author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH LOPEZ, Defendant-Appellant.
    First District (1st Division)
    No. 81-0771
    Opinion filed June 28, 1982.
    Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, Denise O’Mally Porn and Lester M. Joseph, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a bench trial, Joseph Lopez (defendant) was convicted of delivery of less than 300 grams of phencyclidine (PCP), and was sentenced to three years. Defendant appeals.

An undercover officer testified that on February 27, 1979, he was introduced to defendant in the area of Damen and 35th Street in Chicago. The officer told defendant he wished to buy 4 ounces of PCP. Defendant said he did not have the substance but could have it by nighttime. They agreed to meet in the area that evening.

The officer drove his brown Buick to the place at about 8:40 p.m. He parked on the north side of the street and walked over to a parked Dodge van on the south side. Defendant stepped out of the van, and the officer asked if he had the substance. Defendant said no because the pharmacist was sick. Defendant stated he knew the pharmacist for four years and the man could make “either PCP or MDA, whatever I wanted.” Defendant and the officer began to walk down the street together. Two girls about 14 years of age approached. They asked defendant if each of them could have a gram of PCP. Defendant gave the girls two plastic bags containing a white powdered substance. The girls gave defendant some money and left.

Defendant and the officer walked back and entered the officer’s car. Defendant said he had “been dealing a long time and he didn’t want to screw up now.” The officer asked if defendant had a sample of PCP. Defendant gave the officer a plastic bag “containing a white powdered substance” and asked for $60. Defendant said he had sold the other two grams to the girls for $65. The officer gave defendant $60 and defendant left.

The officer field tested the powder. The test indicated possible or presumptive presence of PCP. The officer emptied the contents into a new plastic bag, which he and another officer initialed. He then added the original bag and sealed the new bag with staples and tape. He then put the new bag into a manilla envelope and locked and sealed it. He put an endorsement on the envelope which stated the contents and the place and time of receipt. That night the officer made photocopies of the outside of the plastic envelope and the manilla envelope.

On the next day the officer delivered the locked and sealed envelope to a chemist at the office of the Maywood Crime Laboratory. Some two months later the officer found defendant’s name in Chicago police records. Defendant was then arrested.

The qualified forensic chemist testified that on February 28 she had received the manilla envelope from the officer. She identified a photocopy of this envelope. The copy actually and accurately showed the contents of the envelope. The chemist opened the envelope and examined the contents. There were markings on the outside of the plastic envelope including initials of the officer. The chemist also produced photocopies of the cover of her laboratory log book and of two pages thereof. These photographs showed the date of receiving the envelope. The chemist testified the various tests she made showed that the substance contained PCP.

Defendant called Joseph Koestner, with whom defendant lived for eight years, and also Rebecca Cochran, a friend of Koestner and defendant. Koestner testified that on February 27,1979, between 7 and 9 p.m., he saw a dark car park in a parking lot on the north side of the street. A friend of defendant, Dave Krolic, came out and asked Koestner for the defendant. Krolic went upstairs and he and defendant came down together. The car was moved from the parking lot. Defendant spoke with persons in this car. Defendant never entered the car and never reached inside thereof. The occupants of the car never put their arms out. A red van then pulled up across the street. Two friends of defendant were in the van. Defendant walked across the street and spoke to them. The witness also saw Rebecca Cochran come out of a snack shop, approach the van and talk to a passenger. The witness did not see defendant reach into his pocket.

Cochran testified she saw defendant that night talking to two people in a red van owned by Ken Kadlec. A brownish car with two men in it was parked across the street. An individual exited the car. Cochran went with defendant who spoke to this individual. Defendant and Cochran went inside defendant’s house where Koestner was upstairs. She saw Dave Krolic there downstairs. He asked defendant “if he was going to get the dope for him.” Defendant told Dave Krolic to leave. The car and van left. She did not see “two white females around [defendant].”

On rebuttal, an investigator testified he had interviewed Cochran on December 9,1980. She stated when she left a snack shop on February 27, 1979, defendant called her over. While they were talking a van with Pam and Ken Kadlec drove up. Cochran greeted the people in the van and then left. The investigator prepared a memorandum of this conversation.

Considering the evidence up to this point, we find that the guilt of the defendant has been proved beyond any reasonable doubt in an overwhelming manner. The testimony of the undercover officer stands unassailed. A field test, as performed by the officer, has been approved by the courts of this jurisdiction. (See People v. Owens (1969), 41 Ill. 2d 465, 467, 244 N.E.2d 188. See also People v. Hill (1978), 58 Ill. App. 3d 494, 498, 374 N.E.2d 827, appeal denied (1978), 71 Ill. 2d 604.) The positive testimony of the qualified chemist is an added element of proof which, however, requires further comment.

As against this formidable case, defendant has produced the testimony of two witnesses. The testimony of one was contradicted in part on rebuttal evidence of the State. In any event, the defense testimony as a whole is weak and scanty and entirely of a negative nature. The trial judge was not obliged to believe the defense evidence over the strong and positive evidence of the prosecution. The question of reasonable doubt was primarily for the trial judge. People v. Berland (1978), 74 Ill. 2d 286, 307, 385 N.E.2d 649.

The rather unique aspect of this case arises as follows: the sale in question took place on February 27, 1979. Defendant was arrested May 10,1979. Defendant filed no motion for discovery until February 13,1980. The State answered on the same day. The answer states part of the physical property which the State intended to use at trial was “0.7 grams of phencyclidine.” Discovery continued during October and December of 1980. Defendant did not request a sample of the drug for his own tests.

Trial commenced May 13, 1981. Prior to trial no motion of any kind was made by defendant for production or testing of the drug sample. At the opening of trial, defense counsel suggested to the trial court that he wished to “view the physical evidence.” The State reported to the court in response to this request that the substance in question had been accidentally destroyed and the State learned of this destruction two weeks before commencement of trial. In argument on this issue the assistant State’s Attorney represented to the trial court that the physical evidence was “inadvertently destroyed” and this fact was made known to counsel for defendant. The trial court expressly found that the destruction was accidental or inadvertent.

Defendant’s contention here rests upon these circumstances. Defendant cites and relies upon two cases:

People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573, dealt with a sample of heroin which “weighed 0.5 grams (less than one-fiftieth of an ounce).” (54 Ill. App. 3d 454, 455.) One test exhausted half of the substance. The chemist washed the remainder down the drain. The defendant filed a prompt discovery motion “seeking the results of any tests performed by the State on the substance he was alleged to have delivered, and a representative sample of the substance.” (54 Ill. App. 3d 454, 455.) The State responded with a test report and noted the fact that the substance had all been consumed in testing. Defendant made a motion to exclude the testimony and to dismiss the case. Defendant called six alibi witnesses and testified himself that he did not see nor deal with the narcotic agents and did not learn of the charges until arrested virtually five months after the incident.

We do not find Taylor applicable here. In Taylor a proper motion for production of the substance for testing was promptly made. The case at bar deals with accidental destruction after a field test and complete chemical testing where no motion was made other than a verbal request to “view the physical evidence” at the very moment of trial. We note also that in Taylor the court remanded the cause for a new trial using this important language (54 Ill. App. 3d 454, 458):

“The objection to destructive testing by the prosecution is that the defendant cannot meet or dispute the test results by evidence of equal integrity and persuasiveness, as it is clear that laboratory analysis of the evidence will carry great weight with a jury. If the results of the scientific tests are suppressed, the State may still be able to avail itself of other evidence to prove the presence of heroin in the substance in question.

The presence of narcotics may be proved by circumstantial evidence, and the substance in question need not be produced at trial. People v. Robinson, 14 Ill. 2d 325, 153 N.E.2d 65 (1958); People v. Binkley, 25 Ill. App. 3d 27, 322 N.E.2d 514 (1975).

In Toliver v. United States, 224 F.2d 742 (9th Cir. 1955), the court said:

‘We find in the record, ample evidence from which the jury could conclude that heroin was involved in the absence of the witness’ own opinion. The exhorbitant price paid for the small amount of substance; the fact it was a powder; that [the witness] had been a user and had had previous transactions in narcotics with the appellant; that [the witness] bought the substance as heroin; that [the witness] sold the substance to his customers as heroin and that none of them “kicked” or complained, supplied sufficient evidence for the jury to draw the inference that the powder was heroin.’ (224 F.2d 742, 745.)

