author: Mr. JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL J. GIANGRANDE, Defendant-Appellant.
    First District (3rd Division)
    No. 80-1592
    Opinion filed September 9, 1981.
    — Rehearing denied November 30, 1981.

      Paul Bradley, of Chicago (Bruce Dopke, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Mark E. Thompson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

Defendant, Michael Giangrande, following a jury trial was found guilty of murdering his wife, Patricia, and sentenced to the Department of Corrections for 60 years. He appeals.

The record indicates that at approximately 9 a.m. on Sunday, August 26, 1979, Robert Kooy, a Kankakee County farmer, while driving to church with his wife and daughter, noticed two cardboard boxes in his soybean field. There was dew on the ground but no dew on the .boxes, indicating they had been placed in the field sometime after sundown the previous evening. Both boxes were neatly taped closed. Kooy, after consulting with his wife, opened the larger box and found it contained a woman’s body without arms, legs or head. The box containing the torso had dark printing on it which said “Marathon Toilet Tissue” and also was marked in crayon, “Pine Grove Motel.” Other items were found that morning along a roadside about one-half mile south of where the two boxes were found. The other items included a large clear plastic bag which contained a Big Wash laundry detergent box which in turn contained other clear plastic bags which were all bloody, and a pair of rubber gloves. Next to these items was an empty brown paper bag from Colony Foods. All of these, together with the two boxes found earlier were removed to St. Mary’s Hospital, where the woman’s torso was removed from the box. It was clothed in a night gown, completely covered with blood and enclosed in a clear plastic bag. There was a dark hair in the blood on top of the woman’s left breast, and it was removed and placed in a cannister. The smaller, second box was opened. In it was a clear plastic bag containing two arms without hands, two legs which had been severed at the knees, and a head, all covered with blood. Hair samples were removed from the deceased. The body was identified as being that of Patricia Giangrande.

The following Tuesday, August 28, 1979, a search of the Giangrande home produced a large roll of plastic bags which appeared to be of the same type as found with the victim’s body. Later, in January 1980, a blood stain was found on the frame of the bed used by the defendant and his wife.

On appeal defendant raises three arguments regarding the sufficiency of the evidence: that the State failed to prove beyond a reasonable doubt that the victim’s death was produced by a criminal agency; that he was not proved guilty of murder beyond reasonable doubt; and that the State failed to establish venue in Cook County beyond a reasonable doubt. We discuss these contentions in that order.

Defendant’s contention that the State failed to prove beyond a reasonable doubt that the victim’s death was produced by a criminal agency is without merit. Dr. Edward Shalgos, who performed the autopsy on the deceased, testified regarding three areas of applied trauma to the head and multiple abrasions on the chest, and that there was no blood in the body. He testified that there were no major organ changes explanatory of death, and as to his opinion of cause of death. His opinion, to a reasonable degree of medical certainty, was that either the victim had died from cardiac arrest due to the applied trauma, most significantly to the cardiac region, or if she was alive when she was dismembered, then exsanguination would have killed her.

In a trial for murder, the corpus delicti “consists of two parts or essential elements, — the fact of death, and the fact that death was produced by the criminal agency of some person.” (People v. Garrett (1975), 62 Ill. 2d 151, 172, 339 N.E.2d 753; People v. Manske (1948), 399 Ill. 176, 183, 77 N.E.2d 164.) Both must be established beyond a reasonable doubt. (People v. Garrett (1975), 62 Ill. 2d 151, 172.) The fact of criminal agency may be shown by circumstantial evidence. (People v. Holland (1973), 11 Ill. App. 3d 591, 594, 297 N.E.2d 310.) There is no question as to the fact of death, and Dr. Shalgos’ testimony was sufficient to establish beyond a reasonable doubt that the victim died as the result of a crimina] agency.

Defendant contends that suicide was not ruled out as a cause of death. Dr. Shalgos testified, on cross-examination, that there was a theoretical possibility that shortly after the beating of the victim, she could have cut her wrists and bled to death prior to dismemberment. This theory borders on the incredible, and does not amount to a reasonable hypothesis of innocence.

Defendant also argues that the evidence was not sufficient to prove that he was the person who committed the crime. A jury’s determination of guilt will not be disturbed “unless the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt.” People v. Burns (1980), 81 Ill. App. 3d 860, 863, 401 N.E.2d 1130.

Defendant’s murder conviction rests solely on circumstantial evidence. A conviction for murder may be.based solely on circumstantial evidence (People v. Williams (1977), 66 Ill. 2d 478, 485, 363 N.E.2d 801; People v. Hayes (1979), 70 Ill. App. 3d 811, 820, 388 N.E.2d 818), but the circumstantial evidence “must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.” (People v. Williams (1977), 68 Ill. 2d 478, 484.) Where a conviction is based entirely on circumstántial evidence, the facts proved must be consistent with the defendant’s guilt and inconsistent with any reasonable hypothesis of innocence. (People v. Branion (1970), 47 Ill. 2d 70, 77, 265 N.E.2d 1; People v. Wilson (1948), 400 Ill. 461, 473, 81 N.E.2d 211; People v. Burns (1980), 81 Ill. App. 3d 860, 863.) If the proof is entirely circumstantial and there is a reasonable hypothesis arising from the evidence which is consistent with the innocence of the defendant, then that hypothesis must be adopted. (People v. Wilson (1948), 400 Ill. 461, 473.) However, guilt need not be established beyond any possibility of a doubt. (People v. Williams (1977), 66 Ill. 2d 478, 485; People v. Branion (1970), 47 Ill. 2d 70, 77.) A jury is “not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.” People v. Russell (1959), 17 Ill. 2d 328, 331, 161 N.E.2d 309.

We believe that the circumstantial evidence presented by the State at trial was sufficient for a jury to conclude that defendant was guilty beyond a reasonable doubt. The hair found on the victim’s breast, two hairs removed from the rubber gloves, three hairs found on the underside of the tape of the torso box, and other hairs in evidence exhibited characteristics consistent with the known hair standards of defendant. The two boxes in which the body was found came from defendant’s home. Plastic bags similar to the plastic bags containing the body were found in defendant’s basement, and a rubber glove similar to the rubber gloves found near the body was recovered from defendant’s home. Scraps of tape were observed on some plastic bags found in defendant’s garage, and tape of similar width and type was found on the boxes in which the body was found. A blood stain was discovered on the bedrail in defendant’s and the victim’s bedroom, and this stain was of human blood type AB, the victim’s blood type. A section of carpet beneath this stain had been cut out. Dr. Shalgos testified that the amputations were well organized and systematic and that the perpetrator had an understanding of flesh. Defendant had worked as a meat cutter and had used a butcher knife and an electric saw in that capacity. Further, defendant had an. argument with the victim during the early morning hours of Friday, August 24, 1979. Defendant, in fact, testified that he had difficulties dealing with the victim and that he had received counseling. In addition, the place where the body was found was accessible from defendant’s home. This evidence, together with the other evidence elicited at trial, was sufficient to sustain a conviction in a trial free from prejudicial error.

We also conclude that the evidence was sufficient to establish venue within Cook County beyond a reasonable doubt. It is well settled that venue is a fact which must be proved beyond a reasonable doubt. (People v. Smith (1980), 91 Ill. App. 3d 242, 245, 414 N.E.2d 751; People v. Toellen (1978), 66 Ill. App. 3d 967, 970, 384 N.E.2d 480; People v. Ross (1968), 99 Ill. App. 2d 454, 457, 241 N.E.2d 665.) Venue may be proved by circumstantial evidence. (People v. Mowry (1955), 6 Ill. 2d 132, 139, 126 N.E.2d 683; People v. Smith (1980), 91 Ill. App. 3d 242, 245; People v. Ross (1968), 99 Ill. App. 2d 454, 457.) Venue is sufficiently established “if, from the facts appearing in evidence, the only rational conclusion which can be drawn is that the offense was committed in the county alleged.” People v. Mowry (1955), 6 Ill. 2d 132, 139.

The jury was properly instructed on the issue of venue and could conclude beyond a reasonable doubt that the offense was committed within Cook County, as alleged in the indictment. Defendant and the victim resided in Cook County. The boxes in which the victim was found came from his Cook County home, and the victim and defendant had an argument in that home just prior to her alleged disappearance on Friday, August 24,1979. Further, blood of the same type as the victim was found in the victim’s and defendant’s bedroom. Although the body was discovered in Kankakee County, there was no evidence that the offense was committed in that county. There was sufficient evidence for the jury to conclude that venue was established.

In sum, we conclude that the evidence produced at trial would be sufficient to sustain a conviction. However, we believe that the cumulative effect of errors that occurred during the trial deprived defendant of a fair trial and require reversal and a new trial.

Defendant contends that certain comments by the prosecutor in closing argument were designed to shift the burden of proof to defendant. The most blatant comment, according to defendant, was as follows:

“What it means is, this man had the ability to do what Dr. Shalgos told you was necessary, told you any ordinary person couldn’t have done what was done. 0 * * could be a hunter, could be a doctor, could be a butcher, but Michael Giangrande is a butcher—
MR. BRADLEY [defense counsel]: Objection.
MS. PROBES [prosecutor]: (Continuing) — and his wife was butchered. Now where’s the evidence that the defendant didn’t do it?
MR. BRADLEY: Objection. He has no obligation to prove anything, and for her to say that we need evidence that he didn’t do it is a total contradiction of law in this state.
THE COURT: It wasn’t said that you needed evidence.
MR. BRADLEY: She said, where’s the evidence.
THE COURT: I heard what was said, Mr. Bradley. Overruled.” (Emphasis added.)

