the proposed restaurant would eliminate less than 3% of the available parking spaces in a quadrant of the shopping center located at a considerable distance from plaintiff’s stores and because the site of the proposed restaurant was seldom used for parking by the patrons of any of the stores in the shopping center, Madigan had failed to show irreparable harm and thus was not entitled to injunctive relief.

After a hearing on the motion for summary judgment, the trial court found that the relevant language of the lease was unambiguous and that it gave to plaintiff an easement to use and enjoy the parking area of the shopping center throughout the term of the lease. A decree was entered enjoining defendants, during the term of plaintiff’s lease, “from permitting or causing the construction of a restaurant or other building without the prior written consent of the plaintiff.”

Summary judgment for a defendant is appropriate if there is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law. (See Ill. Rev. Stat. 1981, ch. 110, par. 2— 1005(c).) The interpretation of a lease is a question of law when the terms are plain and unambiguous. (See Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 575, 414 N.E.2d 1152.) “An ambiguous contract is one capable of being understood in more senses than one; an agreement obscure in meaning, through indefiniteness of expression, or having a double meaning.” (First National Bank v. Victor Comptometer Corp. (1970), 123 Ill. App. 2d 335, 341, 260 N.E.2d 99.) We find no ambiguity as to plaintiff’s rights under the lease agreement.

Article I — A of the lease agreement, as amended by the memorandum of agreement dated March 10, 1960, describes the leased premises and states that corrected exhibit B — 1 annexed to the lease agreement shows “the number and area of existing and proposed automobile parking spaces in the Shopping Center together with existing and proposed driveways, entrances, exits and roadways.” Corrected exhibit B — 1 is a plat detailing the number and configuration of parking spaces in the shopping center. Article I — B of the lease agreement states that “[i]n addition to the premises mentioned in Article I — A hereof, this lease includes the non-exclusive right to Tenant *** to use and enjoy throughout the term of this lease the ‘common areas’ of the Shopping Center ***” including the parking areas. Article I — B also provides that “[t]he uses hereby granted shall attach to any and all additional common areas which Landlord may hereafter see fit to add to the Shopping Center ***.” Section 2 of Article I — B states that “[t]he location and arrangement of said parking areas *** will substantially conform with the plat attached hereto and shall be kept open at all times.”

Thus, the rights of plaintiff to the use and enjoyment of the shopping center’s parking facilities are clearly and unambiguously set forth in the lease. The principal function of a court in construing a written contract is to discern and to give effect to the intention of the parties as expressed in the language of the document when read as a whole. (Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 554, 281 N.E.2d 462.) When the terms of a contract are clear and unambiguous, they must be enforced. 4 Ill. App. 3d 549, 554.

After considering the documents presented, we conclude that the intent of the parties was to grant the shopping center tenants an easement in the parking areas for ingress, egress and parking as set out in the plat. It is the law in Illinois that where no reservation by the landlord of the right to alter the common areas is made in the lease and where the site plan attached to the lease accurately and precisely delineates the common areas, the tenant has an easement to the particular configuration of common space delineated by the lease and attached plats. (See, e.g., Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 281 N.E.2d 462; Meadowdale Shopping Center, Inc. v. Meadowdale Lanes, Inc. (1967), 89 Ill. App. 2d 250, 231 N.E.2d 466 (abstract); The Fair v. Evergreen Park Shopping Plaza of Delaware, Inc. (1954), 4 Ill. App. 2d 454, 124 N.E.2d 649.) In order to make a tenant’s easement over the common areas moveable, the lease must expressly and specifically grant the landlord the right to change the arrangement of the common areas. (See Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 145, 427 N.E.2d 1039.) No such right is granted to the landlord in the instant case. Certain provisions in the lease contemplate enlargements of the shopping center, but these merely specify plaintiff’s rights in such circumstances and do not specifically grant the landlord the right to rearrange the parking areas. Unlike Advertising Checking Bureau, there is no provision in the Madigan lease which expressly permits the landlord “ '*** to change the arrangement and/or location ***’ ” of the common areas of the shopping center. 101 Ill. App. 3d 140, 143.

It is therefore clear that the provisions of the lease gave plaintiff a nonexclusive easement to the parking areas as they are shown in the plat attached to the lease, and that the lease contains no provisions which can be construed to make this easement moveable. We therefore find that the trial court did not err in enjoining the construction of the restaurant in the shopping center parking area without plaintiff’s consent.

The decision of the circuit court is affirmed.

Affirmed.

DOWNING and BERLIN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY LEE THOMAS, Defendant-Appellant.
    First District (4th Division)
    No. 81 — 1876
    Opinion filed April 26, 1984.
    Steven Clark and Bruce Mosbacher, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE ROMITI

delivered the opinion of the court:

In a jury trial defendant Henry Lee Thomas was convicted of the murder of Dorothy Terrell and was sentenced to a prison term of 40 years. On appeal defendant contends: (1) his statements should have been suppressed as the products of his illegal arrest; (2) reversal is required because the prosecution adduced trial testimony concerning a polygraph examination of the defendant and because in final argument the prosecutors told the jury that defendant had failed that examination; (3) the jury was not properly instructed on the issues of murder and voluntary manslaughter; (4) the trial court abused its discretion when it sentenced defendant to a 40-year prison term.

We reverse and remand for a new trial.

At trial the State established that on the afternoon of October 21, 1978, the nude body of Dorothy Terrell was discovered in a forest preserve near Waukegan Road and Dundee Road in Cook County. A bedspread and an extension cord were found nearby. An autopsy revealed that her death was caused by multiple stab wounds to the chest and neck. The victim also had blunt trauma injury to the mouth, consistent with having been struck with a fist.

The victim’s mother informed the police that she had last seen her daughter on October 15 when she went out on a date with the.defendant. Defendant was arrested and first told the police he had dropped off Terrell that night at the home of a girlfriend of hers. However ultimately defendant confessed to having killed Terrell. He told the police and then an assistant State’s Attorney that in the early morning hours of October 15 after an evening spent at various Chicago lounges he and Terrell came back to his apartment. After Terrell fell asleep defendant, who was upset about problems they were having, got a knife from the kitchen and stabbed Terrell in the neck. She awoke and said, “Why did you do this, I love you.” He struck her twice in the mouth, stabbed her several times in the chest, and smothered her with a pillow. The body remained in his apartment three days. Defendant then wrapped it in a quilt and an electric cord and took it to a wooded area near Dundee Road.

Having lost a pretrial motion to suppress his statements to the police, defendant took the stand and admitted having killed Terrell. He testified that at his apartment, after a night of drinking at several lounges, they began arguing and Terrell struck him in the eye. Defendant, in an intoxicated state, became angry, picked up a knife in the bedroom, and stabbed Terrell. He admitted having told the police that Terrell had been asleep when he stabbed her with a knife from the kitchen, but said he made that statement because he was frightened. He also admitted that his first exculpatory statement to the police was a lie. The jury rejected the defense theory that defendant was guilty only of voluntary manslaughter and convicted him of murder.