Like language appears in United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), and United States v. Lawson, 507 F.2d 433 (7th Cir. 1974). Thus it is clear that the identity of the illegal substance may be proved by circumstantial evidence.”

Furthermore, the court stressed (54 Ill. App. 3d 454, 457-58):

“This holding should not be read as stating that in every instance in which an agency of the State destroys all of a controlled substance in the process of testing, the conviction of the defendant cannot stand. [Citation.] But whenever an accused seeks by timely motion a sample of the allegedly controlled substance, so that it can be subjected to independent testing under appropriate safeguards as may be deemed necessary by the trial court [citation], a heavy burden devolves upon the State either to produce a testable sample or to prove by clear and convincing evidence that the destruction of all of the substance in its possession was necessary.” (Emphasis added.)

We do not believe Taylor was ever reviewed by the supreme court of this State. Sources available to us show dismissal of a petition for leave to appeal.

People v. Dodsworth (1978), 60 Ill. App 3d 207, 376 N.E.2d 449, appeal denied (1978), 71 Ill. 2d 611, parallels Taylor. Dodsworth involved .03 of a gram of a substance, all of which was destroyed before testing. The parties stipulated only one-third of this was necessary for testing. (60 Ill. App. 3d 207, 208.) Prior to trial “the court had granted a motion by the defendant for an order directing the State to produce the substance for testing by the defendant * * *." (60 Ill. App. 3d 207, 208-09.) The Dodsworth court treated the matter as unnecessary and presumably intentional destruction of evidence and remanded the cause for a new trial.

A strong and impressive dissent pointed out, and cited authority to the effect, “that the exhaustion of the supply of a narcotic or controlled substance is not a valid basis for excluding the State’s analysis of the samples available as a denial of due process.” (People v. Dodsworth (1978), 60 Ill. App. 3d 207, 211.) The dissent pointed out the practical difficulties of testing which existed in that particular case including the fact that the quantity of the drug involved was 6% of the amount involved in Taylor. The dissent also noted that the record did not suggest “the validity of the chemical identification was a genuine question of fact at trial.” People v. Dodsworth (1978), 60 Ill. App. 3d 207, 213.

We find Dodsworth and Taylor cited and distinguished in a somewhat analogous situation involving destruction of a gun by the State. In People v. Ellis (1981), 93 Ill. App. 3d 79, 84, 416 N.E.2d 1174, this court approved Dodsworth and Taylor insofar as they condemned the “unnecessary destruction” of what might have been material evidence but concluded that “the destruction of the revolver in this case was not prejudicial to the defense.” (93 Ill. App. 3d 79, 84.) The Ellis court also pointed out the intentional destruction of the substance in Dodsworth and Taylor and the fact that the defense had made a timely and proper motion to exclude the evidence.

We find Ellis cited in People v. Delk (1981), 96 Ill. App. 3d 891, 903, 421 N.E.2d 1341. There, the court disapproved of destruction of a weapon but pointed out that this was not prejudicial to the defense.

Upon consideration of all of these authorities, we conclude the destruction of the narcotic sample in the instant case was accidental rather than intentional or purposeful and this destruction did not in any manner prejudice the defendant. In fact, after reading the entire record before us we are convinced that defendant received an eminently fair trial and that his legal rights were not denied to the slightest degree.

Defendant urges violation of principles of hearsay and best evidence. We find no hearsay problem here. Defendant cites no authorities on this point. At trial, the State offered and the court received, over specific objection by defendant, photocopies of two evidence bags or envelopes and three pages from the log book of the crime laboratory. The photograph of the plastic evidence bag showed the initials of the undercover officer and of another agent together with a date and case number. A manilla evidence envelope had writing on the outside by the officer describing the evidence and the place and time he had received it. The officer and the chemist identified photocopies of these items as true and accurate. The chemist also identified photocopies of three pages of the laboratory log book which reflected receipt of the evidence. We find no merit to this contention.

Defendant cites People v. Klisnick (1979), 73 Ill. App. 3d 148, 157, 390 N.E.2d 1330. Klisnick holds the original of the document is not required and secondary evidence is admissible where the original is lost as long as it has not been destroyed in bad faith. (73 Ill. App. 3d 148,157.) In instances in which the absence of an original document is properly accounted for, a sufficient foundation has been made so that secondary proof is legally proper. This principle is clearly set out in People v. Baptist (1979), 76 Ill. 2d 19, 26-27, 389 N.E.2d 1200; People v. Taylor (1968), 40 Ill. 2d 569, 574-75, 241 N.E.2d 409; People v. Bowman (1981), 95 Ill. App. 3d 1137, 1141-44, 420 N.E.2d 1085.

One basic caveat demands attention. This court cannot and will not tolerate intentional destruction of evidence. However, the presence of three factors impels us to affirm the judgment here. First, the representation of the State’s Attorney convinces us, as it did the careful and experienced trial judge, that the loss of the evidence here was purely inadvertent. Second, despite complete discovery, no attempt was made by defendant to obtain an independent chemical analysis of the substance in question until the very moment of trial. Then defendant asked if he “could view the physical evidence.” Third, as above shown, the evidence of guilt here is truly overwhelming and virtually unassailed. These considerations warrant and require affirmance of the conviction.

For these reasons the judgment appealed from is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    SAVILLE INTERNATIONAL, INC., Plaintiff-Appellee, v. GALANTI GROUP, INC., Defendant-Appellant.
    First District (1st Division)
    No. 81-2416
    Opinion filed June 28, 1982.
    Donald L. Johnson and Marty J. Schwartz, both of Chicago (Johnson & O’Brien, of counsel), for appellant.
    Hamman, Benn & Miller, of Chicago (George W. Hamman, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

The parties, Saville International, Inc. (plaintiff), and Galanti Group, Inc. (defendant), submitted a contract dispute to arbitration. The contract involved development and manufacture by plaintiff of a prototype organ for mass production by defendant. Plaintiff claimed damages of $66,666 in overdue installment payments, and unspecified lost profits. The arbitration panel awarded plaintiff $66,666 and assessed arbitration fees and expenses to be borne equally by the parties. The trial court vacated the assessment of fees and expenses but affirmed the damage award. Defendant appeals.

The pertinent facts appear from the transcript of the arbitration proceedings and also from a number of depositions authorized by the trial court. The deponents included the three arbitrators and an attorney who represented the defendants in the arbitration. The three arbitrators, all associated with the American Arbitration Association, are members of the bar. All of the depositions were taken for discovery only. (73 Ill. 2d R. 202.) Some of the depositions were signed and some were not. (73 Ill. 2d R. 207(a).) The depositions were filed by order of the trial court. Both sides have referred to the arbitration transcript and to these depositions. Defendant’s contentions are centered upon alleged failure of the arbitrators to act impartially. In effect, defendant here claims simply that the award was procured by “undue means.” Ill. Rev. Stat. 1981, ch. 10, par. 112.

In this type of situation, “judicial review of an arbitrator’s award [is] more limited than appellate review of a trial court’s decision.” (Garver v. Ferguson (1979), 76 Ill. 2d 1, 8, 389 N.E.2d 1181.) The “party who asserts that an arbitration award is invalid has the burden of proving such contention * * * by clear, strong and convincing evidence.” (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 1052-53, 392 N.E.2d 198. See also Pillott v. Allstate Insurance Co. (1977), 48 Ill. App. 3d 1043, 1047, 363 N.E.2d 460.) To vacate an award based on partiality, “it is necessary to show a ‘direct definite and demonstrable’ interest, on the part of the arbitrator, in the outcome of the arbitration.” (Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 1003, 378 N.E.2d 558, and cases there cited.) The proof of partiality “must be direct, definite, and capable of demonstration rather than remote, uncertain, or speculative.” William B. Lucke, Inc. v. Spiegel (1970), 131 Ill. App. 2d 532, 536, 266 N.E.2d 504.