Defendant relies upon People v. Weinstein (1966), 35 Ill. 2d 467, 220 N.E.2d 432. In that case, a prosecutor made repeated assertions to the jury that the defendant had the burden of introducing evidence to create a reasonable doubt of her guilt before she could be acquitted. Objections were made to these assertions which the trial court repeatedly sustained. Nevertheless, the supreme court held that manifestly prejudicial error had occurred, and it stated:

“[T]he prosecution has the burden of proving beyond a reasonable doubt all the material and essential facts constituting the crime. [Citations.] The burden of such proof never shifts to the accused, but remains the responsibility of the prosecution throughout the trial. [Citations.]” 35 Ill. 2d 467, 470.

We are of the opinion that the comment quoted above, when viewed in context, tended to shift the burden of proof to the defense. In reaching this conclusion, we recognize that a prosecutor may comment on the uncontradicted nature of the State’s case even where the only person who could have contradicted the State’s evidence was the defendant himself. (People v. Skorusa (1973), 55 Ill. 2d 577, 584, 304 N.E.2d 630; People v. Curtis (1977), 48 Ill. App. 3d 375, 387, 362 N.E.2d 1319.) The comment in the instant case asks, “where’s the evidence.” It is more than a comment that evidence is uncontradicted. The comment may well have improperly suggested to the jury that defendant had a burden to introduce evidence. Objection to it was overruled by the trial judge. This was error..

Defendant also complains of prosecution closing argument comment concerning the “hair” evidence. A portion of that comment follows:

“Don’t you find it a little suspicious that Michael Giangrande’s head and arm hair would have ended up on the underside of the tape?
MR. BRADLEY: Objection, that’s not the evidence.
THE COURT: I think you could be a little more accurate on that, Ms. Propes.
MS. PROPES: Don’t you find it suspicious that limb hair of Michael Giangrande would be on the tape?
MR. BRADLEY: Objection, that’s not the evidence.
THE COURT: That’s not the evidence.
MS. PROPES: Well, hair just like Michael Giangrande’s.”

There was no testimony that defendant’s hair was found on the tape of the torso box. Jennie Hahn, a forensic scientist, testified that three hair fragments removed from that tape could have originated from defendant. Two were microscopically identical to defendant’s known arm hair standard, and the third was microscopically identical to his head hair standard. Thus, the prosecutor overstated the evidence. We note that the court promptly corrected the prosecutor’s misstatements and that the prosecutor corrected her misstatement. Nevertheless, the hair evidence produced at trial was a significant element of the State’s proof, and the prosecutor’s comment may have caused the jury to give undue weight to the hair evidence.

We recognize that improper remarks by a prosecutor generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200; People v. Franklin (1976), 42 Ill. App. 3d 408, 421, 355 N.E.2d 634.) We cannot conclude that the closing argument comments of the prosecutor did not result in substantial prejudice to defendant.

Defendant also contends that reversible error was committed in the cross-examination and attempted impeachment of Laura Giangrande, a defense witness. The following colloquy occurred during the cross-examination of Laura:

“Q. On the way to Kankakee, did your father tell you that he felt that your mother had been—
MR. BRADLEY: Objection. • * #
MS. PROPES: It’s an admission.
THE COURT: Overruled.
MS. PROPES: On the way to Kankakee, did your stepfather tell you that he felt that your mother’s friend, Joanne, and her boyfriends had drugged your mother and forced her to submit to perverted, sexual acts, and then photographed her during the commission of those acts. Did he tell you that?
A. No.
Q. Well, now, Miss Giangrande, on August 28th, the very next day when Sergeant Marks and Sergeant Jackson came to your home, didn’t you tell them that your father had told you that on the way to Kankakee?
A. No.”

In rebuttal, Sergeant Marks testified as follows:

“Q. On that same day, did Laura Diane Giangrande relate to you a conversation that she supposedly had with her father about her mother on their way to Kankakee?
A. Yes, she did.
Q. What did she tell you about that?
[Objection overruled and question restated.]
A. She stated that her father told her that Mrs. Giangrande had a friend named Jo Anne Perry, and that she, Jo Anne Perry, had a black boyfriend. I believe his name was Jim, and that at one time, this Jo Anne Perry had drugged her mother and had taken pictures then of the mother performing certain sex acts with this black man, and later used those pictures to blackmail her into committing other sexual acts with some of her black friends.”

In closing argument, the prosecutor referred to this testimony primarily to impeach Laura’s credibility, but the prosecutor did state: “Either he told her that and she was telling the truth, * * * but she says he didn’t say it now, or she’s lying about it. # *

Defendant relies upon People v. Strubberg (1978), 61 Ill. App. 3d 521, 378 N.E.2d 191. In Strubberg, a defense witness, Diane Strubberg, on cross-examination denied telling Robin Wren that defendant told her that he killed a woman. Subsequently, Wren, called by the prosecution as a rebuttal witness, testified that Diane told her that she (Diane) heard defendant tell another person that he (defendant) killed a woman. In closing argument, the prosecutor referred to Wren’s rebuttal testimony. The court held that error occurred when the State presented evidence under the guise of impeachment that Diane told Wren that she overheard defendant say that he killed a woman. In that case the error was deemed harmless. The court stated:

“[I]t constitutes error when a prosecutor presents evidence of a prior statement of a witness implicating a defendant in the crime being tried for the purpose of having the trier of fact consider such statement as substantive evidence rather than merely for the purpose of impeachment.” 61 Ill. App. 3d 521, 527; see People v. Montgomery (1972), 51 Ill. 2d 198, 282 N.E.2d 138.

We are of the opinion that the purported impeachment of Laura Giangrande was improper under the principles recited in Strubberg. The prosecution, through its cross-examination of Laura, was attempting to show that defendant had motive to commit the crime for which he was being tried. Further, the prosecutor in closing argument argued that Laura might have been telling the truth when she told Sergeant Marks of defendant’s alleged statement. Thus, substantive use was made of the impeachment testimony. The evidence in the trial below was closely balanced. We cannot conclude that this error did not contribute to the verdict of guilty.

Defendant next contends that he was denied a fair trial by prosecution questions of defense witnesses which implied the existence of facts prejudicial to defendant since no foundation was produced for the questions after the facts alleged by the questions were denied by the witnesses. We address only one example cited by defendant. Laura Giangrande was asked the following question on cross-examination, and she gave the following response:

“Q. And isn’t it true that just a few days or within a week before this argument before your mother left, you and your mother had an argument which resulted in you being on top of her on the floor, hitting her?
A. No.”

No basis for this question was established in the State’s rebuttal case. Given that circumstance, it was improper for the prosecutor to assume during cross-examination of Laura that such an argument occurred. (People v. Curry (1975), 25 Ill. App. 3d 637, 644, 323 N.E.2d 778.) In People v. Nuccio (1969), 43 Ill. 2d 375, 381, 253 N.E.2d 353, our supreme court held that it was improper for the prosecution to make unsupported insinuations of misconduct on cross-examination without producing supporting evidence in response to denials of misconduct.

Although the cross-examination in the instant case may not have been as egregious as the pattern of unsupported insinuations in Nuccio, we feel that the prejudice resulting to defendant from the question quoted above was substantial. Laura Giangrande was an important defense witness.

The State contends that the question, at most, indicated to the jury that Laura did not “get along” with her mother, and that Laura in her testimony admitted that she and her mother did not get along very well. Although this other testimony may mitigate the effect of the improper question, the fact that a daughter’s relationship with her mother is less than amiable does not mean that they have physical fights. The State’s question suggests that Laura may have had a motive to testify falsely. This error, when considered in conjunction with the errors discussed above, deprived defendant of a fair trial.

Defendant raised other arguments in his brief which we do not address here. For the reasons stated above, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. JUSTICE McNAMARA

license: Public Domain

text:
    LAWRENCE A. MORSOVILLO, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF THE CITY OF BLUE ISLAND et al., Defendants-Appellees.
    First District (3rd Division)
    No. 80-2722
    Opinion filed October 21, 1981.
    Walsh & Neville, Ltd., of Chicago (Ronald F. Neville and Matthew Walsh, of counsel), for appellant.
    Judge, Drew, Cipolla & Kurnik, Ltd., of Park Ridge (Jay S. Judge, of counsel), for appellees.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Lawrence Morsovillo, brought this action for administrative review of his discharge from the police department by the Blue Island Civil Service Commission. The trial court affirmed the order of discharge, and plaintiff appeals.

Plaintiff was a police officer for the Blue Island Police Department. In February 1979, the chief of police ordered him to take a lie detector test relative to threats allegedly made against certain public officials of the city of Blue Island. The test was given to plaintiff on February 19, 1979, by John E. Reid and Associates. On March 19, 1979, plaintiff was suspended pending investigation of charges that he engaged in purposeful acts of noncooperation by distorting his respiration patterns during the test.

A hearing was conducted relative to the charge and certain witnesses testified. Although commission rules require all such hearings to be held before at least two commissioners, the commission appointed an outside hearing officer, and he alone heard the evidence.

At the hearing, which began April 19,1979, plaintiff’s counsel initially questioned the authority of the hearing officer and continued throughout the hearing to object to the absence of the two commissioners required by the rules. In overruling plaintiff’s objections, the hearing officer stated that he would “not be making any findings as to the credibility of the witnesses.” Testimony heard by the hearing officer included conflicting interpretations by two polygraph experts with regard to the readouts from plaintiff’s test.

The hearings were concluded on May 10, 1979, after which the hearing officer recommended to the commission that it find plaintiff had purposefully distorted his respiration patterns during the polygraph test. The commission adopted the hearing officer’s findings in full, ordered the chief of police to discharge plaintiff, and denied plaintiff’s request for a rehearing. In seeking judicial review, plaintiff alleged several errors on the part of the hearing officer as well as his lack of authority to conduct the hearing. The trial court affirmed the commission’s findings.

Plaintiff initially contends that the trial court incorrectly ruled that it was harmless error for the hearing to be conducted by a hearing officer rather than by a minimum of two commissioners as required by the commission’s rules. Conversely, the commission contends that it is empowered by statute to appoint hearing officers and was justified in deviating from its rules based on the rule of necessity.