I

We first consider defendant’s contention that his statements to the police should have been suppressed because they resulted from his illegal arrest. At the hearing on defendant’s motion the following pertinent testimony was adduced. Officer Alvin Riddle of the East Chicago, Indiana, police department testified that on October 23, 1978, he spoke by telephone to Investigators Smith and Behrens of the Cook County sheriff’s police. They informed him that defendant was a “likely suspect” in the murder of Dorothy Terrell because she had last been seen in his company. They wished to talk to the defendant and sought Riddle’s aid because they believed the defendant worked and lived in East Chicago. Riddle then determined that defendant worked at an East Chicago factory. The night of October 25 Riddle, a Sergeant Johnson, and three members of the tactical unit went to the factory and arrested the defendant as he prepared to leave work. According to Riddle no guns were drawn during the arrest. It was stipulated that the defendant was immediately given his Miranda rights (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), and stated that he understood them. He was taken to the factory parking lot where he surrendered his car keys and his car was seized and towed to the police garage. It was subsequently searched and fingerprints and other items were taken for laboratory tests. The tactical unit officers transported defendant to the detention center at the East Chicago police station at about midnight. Investigators Smith and Behrens were then notified of the arrest.

Investigator John Smith testified that on October 21, 1978, he and Investigator Behrens went to Somme Woods and viewed the victim’s body. From the state of decomposition Smith concluded that the body had been there three or four days. The following day he learned from members of the victim’s family that she had been missing since early Sunday morning, October 15, when she had left on a date with the defendant. Later that Sunday defendant had called the family to ask if the victim was home. The family members had been told by another woman that she had seen the defendant and the victim having an argument or altercation at a lounge that night. Smith was also told where the defendant lived and worked. He contacted the East Chicago police and subsequently learned that defendant had been found by them.

In subsequent rebuttal testimony Investigator Behrens testified that the victim’s sister had also told him it had been the defendant’s custom to drive to the apartment every day to wait for the victim but after she became missing he no longer came around. According to Behrens he had also been told by Smith that the manager of the restaurant where the victim worked had stated that there also the defendant had discontinued his practice of visiting the victim since her disappearance.

Smith testified that he arrived at the East Chicago police station at about 1 a.m. on October 26. It was stipulated that defendant was then given his Miranda rights and stated that he understood them. Defendant told Smith that late Saturday night or early Sunday morning he had gone drinking with Terrell at several bars. At her request he then dropped her off at the home of a girlfriend of hers. Defendant claimed not to know the girlfriend except by the name Ernestine, and further stated that he left the victim on a street he was not familiar with. He also stated this was the last time he saw her. Defendant offered to help the officers and to do anything they asked. He read and signed forms waiving his Miranda rights, waiving his right to challenge extradition, and allowing the police to search his car and his apartment.

At about 3 a.m. Behrens and Smith took the defendant to his apartment where they were met by an evidence technician. Defendant unlocked his bedroom door for the police. Inside they observed blood spattered on the wall above the bed. At about 6:30 a.m. they all left the apartment, taking with them certain items seized there. Defendant was placed in detention at the Maywood sheriff’s facility at about 8 a.m. It was stipulated that at 1 p.m. that same day, October 26, defendant voluntarily took a polygraph examination. Smith again saw the defendant at 2:30 p.m., transporting him to the Niles sheriff’s facility. According to Smith defendant was then questioned for the next 121/2 hours by various officers. At 4:30 p.m. Smith and Lieutenant Brown spoke to the defendant. It was stipulated that he was again informed of his Miranda rights. The questioning lasted two or three hours. Other police officers also questioned the defendant until about 3 a.m. the next morning, October 27, when defendant was taken back to Maywood after complaining of being tired and wanting to sleep. Smith testified that defendant was fed prior to questioning and did not complain of any mistreatment. However Smith did state that defendant cried in his presence that day.

On October 27 defendant was brought back to the Niles facility. Smith testified that at 2:30 p.m. defendant gave an inculpatory statement in the presence of Smith, Behrens, an assistant State’s Attorney, and a court reporter. In that statement the defendant said he had been fed, had not been mistreated and had not been threatened. According to Smith the defendant had been questioned for about four hours that day.

The defendant testified to substantially the same sequence of events following his arrest, with the following significant variations. His arrest was at gunpoint. Smith told him, before he signed the consent to the search of his apartment, that if nothing was found he would be released. When taken to the apartment he was in handcuffs but on arrival they were removed and he was told to unlock the door. After he took the polygraph exam he was told it showed he was lying. Defendant recalled that after that examination it was Behrens who drove him to the Niles facility. Behrens stopped the car on the way and talked to the defendant for 45 minutes. He told the defendant he could get the death penalty. According to the defendant the 12^2 hours of questioning on the evening of October 26 were conducted by six officers, working in two-man shifts. During the questioning he asked Behrens if he could speak to his mother, but this was denied. In the presence of Smith and Behrens Lieutenant Brown threatened to hit him if he did not talk. Investigator Peterson pushed him against a cabinet, called him a nigger, and told him to talk. At one point during this prolonged questioning defendant requested an attorney but this was refused by Officers Grode and Burke. In the midst of the questioning Officers Peterson and Schenk told him he was going for a ride. He was taken to the forest preserve where the officers said they had found the victim. On the way Schenk told him he had better talk because Peterson was angry. At the site Peterson told him to get out of the car. A patrol car then came on the scene and after Schenk spoke to its occupants the defendant was returned to the Niles facility.

According to the defendant early in the morning of the 27th, when he was taken back to his Maywood cell, Peterson ordered that the blankets from his cell be removed and he “froze” without them. Later that morning Schenk drove him back to Niles. On the way he told the defendant that his treatment by the Cook County police would be even worse than what he had already received. At this point the defendant decided to talk. He subsequently gave the statement introduced at trial.

In rebuttal Lieutenant Brown testified that on October 26 starting at 4:30 p.m. he had personally seen the defendant questioned for eight hours. During that period he did not hear anyone threaten the defendant and did not call him a nigger. At one point during this questioning the defendant said he killed the victim but later he denied it.

Investigator Behrens stated that during the same period he saw the defendant for three or four hours and never heard the defendant called a nigger or threatened with violence or the electric chair. He also heard the defendant admit to killing the victim and then later deny it during this questioning. Behrens recalled that sometime that evening, on the 26th, the subject of defendant talking to his mother arose but he did not know if defendant was permitted to do so. After the polygraph examination, when he and Smith took the defendant to Niles, they had a “general” conversation with him.

Officer James Peterson testified that at 10 p.m. on October 26 he and Schenk took the defendant, in handcuffs, to the forest preserve “to see if [defendant] was familiar with that area.” He denied ever threatening the defendant or calling him a nigger. He merely asked the defendant if he had ever been there before. He also denied removing blankets from the defendant at the Maywood cell.

Officer John J. Grode testified that he was Officer Burke’s partner and on October 26 defendant had not requested a lawyer.

It was stipulated that if Officer Schenk were called to testify he would state that on October 27 at 10 a.m. he drove the defendant to Niles. On the way he told the defendant that the blood found in his apartment would be compared with the blood of the victim. He then asked the defendant if he had killed her and defendant admitted that he had, agreeing to talk about it at the station. Schenk denied ever stopping the car to talk to the defendant.