Defendant contends one of the arbitrators told the parties their payment of fees to the American Arbitration Association would be considered as evidence of the merits of their case. The arbitrator allegedly stated in effect that the amount of fees paid by the parties could be directly proportioned to the merits of their claim. However, the record shows that the remarks in question were not made to counsel for defendant but were made directly to counsel for the plaintiff. We find no legal significance in this conversation.

Defendant urges an issue arose regarding fees of the arbitrators because the formal award directed that the fees and expenses of the American Arbitration Association should be paid by each party as assessed by the Association. Defendant argues the arbitration panel exceeded its authority and therefore the award must be vacated. However, the trial judge properly held that the portion of the award allowing fees should be vacated, and the final judgment order expressly vacates the allowance of compensation to the arbitrators.

It is the accepted law of Illinois that where arbitrators have exceeded their authority in one respect such as allowance of fees, their decision is unenforceable only to the extent that such authority was exceeded. (Board of Education v. Champaign Education Association (1973), 15 Ill. App. 3d 335, 340, 304 N.E.2d 138.) Thus, any defect claimed by defendant with reference to arbitration fees was cured by the order of the trial court.

Defendant states that at one point during the hearing, one of the arbitrators asked if the parties had considered settlement. The attorney for plaintiff stated his client had offered to settle but defendant had not replied. However, the arbitrator said that a party has the right not to settle any litigation. The arbitrator stated this discussion should be expunged from the record. We find no prejudice here.

Defendant also contends that this same arbitrator asked a leading question of one of the witnesses which was prejudicial. We find no merit in this contention. An arbitrator or a trial judge should have the right to ask questions, or even leading questions if desired or necessary, for any reasonable purpose which includes obtaining of the truth or clarification of the issues. People ex rel. Adams v. Sanes (1968), 41 Ill. 2d 381, 386, 243 N.E.2d 233, cert. denied (1969), 395 U.S. 910, 23 L. Ed. 2d 223, 89 S. Ct. 1752.

Finally defendant urges that the arbitrators obtained prejudicial evidence off the record and outside of the hearing. Prior to the commencement of a hearing, the same arbitrator asked an expert witness for plaintiff about the quality of organs for home use. The arbitrator told the expert that he wished to purcháse a “classic organ.” The arbitrator testified he was under the impression that plaintiff made only theater organs. This was before commencement of the hearing on that day and only two of the arbitrators were present. The court reporter and counsel for both sides were present at the time. The witness stated that his opinion may have been biased but he thought plaintiff manufactured a good organ. The arbitrator then stated the conversation should be dropped. The attorney for defendant suggested that perhaps this conversation should go into the record. The arbitrator stated the attorney could do so if he wished. The conversation was not in the record but it was the subject of testimony in the depositions.

Defendant cites Moshier v. Shear (1881), 102 Ill. 169, and McCoy & Sons, Inc. v. LaSalle County (1977), 48 Ill. App. 3d 802, 363 N.E.2d 442, and urges the arbitrator was guilty of misconduct which requires vacation of the award. In Moshier, the court found an arbitrator’s discussion with a former hearing officer was misconduct which required vacation of the award. The court compared an arbitrator to a juror. “It [is] gross misconduct for either to seek evidence or the opinions of others in regard to the case, or anything material to its decision in another mode.” (102 Ill. 169, 173.) In the case at bar, the question posed by the arbitrator did not involve the case at issue, the contract between the parties, or even the organ involved in the litigation. Under no circumstances can this brief inquiry be considered to indicate a presumed bias of the arbitrator.

In McCoy, one of the parties to an arbitration noticed representatives and witnesses of the other party having drinks with one of the arbitrators in a restaurant, shortly after the day’s hearings had concluded. He joined the group and the arbitrator left shortly thereafter. This court there noted that the parties had agreed it was improper for the arbitrator to commence discussions with representatives of a party to the arbitration “out of the presence” of the other party. (McCoy & Sons, Inc. v. La Salle County (1977), 48 Ill. App. 3d 802, 803.) In the case at bar, any allegedly improper discussions were held in the hearing room and in the presence of defendant’s counsel. Therefore, there was no possibility of evidence being adduced without the knowledge of defendant.

The situation in this case points up an important aspect of the flexibility of the common law in bringing about a modernized outlook. Defendant relies strongly upon Moshier. When that case was decided, slightly more than a century ago, there was a goodly degree of antipathy in the attitude of courts in general to the process of arbitration. Many practicing lawyers have heard the statement made that arbitration was simply an attempt to oust the courts from their rightful jurisdiction. Thus, when Moshier was decided, the courts looked upon an arbitrator as exercising a legal function similar to the work of a juror. However, perhaps in part because of the massive expansion of litigation of all types, the judicial attitude has become modified as exemplified by the modern cases such as Garver, Wilcox Co., Freeport Construction Co., Pillott and William B. Lucke, Inc., cited above. The effect of this modernized thinking has been to make the status of the arbitrator virtually equivalent to that of a judge. This is exemplified by the requirement above described of direct, definite and certain evidence in proving partiality of an arbitrator.

The development of arbitration is further demonstrated by the increase in the number of American jurisdictions in which the Uniform Arbitration Act has been adopted. Compare Ill. Ann. Stat., ch. 10, at 400 (Smith-Hurd 1975), to Ill. Ann. Stat., ch. 10, at 82-83 (Smith-Hurd Cum. Supp. 1981-82).

We do not mean by this statement to suggest in any manner that each person participating in arbitration should not receive an absolutely fair and impartial hearing. We merely point out that the standard of determining whether this requirement has been observed is far different at the present time from what it was 100 years ago.

Our examination of the entire record has convinced us that defendant received a fair and impartial hearing in the arbitration proceedings. We find no strong and convincing evidence of prejudice or misconduct by the arbitrators. We find no evidence which can conceivably be interpreted as showing any definite and direct interest in the outcome of the proceedings by any of the arbitrators.

The judgment appealed from is affirmed.

McGLOON and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE STAMOS

text:
    GARY MIURA, Plaintiff-Appellee, v. FAMOUS CAB COMPANY, Defendant-Appellant.—(RITA CHEEKS, Defendant.)
    First District (2nd Division)
    No. 81-684
    Opinion filed June 29, 1982.

      Sherwin Greenberg, of Skokie, for appellant.
    James N. Karahalios, of Chicago, for appellee.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Gary Miura brought this action to recover for personal injuries and property damage allegedly caused by the negligence of Rita Cheeks while she was operating a vehicle owned by Famous Cab Company. A default judgment was entered in the amount of $10,000. Defendant Famous Cab appeals this default judgment and the denial of its motion to vacate that judgment.

On May 7, 1980, plaintiff filed a complaint against Rita Cheeks and Famous Cab Company. The complaint alleged that plaintiff was driving northbound at approximately 2200 North Lake Shore Drive when Cheeks, who was an agent of Famous Cab, drove her southbound taxicab over the lane divider into the northbound lanes and hit plaintiff’s car head-on. Plaintiff’s vehicle was knocked across all the northbound lanes, over the curb, across the parkway and sidewalk, and onto the beach. Plaintiff was injured and his car was completely wrecked.

Summons was placed with the sheriff for service on Famous Cab at 3641 South Indiana in Chicago. The sheriff’s return of service, dated June 3, 1980, shows service was had on Famous Cab at 9:49 a.m. on May 14, 1980, at the address on South Indiana. The return indicates that a copy of the complaint and summons was left with Earl Anthony, described as a 29-year-old black male, as “R/A” (registered agent) of Famous Cab. No appearance by Famous Cab was filed within the next 30 days.

On October 21, 1980, plaintiff sent Famous Cab a notice of motion stating that on November 3, 1980, the attached motion for entry of judgment by default would be presented to Judge Bieschke. These items were sent by certified mail, return receipt requested. The receipt card was returned to plaintiff showing that the notice of motion and motion were received by Famous Cab, and signed for by Michael C. Simmons, on October 22, 1980. Famous Cab failed to appear on November 3 and Judge Bieschke ordered judgment against Famous Cab on the issue of liability. The case was transferred to the presiding judge for a prove-up of damages. The prove-up was set for December 9, 1980. On November 7, plaintiff mailed a copy of Judge Bieschke’s order, the order setting December 9 as the date for the prove-up, and a cover letter to Famous Cab. This mailing was also sent by certified mail, return receipt requested. The receipt card was returned to plaintiff showing that the orders and letter were received by Famous Cab, and signed for by Roscoe Simmons, on November 8, 1980.