Discharge of the plaintiff is governed by statute and by rules made pursuant thereto. The commission is correct in professing its statutory power to appoint a hearing officer. (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 1—18.) Furthermore, the use of a hearing officer, when authorized, to sift through and analyze evidence, has been approved by the courts. So long as the official who makes the final determination first considers and appraises the evidence which justifies it, there can be a hearing in a substantial sense. Morgan v. United States (1936), 298 U.S. 468, 80 L. Ed. 1288, 56 S. Ct. 906; Des Plaines Currency Exchange, Inc. v. Knight (1963), 29 Ill. 2d 244, 194 N.E.2d 89.

A corhmission, however, is also required by statute to make its own rules regarding removals. (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 1—5.) Once having established such rules a commission is thereafter bound by them. (Holland v. Quinn (1978), 67 Ill. App. 3d 571, 385 N.E.2d 92; Sye v. Wood Dale Fire Protection District No. 1 (1976), 43 Ill. App. 3d 48, 356 N.E.2d 938; Berwyn Savings & Loan Association v. Illinois Savings & Loan Board (1975), 29 Ill. App. 3d 965, 331 N.E.2d 254.) This is true even where a commission imposes upon itself, through its own rules, procedural duties beyond those required by statute. (Sye v. Wood Dale Fire Protection District No. 1.) Consequently, in the present case, hearings before the commission must be conducted before at least two commissioners even though, absent commission rules, the enabling statute would authorize the designation of an outside hearing officer.

Although an agency is bound to follow its own rules, the commission correctly asserts that its failure to do so does not necessarily require reversal of the administrative order. Where the action is within the limitations set forth by the legislature and where it causes the complainant to suffer no prejudice, reversal is not required. (Wells v. Health & Hospitals Governing Com. (1977), 52 Ill. App. 3d 183, 367 N.E.2d 258; Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App. 3d 394, 342 N.E.2d 298.) The use of a hearing officer in the present case was clearly authorized by the enabling statute. Therefore,- the only issue is whether or not plaintiff was prejudiced by the commission’s failure to adhere to its own rules.

In Flynn the court found no prejudice where the board, contrary to regulations, continued the hearing on its own motion beyond 30 days from the date of suspension. In Wells the commission failed to comply with a rule requiring that it give written notice to an employee of circumstances giving rise to any disciplinary action against him. The court found no prejudice since those circumstances had been discussed with the employee prior to the disciplinary hearing.

In contrast to Flynn and Wells, we find that the record supports a finding of prejudice in the present case. The basis of our holding is the strange assertion by the hearing officer that he would make no findings as to credibility. Such a statement is contrary to the duty he was required to perform. The principal issue at the hearing was a determination of the credibility of the two conflicting expert witnesses regarding the polygraph readouts of plaintiff’s testing. While the hearing officer recommended that the commission find that plaintiff had purposefully distorted his respiration patterns during the test, we hold that, in view of the hearing officer’s confusion as to his role, plaintiff was prejudiced by the commission’s failure to adhere to its rules.

In light of our holding that plaintiff was prejudiced, it is unnecessary to consider the other assignments of error urged by plaintiff. Nor need we consider the rule of necessity, relied on by the commission to justify deviation from its rules, since it is clearly inapplicable in the present case.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings in compliance with the commission’s rules and the holdings of this opinion.

Reversed and remanded.

RIZZI, P. J., and WHITE, J., concur.


author: Mr. JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAIF E. WASHINGTON, Defendant-Appellant.
    First District (4th Division)
    No. 80-1240
    Opinion filed October 22, 1981.

      Leonard L. Cavise, of IIT/Chicago-Kent College of Law, Legal Services Center, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and John D. Cecilian, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Raif E. Washington, was charged with unlawful use of a weapon within 5 years of his release from prison for a felony offense (Ill. Rev. Stat. 1977, eh. 38, par. 24 — 1(a)(4), (b)). After a jury trial, defendant was found guilty and sentenced to 3/2 years in the Department of Corrections. The defendant raises the following issues for review: (1) whether the trial court erred in denying a motion to suppress evidence obtained after search of an automobile in which he was a passenger; (2) whether the trial court erred in denying the proposed jury instruction limiting the effect of his prior conviction; and (3) whether the prosecutor’s statement in closing argument that the jury must choose between defendant’s and the police officers’ stories was prejudicial error.

On the morning of November 14, 1979, Chicago police officers Wayne Rajaniemi and Mark Andrus, who were on duty in a marked squad car, observed an automobile with no front license plate turning left onto North Avenue from northbound Wells. The officers followed the automobile for two blocks, then turned on the police car’s blue lights and honked for the automobile to stop. When it finally stopped, the automobile had traveled four blocks from where the police first saw it.

While following the car, the police saw two people in it. Defendant Washington was a passenger, seated next to the driver. After the blue lights were turned on, neither Washington nor the driver attempted to evade the police, but Washington turned to look at the police and then turned back. Then he dipped his shoulder as though he were putting something on the floor. Testimony at trial established that defendant turned back four times and leaned downward three times. At trial, Washington stated that he was turning the station on a radio which was on the floor of the car. The police also noticed that the rear trunk lock had been removed, appearing as though it had been punched out.

After the car had stopped, the policemen approached it, Rajaniemi with his gun drawn and Andrus with his hand on his gun. After the driver exited the car, Officer Andrus asked the driver for his license and patted him down at the rear of the car. Officer Rajaniemi asked Washington to get out of the car. After defendant got out on the driver’s side, Andrus searched him at the rear of the car. Then, entering the car through the driver’s side, Rajaniemi found a loaded .32-caliber revolver under the seat where Washington had been sitting. After the police read to him his rights, Washington stated that the gun was his, that he was carrying it because he had been robbed recently, and that he had the gun to protect himself. At trial, Washington denied making the statements and denied that he knew a gun was in the car. Testimony at trial established that the gun was unregistered and that no fingerprints were lifted from the gun.

Defendant contends the police officer’s search of the automobile went beyond the scope of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and, therefore, the fruits of the search, the gun and defendant’s oral statements, should be suppressed. Under Terry, a search for weapons in the absence of probable cause must be strictly circumscribed by the exigencies which justify its initiation and must be limited to that which might be used to harm the officer or others nearby. (Terry, 392 U.S. 1, 25-26,20 L. Ed. 2d 889, 908-09, 88 S. Ct. 1868, 1882-83.) The search must be restricted to the area within defendant’s immediate control. (Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Washington argues that the area under his control would not include the area searched by the policeman because that area was removed from defendant by distance, an inoperable door on the passenger’s side, and the full length of the automobile seat.

The issue of whether a Terry stop and frisk may be extended to a limited search of the vehicle in which the suspect was riding was addressed in United States v. Rainone (7th Cir. 1978), 586 F.2d 1132. In Rainone, police observed defendants in a car with headlights extinguished which was proceeding slowly through a parking lot next to a pizza parlor. It was 3 a.m., the pizza parlor was closed, and the parking lot was dark. The police approached the car and asked defendants for identification and an explanation for their presence. They ordered defendants out of the car and patted them down but found nothing. Then, leaving Rainone at the back fender of the car, a policeman searched the car, glancing at the front seat, the back seat and the floor. Seeing nothing, the officer placed his hand under the front seat and felt an object that he thought was a nightstick. Upon removing the object, he discovered it was dynamite and a detonation device. Defendants were charged with possession of a destructive device and conspiracy to destroy the pizza parlor. Defendants moved to suppress the evidence of dynamite possession.

The court of appeals held that where the suspect is driving an automobile, a pat-down of the outer clothing may not be sufficient to assure the safety of the policeman. In such cases, there is the real possibility that a weapon may have been secreted in a part of the automobile readily accessible to the suspect. This is true even where the suspect has been removed from the car. However, the rationale of the search of the automobile is limited to what is minimally necessary to uncover weapons to which the suspect will have easy access. The court found that the search in Rainone was restricted to permissible limits because the officer looked inside the car and placed his hand under the front seat. He removed the object from under the seat only after determining that it felt like a weapon such as a night stick. Rainone, at 1134-35.

Defendant contends that while the search of his person was within the scope of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the search of the automobile was not. This court holds that the search of the automobile was permissible under Terry. The search was in keeping with facts known to the police. The defendant had turned around four times and had dipped down, lingering in that position as if he were hiding something. The policeman could reasonably suspect that the object hidden would be incriminating. He was fearful for his safety since he approached the auto with gun drawn. The officer limited his search to the area underneath the car seat on the passenger side where he had seen defendant dip down. Since the search was permissible under Terry, the trial court properly denied the motion to suppress.

Defendant’s second contention is that it was error for the trial court to deny the jury instruction limiting the use of the prior conviction. Defendant tendered the following jury instruction:

“Evidence of the defendant’s previous conviction of a crime is to be considered by you only insofar as it may affect his credibility as a witness, and must not be considered by you as evidence of his guilt of the crime with which he is charged.”

Defendant argues that the jury should be informed that proof of a former felony conviction is not evidence of guilt of the current charge although it is an element of the offense.

Use of the proposed instruction would have confused and misled the jury. Defendant was charged with unlawful use of a weapon within 5 years of his release from prison for a felony offense. The prosecution must allege and prove a prior conviction in order to establish the commission of that crime. (People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496.) If the jury had followed this instruction, it could not have found defendant guilty of the crime charged because the material element of a prior conviction could not have been considered as substantive evidence. Therefore, we hold that denial of the jury instruction was proper.

Defendant’s final contention is that the prosecutor’s statement in closing that the jury must choose between Washington’s and the police officers’ stories was prejudicial error. The prosecutor stated:

“So, what it really boils down to, ladies and gentlemen, is the fact that either the defendant or the police officers are telling this jury the truth and you have got to decide which one, which one is telling the jury the truth as to what he was doing.”

Defendant argues that the prosecutor’s statement was a distortion of the principle of guilt beyond a reasonable doubt which was not cured by the reasonable doubt instruction.