The trial court found that defendant was arrested without probable cause and ordered the suppression of any evidence seized at his apartment or from his car. However the court also found that defendant’s subsequent inculpatory statements were sufficiently attenuated from the arrest and therefore denied defendant’s motion to suppress his statements. In its ruling the trial court indicated that it did not believe defendant’s testimony about have been physically abused or threatened. The attenuating factors specifically cited by the court were the passage of time between the arrest and the statement, the fact defendant was taken to the forest preserve, and the fact defendant was treated well.

In oral argument before this court the State has for the first time challenged the trial court’s finding that defendant was arrested without probable cause. We find no merit to this contention. Probable cause exists if a reasonable and prudent person in possession of the knowledge which has come to the arresting officer would believe that the person to be arrested had committed a crime. (People v. Vogel (1978), 58 Ill. App. 3d 910, 374 N.E.2d 1152.) Whether probable cause exists in a specific instance depends upon all the facts and circumstances known to the officers at the time of the arrest. (People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356.) Analysis of these facts and circumstances to determine their sufficiency is the function of the trial court and that court’s finding will not be disturbed unless it is shown to be manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280; People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121.) When the victim’s body was found in a forest preserve the police estimated that she had been killed three or four days earlier. Yet the last time the defendant was seen with her was six days earlier when they went on a date and were seen quarrelling in a bar. We do not find that the defendant’s subsequent inquiry to the family and his failure to attempt to visit her at home or work after apparently being told she was missing can be said to be indicia of guilt or innocence. These factors certainly gave the police cause to wish to question the defendant, but we cannot say that the trial court’s determination that this was insufficient to establish probable cause to arrest him was contrary to the manifest weight of the evidence.

When a confession is obtained from a defendant through custodial interrogation after an illegal arrest that confession must be suppressed unless the State can meet its burden of establishing that intervening events have broken the causal connection between the illegal arrest and the confession so as to render the confession an act of free will. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; Taylor v. Alabama (1982), 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664.) In Brown the court identified a number of factors to be considered in making this evaluation. The fact that Miranda warnings have been given and understood, thus establishing voluntariness for purposes of the fifth amendment, is only a threshold requirement to be met by the State in establishing attenuation of the taint of the initial illegality. Other factors to be considered are the temporal proximity of the arrest and the confession, the presence of intervening circumstances such as an appearance by the defendant before a magistrate (a factor found to attenuate the taint in Johnson v. Louisiana (1972), 406 U.S. 356, 32 L. Ed. 2d 152, 92 S. Ct. 1620, a case cited by Brown as illustrating this factor), and the purpose and flagrancy of the officers’ conduct in making the arrest.

It is undisputed that defendant was repeatedly given the Miranda warnings and stated that he understood them. But as we have noted this was only a threshold requirement for establishing attenuation. In its brief on appeal the State has cited two events which it contends were intervening circumstances which prompted defendant’s confession without exploitation of his initial illegal arrest. The first factor is one also cited by the trial court, defendant’s trip to the forest preserve. In our view interrupting a prolonged interrogation of a defendant to take him, in handcuffs at 10 at night, to a forest preserve where the victim was found cannot be construed as an intervening circumstance which arose independently of the defendant’s illegal arrest. The second factors cited in the State’s brief is the fact that defendant was told ttiat blood found in his apartment would be compared with the blood of the victim. As the State notes it has been held that confrontation of the arrestee with untainted evidence may constitute an independent intervening circumstance. (In re R.S. (1981), 93 Ill. App. 3d 941, 418 N.E.2d 195.) But here defendant was confronted with tainted evidence. The trial court ordered the suppression of this evidence and all other evidence taken from defendant’s apartment, apparently finding that the defendant’s signed consent was obtained by means of his illegal arrest. The State has not challenged this ruling on appeal. Clearly, confronting the defendant with evidence improperly obtained through exploitation of his illegal arrest cannot be said to constitute an independent intervening circumstance under Brown. In oral argument before this court the State has apparently abandoned these contentions, relying instead on the fact that defendant voluntarily submitted to a polygraph examination and was told that he flunked it. Our supreme court has determined that because of doubts as to its scientific validity and because of its tremendous potential for prejudicing a jury polygraph evidence cannot properly be admitted as substantive evidence in a criminal trial (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070), or on a motion for a new trial (People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493), or in imposing sentence. (People v. Szabo (1983), 94 Ill. 2d 327, 447 N.E.2d 193.) Given these holdings we do not find that administering such a test to one in custody pursuant to an illegal arrest and then confronting him with the results of what has been judicially held to be a test of dubious scientific validity constitutes the type of independent intervening circumstance contemplated in Brown. Indeed, as was held in Commonwealth v. Brooks (1976), 468 Pa. 547, 364 A. 2d 652, at best the administering of a polygraph examination amounts to yet another form of interrogation, so that giving it to a defendant in custody pursuant to an illegal arrest constitutes yet another means of exploiting that arrest in the hope of obtaining incriminating information. In summary our review establishes that every factor cited by the State as an independent intervening factor instead was a factor tending to exacerbate the effect of defendant’s illegal arrest.

The State also contends that the length of time between the arrest and defendant’s confession, 38.5 hours, tended to dissipate the taint of the initial illegality. In Brown the court noted that only two hours had elapsed between the defendant’s arrest and his incriminating statement, citing this as evidence that the effect of the illegal arrest had not dissipated. But as Justice Stevens, concurring in Dunaway v. New York (1979), 442 U.S. 200, 220, 60 L. Ed. 2d 824, 841, 99 S. Ct. 2248, 2261 (Stevens, J., concurring), noted, a prolonged detention, where there are no relevant intervening circumstances, may constitute a more serious exploitation of an illegal arrest than a short detention. (See People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046.) Thus in Taylor v. Alabama (1982), 457 U.S. 687, 73 L. Ed. 2d 314, 102 S. Ct. 2664, where the prosecution sought to distinguish the defendant’s six-hour detention from the relatively shorter detention period in Brown, the court noted that the difference was not significant where during that time the defendant was in police custody, unrepresented by counsel, questioned at length, fingerprinted, and placed in a lineup. And in Hale v. Henderson (6th Cir. 1973), 485 F.2d 266, 267-69, cited in Brown as a case illustrating the temporal proximity factor, a 42-hour detention period was held not to have dissipated the taint of an illegal arrest where the defendant was in custody the entire time and was subjected to questioning for much of that time. In this cause the defendant’s confession came after 38.5 hours of detention during which time he was repeatedly questioned by different officers, confronted with evidence illegally seized in his apartment, given a polygraph examination which he was told he failed, and taken to a forest preserve at 10 p.m. Under these circumstances we find that the length of time between his arrest and his full confession was an aggravating factor rather than one tending to dissipate the taint of the illegal arrest.