Famous Cab did not appear on December 9. The cause was assigned to Judge Nordberg, who received evidence on the question of damages. Judge Nordberg entered judgment against Famous Cab in the amount of $10,000 but continued the case to December 12, 1980, so that plaintiff’s attorney could prepare a written order. On December 10, plaintiff’s attorney telephoned Famous Cab’s insurance carrier, informed it of the foregoing events and sent it copies of the trial court’s orders. On December 12, Leon S. Gillin and Associates appeared before Judge Nordberg as attorneys for Famous Cab and presented an “Emergency Motion” to vacate Judge Bieschke’s November 3 default order. This motion alleged, among other things, that the notice to the insurance carrier was the first time Famous Cab had knowledge of the lawsuit.

Judge Nordberg stated that he was exercising his discretion and not conducting any proceedings on Famous Cab’s motion. He directed Famous Cab to file its motion before Judge Bieschke, who had entered the default order. Judge Nordberg then entered the written judgment order for $10,000. He specifically noted that if Judge Bieschke vacated the default order, the award of damages would fall. Later that day Famous Cab filed a motion to vacate before Judge Bieschke.

On December 16, 1980, Famous Cab filed another motion, this a motion to vacate Judge Nordberg’s judgment order of December 12. This motion, which was never served on plaintiff, attacked service of summons and notice of motion. Famous Cab’s brief claims that the motion sets forth due diligence and a meritorious defense. The motion, however, was unverified, unsupported by affidavit, and contained hearsay and a number of legal conclusions.

On December 23,1980, Judge Bieschke heard Famous Cab’s December 12 motion to vacate the default order which had been entered on November 3. Famous Cab’s motion was again unsupported and the trial court denied the motion to vacate the default order. Two months later, on February 25, 1981, Famous Cab served notice of its motion to vacate Judge Nordberg’s December 12 order regarding damages. This motion had been filed with the court on December 16,1980. On March 10, 1981, Famous Cab filed three affidavits, each of which had been signed on March 9, in support of its December 16 motion to vacate. These affidavits, by Bernie, Michael and Eric Anthony, state, among other things, that there has never been an Earl Anthony or a Michael Simmons employed at Famous Cab. The affidavits which were not served on plaintiff’s attorney until the subsequent hearing, also state that the three affiants were the only employees of Famous Cab and that the first they heard of the lawsuit was when they were telephoned by their attorney on December 11, 1980.

Judge Nordberg conducted a hearing on Famous Cab’s motion on March 16, 1981. It was not until after the hearing began that the three affidavits were served on plaintiff’s attorney. When asked by the court whether he desired a continuance in order to prepare a response to the affidavits, plaintiff’s attorney responded that hé didn’t think any response was necessary since the matters had already been ruled on by Judge Bieschke. The testimony at the hearing revealed that Famous Cab operates seven cabs on the streets, that Rita Cheeks is one of the drivers, and that there are additional drivers, dispatchers and mechanics involved in the operation of Famous Cab. Judge Nordberg stated he would base his decision on numerous factors, including the credibility of the affidavits. It should be emphasized that the affidavits asserted there were only three employees in the company which had seven cabs in operation and employed dispatchers and mechanics. Judge Nordberg also noted that he was aware of Judge Bieschke’s ruling that a mistake in writing down the first name of a person receiving process (i.e., Earl Anthony rather than Eric Anthony) is not significant. In ruling on the same issues, Judge Nordberg fully concurred with Judge Bieschke’s decision and denied Famous Cab’s motion to vacate the judgment. Famous Cab appeals from Judge Nordberg’s judgment of December 12,1980, and his March 16, 1981, denial of Famous Cab’s December 16, 1980, motion to vacate that judgment.

Famous Cab’s first contention on appeal is that the trial court, per Judge Nordberg, erred in not granting its December 12 “Emergency Motion” to vacate the earlier default order which was entered on November 3, 1980, by Judge Bieschke. On December 12, Judge Nordberg ruled that Famous Cab’s motion should be directed to Judge Bieschke because he entered the order. Judge Nordberg also stated that he thought that the proper motion to file was a section 72 motion because more than 30 days had elapsed since entry of the default order. (See Ill. Rev. Stat. 1979, ch. 110, par. 72.) It appears, however, that a section 72 petition would not have been proper. Such petitions seek relief from final orders and judgments. (Ill. Rev. Stat. 1979, ch. 110, par. 72(1).) A default order as to liability only does not constitute a final order. (Alderson v. Berol Products Division, Berol Corp. (1976), 38 Ill. App. 3d 139, 141, 347 N.E.2d 213.) Although a prove-up on damages was held on December 9, 1980, Judge Nordberg continued these proceedings until December 12, 1980. Because Famous Cab’s motion to vacate was heard prior to entry of the final judgment on damages, a section 72 motion at that time would have been premature.

That Judge Nordberg mistakenly believed that a section 72 petition was proper did not, however, make it error for him to deny Famous Cab’s motion to vacate. Section 50(5) of the Civil Practice Act states:

“The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 50(5).)

The statute specifically states that it is within the trial court’s discretion whether to vacate a default judgment. While this statute should be liberally construed (see Czyzewski v. Gleeson (1977), 49 Ill. App. 3d 655, 659, 364 N.E.2d 557; Engelke v. Moutell (1974), 20 Ill. App. 3d 253, 256, 313 N.E.2d 613), the overriding consideration is to serve the ends of justice. (People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402, 406, 270 N.E.2d 841.) Clearly the vacation of a default judgment is not automatic merely upon a motion by the defaulted party.

We believe Judge Nordberg committed no abuse of discretion in ruling that Judge Bieschke should decide Famous Cab’s motion to vacate that judge’s default order. Judge Nordberg specifically recognized that “if the motion to vacate the default is granted by Judge Bieschke, the damages prove-up will fall,” and noted that this was the procedure followed in the law division of the Circuit Court of Cook County.

Famous Cab’s next contention is that Judge Nordberg erred in not granting Famous Cab’s motion to vacate the order entered on December 12, 1980. Famous Cab’s motion to vacate this order was filed on December 16, 1980, but was not heard until March 16, 1981. The only conceivable foundation for Famous Cab’s position is the assertion that it used due diligence. Its contention that they had a meritorious defense is unsubstantiated by the record which merely states that a meritorious defense exists and denies plaintiff’s allegation without setting forth the basis of the defense.

Famous Cab claims its first notice of the lawsuit was on December 10 when its insurance carrier was notified by plaintiff’s attorney. It argues that the service of summons was on Earl Anthony and that no such person works for Famous Cab. It supported this allegation with three affidavits, by Bernie, Michael and Eric Anthony, who allege they are the only agents or employees of Famous Cab. These affidavits, which were filed with the court on March 10, 1981, also assert that Famous Cab never received the two certified mailings from plaintiff’s attorney.

A sheriff’s return of service is prima facie proof of service and can be overcome only by clear and convincing evidence. (Mitchell v. Tatum (1982), 104 Ill. App. 3d 986, 988, 433 N.E.2d 978.) Courts are required to indulge in every presumption in favor of the sheriff’s return of service. CWhitworth v. Morgan (1977), 46 Ill. App. 3d 292, 295, 360 N.E.2d 1198.) In the instant case, however, plaintiff presented more than simply the sheriff’s return of service. The certified mail return receipt cards showed (1) that Famous Cab received a notice of motion and a copy of the motion for default on October 22, 1980, and (2) that Famous Cab received a copy of the November 3, 1980, default orders and a cover letter on November 8, 1980. In addition, there is an inconsistency between the testimony that Famous Cab had drivers, dispatchers and mechanics and operated seven cabs, and the three affidavits claiming there were only three employees of the company. Given the conflicting evidence in respect to the existence of other agents or employees of Famous Cab, and the strong likelihood that Eric Anthony was served when the sheriff, for some reason, wrote that he served Earl Anthony, it was up to the trial court to judge the credibility of the evidence. (Mitchell v. Tatum (1982), 104 Ill. App. 3d 986,988.) Clearly the court’s decision to put more credence in plaintiff’s evidence is amply supported by the record. Famous Cab has failed to rebut the sheriff’s return of service by clear and convincing evidence. We therefore affirm the trial court’s denial of Famous Cab’s December 16 motion to vacate the December 12 order.