We hold that the prosecutor’s statement was not prejudicial error. The prosecutor is permitted great latitude in closing argument (People v. Dominique (1980), 86 Ill. App. 3d 794, 806, 408 N.E.2d 280, 290), and may comment on the credibility of the defendant. (People v. Stufflebean (1974), 24 Ill. App. 3d 1065, 322 N.E.2d 488.) The prosecutor may ask a jury to compare the defendant’s story with that of other witnesses to decide what actually happened.

Furthermore, defendant did not object to the prosecutor’s statement at trial. When a defendant fails to make a timely objection, irregularities in the closing argument are waived. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Before plain error can be used to circumvent this general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed. (People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739, 743.) In this case, the evidence favors defendant’s guilt. The police found the gun under the car seat where defendant was sitting, and, although defendant denied it at trial, the police officers testified that defendant had admitted the gun belonged to him. Since the evidence is not close, the plain-error rule is not applicable.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

LINN and JIGANTI, JJ., concur.


author: Mr. JUSTICE LINN

text:
    ILLINOIS CENTRAL GULF RAILROAD COMPANY, Plaintiff-Appellee and Cross-Appellant, v. THE DEPARTMENT OF LOCAL GOVERNMENT AFFAIRS et al., Defendants.—(THOMAS C. HYNES, Assessor of Cook County, et al., Defendants-Appellants and Cross-Appellees.)
    First District (4th Division)
    No. 80-1282
    Opinion filed October 22, 1981.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Michael F. Baccash, Jane Clark Casey, Henry A. Hauser, and Ronald P. Stake, Assistant State’s Attorneys, of counsel), for appellant Thomas C. Hynes.
    Reuben & Proctor, of Chicago (Gary M. Elden, Samuel Fifer, and John A. Krivicich, of counsel), for appellee Illinois Central Gulf Railroad Company.
   Mr. JUSTICE LINN

delivered the opinion of the court:

Defendants, the Department of Local Government Affairs (DLGA), the Cook County Assessor, and the Cook County Treasurer in his position as County Collector, appeal from an order entered in the circuit court of Cook County which overruled an administrative finding of the DLGA. The DLGA, in 1979, had found that nine parcels of real estate owned by plaintiff, Illinois Central Gulf Railroad Company (Gulf), were subject to local assessment and taxation for the years 1971 to 1978. On review, under a petition filed pursuant to the Administrative Review Act, the trial court reversed the DLGA and found the property to be exempt from local assessment and taxation for those years. On appeal, defendants have sought reversal of the trial court and reinstatement of the finding of the DLGA.

We affirm the trial court’s order with modifications.

Background

The nine parcels of real estate in question are part of a land mass commonly known as the Chicago River Terminal, which is bound on the south by Randolph Street, on the north by the Chicago River, on the east by Lake Michigan, and on the west by Michigan Avenue. Prior to 1950, all of the Terminal property was owned by the Illinois Central Railroad Company, the Gulf’s predecessor in title, and was used by the Central exclusively for railroad purposes.

The Central was formed in 1851 by a charter granted by the State of Illinois. (“An Act to incorporate the Illinois Central Railroad company” (Priv. Laws of Ill. 1851, at 61).) Under its charter, the Central was required to construct and operate a midcontinental railroad in Illinois and was given the power to acquire land necessary to carry out this purpose. The Terminal property was acquired for this purpose by the Central in different acquisitions in the 19th and early 20th centuries.

Under the charter, the Central was required to pay a gross receipts tax to the State and a property tax assessed by the State. The Central was “exempted from all [other] taxation of every kind.” (Ill. Rev. Stat. 1979, ch. 120, par. 374.) This general exemption from local assessment and taxation applied only to property acquired by the Central to carry out its charter purpose, which was to construct, maintain, and operate a railroad. It did not apply to property acquired and used for nonrailroad purposes, which property was not exempt from local assessment and taxation. In re Swigert (1886), 119 Ill. 83, 6 N.E. 469.

All parties before us concede that all the Terminal property was exempt from local assessment and taxation until the 1950’s under the Central’s charter. Beginning in the 1950’s, because of the growth of interstate highways and the shipment of freight by truck, the Central’s need for the lake front terminal began to decline. As a result, the Central began to sell and convey different parcels in the Terminal area to private developers (the Prudential Building and the Outer Drive East are examples of such sales and conveyances). As soon as title to a parcel was conveyed, it became subject to local assessment and taxation. This series of piecemeal sales continued until 1969 when the Central entered into two separate contracts to sell all of its remaining property in the Terminal area to two entities, a limited partnership known as Metropolitan Structures and a joint venture known as the Illinois Center Plaza Venture.

The two contracts were executory in nature. Title to individual parcels was to be conveyed, and payments for those parcels were to be made, at different times over a period of 20 years, with all remaining property to be conveyed in 1990. The nine parcels in question in this case were subjects of the contracts. It appears that by 1979, title to these nine parcels had not yet been conveyed. Under the contracts, the Central reserved the right to use all property for railroad purposes until title was conveyed.

The two contracts were subject to approval by the Illinois Commerce Commission. To obtain such approval, the Central had to show that the sale of the property would not interfere with the Central’s duty to the public to maintain and operate the railroad. At hearings held before the Commission in late 1969, a representative of the Central told the Commission that the Terminal property was no longer necessary or useful to the Central in carrying out its operations and its duty to the public. He said that, though operations continued in the area, the Central could gradually relocate all of its operations in the area to its property south of Randolph Street without any noticeable impact on the public. The Commission approved the sale and the contracts became binding in late 1969.

Following the approval of the contracts, the Central continued to use property in the Terminal area for railroad purposes. However, the Cook County Assessor discovered that on January 1, 1971, nine random and unconnected parcels in the Terminal were vacant. The assessor determined that these nine parcels should be subject to local assessment and taxation because they were not being used for railroad purposes and because they were subjects of the contracts for sale. Proceedings were begun before the DLGA to determine whether the nine parcels were still exempt as charter line property of the Central. These proceedings lasted until 1979. At one point, in 1972, the DLGA issued an order holding the property to be nonexempt, but this order was later remanded by the trial court for the DLGA to take further evidence. Amendments were made in the proceedings over the years to include the years 1972 to 1978 as years in which the property should be subject to local assessment and taxation.

The original issue before the DLGA was whether the nine parcels were exempt as charter line property of the Central. This issue became somewhat complicated on August 10, 1972. On that date, the Central transferred all of its assets to the Gulf as part of a reorganization plan approved by the Interstate Commerce Commission. Because of this transfer, the supreme court subsequently held that the Gulf, after December 31,1972, had no right to the use of the Central’s tax exemption under the charter. (Snow v. Dixon (1977), 66 Ill. 2d 443, 362 N.E.2d 1052.) As a result, the legal issues before the DLGA changed after the transfer. Initially, the DLGA had to determine if the property was exempt as charter line property of the Central in the years 1971 and 1972. Then, the DLGA had to determine whether the property was exempt for the years 1973 to 1978 when it was owned by the Gulf.

The applicable exemption statute for the Gulf is found in the Revenue Act, section 79 et seq. (Ill. Rev. Stat. 1979, ch. 120, par. 560 et seq.). Under the Revenue Act, a railroad’s “operating property” is exempt from local assessment and from taxation based on such an assessment. “Operating property” is defined as:

“[A]ll tracks and right of way, all structures and improvements on such right of way, all rights and franchises, all rolling stock and car equipment, and all other property, real or personal, tangible or intangible connected with or used in the operation of the railroad including real estate contiguous to railroad right of way or station grounds held for reasonable expansion or future development.”

(Ill. Rev. Stat. 1979, ch. 120, par. 560(2).) Any real estate owned by a railroad which does not meet the definition of “operating property” is defined as “non-carrier real estate” and is subject to local assessment and taxation. Ill. Rev. Stat. 1979, ch. 120, par. 560(4).

Thus, the DLGA had to determine whether the property was exempt in 1971 and 1972 as charter line property and whether it was exempt in 1973 through 1978 under the Revenue Act as “operating property.”

The evidence presented before the DLGA was voluminous. Much of it was in the form of affidavits, charts, photographs, and documents. Little of the evidence presented by either side was challenged for its truthfulness and accuracy. As a result, the decision on whether the nine parcels were exempt depended on the application of the law to the following undisputed facts.

First, the nine parcels were included in the contracts for sale, but title to the nine parcels had not been conveyed while the proceedings were in progress. In the contracts, the Central had reserved the right, for itself and its assigns (the Gulf), to use the property for railroad purposes until title was conveyed.

Second, the Central had admitted in the proceedings before the Illinois Commerce Commission that the property was no longer necessary and useful to the railroad to carry out its public duty. However, the Central had also said that it would continue to use property in the Terminal area and all of its operations in the area could gradually be relocated to the area south of Randolph Street without any detriment to the public.

Third, the nine parcels were vacant on January 1, 1971. However, other parcels had tracks on them which were being used by the railroad. Also, though the parcels were vacant on January 1, 1971, over the years following 1971, at least three of the parcels had tracks placed on them at different times and those parcels were used for railroad purposes on occasion.

Fourth, during the years 1971 to 1978, both the Central and the Gulf actively and continuously solicited railroad business for the Terminal area including the nine parcels. Most of the attempts to entice third parties to contract for railroad services failed, but some were successful as to other areas in the Terminal.

Fifth, the Terminal area was designated in yearly tariffs filed with the Interstate Commerce Commission during the years 1971 through 1978 as being available for “team track” use. This meant that the railroad was willing to provide railroad services, in particular the transfer of freight from railroad cars to trucks, from the tracks in the area to anyone who applied with a legitimate offer. The area had been designated for “team track” use since the 1950’s.

Sixth, the nine parcels were exempt as charter line property for all the years preceding 1971. Also, though some of the parcels were vacant for the entire period from 1971 to 1978, since they were contiguous to or near other parcels which had tracks on them, temporary tracks could have easily been laid on the parcels and used by the two railroads if the railroads could have acquired business for the area. Neither the Central nor the Gulf ever attempted to use the nine parcels for other than railroad purposes.