The final factor to be considered according to Brown is the purpose and flagrancy of the police conduct in arresting the defendant. Defendant here was arrested by five police officers as he left his place of employment. This in itself does not approach the egregious nature of the facts in Brown where police broke into the suspect’s home, searched it, and arrested him at gunpoint as he came home. But the fundamental misconduct is the same, an arrest made without probable cause for investigatory purposes. The police were aware of some suspicious circumstances relating to the defendant and clearly hoped to obtain incriminating evidence by arresting him and questioning him. Although four days had elapsed since the discovery of the victim and defendant continued to appear at his place of work, no attempt was made to obtain a warrant for his arrest. No extradition hearing was held before he was taken from Indiana to Illinois, he did not meet with an attorney, and he was not arraigned in the 38.5 hours of detention prior to his confession.

In summary, upon a review of all the factors cited in Brown, we find the trial court’s determination of attenuation to be contrary to the manifest weight of the evidence. With the exception of the absence of physical abuse, the very factors cited by the court as attenuating we have found to have exacerbated the effect of the illegal arrest. The prosecution did not meet its burden of establishing that intervening events broke the causal connection between the illegal arrest and defendant’s incriminating statements and therefore defendant’s statements should have been suppressed. For that reason his conviction must be reversed and the cause remanded for a new trial.

II

A second contention of the defendant provides an independent basis for reversal of his conviction. That contention concerns the State’s use of polygraph evidence at trial.

Prior to trial defendant had moved to exclude all references to the polygraph examination taken by the defendant. The court withheld its ruling on the motion, indicating that it might permit the State to refer to the examination to counter any defense suggestion that the defendant had been held in custody for a long period of time so as to obtain a confession from him.

In the State’s case-in-chief, on redirect examination of Investigator Smith, the State elicited from him, over defense objection, the fact that a “certain test” was given to the defendant after which he was not released. Subsequently on cross-examination of the defendant, again over defense objection, the State elicited from the defendant the fact that he took a polygraph examination and was not then released. In final argument to the jury the prosecutor referred again to the fact that a polygraph examination was administered and that defendant subsequently remained in custody. Later, over defense objection, the prosecutor told the jury, in reference to the defendant having been kept in custody: “They weren’t about to let the guy go after he took a polygraph test after he lied to them.” Finally in rebuttal argument, a second prosecutor told the jury, in reference to the detention of the defendant, “They are not going to let the son of a gun go after he flunked the polygraph. I keep telling him, flunked the polygraph.” The defense objection to this statement was also overruled.

The State now concedes that it was error for the trial court to permit these references to a polygraph examination, but contends the error was harmless. We find no merit to this contention. In People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070, our supreme court held that the admission of polygraph evidence constituted plain error which impinges upon the integrity of our judicial system. Because of its unreliability, and because it would tend to be viewed by jurors as virtually infallible, the court held that its use, even though stipulated to by the parties, required reversal. Because no objection to the use of the evidence was made at trial in Baynes the Illinois Supreme Court was required to consider whether the admission of the evidence was plain error. The court noted that the purpose of the plain error doctrine was to prevent a serious injustice from being done to the defendant and to protect and preserve the integrity and reputation of the judicial process. It is noteworthy that in evaluating the polygraph evidence the court held that the evidence was not so closely balanced as to require examination of the error on the ground that an injustice to the defendant may have resulted. Rather the court concluded that the use of that evidence compromised the integrity and reputation of the judicial process. From this analysis we conclude that in Illinois the use of polygraph evidence in a criminal trial necessarily interferes with the integrity of the judicial process and thus requires reversal regardless of the weight of the other evidence. People v. Yarbrough (1982), 93 Ill. 2d 421, 444 N.E.2d 493; see People v. Lucas (1981), 88 Ill. 2d 245, 254-55, 430 N.E.2d 1091, 1095-96 (Clark, J., specially concurring).

Even assuming that the use of such evidence could constitute harmless error we do not find this to be such a case. The defendant’s defense was that he was guilty of voluntary manslaughter rather than murder. He testified that he killed his girlfriend in the heat of passion engendered by an argument during which she hit him in the eye and he, in an intoxicated condition, stabbed her. The State’s position, strenuously argued to the jury, was that the defendant was lying about this. The State supported this argument by pointing to defendant’s post-arrest confession in which he said he stabbed the victim in her sleep. Defendant contended that he made this statement only because he was frightened. Thus the credibility of defendant at trial was crucial to his defense. Although defendant himself admitted having lied to the police, he was still entitled to a fair evaluation of his credibility by the jury. When the State informed the jury that defendant had failed a polygraph evidence they introduced devastating evidence on this issue. As our supreme court held in Baynes, such evidence could very likely be considered as conclusive by the jury. Accordingly we find that the use of this evidence clearly prejudiced the defendant and requires that his conviction be reversed and the cause remanded for a new trial. Because of our disposition of these two issues we do not address the remainder of defendant’s contentions.

The judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

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


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERMAN MITCHELL, Defendant-Appellant.
    First District (5th Division)
    No. 82 — 2663
    Opinion filed April 27, 1984.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jane E. Liechty, and Neil J. Linehan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and sentenced to a term of 25 years. On appeal, he contends that (1) the trial court erred in denying his motions to quash his arrest and suppress his statements; and (2) he was denied a fair trial (a) by improper prosecutorial comments in rebuttal argument and (b) by the State’s knowing use of perjured testimony.

The charges arose from the fatal shooting of Gregory Campbell (Campbell) on August 15, 1981, and as there is no contention that guilt was not established, we will set forth only the testimony relevant to the issues presented.

At a pretrial hearing on the motion to quash his arrest, defendant testified that he and a friend were standing on a corner at about 9:30 a.m. on August 24, 1981, when Officer Butler approached with another officer and said, “The big boys are looking for you.” He was then handcuffed and taken to a police station where he remained for about 45 minutes, after which he was picked up by other officers and taken to Area 6 headquarters. None of the officers produced an arrest warrant, nor did they tell him that he was under arrest for murder.

Officer Jordan testified that while on routine patrol with Officer Butler on August 25, 1981, at about 10 a.m., he saw defendant, whom they had arrested before, standing in front of a store with two other persons. Having been informed a few days earlier by other officers that defendant was wanted in connection with an August 15 murder, he and Butler placed defendant under arrest, took him to their station, advised him of his constitutional rights, and contacted Area 6 officers.

Investigator Elmore testified that on August 18, 1981, at about 10:30 p.m., he and his partner interviewed Stewart Parker (Parker) concerning the murder of Gregory Campbell. Parker told them that he was at the victim’s apartment when a friend named B. K. Harrison arrived and told them that three men were after him. Shortly after Harrison left, defendant, “Mookie” Tate, and a third man came there looking for him. Defendant threatened Campbell with a gun and, when Campbell denied knowing Harrison’s whereabouts, Tate took the gun from defendant and shot Campbell numerous times. Defendant then held him (Parker) while Tate went to find a weapon with which to kill him, but he broke loose from defendant’s grasp, ran to the bedroom, and jumped out of the second-floor window. Elmore stated that he and his partner first spoke to Parker at the YMCA work release center, and that he voluntarily agreed to accompany them to the police station for further questioning. He stated that no threats or promises were made to Parker prior to the statement he gave, and that there was no reason to do so since they didn’t believe he was involved in the crime.