Famous Cab’s final contention on appeal is that the November 3, 1980, default order and the trial court’s December 12 judgment as to damages were void for lack of jurisdiction. This point has been adequately discussed in the context of Famous Cab’s first two appellate contentions. Famous Cab does, however, cite additional authority in support of its argument. In Harris v. American Legion John T. Shelton Post No. 838 (1973) , 12 Ill. App. 3d 235, 297 N.E.2d 795, the person alleged by the deputy to have been served had died in World War I. The court held that when a return is challenged by affidavit and there are no counter affidavits and no testimony by the deputy, the affidavits should be taken as true. (12 Ill. App. 3d 235, 237; see also Mason v. Freeman National Printing Equipment Co. (1977), 51 Ill. App. 3d 581, 584-85, 366 N.E.2d 1015.) In Aetna Casualty &- Surety Co. v. Sanders (1973), 15 Ill. App. 3d 573, 305 N.E.2d 25, however, the court held that an uncorroborated affidavit by the party allegedly served denying service was insufficient to contradict the sheriff’s return. 15 Ill. App. 3d 573, 576, citing Marnik v. Cusack (1925), 317 Ill. 362, 364, 148 N.E. 42; see Ingram v. MFA Insurance Co., (1974) , 18 Ill. App. 3d 560, 564, 309 N.E.2d 690.

As noted previously, the instant case involves not only the sheriff’s return but United States mail return receipt cards. The affidavits were not properly served on plaintiff’s attorney and the affiants, Eric, Bernie and Michael Anthony, did not testify. In addition, the trial court noted how narrowly the affidavits were drawn and how they failed to state that Famous Cab did not have actual notice of the lawsuit prior to December 10, 1980. These affidavits, claiming the affiants were the only employees of Famous Cab, directly contradicted Famous Cab’s own pleadings admitting that Rita Cheeks was a driver for the company. There was also the apparent contradiction regarding the existence of other employees.

In view of the evidence presented by plaintiff and the basic inconsistencies in Famous Cab’s evidence, the trial court’s conclusion that Famous Cab did not present clear and convincing proof to rebut the sheriff’s return, let alone the other evidence, is amply supported by the record. That the return of service named Earl Anthony rather than Eric Anthony is not dispositive. The sheriff had no way of knowing that the last name of the owners of Famous Cab was Anthony unless he was given the name when effecting service. Judge Nordberg noted that the name Anthony “is not a name that [the sheriff] would normally pick out of the air.” In addition, Eric Anthony’s signature, as it appears on his affidavit, is not clearly legible. In view of all the evidence, the trial court’s underlying conclusion that Famous Cab was properly served was based on the evidence and will not be disturbed. It follows that the trial court’s refusal to vacate the default orders against Famous Cab did not amount to an abuse of discretion.

The judgment of the trial court is affirmed.

Affirmed.

BERLIN and HARTMAN, JJ., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KURT J. ANDERSCH, Defendant-Appellant.
    First District (5th Division)
    No. 80-2887
    Opinion filed June 11, 1982.
    Rehearing denied August 6, 1982.

      Steven Clark and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MEJDA

delivered the opinion of the court:

Defendant Kurt Andersch was charged by information with the murders of Richard Hollis and James Kiley. Following a jury trial he was found guilty of two counts of involuntary manslaughter and was sentenced to two concurrent two-year terms in the Illinois Department of Corrections.

Defendant appeals, contending that: (1) the prosecution made prejudicial comments during closing arguments; (2) the State failed to prove him guilty of involuntary manslaughter beyond a reasonable doubt; and (3) the trial court erred in refusing to permit defendant to introduce his statement to police in its entirety during redirect examination.

Richard Hollis and James Kiley were fatally shot at the La Grange Y.M.C.A. in the early morning of October 16, 1979. Erbie Scott testified that on October 15, 1979, he resided on the fifth floor of the Y.M.C.A. At 6:30 p.m. he was in the company of victim Hollis, Vito Mason, “Little Ed,” Ronald Tripamer and Ronald, Jr. at a restaurant. This group sat at the bar drinking beer, watching television and talking until midnight. After a brief snack at a carry-out restaurant, he and Hollis purchased two six-packs of beer at a tavern where they met a stranger, who turned out to be Kiley. At 2 a.m. Kiley offered Hollis and Scott a ride to the Y.M.C.A. Scott and Hollis then invited Kiley, who had a 1/2 pint of whiskey, to join them at the Y.M.C.A.

The three men went to the fourth floor of the Y.M.C.A. Scott and Hollis knocked on the door of Vito Mason’s room. Mason did not answer even after Scott continued to knock and call his name “louder and louder.” Ronald Tripamer, Ronald, Jr., and Sam appeared on the scene. The then assembled group began to drink and laugh while Kiley passed around his 1/2 pint bottle. Suddenly Andersch came into the hallway with a rifle in his hands and said, “If you fellows don’t be quiet, I am going to shoot.” Scott then replied, “You son-of-a-bitch, if you are going to shoot, go ahead and start shooting.” Scott casually approached Andersch who, when at a range of 15 feet, withdrew, backing toward his room, which was located in a dead-end hallway. Scott continued toward Andersch’s room where Andersch stood at the doorway with a weapon at his hip, pointed straight ahead. Scott apologized to Andersch for waking him and offered him a beer. Andersch used the rifle barrel to poke Scott in the stomach. As Scott stepped aside, Sam approached and asked, “What’s going on?” After someone said, “Put down the pump gun and have a beer,” Andersch fired what sounded like two fast shots. As Scott froze against the wall, he heard someone say, “I’m hit.”

Prior to the shooting Scott stood within “touching distance” of Andersch at the threshold of his room. When the shot was fired, Scott was standing face-to-face with Andersch. Six people were in the hallway prior to the shooting, but Scott had “no knowledge of who was where,” including Hollis and Kiley, when the shot was fired. Scott testified that no one held a bottle at the time of the shooting, and that he didn’t see any broken glass on the threshold of the apartment. Scott drank seven to nine bottles of beer and two “drinks” of whiskey that night, but stated that neither he, Hollis, nor Kiley were intoxicated.

Ronald Tripamer testified that on October 16, 1979, he was residing in room 405 at the Y.M.C.A. He and his son, Ronald, Jr., had joined Mason, Hollis and Scott at a restaurant lounge. After midnight Hollis and Scott went for more beer. Meanwhile he returned to the Y.M.C.A. along with Mason and his son, stopping along the way at a carry-out restaurant. He and his son returned to his room. Ninety minutes later Sam came to visit them, bringing four beers which he split with the witness. Another 90 minutes elapsed when he heard Scott yelling for Vito Mason and pounding on Mason’s door. He, Ronald, Jr., and Sam walked to room 412, Mason’s room, where they saw Scott, Hollis and a stranger who was introduced to them as James Kiley. Kiley had a bottle of “Seagram’s 7” and passed it to everyone.

Tripamer stated that the group was talking and drinking when suddenly he heard someone yell, “Hey! Shut up down there.” Tripamer and his son began walking back to his room while Hollis, Scott, Kiley and Sam walked towards the elevator. Then, he heard a loud blast and saw a big cloud of smoke from around the corner, whereupon he and his son ran to their room. He stated that he drank about six to eight beers on the evening of the incident.

Steven Sang, who resided in room 430 of the Y.M.C.A., testified that he was awake at 3:35 to 3:40 a.m. on October 16, 1979, when he heard loud, drunken-sounding voices emanating from a nearby elevator. Next, he heard a resident’s door open and a “disturbed and upset” voice say, “Do you guys know what time it is?” A second voice responded angrily, saying in effect, “Do you want to say that to me up front?” Within a few seconds Sang heard a gunshot and an echo in reverberation of the noise in the hallway, followed by moans. Sang’s door was not opened during the incident and he did not see the occurrence.