Based on the above facts, the DLGA found that the nine parcels had lost their charter line exemption on January 1,1971, and were thus subject to local assessment and taxation for the years 1971 and 1972. The DLGA found that the nine parcels were not “operating property” under the Revenue Act for the years 1973 through 1978, but were “non-carrier real estate” subject to local assessment and taxation. On review under the Administrative Review Act, the trial court reversed the DLGA and held the property to be exempt for the years 1971 through 1978.

Opinion

I

Charter Line Exemptions

The facts as we have set them out are essentially undisputed. The issues presented to this court are primarily legal ones, which are: (a) based on the undisputed facts, were the nine pareéis exempt as charter line property of the Illinois Central during the years 1971 and 1972 and (b) based on the undisputed facts, were the nine parcels exempt as “operating property” of the Gulf during the years 1973 through 1978? (See In re Swigert (1886), 119 Ill. 83, 6 N.E. 469; cf. Caterpillar Tractor Co. v. Department of Revenue (1963), 29 Ill. 2d 564, 194 N.E.2d 257.) We first address the charter line exemption issue.

Under the general exemption of the Central’s charter, the railroad’s property was exempt from all taxation except taxes imposed by the State. (Ill. Rev. Stat. 1979, ch. 120, par. 374.) However, this exemption applied only to property acquired by the Central for the purpose of carrying out its charter. Thus, when the Central acquired property pursuant to its power under the charter, the property, to be originally exempt, had to be acquired for a purpose having a necessary connection to the construction, operation, maintenance, or development of its railroad. (In re Swigert (1886), 119 Ill. 83, 6 N.E. 469.) If the Central acquired property and used or intended to use it for any other purpose, the property was not deemed to be originally exempt from local assessment and taxation. (In re Swigert (1886), 119 Ill. 83, 6 N.E. 469; Illinois Central R.R. Co. v. Irvin (1874), 72 Ill. 452.) Finally, if the Central acquired property and used it for railroad purposes, thus making it originally exempt, and thereafter abandoned the property for possible use in connection with the railroad, the property would lose its exemption from local assessment and taxation. People ex rel. Lee v. Illinois Central R.R. Co. (1907), 231 Ill. 151, 83 N.E. 132.

The issue here is whether the nine parcels, which were originally exempt, lost their exemption by 1971. This depends on whether the facts show that the Central abandoned the property for possible use in connection with the railroad. (People ex rel. Lee v. Illinois Central R.R. Co. (1907), 231 Ill. 151, 83 N.E. 132.) In People ex rel. Lee, the supreme court failed to find such an abandonment based on facts less favorable to the Central than those in the present case. In that case, the railroad owned a quarry which it used to provide ballast for its tracks. There was no question that the property, when acquired, was exempt under the charter from local assessment and taxation. After several years of use, the Central ceased to operate the quarry with its own employees but entered into a contract with a third party which allowed the third party to locate a crushing plant on the property. The third party, under the contract, was required to provide the Central with stone for its tracks, but the third party could also sell stone to anyone else upon written consent of the Central.

After a few years of operation, the third party ceased operations in the quarry, and the railroad subsequently sold licenses to other third parties to remove ice from the quarry for their own benefit. The railroad stopped using the quarry for its own benefit entirely.

Based on these facts, the supreme court found that the property still retained its exempt status because the railroad had not abandoned the quarry for use in connection with the railroad. Though there was no evidence of any attempts by the Central to use the quarry for railroad purposes after the railroad ceased taking stone for use as ballast, the court said that the possibility of future use existed and thus abandonment had not been shown.

In the present case, though the nine parcels were subject to the contracts of sale, the Central reserved the right to use the property for railroad purposes and the possibility of future use for railroad purposes existed. In fact, the railroad made many attempts to procure railroad business for the area. Also, though all of the parcels were vacant on January 1, 1971, in the years thereafter tracks were actually placed on some of the parcels for railroad use. Additionally, the Terminal area, including the nine parcels, was available for “team track” use, and thus the railroad was ready and willing to use the area for railroad purposes upon demand. Finally, the railroad never attempted to use the property for any purpose other than railroad purposes.

Based on the foregoing, we cannot find that the Central abandoned the nine parcels for use in connection with the railroad, and we hold the nine parcels were exempt in 1971 and 1972 as charter line property of the Central.

II

Revenue Act Exemption

We turn now to the issue of whether the nine parcels were “operating property” of the Gulf during the years 1973 through 1978. The term “operating property” includes real estate connected with the operation of a railroad and real estate held for reasonable expansion or future development of the railroad. Ill. Rev. Stat. 1979, ch. 120, par. 560(2).

Defendants argue that the parcels were not being held by the Gulf for reasonable expansion or future development of the railroad. Defendants assert that, since the parcels were included in the contracts for sale, since the Central admitted at public hearings before the Illinois Commerce Commission that the Terminal property was no longer necessary or useful to the operations of the railroad, and since the parcels were vacant in 1971 and many remained vacant thereafter, the parcels could not be deemed to be held for reasonable expansion or future use.

Though all of the facts pointed out by defendants tend to support their conclusion, defendants’ argument ignores all the other facts in the case. The nine parcels were subject to the contracts for sale, but title to the nine parcels was not conveyed by the time the case was concluded at trial. The railroad had reserved the right to use any property in the Terminal area until title was conveyed, thus indicating an intent to continue to use the property when needed.

Though the railroad said in the proceedings before the Commerce Commission that the Terminal property was no longer necessary or useful in the performance of its operations or duty to the public, the railroad also said that operations would continue in the area and that it intended to gradually relocate its operations in the Terminal area to its property located south of Randolph Street, thus indicating that the property would still be useful until title was conveyed in accordance with the contract.

Though all nine parcels were vacant at one time, and most of them remained vacant, some of the parcels were actually used for railroad purposes during the time between 1971 and 1978. Also, the railroad made continuous attempts to solicit business for the area and left the area available for “team track” use, thus indicating that the railroad was ready and willing to use the property for railroad purposes if it could find anyone willing to contract for business and that it had no intent of using the property for other than railroad purposes. Additionally, the railroad could easily place tracks on the parcels and connect them to other existing tracks if it could find someone to contract for its services.

Hence, though the Gulf intends to transfer title to the parcels in the future and many of the parcels remain vacant, all of its actions indicate that the Gulf would use the property in the future if it could find anyone willing to contract for its services. Thus, based on all the facts, we believe that the property can be deemed to be held for future development of railroad operations and is thus “operating property” under the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 560(2)) and was exempt from local assessment and taxation for the years 1973 through 1978.

Accordingly, for the reasons noted, we affirm the decision of the trial court which held the nine parcels to be exempt from local assessment and taxation for the years 1971 through 1978. However, we note that in the trial court’s final order it held the property to be exempt as charter line property from January 1, 1971, until August 10, 1972, and exempt under the Revenue Act for all periods following August 10, 1972. The parties agree that the proper date for the expiration of the charter line exemption should be December 31,1972, and not August 10,1972. Accordingly, we modify the trial court’s order to hold the property was exempt as charter line property until December 31, 1972, and exempt under the Revenue Act for the years 1973 through 1978.

Affirmed as modified.

ROMITI, P. J., and JOHNSON, J., concur.


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
      In re MARRIAGE OF WAYNE H. PEARSON, Petitioner-Appellee, and JOAN D. PEARSON, Respondent-Appellant.
    First District (1st Division)
    No. 80-2242
    Opinion filed October 26, 1981.
    Frank T. Steponate and Thomas G. Merkel, both of Chicago, for appellant.
    Edwin R. Armstrong and James R. Donnelley, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

The husband, Wayne H. Pearson, filed a petition to terminate unallocated maintenance payments because the former wife, Joan D. Pearson, had remarried and the minor child of the parties had commenced residing with the husband. The court ruled that all payments to the wife were to cease. The wife appeals this ruling as it pertains to maintenance and contends that the court erred in terminating the portion of the unallocated maintenance which was attributable to maintenance because the parties had expressly agreed to the continuance of maintenance payments after her remarriage.

For the reasons set forth herein, we affirm.

On October 24, 1978, a judgment of dissolution of marriage was entered, which judgment incorporated the September 18, 1978, marital settlement agreement of the parties. The settlement agreement purported to “settle between themselves now and forever the questions of alimony and support of the wife ° e This agreement provided, in pertinent part:

“The husband agrees to pay to the wife as and for unallocated maintenance, the sum of One Thousand Dollars ($1,000.00) per month. Said maintenance shall be adjustable as follows:
(a) On the nineteenth birthday of the minor child, SUSAN, the sum shall be reduced automatically by Three Hundred Dollars ($300.00) per month.
(b) In the event that the wife remarries during a six year period after the entry of the Judgment for Dissolution of Marriage, then and at that time, the said maintenance shall be reduced by Three Hundred Fifty Dollars ($350.00) per month, for the balance of the six year term, and thereafter, the wife shall be barred from any claim of maintenance at the termination of the six year period.
(c) In the event that the wife has not remarried after the sixth year, and the husband has, therefore, been paying Seven Hundred Dollars ($700.00) per month, he shall continue to pay Seven Hundred Dollars ($700.00) as and for maintenance. However, at that time, in the event there is a change in circumstances for either of the parties, either can apply to the court for a modification.
(d) In the event of the death of the wife, the husband shall be relieved from any further obligation for payment herein.
Further, said sum is based on the current earnings of the husband’s represented federal income tax return and also based upon the wife’s current employment.”