Lester Finkle, a former law clerk at the public defender’s office, testified that on February 24, 1982, he and defense counsel interviewed Parker at the Cook County jail, where he gave a written statement which Finkle read into the record. In it, Parker stated that although he had been at Campbell’s apartment in the early afternoon of August 15, 1981, he was not there when Campbell was murdered; that when the police picked him up at the work release center, they handcuffed him, threatened him, and then promised to get him out of the center if he cooperated with them; that he was treated very poorly throughout the five hours he spent in police custody against his will; and that it was actually B. K. Harrison who made the statement to the police attributed to him. Finkle also testified that Parker read the statement and voluntarily signed it. In denying the motion to quash the arrest, the trial court found that there was sufficient basis to arrest defendant on August 24,1981.

The court then held a second pretrial hearing on defendant’s separate motion to suppress his written statement given to an assistant State’s Attorney. Defendant asserted that the statement was involuntarily given because the police officers procured it by inducements, with numerous promises throughout several hours of intermittent interrogation that if he cooperated in their investigation of the unrelated homicide of “Mookie” Tate, he would not be charged with Campbell’s murder and his parole warrant would be quashed. Officers Keane and Porter, the interrogating officers, testified that no such promises were made. The trial court denied the motion, finding that the statement was voluntarily given.

At trial, Detective Keane testified that at about 5 p.m. on August 25, 1981, after being advised of his constitutional rights, defendant voluntarily told him that he, “Mookie” Tate, and “Sandman” Dillon were members of the Stones street gang; that on August 15, 1981, they went to Campbell’s apartment to look for Harrison, another member of the gang who had been ordered by Dillon to get some guns to use in robbing neighborhood drug dealers; that they saw Parker standing in front of the building and asked him if he had seen Harrison, and when Parker told him that he had not, he hit Parker and ordered him at gunpoint to the second-floor apartment, which he knew Harrison often visited; that once inside, he put a gun to Campbell’s head and again asked him where Harrison was, and when Campbell denied knowing his whereabouts, he and his companions left. On the way out, Tate grabbed the gun from him, saying that he thought he heard a noise inside the apartment, and they reentered. After searching the apartment, he told Tate that Harrison was not there, and Tate then shot Campbell several times. He (defendant) then grabbed Parker and held him, while Tate — having expended all the bullets in the gun — went to look for a knife with which to kill Parker. Parker broke loose and jumped out the bedroom window, whereupon he, Tate, and Dillon left the apartment and went to a tavern where he obtained a sawed-off shotgun they planned to use to kill another gang member known as “Cowboy.”

Assistant State’s Attorney Mahon testified that he advised defendant of his Miranda rights at about 10 p.m. on August 25, and that after signing a written waiver thereof, defendant gave a court reporter a statement which was essentially a recapitulation of the statement that Detective Keane testified defendant made to him.

Stewart Parker’s testimony was substantially the same as the statement he gave to Officer Elmore, except that he said defendant (not Tate) was holding the gun just prior to the shooting. Parker admitted to convictions for burglary, theft, and unlawful use of weapons and that he was then serving a sentence for a misdemeanor offense, which was in violation of his parole. He stated, however, that the only promise made to him in return for his testimony was that he would be placed “somewhere where no one would harm me.” He acknowledged making the statement to defense counsel and Lester Finkle, but he explained that he said those things because he was afraid that if he did not, defendant — who was in another division of the prison — would seek revenge.

Opinion

Defendant’s threshold contention is that his warrantless arrest was illegal and should have been quashed because the State failed to show that Parker was a credible informant or that his information was sufficiently reliable to establish probable cause. We disagree.

Initially, we note that probable cause for a warrantless arrest exists where there are reasonable grounds to believe that the prospective arrestee has committed a crime (People v. Lippert (1982), 89 Ill. 2d 171, 432 N.E.2d 605, cert. denied (1982), 459 U.S. 841, 74 L. Ed. 2d 85, 103 S. Ct. 92), and the standards applicable to a police officer’s assessment of probable cause based on an informant’s tip are at least as stringent as those required for the issuance of a warrant by a magistrate (People v. Johnson (1983), 94 Ill. 2d 148, 445 N.E.2d 777).

In his brief, defendant urged that the applicable standard is the two-pronged “reliability” and “basis of knowledge” test set forth in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584. A determination of probable cause thereunder required facts indicating that the informant was credible and his information reliable, and a showing of some of the underlying circumstances from which the informant concluded that the suspect had committed a crime. However, defendant acknowledged during oral arguments before us that this somewhat rigid test has been abandoned by the United States Supreme Court in favor of the “totality of the circumstances” approach adopted in Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317. In upholding the validity of a search warrant issued on the basis of a partially corroborated informant’s tip, the Supreme Court first observed that probable cause is a practical, nontechnical concept which does not lend itself to a stringent set of neat legal rules but, rather, turns on the common sense assessment of probabilities in particular factual contexts. It then stated that while an informant’s credibility, reliability, and basis of knowledge are relevant considerations in determining the value of his information, they should not be understood as separate and independent requisites to be rigidly exacted in every case, but should instead be viewed as closely intertwined factors which serve as guidelines in resolving the common sense, practical question — whether probable cause exists.

The Gates court reasoned that a deficiency in one area may be compensated for in determining the overall reliability of the informant’s report, by a strong showing as to the other or by some other indicia of reliability, thus permitting a balancing of the relative weights of all the various indicia of reliability attending an informant’s tip. As an example of this analysis, the court stated that even where there is some doubt as to the informant’s motives, his explicit and detailed description of the crime, along with a statement that he was an eyewitness thereto, entitles his tip to greater weight than it might otherwise receive. Thus, under the standard enunciated in Gates, a warrantless arrest based on the information supplied by an informant is justified if, given all of the facts and circumstances, there is a fair probability that the prospective arrestee has committed a crime, and the duty of the reviewing court is simply to ensure that there was a substantial basis for this conclusion. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317.) Furthermore, even prior to Gates, Illinois courts have held that where the trial court has conducted an evidentiary hearing on a motion to quash an arrest and suppress evidence, its finding of probable cause will not be disturbed on appeal unless manifestly erroneous (People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121), and when examining a ruling on such a motion, the reviewing court may consider any evidence adduced during trial which assists in establishing the legality of the arrest (People v. Caballero (1983), 102 Ill. 2d 23; People v. Summers (1981), 100 Ill. App. 3d 170, 426 N.E.2d 937).

Turning then to the instant case, we initially note that Officer Elmore testified at the hearing that he had been assigned to investigate Campbell’s murder; that although he and his partner initiated the contact with Parker after locating him at the work release center, Parker voluntarily agreed to accompany them to the police station for further questioning; that during the interview, Parker asserted that in addition to being an eyewitness to the crime, he was a near-second victim thereof; that Parker provided a detailed account of the shooting, naming defendant as one of the participants and describing his role therein; that Parker was never a suspect in this case, nor was he ever threatened or placed under arrest; and that no promises were made in return for his testimony. However, in rebuttal, defense counsel introduced a statement taken by him and signed by Parker during an interview at the Cook County jail six months after defendant’s arrest wherein Parker not only made the aforementioned allegations concerning the involuntariness of his detention and the threats and promises made, but also summarily denied having any knowledge regarding Campbell’s murder or giving information thereabout to the police.