Lieutenant Jerome Tesmond, La Grange Police Department, testified that at 4:30 a.m. on October 16, 1979, he was called to investigate the shooting. He observed the bodies of Hollis and Kiley. Kiley’s hand grasped a plastic whiskey bottle top. Nearby was a paper bag wrapped in a bluejean jacket containing two six-packs of beer. Tesmond observed fragments of a broken whiskey bottle in the hallway adjacent to Mr. Andersch’s room. One small fragment of glass was found six inches inside the doorway. In Kiley’s rear pocket Tesmond found a sheathed sporting knife.

Officer Tesmond recovered a 30-30 caliber Winchester lever-action rifle from Andersch’s room, and two boxes of silver-tipped hunting ammunition, the type that expands, or mushrooms on impact. The desk drawer containing this ammunition was closed. Inside the rifle chamber Tesmond found one expended shell casing and two silver-tipped rounds in the loading tube. The rifle was designed with more than one safety mechanism. When the rifle is cocked, by hand-operating the lever, the breach block slides open, giving the user a full view of any ammunition present in the loading chamber and firing chamber. Tesmond demonstrated the operation of the weapon for the jury and testified that when a cartridge is in the rifle, it is more difficult to lever than when it is empty. He also stated that the rifle could not be fired by pulling the trigger alone, but that the lever strap must also be squeezed up against the pin.

The stipulated testimony of Dr. Yuksel Konakci, a forensic pathologist at the Cook County Medical Examiner’s Office, was admitted into evidence. Dr. Konakci examined the bodies of Hollis and Kiley. The examination of Richard Hollis revealed an entrance wound at the left lateral aspect of the back. The examination of Kiley revealed three entrance wounds at the upper left chest. In Dr. Konakci’s opinion both men died from bullet wounds to the chest.

Merrill Schepro, a resident and employee of the Y.M.C.A., testified that at 3 a.m., October 16, 1979, he was in his room, number 426, at the Y.M.C.A. listening to music over his- headphones when he heard a commotion outside in the hallway. He opened his door and saw Scott and four other people standing in the hallway yelling. Then he saw Scott knock on the door of room 423. Andersch opened the door and asked Scott and the group if they knew what time it was, and told them he wanted to be left alone so he could sleep. Scott told Andersch that he would return and then the group left momentarily.

About five minutes later the group returned, this time with two other people. Schepro followed them to Andersch’s door. Scott knocked on the door and Andersch opened the door and asked what they wanted. Scott replied, “We’re back. Let’s see you start something now.” Then the group went into defendant’s room “in a kind of wave,” like “gatecrashers.” Andersch picked up a rifle and used it to push Hollis, who was in front of the group, out of the room. Hollis said, “You better put that BB gun away, mister, or you’re gonna [sic] get hurt.” Hollis then grabbed the end of the barrel of the rifle with both hands and tried to jerk it away when the gun went off. The gun was pointed at Hollis when it fired. Schepro stated that both Hollis and Scott had entered Andersch’s room before the gun discharged. Scott was unarmed, but Hollis cradled a bottle in his hands. Seconds before Hollis grabbed the gun barrel, Schepro heard glass break near Andersch’s doorway.

Schepro gave a written, signed statement to Officer John NusI shortly after the occurrence. According to the statement Schepro was listening to his headphones in bed when he heard two shots, then two more shots. He opened his door and saw the dead victims in the corridor. After this, Schepro went down to the hotel desk where he met the defendant. Defendant told him that he hád killed the men and Schepro replied, “I didn’t know that.” Schepro also testified that this statement was signed by him under duress, explaining that Gary Ottaviano, a high ranking official of the Y.M.C.A., threatened him with the loss of his job if he made any statement to the police.

Schepro further testified that he had also made a statement to Sergeant Wade of the La Grange Police Department on September 10, 1980, in which he stated that he saw only two people at defendant’s door when he first looked out, then they returned with three or four more people. Schepro also spoke to Thomas Gambino, the defendant’s investigator, on three occasions. He told Gambino that he saw Scott and the others at 1:30 a.m. and next saw them at 2:30 a.m. banging on doors. He also said he had a conversation with the group outside his door. Schepro told Gambino that Hollis, who was cradling a bottle, pushed the rifle barrel to the side and the gun went off.

Defendant testified that he lived in room 423 of the Y.M.C.A. on October 16,1979. After midnight he was asleep when a lot of noise in the hallway woke him up. Once the noise abated, he retired again, only to be reawakened by more noise at 3:30 a.m. Having unsuccessfully tried to ignore the noise he dressed and left his room. He saw three or four adult men grouped in a small circle about 70 to 80 feet down the corridor. He asked them to “hold it down” but received no positive response. He went to his room and then returned to the hallway with a rifle at his hip in order to “bluff” the noisemakers into silence. To the best of his knowledge his rifle was unloaded. The group turned and walked towards him. He “levered” his rifle to emphasize his bluff and said, “I mean business.” The men, however, continued towards him in an unfriendly manner. Defendant then returned to his room intending to sleep. Defendant stood in his doorway and the men turned the corner into the “cul de sac” outside of his room. He stopped inside his room and laid his rifle against a wall. After a few seconds Scott, Hollis and Kiley stood at the room’s threshold. Defendant asked, once again, for quiet but Scott said, “if you want to live here, you ought to get used to this kind of noise.” Scott then moved closer with a whiskey bottle in his right hand, advancing to a point where defendant could no longer close his door. Defendant retreated, grabbed his rifle and told the group to leave, whereupon Scott, with Hollis and Kiley pushing against his body, lunged forward with his bottle. Defendant thrust his rifle against Scott’s chest to repel the invasion. Then, as defendant pulled the gun back, unexpectedly, the weapon fired.

Defendant also testified that he had not fired the rifle, a collector’s item, for over six years prior to the shooting. It was Scott’s threatening thrust with the bottle which caused him to reach for the rifle, and he pushed the rifle at Scott to counteract what he considered to be a certain blow to his head by the liquor bottle. As the bottle hit the rifle and broke, defendant’s lunge moved him past Scott. When he pulled back, it seemed like the hammer of the rifle had caught something. His finger must have been on the trigger but he did not think it was at the time. He said that Scott reached for the rifle but he saw no one pull the rifle. He thought that he had removed any bullets from the rifle prior to October 16, 1979. He could not tell by picking up the rifle if it was or was not loaded.

Everett Eldridge and Robert Kiefer, who had known defendant for many years, testified that defendant was a peaceful and law-abiding citizen, having a very good reputation in the community.

The stipulation of Dr. John Spikes and Dr. Michael Schaffer, forensic pathologists, established that the blood alcohol levels of Hollis and Kiley were substantially in excess of the statutory level of intoxication (0.100 ethanol) at the time of their respective deaths.

Gary Ottaviano, a program executive employed by the Y.M.C.A., testified that he did not converse with Schepro until a couple of days after the incident when he observed him talking, while on duty at the front desk, to Y.M.C.A. residents about the shooting. Ottaviano told Schepro to desist from talking about the incident while on duty. He testified that he never told Schepro not to tell anyone about the incident.

Opinion

Defendant first argues that statements made by the prosecutor during her rebuttal argument denied him a fair trial. The first remarks complained of are as follows:

“The defendant is presumed innocent, however that presumption does not continue once you go into the jury room and deliberate. At that time you review the testimony of each and every witness * * * in this case, and when you do review that testimony you will see that the cloak of innocence that the defendant has surrounded himself has been stripped from him, and at that point in time I think you will reach the correct decision, that is, that he is guilty of the crime of murder.”

Basic to our system of criminal justice is the concept that the presumption of innocence remains with the accused at every stage of his trial. (People v. Balls (1981), 95 Ill. App. 3d 70,419 N.E.2d 571.) Therefore, the prosecutor’s comment that “the presumption does not continue once you go into the jury room and deliberate” is clearly erroneous, and not to be condoned by this court. However, the trial court properly instructed the jury that the presumption of innocence remained with defendant “throughout every stage of the trial and during your deliberations * * *" and we therefore conclude that the jury was not misled on this point. People v. Stokes (1970), 46 Ill. 2d 325, 263 N.E.2d 21, cert. denied (1971), 401 U.S. 946, 28 L. Ed. 2d 229, 91 S. Ct. 965; People v. Kurena (1980), 87 Ill. App. 3d 771, 410 N.E.2d 277.