On January 23, 1980, the wife filed two post-decree petitions. The first was a petition for a rule to show cause which alleged, inter alia, that the husband had failed to pay $1,000 as unallocated maintenance pursuant to the October 24, 1978, judgment and that payments were reduced to $700 per month in August 1979. The second was a section 72 petition (Ill. Rev. Stat. 1979, ch. 110, par. 72) to set aside and vacate the marital settlement agreement as it pertained to unallocated maintenance. On May 21,1980, the husband filed his petition with a supporting affidavit to strike the wife’s section 72 petition, his answer to petition for rule to show cause, and his petition to terminate payments of maintenance and child support. In support of the latter petition, the husband averred that the wife had remarried on May 17, 1980, and that the minor child of the parties had resided with him since May 1979. The wife filed her response to the husband’s petition to terminate payments of maintenance and child support in which she alleged that the remarriage of the wife was contemplated at the time the parties entered into the marital settlement agreement and that payments for maintenance cannot be abated. Upon hearing the various petitions of the parties, the trial court entered an order striking the wife’s section 72 petition. A second hearing was held concerning the husband’s petition to terminate payments and the court entered an order terminating payments for child support and permanently terminating maintenance as of the date of the wife’s remarriage. The sole issue raised on appeal is whether it was proper for the trial court to terminate maintenance payments to the wife.

The wife argues that section 502(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 502(a)) authorizes the parties to an action for dissolution of marriage to enter into settlement agreements. She contends that the purpose of the legislature in permitting settlement agreements was “to promote amicable settlement of disputes between parties to a marriage attendant upon the dissolution of their marriage * * (Ill. Rev. Stat. 1979, ch. 40, par. 502(a).) She argues that when section 502(a) is read in conjunction with section 502(f), which allows the parties to preclude modification of the settlement agreement, except as to matters pertaining to custody, support or visitation of children (Ill. Rev. Stat. 1979, ch. 40, par. 502(f)), it is clear that the legislature intended that all parties to a dissolution of marriage negotiate and agree to a fair and equitable disposition of their individual property rights. (See Guyton v. Guyton (1959), 17 Ill. 2d 439, 444-45, 161 N.E.2d 832, 834-35.) She further contends that she and the husband negotiated and agreed to a settlement which they considered to be in “their best interest to settle between themselves now and forever the questions of alimony and support of the wife 0 * (Emphasis added.) This phrase, she contends, indicates that the parties intended that the award of maintenance to the wife to be final and not modifiable. The wife argues that the provision of the settlement agreement which continues unallocated maintenance subsequent to her remarriage is a vested property right which was the result of negotiation and was the voluntary agreement of the parties and which cannot be modified for six years. To permit the husband to renege on the agreement, she urges, would be inequitable and would controvert the express understanding of the parties.

The husband agrees that the law favors separation agreements between the parties to a dissolution of marriage; however, he argues that the agreement must be structured within the framework of the Illinois Marriage, and Dissolution of Marriage Act. The husband contends that the settlement agreement and the judgment did not expressly preclude modification and that, therefore, the judgment and settlement agreement were modifiable. In support of his contention, the husband relies upon section 502(f), which states:

“Except for terms concerning the support, custody or visitation of children, the judgment may expressly preclude or limit modification of terms set forth in the judgment if the separation agreement so provides. Otherwise, terms of a separation agreement set forth in the judgment are automatically modified by a modification of the judgment.” (Ill. Rev. Stat. 1979, ch. 40, par. 502(f).)

The husband argues that the wife’s reliance upon the inclusion of the phrase “now and forever” in the preamble to the separation agreement is erroneous because a preamble to an agreement is not part of the agreement. (12 Ill. L. & Prac. Contracts §225 (1955).) The husband contends that, regardless of the parties’ intent, the clear command of section 510(b) is that, upon remarriage of the spouse receiving maintenance, the spouse who is paying maintenance to the other is relieved of the obligation to continue to make payments. He relies upon Bramson v. Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469, to support his contention that the directive of the statute makes mandatory the termination of maintenance upon the remarriage of the spouse who is receiving maintenance. In response to the wife’s contention that there can be no modification for six years, the husband argues that the court still could modify the unallocated maintenance payments to the wife in the event the wife had not remarried and the minor child of the parties began residing with the husband.

Although the law looks with favor upon the amicable settlement of the rights of the parties to a dissolution of marriage (Guyton v. Guyton (1959), 17 Ill. 2d 439, 161 N.E.2d 832), the terms of a marital separation agreement will not be given effect if procured by fraud or coercion or if contrary to any rule of law, public policy or morals. (James v. James (1958), 14 Ill. 2d 295, 299, 152 N.E.2d 582, 584; In re Marriage of Maher (1981), 95 Ill. App. 3d 1039, 1042, 420 N.E.2d 1144, 1146.) In the instant case, the husband urges that the continuance of maintenance violates the directive of section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(b)), and that, therefore, maintenance should be discontinued regardless of the modifiability of the settlement agreement or the parties’ intent. (Bramson v. Bramson (1980), 83 Ill. App. 3d 657, 404 N.E.2d 469.) We need not address this issue since we hold that the settlement agreement was modifiable according to its terms.

The wife’s contention that the use of the phrase “now and forever” precludes modification of the settlement agreement is misplaced. This phrase is in the preamble to the operative provisions of the agreement and, therefore, does not obligate the parties. (See 12 Ill. L. & Prac. Contracts §225 (1955).) We view this language to be merely precatory, and it does not expressly preclude modification. (Dull v. Dull (1979), 73 Ill. App. 3d 1015, 1018, 392 N.E.2d 421, 424.) Aside from the foregoing phrase, there is nothing in the record to support the wife’s contention that the agreement was not modifiable. We also note that if the wife had not remarried within a six-year period following the entry of the judgment of dissolution of marriage, and the minor child had relocated with the father, either party could petition the court for a modification of the unallocated maintenance payable to the wife. In short, there is nothing in the agreement which expressly precludes or limits modification of the settlement agreement. (See Burks v. Burks (1981), 100 Ill. App. 3d 700, 427 N.E.2d 353; Potocki v. Potocki (1981), 98 Ill. App. 3d 501.) It follows that the trial court was correct in modifying the settlement agreement of the parties under the facts of this case and the decision of the trial court is affirmed.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    DOROTHY HESS, Plaintiff-Appellee, v. THE CITY OF CHICAGO, Defendant-Appellant.
    First District (1st Division)
    No. 80-2672
    Opinion filed October 26, 1981.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Frank W. Nagorka, Assistant Corporation Counsel, of counsel), for appellant.
    Joseph R. Curcio, of Joseph R. Curcio, Ltd., of Chicago (David A. Novoselsky, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Dorothy Hess (plaintiff) brought suit against the City of Chicago (defendant) for her injuries suffered from a fall on a city sidewalk. The trial court directed a verdict for plaintiff on the issue of liability and the jury awarded damages of $122,250. Defendant appeals- ...

Plaintiff testified that on July 8,1977, at approximately 6:30 p.m. she was walking north on the west side of Broadway, slightly north of Wave-land Avenue in Chicago. Plaintiff was 63 years old. The sidewalk was damp because of a misting precipitation. Plaintiff had never previously walked in that area. The block is predominately commercial. Plaintiff was walking with a friend, Hope Gates.

Plaintiff was talking to her friend, Hope Gates. Plaintiff was wearing very low heels “like a saddle shoe or tennis shoe might be.” She carried only a purse. Plaintiff testified, “I noticed there was a big crack in the sidewalk so I made sure I got over that one, but then when my other foot came down I caught the next crack in the sidewalk.” On cross-examination plaintiff described the “elevation” of the sidewalk crack as “It’s about one and a half inches to two. About one and a half inches.” A color photograph in evidence shows the condition of the sidewalk. Plaintiff was not looking at her friend but she was “looking straight ahead.”

Plaintiff suffered a severe fracture of her left upper arm. She underwent three orthopedic operations to repair the break. Plaintiff’s medical expense was approximately $43,000. Her doctor, an orthopedic surgeon, testified plaintiff would probably suffer permanent stiffness and restricted mobility of her left shoulder. No point is raised by defendant as to the amount of the verdict.

Hope Gates testified she is familiar with that particular section of Broadway. She identified the photograph of the defect. That condition had existed “At least about a year before she [plaintiff] had the accident.” No questions were put to this witness on cross-examination.

Plaintiff also called Daniel Morsovillo for examination under section 60 of the Civil Practice Act. He is a senior operations analyst for the defendant’s department of streets. He testified the defendant employed 50 sidewalk inspectors during July of 1977. They do not make sidewalk inspections without a preceding complaint. However, plaintiff questioned this witness by use of his testimony in another case (some three years earlier). The witness had testified there that defendant’s inspectors inspect sidewalks in their respective areas, “I would say once a year # # # ”

No witnesses were called by the defendant.

In this court, defendant contends liability should not have been determined as a matter of law but the jury should have been permitted to perform its function as the trier of fact. Plaintiff contends defendant waived this issue by failure to present a proper post-trial motion; defendant offered no objection to direction of a verdict for plaintiff on liability and the' verdict on liability was properly directed for plaintiff.

Plaintiff argues defendant’s motion for new trial lacked sufficient specificity to warrant appellate review. We reject this argument. In Keen v. Davis (1967), 38 Ill. 2d 280, 282, 230 N.E.2d 859, the supreme court held a post-trial motion is not required before a party may appeal from a directed verdict. To the same effect is Larson v. Harris (1967), 38 Ill. 2d 436, 439, 231 N.E.2d 421. We also note the comment on Keen in Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 223-24, 380 N.E.2d 786.

We will first consider the motion of plaintiff to dismiss the appeal and objections thereto filed by defendant. This motion was taken with the case. The post-trial motion was denied on September 12, 1980, and defendant’s notice of appeal was filed October 12, 1980. Without citing any authority, plaintiff argues deductively from the major premise that defendant’s motion for new trial, filed on August 14, 1980, was defective because it lacked specificity. Plaintiff reasons that since the motion was legally insufficient it was tantamount to filing no motion and therefore the notice of appeal was tardily filed. We disagree.