It is the function of the trial court to resolve conflicts in the testimony and statements presented at a pretrial hearing on a motion to quash (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280), and it is apparent that the trial court here determined that the testimony of Officer Elmore had greater credence than did the statement by Parker made six months after the incident to an attorney he knew to be representing defendant. We do not find that determination manifestly erroneous; indeed, it was supported by Parker’s trial testimony that he voluntarily cooperated with the police; that the only promise made by them was that he would be placed in protective custody; and that the existence of the contrary statement given to defense counsel was explained by his testimony that he feared reprisal from defendant.

Nevertheless, defendant argues that because of Parker’s “protracted” criminal record and his status as a parolee as well as a suspect in this case, his motive for cooperating with police and consequently the information he gave them were necessarily suspect. He likens Parker to a professional informant; however, it is well settled in Illinois that absent indications that the person who supplied the information is a paid police informer, there is a presumption that he is an ordinary citizen (People v. Duncan (1982), 104 Ill. App. 3d 701, 432 N.E.2d 1328) whose information has inherent reliability (People v. Martin (1977), 46 Ill. App. 3d 943, 361 N.E.2d 595) and thus is not subject to the same scrutiny as that received from an informer from the criminal milieu, who is paid for his information (People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466). This is especially true where the person making the report was a victim or eyewitness to the crime. (Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317; People v. Garcia (1981), 94 Ill. App. 3d 940, 419 N.E.2d 542.) Here, while it is not our intention to minimize the seriousness of Parker’s convictions, neither do we believe that they automatically classify him as a person devoid of credibility or as a professional informer, and defendant has presented no contrary evidence in those regards. We therefore agree with the trial court’s characterization of Parker as a “citizen” from whom the police obtained information concerning a crime being investigated.

Neither do we find any record support for defendant’s allegation that Parker was a suspect in the instant offense; to the contrary, Investigator Elmore expressly denied that Parker was thought to have been involved therein. Moreover, in the recent case of People v. Cruz (1983), 119 Ill. App. 3d 868, 457 N.E.2d 1281, we held that under the “totality of circumstances” analysis of Gates, the fact that the informant is also a suspect in the crime and may even have been taken into custody therefor, is not a determinative indicium of his unreliability, but is merely one factor, the import of which is to be weighed and balanced within the totality of circumstances. Thus, assuming arguendo that Parker’s motives for cooperating with police were questionable, it is our opinion that his explicit and detailed eyewitness account of the shooting adequately compensated for any alleged deficiency in his overall reliability.

Finally, while it is our view that the trial court’s denial of defendant’s motion to quash is supported by both pretrial and trial testimony, we additionally note that nowhere in the record did the court say, as defendant asserts, that Parker’s reliability was irrelevant to a determination of probable cause, nor was there any indication therein that the court discounted any evidence which might have cast doubts upon the trustworthiness of his information. Therefore, we find no merit in defendant’s contention that neither Parker nor the information he gave the police was sufficiently credible to establish probable cause for his arrest.

Given this finding and noting that defendant does not argue that his confession was involuntarily given, it follows that his second contention — that the confession should have been suppressed because it was the fruit of the alleged illegal arrest — must be rejected as merit-less.

Defendant next contends that certain comments by the prosecutor in rebuttal argument denied him a fair trial. He argues that the prosecutor misstated the burden of proof and improperly referred to excluded evidence and to crimes with which he was not charged.

Although a prosecutor is permitted wide latitude in closing argument (People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119), his comments must be based on evidence admitted at trial or on reasonable inferences therefrom (People v. Wallace (1981), 100 Ill. App. 3d 424, 426 N.E.2d 1017). Furthermore, comments which are designed to shift the burden of proof (People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127) or reduce it to a pro forma detail are improper (People v. Frazier (1982), 107 Ill. App. 3d 1096, 438 N.E.2d 623). However, they do not necessitate reversal unless they result in substantial prejudice to defendant (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200); i.e., that they were such a material factor in defendant’s conviction that the jury would likely have reached a contrary verdict had they not been made (People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68). Moreover, defendant’s failure to make a timely objection to the comments at trial or to specify them in his post-trial motion generally constitutes a waiver of any improprieties in closing argument. People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

Defendant first argues that the prosecutor misstated the law regarding .the State’s burden of proof and thus undermined his presumption of innocence. At the outset of rebuttal argument, the prosecutor stated:

“I am the final attorney to have the opportunity to speak to you and the reason why the State has the opportunity to speak to you last is we do have the burden of proof. This is no different in this case than in any other case tried in this building or in this county or in the state or in the country.”

Because no objection was made to this remark at trial and since it was not alleged as error in defendant’s post-trial motion, it must be deemed waived for purposes of review. Moreover, although defendant cites numerous cases wherein similar remarks have been held to be improper, we note that in each of these cases reversal was based either on other grounds or on the cumulative effect of numerous instances of prosecutorial misconduct resulting in substantial prejudice to the accused. (See People v. Scaggs (1982), 111 Ill. App. 3d 633, 444 N.E.2d 674; People v. Frazier (1982), 107 Ill. App. 3d 1096, 438 N.E.2d 623; People v. Johnson (1981), 102 Ill. App. 3d 122, 429 N.E.2d 905.) Here, it is our view that when read within the context of the closing and rebuttal arguments in their entirety, the challenged comment was not so prejudicial as to have been a material factor in defendant’s conviction. See People v. Young (1983), 118 Ill. App. 3d 803, 455 N.E.2d 845.

Defendant next argues that the prosecutor violated the trial court’s ruling on a motion in limine by twice commenting on excluded evidence. In closing argument, the prosecutor stated:

“The defendant, at that point, after being involved in the killing of one man, he goes to the tavern, goes under the El tracks of the tavern and gets his shotgun ***.”

Defendant posits that by this statement, the prosecutor violated the trial court’s ruling to exclude evidence concerning the shotgun used to kill “Mookie” Tate, and that the court therefore erred in overruling his objection and denying his motion for a mistrial on the basis of this comment. We disagree. At trial, Detective Keane testified that according to defendant, after leaving the scene of the shooting, he (defendant), Tate, and Dillon went to a tavern to retrieve a shotgun with which to shoot a gang member known as “Cowboy.” No objection was made at the time this testimony was given, although shortly thereafter defense counsel did object to the prosecutor’s inquiry concerning the whereabouts of “Mookie” Tate, and in a sidebar conference thereon, the court granted defense counsel’s motion to bar the introduction of any evidence regarding the fact that Tate had been murdered, allowing the State to establish only that Tate was dead.

In response to defendant’s second motion, to exclude evidence of other crimes, the court stated: “That will be denied because I heard no evidence of other crimes.” Thus, while it is clear that evidence concerning Tate’s murder was excluded, we see nothing in the court’s ruling barring any reference to the shotgun, nor have we found anything in the record establishing a connection between the shotgun and Tate’s murder from which we could even infer that such an exclusion was intended. To the contrary, in arguments on the motion, defense counsel acknowledged that the shotgun was unrelated to Tate’s death. Thus, it is our view that the challenged remark, although of unexplained relevance, was not an inaccurate recount of evidence admitted at trial.