The second comment complained of is contained in the following colloquy:

“[PROSECUTOR]: * * * and his attorney says, ‘Well, he has a good reputation for being a peaceful and law-abiding citizen.’ You got two people down here to say that A tilla the Hun could find two people that he knew.

[DEFENSE ATTORNEY]: That was uncontradicted testimony.

THE COURT: Sustained.

[PROSECUTOR]: As I said, anybody can get someone to come here and say they have a good reputation.”

Defendant, a German national, argues that the reference to A tilla the Hun, an infamous Germanic figure, was calculated to invoke ethnic or racial prejudice. Initially, we note that defendant did not object at trial to the comments on such grounds which, in our view, negates his contention of ethnic or racial prejudice. (People v. Kelly (1975), 25 Ill. App. 3d 753, 324 N.E.2d 82.) Although we think the comment was ill-advised in view of defendant’s national origin, our examination of the record convinces us defendant has failed to show substantial prejudice as a result of the assailed comment (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200), and has failed to show that the comment constituted a material factor in the conviction. People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363.

Defendant next argues that reversible error occurred as a result of the prosecutor’s rebuttal comments, exemplified by the following:

“Well, the Defense Attorney came up here and said to you a few moments ago that he was surprised at Merrill Schepro’s testimony. And I cannot believe that he would actually say that to you. Everything that Merrill Schepro said, this Defense lawyer knew he was going to say * * * So he knew at that point in time that Merrill Schepro’s testimony was not true.”

In defense of the complained-of rebuttal comments, the State contends that they were proper argument, invited by comments made by defense counsel, which did not result in any substantial prejudice to defendant. Initially, we do not find that the comments accuse defense counsel of suborning perjury so as to require reversal on such grounds. (See People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19.) Moreover, following each complained-of comment, the trial court sustained defendant’s objection and ordered the remarks stricken, in our view sufficiently curing any prejudice! (Baptist.) In addition, we have considered the cumulative effect of the above rebuttal remarks and hold that defendant has not shown that he was so prejudiced that he was denied his right to a fair trial.

Defendant next argues that he was not proved guilty of involuntary manslaughter beyond a reasonable doubt. He contends that his conduct was not reckless, maintaining that he did not know the rifle was loaded, and further that the shooting was the result of an accidental and therefore “unconscious” act. People v. Spani (1977), 46 Ill. App. 3d 777, 361 N.E.2d 377.

Section 4 — 6 of the Criminal Code of 1961 defines recklessness:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow * * * and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” Ill. Rev. Stat. 1979, ch. 38, par. 4 — 6.

The question of whether a person is proved guilty beyond a reasonable doubt of involuntary manslaughter questions the jury’s determination of whether defendant recklessly performed acts which caused death, and its determination on this issue should not be disturbed unless the jury was unjustified in arriving at its finding of recklessness. (People v. Schwartz (1978), 64 Ill. App. 3d 989, 382 N.E.2d 59.) It is settled that pointing a loaded weapon at another constitutes recklessness since it is a gross deviation from the standard of care exercised by a reasonable person. (Schwartz; People v. Moczarney (1978), 65 Ill. App. 3d 410, 382 N.E.2d 544.) Defendant attempts to avoid this principle on several grounds. First defendant maintains that he did not realize the rifle was loaded. However, the trier of fact could have properly determined that the defendant acted recklessly in not checking the condition of the weapon prior to the incident. (Schwartz.) The jury heard the testimony of Lieutenant Tesmond regarding the loading and operation of the rifle, and its various safety mechanisms. The defendant cocked the lever, thus bringing the loading chamber into full view, and pointed the barrel at, or in the direction of, the victims. The jury, therefore, could have concluded that under the circumstances, defendant’s conduct was reckless even if he believed the weapon was unloaded.

Defendant argues that discharge of the weapon was an accidental act, an “unconscious” act and therefore did not involve the requisite mental state of recklessness. This argument, however, confuses reckless conduct with the risks or results that are the natural products of such acts. Moreover, the question of whether a shooting is the result of accident or by reckless conduct is in the province of the trier of fact. People v. Kelly (1975), 24 Ill. App. 3d 1018, 322 N.E.2d 527.

Defendant maintains that his conscious acts were done lawfully in self-defense and that the shooting was an accidental outgrowth of such lawful conduct. He claims that he used what he thought was an unloaded rifle to repel an invasion by a “horde of drunks into his residence.” A review of the evidence, however, dispels defendant’s illustration of a threatened person defending his life and property, and instead depicts a scene in which an angry bluff precipitates a deadly confrontation at the threshold of defendant’s door. Defendant’s testimony established that he clearly threatened the unruly group by aiming and “levering” his rifle at them in the hallway. Defendant then retreated to his room, but did not attempt to close the door. Rather, he chose to conceal his rifle in an adjacent room and stand in his door, even after seeing that the group was walking toward him in an “unfriendly” manner. A defendant cannot claim self-defense where the situation he encounters arises out of his own making. People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.

Moreover, defendant’s claim that he was threatened by the group is sufficiently refuted by the evidence. The defendant admitted that regarding Scott’s physical stature, normally he “would not have been a match for me.” Defendant also testified that when Scott stood at the door he “felt somewhat threatened. But not really that I thought I was.” An element justifying the use of force in self-defense is that a person threatened must actually believe that a danger exists. People v. Brumbeloe (1968), 97 Ill. App. 2d 370, 240 N.E.2d 150.

Defendant argues that he used his rifle to “block blows with a bottle by his attacker.” Schepro testified that Hollis cradled a bottle and Scott saw no one with a bottle. Although defendant claimed that Scott held the bottle, the uncontradicted evidence established that a whiskey bottle top was found in the lifeless hand of Kiley, who according to defendant’s own testimony was standing in back of Scott. Moreover, the whiskey bottle that Kiley held shattered with all of the pieces except one landing outside the defendant’s door, indicating that Kiley stood in the hall. It is noteworthy that the entrance wound to Hollis’ back indicated that Hollis was not entering defendant’s apartment at the time of the shooting. Further, Kiley was struck by bullet fragments exiting Hollis' body, establishing that Kiley was positioned behind Hollis and further eroding defendant’s “onrushing horde” illustration.

Having carefully reviewed the record we cannot say that the evidence is so palpably contrary to the jury’s finding that we entertain a reasonable doubt of defendant’s guilt of involuntary manslaughter. We believe that the jury could properly conclude that defendant’s conduct was reckless and that the shooting was not an accidental outgrowth of justifiable conduct in self-defense. Under the facts and circumstances of this case, we hold that the State has not failed to prove defendant guilty of involuntary manslaughter beyond a reasonable doubt.

Defendant finally contends that the trial court committed reversible error by restricting defense counsel’s attempt to rehabilitate him after he had been impeached by proof of his prior inconsistent statement. The prosecutor used portions of defendant’s 21-page statement made by him to police officers on October 16, 1979, to impeach his testimony during cross-examination. During redirect examination, defense counsel sought to bring out defendant’s entire statement to rehabilitate him. However, after the State’s objection, the trial court ruled that only those portions of the defendant’s prior statement which might tend to explain, modify or reconcile any inconsistencies brought out in defendant’s cross-examination testimony could be explored by defense counsel. Defendant contends that the trial court’s refusal to allow defense counsel to use the statement in its entirety was reversible error.