The pertinent rule (Supreme Court Rule 303(a), Ill. Rev. Stat. 1979, ch. 110A, par. 303(a)) does not require filing of a complete, proper or specific post-trial motion. It simply requires the filing of a “timely post-trial motion directed against the judgment 0 * The form of said motion and the legal correctness of the matters therein averred are immaterial. In the case before us the motion was sufficient to raise issues as to the propriety of the court order which directed a verdict in favor of plaintiff and against defendant on the issue of liability. It was therefore sufficient to stay the running of the time limitation upon the filing of the notice of appeal. Plaintiff’s motion to dismiss the appeal is denied.

We find three separate issues on the merits of this appeal. Whether the trial judge properly directed a verdict in favor of plaintiff on the issue of liability requires a determination of the strength of the evidence as regards:

(a) Negligence of defendant;
(b) Constructive notice to defendant of the existence of the sidewalk defect; and
(c) Proof plaintiff was free from contributory negligence.

Each and all of these questions must be answered by application of the Pedrick formula, first set out in Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, which has been followed by the courts of Illinois to this day. (Note National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 168, 383 N.E.2d 919.) The issue is whether the evidence so strongly favors plaintiff, the moving party, that if considered in its aspect most favorable to the defendant no contrary verdict in favor of the defendant could stand. We will consider each of these problems in order.

The courts of Illinois have consistently held that “ ‘a jury question on the issue of the city’s negligence is presented 0 e ° when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it.’ ” (Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 160, 394 N.E.2d 33, quoting Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 605, 145 N.E.2d 105.) Minor defects or irregularities are not actionable as a matter of law. Baker, 75 Ill. App. 3d 157, 160, citing Warner v. City of Chicago (1978), 72 Ill. 2d 100, 378 N.E.2d 502.

It has been held that a defect or hole two inches deep establishes a factual question regarding the negligence of a city. (Arvidson, 11 Ill. 2d 601, 609.) Likewise, a lM-inch-deep defect was held to raise an issue of fact for the jury. Repinski v. Jubilee Oil Co. (1980), 85 Ill. App. 3d 15, 20-21, 405 N.E.2d 1383.

Similarly, the question of the length of time required to establish constructive notice of a defective condition is generally a question of fact for the jury. Baker, 75 Ill. App. 3d 157, 161; Livings v. City of Chicago (1975), 26 Ill. App. 3d 850, 853, 326 N.E.2d 170.

As regards these issues of negligence of the defendant in maintenance of the sidewalk and the sufficiency of notice of the defect, which amount in effect‘to an issue of exercise of reasonable care by defendant, the determination of these matters “is preeminently the function of the jury * * (Jardine v. Rubloff (1978), 73 Ill. 2d 31, 43, 382 N.E.2d 232). However, the trial of the case before us places a different aspect upon the matter.

Counsel for plaintiff moved the trial court to direct a verdict on the entire issue of liability. This included all aspects of that issue. Counsel for plaintiff made a complete argument to the trial judge in support of his motion. However, counsel for defendant raised only the point that the issue of contributory negligence should be submitted to the jury and then stood mute. Counsel for defendant simply stated plaintiff’s testimony “that the defect was an inch and a half is a factor to be considered by the jury * * * in making their determination of the exercise of due care and caution on the part of plaintiff at the time of the injury.”

The trial judge then asked counsel for plaintiff if he wished to reply. Plaintiff’s attorney replied to the effect that counsel for defendant actually said “that the jury should consider only the issue of the plaintiff’s contributory fault in this particular instance * * The trial judge asked the attorney for defendant if he wished to make any further statement and received a negative response. Thus, it appears the direction of a verdict on the issues of the negligence of defendant and constructive notice to defendant was never argued by defendant.

We conclude that these issues of negligence of the defendant and sufficiency of notice of the sidewalk defect, not having been presented to or raised in the trial court, have been waived for purposes of this appeal. See Brown v. Lober (1979), 75 Ill. 2d 547, 556, 389 N.E.2d 1188, and cases there cited.

Assuming now for purposes of analysis, even if these points had been properly raised and argued, we conclude the same result should be reached. On the issue of constructive notice, plaintiff introduced the testimony of Hope Gates, plaintiff’s companion. Gates testified the defective condition of the sidewalk was in existence, “At least about a year before she [plaintiff] had the accident.” Defendant did not cross-examine this witness. Defendant produced no other evidence regarding the condition of the sidewalk. Also, as shown, plaintiff’s counsel called a city employee for examination under section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60). This witness testified defendant does not make sidewalk inspections without having received a complaint. However, the witness had testified in a previous case that sidewalks are inspected by defendant about once a year. This evidence raised doubts as to whether defendant has a regular policy concerning inspection of sidewalks.

On the issue of negligence of the defendant, the defendant offered no defense. The testimony of the plaintiff and the cogent evidence reflected in the color photographs offered by plaintiff constitute strong evidence in proof of negligence. In our opinion, application of the Pedrick standard leads to the conclusion that these issues prove negligence of defendant and a sufficiency of notice of the defect as a matter of law and that no contrary verdict in favor of defendant on these matters could ever stand.

The one remaining issue before this court is the direction of the verdict in favor of plaintiff upon the issue of contributory negligence. When this case was tried, it was necessary for plaintiff to allege and prove by a preponderance of the evidence that she was free from contributory negligence. (Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 245, 302 N.E.2d 257.) Also, it has been frequently held that “[t]he question of contributory negligence is ordinarily a question of fact to be resolved by the jury.” (Kittoe v. Metropolitan Sanitary District (1979), 70 Ill. App. 3d 197, 203, 387 N.E.2d 1031.) It follows that a verdict should not be directed in any case where the issue is contributory negligence of plaintiff except when required by application of the Pedrick doctrine. Thomas v. Lynch (1978), 59 Ill. App. 3d 542, 375 N.E.2d 859; Orlandi v. Caraway (1973), 9 Ill. App. 3d 628, 631, 293 N.E.2d 337.

In defendant’s brief, the argument is made that the crack in the sidewalk was plainly visible, and plaintiff in her testimony admitted that she saw the crack before she fell. We cannot see how that fact constitutes proof of contributory negligence. In our opinion, that argument is advanced without consideration of the photographs of the sidewalk received in evidence. These pictures are indeed more potent than many, many words. The accuracy of the pictures was proved by testimony of the witness Gates and the exhibits were received without objection. The condition of the sidewalk is clearly visible but the photographs show the condition of the entire walk is such that plaintiff had virtually no alternative but to walk over this dangerous area. Certainly it could not be urged that it was the duty of plaintiff to avoid the defect by walking on the street.

Similarly, we see no reason to predicate any argument of contributory negligence upon the fact that plaintiff engaged in some conversation with her friend. In fact, plaintiff’s testimony shows she was completely attentive to the condition of the sidewalk, was able to evade one dangerous ar.ea and unfortunately was trapped by the next. Also of prime importance, we cannot overlook the fact there is not a syllable of contradiction of any of plaintiff’s testimony from countervailing testimony or other sources.

Defendant cites and relies upon Cloudman v. Beffa (1955), 7 Ill. App. 2d 276, 284, 129 N.E.2d 286, and the decision by the late eminent jurist Judge Dempsey in Mesich v. Austin (1966), 70 Ill. App. 2d 334, 343-44, 217 N.E.2d 574. We do not question the teaching of either case. Cloudman takes the position that the issue of contributory negligence is primarily for the jury. Mesich teaches us that it is generally undesirable to relax the wisdom of presenting issues of fact to the jury. However, both of these cases were decided prior to Pedrick, which clarified the various standards which had previously existed for direction of verdicts by enunciating the principle above stated. In our opinion, if we consider all of the evidence on this issue in the light most favorable to defendant, the evidence so strongly favors plaintiff that no verdict in favor of defendant could stand. We find that plaintiff was not guilty of contributory negligence as a matter of law. We conclude the able and careful trial judge proceeded with complete legal propriety when he directed the verdict in favor of plaintiff on the issue of liability. Compare Millette v. Radosta (1980), 84 Ill. App. 3d 5, 26, 404 N.E.2d 823, appeal denied (1980), 81 Ill. 2d 593.

One further matter requires attention. If this court were to agree with defendant’s contentions and reverse and remand this cause for a new trial on the issue of contributory negligence only, there could be no additional trial on that particular issue. According to Alvis v. Ribar (1981), 85 Ill. 2d 1, 28, 421 N.E.2d 886, trial of the instant case pursuant to remand would necessarily present only the issue of the culpability of plaintiff on the basis of the doctrine of comparative negligence. Contributory negligence thus could not constitute an issue in event of a retrial of this case. The evidence in this case is such that we can hardly envision any substantial percentage of fault being ascribed to plaintiff. Thus, such a remand might well be described as an exercise in futility and an extravagant waste of judicial energy.

For these reasons the judgment appealed from is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ„ concur.


author: Mr. JUSTICE DOWNING

text:
    JOHN CRONIN, JR., et al., Plaintiffs-Appellants, v. ELIZABETH ALTMAN, Defendant-Appellee.
    First District (2nd Division)
    No. 80-1840
    Opinion filed October 27, 1981.

      Arnold E. Landsman, Ltd., of Chicago, for appellants.
    Law Offices of Thomas P. McLaughlin, of Schaumburg (W. David Utley, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Plaintiffs John Cronin, Jr., Richard Fontana, and Donald DiPasquale (plaintiffs) appeal from trial court orders which dismissed their personal injury action against Elizabeth Altman (defendant) for failure to comply with discovery, and which denied their two motions to vacate such order of dismissal. Plaintiffs contend that the trial court erred in dismissing their cause of action for failure to timely answer interrogatories propounded by defendant, and also erred in failing to vacate this dismissal order. Defendant raises the issue of whether this court has jurisdiction to hear the case in light of the timing of plaintiffs’ notice of appeal.

Plaintiffs’ complaint alleges that they were involved in a car accident with defendant on January 30, 1977. Plaintiffs each allegedly sustained injuries which caused them financial losses. As a result of this occurrence, plaintiffs filed the instant action against defendant on September 26,1977.