Defendant further argues that the prosecutor’s follow-up comment, that defendant “became involved in the shooting of another man named ‘Cowboy’ ” similarly violated the court’s ruling on the motion in limine and deprived him of a fair trial. Although this comment was not a wholly accurate representation of Keane’s testimony, inasmuch as Keane did not testify that defendant admitted being involved in the shooting of “Cowboy” but, rather, that he retrieved the shotgun with the intent to so use it, we note once again that defendant failed to demonstrate that there was a relationship between the plan to shoot “Cowboy” and the murder of “Mookie” Tate which would bring the former within the purview of the court’s ruling to exclude evidence concerning the circumstances of Tate’s death. Furthermore, in our judgment, any potential prejudice which might have resulted from this remark was obviated by the trial court’s reminder when overruling defendant’s objection to the comment, that the jury was not bound to accept the prosecutor’s version of events testified to at trial. Finally, in view of the overwhelming evidence of guilt, including defendant’s own inculpatory statement, we cannot see how this remark could have contributed to the guilty verdict.

Defendant’s final allegation of impropriety in closing statements concerns the prosecutor’s admonition to the jury that “society will not tolerate someone who will hide behind the actions of another when they are actively involved, for instance, dope dealers that use juveniles to deliver ***.” Defendant maintains that the reference to “dope dealers” was meant to imply that he was involved in illegal trafficking of drugs — a crime with which he was not charged. While it is conceivable that this unfinished remark was intended to exemplify the rationale underlying the doctrine of accountability on which defendant was charged in this case, we need not engage in conjecture on this point since the trial court sustained defense counsel’s objection and ordered the comment to be stricken, thus curing any error which might otherwise have occurred.

In summary, we do not believe that the prosecutor’s remarks, either individually or in the aggregate, were so prejudicial as to have been a material factor in defendant’s conviction or to have denied him a fair trial.

Lastly, defendant contends that he was denied due process by the State’s knowing use of the perjured testimony of its principal witness. Specifically, defendant posits that Parker committed perjury when he testified that no promise of lenience for violation of parole had been given in return for his testimony. Although defendant raised this issue in his post-trial motion, it is clear that there is no direct evidence that such a promise was made, and in fact, the only testimony in that record, from Parker and other State’s witnesses, was that there were no promises of leniency. Moreover, in support of his position here, defendant asserts only matter not in the record; namely, that Parker was released from jail five days after the conclusion of the trial and served only 210 days of his 300-day sentence. It is well settled that an allegation that the State obtained a conviction by knowing use of perjured testimony is an issue of constitutional magnitude (People v. Graham (1977), 48 Ill. App. 3d 689, 363 N.E.2d 124); however, such claims generally will not be considered by a reviewing court where the issue was not presented to and ruled upon by the trial court and, as here, the facts alleged in support of the claim do not appear in the record (People v. Macias (1968), 39 Ill. 2d 208, 234 N.E.2d 783). Rather, section 122 — 1 of the Code of Criminal Procedure of 1963 (the Post-Conviction Hearing Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1) provides the appropriate procedure through which defendants may assert such a charge. That section provides:

“Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article. The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit.”

The function of the pleadings required by this section is to determine whether defendant is entitled to an evidentiary hearing and to afford the State the opportunity to respond (People v. Airmers (1966), 34 Ill. 2d 222, 215 N.E.2d 225), and in order to receive such a hearing, the defendant must make a substantial showing, by verified affidavit specifying with reasonable certainty the evidence which supports his allegation, that his constitutional rights were violated (People v. Ashley (1966), 34 Ill. 2d 402, 216 N.E.2d 126).

It appears that no such petition was filed and, on the basis of the record before us, we find no basis to support defendant’s contention that he was denied due process because of perjured testimony.

For the reasons stated, the judgment is affirmed.

Affirmed.

MEJDA, P.J., and WILSON, J., concur.

      There was considerable conflict concerning the date of defendant’s arrest. He consistently maintained that the police apprehended him on August 24, 1981, while police officers testified that the correct date was August 25, 1981. Defense counsel ultimately deferred to the officers’ recollection.


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GUY McCREARY, Defendant-Appellant.
    Second District
    No. 83 — 2
    Opinion filed May 2, 1984.
    George P. Lynch, of Chicago, for appellant.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In a jury trial, the defendant, Guy McCreary, was convicted of residential burglary and theft of property of a value in excess of $300. He was sentenced to concurrent terms of eight years’ imprisonment for residential burglary and three years’ imprisonment for felony theft. He appeals, contending that the offenses of burglary and theft involve the same physical act, that he was not proved guilty of residential burglary beyond a reasonable doubt, that the jury verdict was insufficient to convict him of felony theft, and that various rulings on the admission of evidence denied him a fair trial.

The charges arose from the taking of approximately $330 from a container located in the home where defendant’s sister, Kelly Mc-Creary, and her fiance, Wade Young, lived.

I

The record fully supports the conviction of the offense of residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 3(a).) Defendant argues principally that he did not go into the house when Robert J. Browne, codefendant, separately tried, broke into the house and took the coins; that he was not shown to be accountable for Browne’s action in breaking in. The record is otherwise. The defendant was in the residence earlier in the day to visit his sister and saw Young counting the money which he kept in a water jug. There was testimony that defendant was aware that his sister and her fiance were to drive into Chicago later in the day to order a wedding cake. There was some conversation that he was to accompany them as they did not know the way. They drove into Chicago without him. In the afternoon he drove Browne to the house and himself knocked on the front door. According to defendant’s statement, Browne told him to wait for him in the car. Defendant was “not sure” whether he went into the house himself. Entry was gained by Browne by breaking a rear window. Defendant was in the car when Browne came out with the money in the water container. Defendant accompanied Browne to a grocery store and himself secured the paper bags. He then drove the car with Browne as a passenger to a bank after first, with Browne, dumping the money into the bags. The defendant went into the bank and secured paper money for the coins. Later in the car Browne either gave him part of the money or defendant took it before giving it to Browne. Defendant threw the jug which had contained the coins into a dumpster.

Defense counsel sought to advance the theory that the State had failed to prove that defendant was not authorized to go into the house, and also that there was not proof beyond a reasonable doubt that defendant had the intent to commit a felony or a theft. (See People v. Weaver (1968), 41 Ill. 2d 434, 439.) Based on his sister’s testimony to the effect that defendant “was supposed to come back to the house that day,” he argues that his presence was thereby explained and that his acts following the taking were not proof of burglary. We cannot agree. First, the jury could infer that the sister’s testimony was in reference to the fact that defendant was to return to drive them into Chicago at an earlier time. In addition, Young testified that defendant did not have authority and defendant in his statement admitted this. Defendant’s subsequent acts were also circumstantial evidence of his participation in the entire scheme. The jury could properly infer from the evidence that defendant was an accomplice to the burglary. See People v. Davis (1977), 54 Ill. App. 3d 517, 524.

II

The bank teller testified that the person who said he was Guy McCreary brought in $298.63 in coins. Young testified that there was approximately $330 in the jug, and this included “thirty some” dollars in bills. He said that in the morning when he was counting the money he gave $4 to defendant. The jury was instructed on both the definition of misdemeanor theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)(1)) and felony theft (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)(3)). Under the issues instructions the jury was informed that proof of value of over $300 was required to find the defendant guilty of “theft.” However the verdict furnished to the jury and which they returned found the defendant “[gjuilty of the offense of Theft.” A separate verdict of “[n]ot guilty of the offense of theft under $300” was submitted to the jury and returned.

The defendant argues that the two verdicts were conflicting and ambiguous so that the failure of the jury to specify whether the defendant was found guilty of theft of property with a value greater than $300 (particularly in light of the fact that the value of the property was contested) was insufficient to prove guilt of the felony theft beyond a reasonable doubt.

Defendant’s counsel failed to object to the verdict forms which were submitted by the State. The rule of waiver does not apply where instructions are so contradictory that the jury cannot perform its constitutional function. (See People v. Jenkins (1977), 69 Ill. 2d 61, 66-67.) In Jenkins a mandatory instruction as to the offense of attempted murder was submitted by the State. There was no reference to an essential element of the case, that the defendant was not justified in using the force employed. Another instruction proffered by the defendant and given, did however correctly state that element. The court held that two mandatory instructions containing such a substantial conflict confused the jury and amounted to reversible error. However the failure to give instructions to which a defendant is entitled but does not request will not rise to plain error when the total instructions to the jury together with arguments of counsel apprise them of the missing element. (See People v. Huckstead (1982), 91 Ill. 2d 536, 544-45.) In People v. Tannenbaun (1980), 82 Ill. 2d 177, the jury was not instructed on the element of felony value nor did the verdict forms reflect that item; and defense counsel did not object nor raise the issue post-trial. The supreme court held that, particularly when value is disputed, the jury should be instructed as to the amount required to prove felony theft. However, since the record clearly established value over the required amount, it was held that no prejudice occurred and that the waiver rule would not be applied. 82 Ill. 2d 177,182.

The omission of value on the felony verdict form here would not appear to be a Jenkins class of error. The issues instruction states that proof over $300 in value is necessary to find defendant guilty of theft; and since the jury found the defendant not guilty of theft under $300 it does not appear to have been misled or confused by the failure to include the $300 figure in the theft verdict. It was obviously intended that the verdict was for felony theft, and it appears that the jury while deliberating sent a note to the judge which was apparently not answered in which they asked if they needed to find the defendant guilty of theft under $300 if they decided his guilt as to “theft.”

The theft verdicts also were not subject to defendant’s assertion of their inconsistence. The only issue is whether the verdict of guilt is supported by the evidence and neither legal nor logical consistency is required in assessing guilty and not guilty verdicts. (People v. Lavas (1983), 113 Ill. App. 3d 196, 198.) We conclude that the form on which the guilty verdict was returned does not rise to the level of plain error under all the circumstances so as to justify an exception to the rule of waiver.

III

Defendant’s argument that the convictions for residential burglary and for theft were based on the same physical act contrary to People v. King (1977), 66 Ill. 2d 551, is based on the premise that defendant was not accountable for the entry into the house and was only involved to the extent he went to the bank with the codefendant and converted the coins into currency. As we have previously indicated, the jury could properly and did find otherwise. Theft is not an included offense of burglary, and each has elements not included in the others so that multiple convictions of theft and burglary are not contrary to the doctrine of King. See People v. Baker (1978), 57 Ill. App. 3d 401, 404-05.

IV

Defendant argues that several rulings on evidence deprived him of a fair trial:

A. He first contends that he was denied due process because hearsay identifications were utilized against him as substantive evidence. The claim of error is based on the fact that the bank teller, Mary Sue Hollingsworth, did not identify the defendant in court as the one who came to her cage and to whom she gave the money. Investigating officers testified that Ms. Hollingsworth identified photographs of the defendant in April of 1982 as the person who had come to her in the bank. There was also evidence on a prior occasion that Ms. Hollingsworth had identified another person, neither the defendant nor codefendant, as being in the bank with the money. Whether hearsay identification of a defendant without in-court identification is permissible is subject to guidelines set forth by the supreme court in People v. Rogers (1980), 81 Ill. 2d 571, 579:

“If a third person were to testify that he saw or heard A identify B as the person who committed the offense, that would obviously and clearly be hearsay testimony and would not be admissible. However, if A testifies that he previously identified B and his veracity is tested by cross-examination, the reason for excluding the third person’s testimony has been removed. The third person should then be permitted to testify that he heard or saw A identify B because both A and the third person would be subject to cross-examination concerning the out-of-court identification. Evidence of such out-of-court identification by both A and the third person should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence. Before the third person is permitted to testify as to A’s identification of B, A should first testify as to his out-of-court identification.”

We conclude that the circumstances of this record satisfy the requirement of Rogers that the witness should first testify as to his out-of-court identification. Hollingsworth did testify that the man who asked her to exchange the coins for paper currency gave his name as Guy McCreary. She also testified to her out-of-court identification of the man whom she saw and who said he was Guy McCreary. The witness was also present in court and her veracity was tested by cross-examination, which in this case brought out the fact that she had mistakenly identified someone else at one time. Finally, the fact that the witness was unable to make an in-court identification of the defendant as he appeared at the time of trial does not require the conclusion that the officer’s testimony amounted to reversible error because it was not in corroboration of an in-court identification. While as previously noted, the witness did not make an in-court identification as such she did identify the person whom she saw and who gave his name as “Guy McCreary.” In addition, defendant’s statement did confirm the fact that he was present in the bank and gave that name to Ms. Hollingsworth.

The defendant’s counsel failed to object to the testimony of the officers at trial. In our review of the issue under the plain-error rule (87 Ill. 2d R. 615(a)), we conclude that, in any event, admission of the hearsay testimony of the officers with reference to Ms. Hollingsworth’s identification does not rise to the level of plain error. Defendant’s oral and written statements establish that he was the man who changed the money at the bank and showed his participation in the burglary as an accomplice. Further, Ms. Hollingsworth’s prior identification and testimony could have had no substantial effect on the jury particularly when it was brought out that she had previously identified another person and was unable to identify the defendant in court.

B. Defendant finally argues that he was prejudiced by submission of five photographs to the jury because they were “Mug Shots.” He relies on People v. Murdock (1968), 39 Ill. 2d 553. In Murdock, the supreme court held that photographs that would suggest to the jury that they were “Mug Shots” taken from police files, with no probative purpose for their admission, constituted reversible error.

Here, during the State’s case it was shown that on the day following the burglary Ms. Hollingsworth, the bank teller, picked out defendant’s photograph from a series of five photographs. There was no objection to this line of questioning and in fact defense counsel on cross-examination of Ms. Hollingsworth brought up the testimony that at a prior proceeding she had also identified a different photograph. When the State sought to have the five photographs introduced, defense counsel initially objected on the ground that they were irrelevant and prejudicial. The objection was overruled with the court declaring that no photographs would be admitted without the removal of all identifying marks of the Wheaton police department. This was done to the satisfaction of defense counsel, who then stated that he had no objection. The contention was also not raised in the written post-trial motion. On the record before us we find no reason to make an exception to the rule of waiver.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and HOPE, JJ., concur.