On November 9, 1977, defendant served interrogatories on each plaintiff, directed to their attorney, pursuant to Supreme Court Rule 213 (73 Ill. 2d R. 213). Subsequently, defendant allegedly sought answers from plaintiffs to these interrogatories by means of letters requesting such, although these letters do not appear in the record. In any event, defendant received no answers to the interrogatories, and therefore filed a motion to strike and dismiss plaintiffs’ complaint for failure to comply with discovery, pursuant to Rule 219(c)(v, vi) (73 Ill. 2d R. 219(c)(v, vi)). The trial court granted the motion on January 23, 1980, dismissing plaintiffs’ complaint with prejudice and further finding that there was no reason to delay enforcement of the order.

On February 4,1980, plaintiffs filed a motion to vacate the trial court order which dismissed their complaint, stating that their attorney entered the matter in his calendar on the wrong date, thus missing the hearing on the motion to dismiss, and that they had a meritorious cause of action. Although the record is bereft of a dispositional order on this motion or of a transcript of the proceedings thereupon, plaintiffs inform us in their brief that “Judge Paul Elward denied this motion” for stated reasons. Plaintiffs then proceeded, on February 22,1980, to file a second motion to vacate the dismissal order of January 23, 1980, stating that plaintiffs’ counsel had been unable to locate two of the plaintiffs so as to prepare answers to the interrogatories, that the answers were then available, and repeating that the plaintiffs had a meritorious cause of action. The trial court denied this motion on May 23, 1980. Plaintiffs filed a notice of appeal on June 23,1980.

Defendant contends that plaintiffs’ failure to file their notice of appeal within 30 days of the trial court’s denial of their first motion to vacate the court’s dismissal order precludes this court from having jurisdiction to entertain plaintiffs’ appeal.

The filing of a timely notice of appeal is jurisdictional. Failure of an appellant to so act requires that this court dismiss the appeal for lack of jurisdiction. Under Supreme Court Rule 303 (73 Ill. 2d R. 303), a notice of appeal must be filed, inter alia, within 30 days after entry of an order disposing of a post-trial motion. (Slavick v. Michael Reese Hospital & Medical Center (1980), 92 Ill. App. 3d 161, 164-65, 415 N.E.2d 1060.) The relevant statute envisions the filing of only a single post-trial motion. (See Ill. Rev. Stat. 1979, ch. 110, par. 68.3; Drafz v. Parke, Davis & Co. (1980), 80 Ill. App. 3d 540, 542, 400 N.E.2d 515, affirmed in Sears v. Sears (1981), 85 Ill. 2d 253, 422 N.E.2d 610; Rose v. Centralia Township High School District No. 200 (1978), 59 Ill. App. 3d 606, 607, 375 N.E.2d 1039.) A potential appellant may not indefinitely delay the deadline for filing his notice of appeal by filing numerous post-trial motions. (Deckard v. Joiner (1970), 44 Ill. 2d 412, 418-19, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 27 L. Ed. 2d 244, 91 S. Ct. 232.) Unless the second motion filed after the denial of the initial post-trial motion conforms to the requirements of section 72 (Ill. Rev. Stat. 1979, ch. 110, par. 72) and presents new matters that render the judgment improper (which matters could not have been included in the initial motion), the second motion is a nullity and has no effect on the notice of appeal deadline. See Slavick, 92 Ill. App. 3d 161, 165; Drafz, 80 Ill. App. 3d 540, 543-44.

Examination of the procedural history of this case indicates that plaintiffs filed the one post-trial motion to which they were entitled on February 4, 1980. That motion was denied on the same day. Therefore, under the rules, plaintiffs had 30 days following February 4, 1980, to file their notice of appeal. They failed to do so, instead filing a second motion to vacate on February 22, 1980. Despite plaintiffs’ assertions to the contrary, to be adequate to alter the date for filing of the notice of appeal, this second motion must have conformed to the requirements of section 72 and presented matters which could not have been presented in the February 4,1980, motion. It did neither. Therefore, the second motion was a nullity. Since plaintiffs’ notice of appeal was not timely filed, this court must dismiss the appeal for lack of jurisdiction. Consequently, we are unable to address the merits of plaintiffs’ appeal.

Appeal dismissed.

HARTMAN, P. J., and PERLIN, J., concur.

       Plaintiffs assert that their initial motion to vacate was not directed against the trial court’s dismissal order and thus should not be considered as their single allowed post-judgment motion. This argument patently lacks both merit and reason.

       We are aware that the decision in Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1st Dist., 3d Div., 1980), 86 Ill. App. 3d 888, 408 N.E.2d 307, is not reconcilable with this holding. However, we believe the precedent we have relied upon here supports our conclusion.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE CROSS, Defendant-Appellant.
    First District (2nd Division)
    No. 80-2272
    Opinion filed October 27, 1981.

      James J. Doherty, Public Defender, of Chicago (Robert D. Click and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago. (Michael E. Shabat, Dean C. Morask, and Thomas J. Murphy, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

George Cross, defendant, appeals his conviction for attempted murder. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4.) He was found guilty in a bench trial in the circuit court of Cook County and sentenced to 20 years imprisonment. Defendant claims that he was denied his due process right to call witnesses on his behalf, and that he was not proved guilty beyond a reasonable doubt.

Defendant was charged with attempted murder and aggravated battery in throwing Marla Nelson, the victim, from a third-story window. The victim claimed that defendant and several other men threw her from a hotel window. At defendant’s preliminary hearing, the victim saw Gerald Washington, whom she believed to be one of defendant’s accomplices. He had not been previously identified by name or apprehended. She notified a police officer, but Washington left the building before being apprehended. The day of defendant’s trial, the victim saw Washington in the courtroom, as he was to be a witness for defendant. She identified him to an assistant State’s Attorney, who secured a warrant for Washington’s arrest. The warrant was issued by another judge after a hearing at which the victim testified.

When defendant’s case was called for trial, the State moved for a continuance based upon the pending arrest of Washington. Defense counsel objected. The motion was denied. The trial court then ordered police officers not to execute the arrest warrant until Washington’s participation in the trial was complete. The court then gave Miranda warnings to Washington, and, consistent with Washington’s wishes, appointed counsel to represent him. While the State presented its case in chief, which consisted solely of the testimony of the victim, Washington consulted with his counsel. The defense called Washington as its first witness. Although Washington came to court with the intention of testifying, after consultation with counsel he asserted his fifth amendment privilege against self-incrimination and refused to testify.

The substance of the victim’s testimony was that defendant lured her to his hotel room. Upon arrival he and several accomplices attacked her. The motivation she ascribed to defendant was animosity arising out of a drug transaction. The defendant’s version of the occurrence was that the victim accompanied him to his room so that she could inject herself with a narcotic. She suffered a bad reaction, possibly an epileptic fit, and jumped from the window. In essence, the trial court was faced with a question of credibility. In finding defendant guilty, the court expressly found the victim credible and the defendant not credible.

I

Defendant claims he was denied due process in that he was deprived of his opportunity to call Gerald Washington as a witness because of the “intimidation” of Washington by the prosecution. The sixth amendment guarantees a defendant the right “to have compulsory process for obtaining witnesses in his favor.” (U.S. Const., amend. VI.) A criminal defendant has a fundamental right to offer the testimony of witnesses. This right is violated if either the prosecution or the trial court exerts improper influence on defense witnesses causing them not to testify. (Webb v. Texas (1972), 409 U.S. 95, 98, 34 L. Ed. 2d 330, 333, 93 S. Ct. 351, 353; Washington v. Texas (1967), 388 U.S. 14, 23, 18 L. Ed. 2d 1019,1025, 87 S. Ct. 1920, 1925.) Once such a violation occurs, it is not necessary for the defendant to establish prejudice to his case. United States v. Hammond (5th Cir. 1979), 598 F.2d 1008, 1013; United States v. Morrison (3d Cir. 1976), 535 F.2d 223, 228; United States v. Thomas (6th Cir. 1973), 488 F.2d 334, 336.

In the instant case, neither the prosecution nor the trial court exerted any improper influence to prevent Washington from testifying. The prosecution simply took the first step in initiating criminal charges against Washingtpn, and informed the trial court of that fact. The court then advised Washington of his rights, and appointed counsel to protect those rights. (Compare State v. Roller (1979), 87 Wis. 2d 253, 274 N.W.2d 651.) Washington’s counsel then advised the court the witness desired to remain mute and to rely on the fifth amendment. Had Washington been arrested and charged earlier, the same fifth amendment concerns could have caused him to decline to testify on defendant’s behalf. The prosecution requested a continuance because of the circumstances. However, the defense objected and it was denied.

Defendant’s argument is, in essence, that he was deprived of Washington’s testimony because Washington validly asserted his fifth amendment privilege against self-incrimination. A criminal defendant cannot force a witness to testify over a valid fifth amendment claim. (United-States v. Goodwin (5th Cir. 1980), 625 F.2d 693, 700.) Here, the trial court upon learning of the arrest of Washington, correctly advised him of his rights and, at his request, appointed him an attorney. Washington thereupon consulted with his attorney while the trial proceeded. When the defense called Washington, he, along with his attorney, advised the court of exercising his fifth amendment right and declined to testify. We do not consider under these circumstances that the prosecution improperly caused Washington to refuse to testify. In our opinion, defendant was not denied due process.

II

Defendant’s second claim is that the prosecution did not prove him guilty beyond a reasonable doubt. A reviewing court may not substitute its judgment for that of the trier of fact regarding the credibility of witnesses. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Further, a conviction may be based solely on the testimony of a single credible witness. (People v. Mays (1979), 74 Ill. App. 3d 145, 154, 392 N.E.2d 106.) The trial court found the prosecution witness credible, and the defense testimony not credible. We have reviewed the record and find there is adequate evidence in the record to support the finding of guilty. We will not substitute our judgment for that of the trial court.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN, P. J., and PERLIN, J., concur.