“[I]t is well settled that where a witness has been impeached by proof that he has made prior inconsistent statements, he may bring out all of the prior statements to qualify or explain the inconsistency and rehabilitate the witness.” (People v. Hicks (1963), 28 Ill. 2d 457, 463, 192 N.E.2d 891, 894; People v. Richmond (1980), 84 Ill. App. 3d 1017, 406 N.E.2d 135.) The admission into evidence of any prior statement under this rule, however, is subject to the proscriptions of relevance and materiality. (Walters v. Taylor (1976), 36 Ill. App. 3d 934, 344 N.E.2d 765.) Thus, a portion of a witness’ statement which is not a qualification or an explanation of the apparent inconsistency in the prior impeaching statement need not be admitted on these grounds. We therefore reject defendant’s position that Hicks requires an “all or nothing” approach to the admissibility of his remarks to the police on October 16, 1979. Further, contrary to defendant’s contention that the Federal evidentiary rules support his claim, we point out that Federal Rule of Evidence 106 provides for the introduction of “any other part” of a prior statement “which ought in fairness” be considered contemporaneously with the portion introduced. (Emphasis added.) (Fed. R. Evid. 106.) Accordingly, Federal court decisions have held that this rule is circumscribed by two qualifications: (1) the portions sought to be admitted must be relevant to the issue; and (2) only those parts which qualify or explain the subject matter of the portion offered by the opponent need be admitted. United States v. Walker (7th Cir. 1981), 652 F.2d 708.

Finally, we cannot conclude on the instant record that defendant was prejudiced by the trial court’s ruling precluding admission of the entire text of his statement. The record shows that defendant was given every opportunity to explain and reconcile his inconsistent testimony. On redirect examination, defense counsel questioned the defendant thoroughly and extensively regarding the circumstances under which the statement was given, and he was allowed to introduce portions of the statement that explained or put his testimony into context. Moreover, defendant has not presented to this court a copy of the entire statement at issue. Since we are restricted in our examination of the record as it is (People v. Edwards (1978), 74 Ill. 2d 1, 383 N.E.2d 944, cert. denied (1979), 442 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862), we cannot conclude that any rehabilitating portions of defendant’s statement were improperly excluded from evidence. From our review of the entire record, we believe that defendant received a fair trial.

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

Affirmed.

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


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT KORIS et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 80-3038, 80-3039, 80-3040 cons.
    Opinion filed July 6, 1982.

      Sidney Z. Karasik, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Thomas A. Rieck, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendants, Robert Koris, Robert Conway and Diana Stewart, were found guilty in a bench trial of the theft and possession of a stolen 1976 Lincoln automobile. Judgment was entered only as to the theft. (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(a)(1).) Koris was sentenced to two years’ imprisonment; Conway and Stewart to 18 months’ probation.

Defendants appeal, contending (1) they were not proved guilty beyond a reasonable doubt; (2) the trial court erred in ruling they had no standing to move to quash the search warrant or to suppress evidence; and (3) the trial court erred in denying their request for a continuance.

The State introduced the testimony of Charles M. Edgeton, since deceased, who had testified at the October 28, 1977, preliminary hearing that his automobile was taken on March 29, 1977, that it was later found inside the garage owned by defendant Koris and that he had not given anybody permission to take it.

Chicago Police Investigator James Houtsma testified that from March 29 through March 31, 1977, he and his partner (James Kennealy) were parked across the street from 8612 South 77th Avenue in Bridge-view, Illinois, maintaining a surveillance of that building. The property at that address was owned by defendant Koris of 7143 South 84th Street, Bridgeview.

At about 10:45 p.m. on March 29, 1977, defendants Conway and Stewart, with Conway driving, drove up in a black pickup truck with license No. 448 144 B. This license was issued to Donna Eaglesham of 2743 West 84th Place, Bridgeview. Stewart got out and unlocked the gate to the yard next to 8612 South 77th. Less than a minute later, Houtsma saw defendant Koris drive a 1976 Lincoln into the garage. The lighting conditions were poor at that time. The license plates on the Lincoln were 1977 plates No. GG9595. This license was issued to Donna Eaglesham of the same Bridgeview address. Houtsma testified that to the best of his recollection he had seen these license plates at least four times on four different automobiles. The Lincoln appeared to be a dark color over grayish. Koris drove the Lincoln in to the rear of the building. Stewart closed the gate. Conway walked to the rear, followed by Stewart. Later the three defendants came out of the front of the building and left in the black pickup truck. They drove to a garage at 84th and Pulaski.

On the morning of March 30, 1977, Houtsma saw defendant Koris drive up to the garage at 8612 South 77th in a red dump truck. Thirty minutes later Koris drove out through the gate in a white CMC step van with 1977 license No. 1616 C. This license was issued to defendant Koris at 7143 West 84th Place, Bridgeview. Koris drove to Keystone Auto in Robbins. There Koris opened the rear of the van and removed a white automobile hood and fenders and white automobile doors with burgundy-colored interior vinyl. These matched the colors of the stolen 1976 Lincoln found the next day in Koris’ garage.

On March 31, 1977, at about 7:05 a.m., Houtsma saw defendant Conway drive the same black Chevrolet pickup truck into the lot across from 8612 South 77th Avenue. Koris was also in the truck. Houtsma and Kennealy approached defendants Conway and Koris and showed them a warrant to search 8612 South 77th Avenue. Then Houtsma, Kennealy and two other officers and defendant Koris, using his keys, opened the front door of 8612 South 77th. Kennealy testified that he, defendants Koris and Conway, Investigators Ball, Houtsma and Picket entered the premises. The inside of the building was primarily a garage, the front part being an office.

In the garage area the police found a 1976 Lincoln automobile with no hood, doors or fenders, but otherwise in good condition. There were no license plates on the car. The car had a dark burgundy top and a white bottom. The value of the automobile was about $2700. The VIN number on the auto was 6Y 81 A 863026, the VIN number of Edgeton’s automobile. Also in the garage were compressors, tools, tires and other auto accessories.

On cross-examination, Houtsma stated that he arrested defendants Koris and Conway only after executing the search warrant. He explained that his police report, which stated that Koris and Conway were taken into custody and then the search warrant was executed, was in error.

Donna Eaglesham testified that she resides with her sister in an apartment building at 7143 West 84th Place and that other tenants also live in that building. She owned a 1976 Chevrolet Cam aro with license plate No. GG 9595. She may have had occasion to loan the car to others. During the time she owned the car, license plate No. GG 9595 was never removed from the car. Defendant Koris is Donna Eaglesham’s brother-in-law. Both defendant Koris and defendant Stewart also resided at 7143 West 84th Place during the period of January through March of 1977. Donna Eagle-sham at one time was secretary for Waz Body Shop in Oak Lawn, which was owned by defendant Conway.

Defendants argue that they were not proved guilty of theft beyond a reasonable doubt. We disagree. Section 16 — 1 of the Criminal Code of 1961 provides in pertinent part (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1):

“A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the tt a a owner;

e e e

and (1) Intends to deprive the owner permanently of the use or benefit of the property * * *.”

Here, the evidence is clear that defendants exerted unauthorized control over the 1976 Lincoln automobile of Charles M. Edgeton with the intent to deprive him permanently of its use or benefit. The police had for several days maintained a surveillance of the garage owned by defendant Koris at 8612 South 77th Avenue, Bridgeview. During the night of March 29, 1977, defendants Conway and Stewart drove up in a black pickup truck. Stewart alighted from the truck and unlocked and opened the gates. Almost immediately thereafter, Koris drove up in a 1976 Lincoln bearing license plates No. GG 9595 and drove it into the garage. Although the lighting was poor, it could be seen that the car was a dark color over a light color. Stewart then closed the gates. Conway walked to the back of the area. Later, all three defendants left the garage and drove in the truck to another garage. The license plates on the Lincoln and on the truck were issued to Donna Eaglesham of 7143 West 84th Place. She was Koris’ sister-in-law and lived with her sister, Koris and defendant Stewart at that address, which was owned by Koris. The police had seen her license plates GG 9595 at least four times on four different automobiles.

The next morning Koris drove up to the garage on 77th Avenue in a red truck and left about a half hour later in a white van, whose license plates were issued to Koris at his 84th Place address. He drove to an auto shop in Robbins and unloaded a white automobile hood, fenders and white doors with burgundy-colored interior vinyl. These colors matched those of Edgeton’s 1976 Lincoln found the next day in Koris’ garage, where the search warrant was executed.

On that day, March 31,1977, shortly after 7 in the morning, Conway, with Koris as a passenger, drove the black pickup truck into a lot across from the 77th Avenue garage. The police exhibited a search warrant to them. Koris, using his keys, opened the front door of that building. Defendants Koris and Conway with the police entered the garage, where they found Edgeton’s stolen 1976 Lincoln stripped of its front fenders, hood and doors.

Defendants argue that under People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, the exclusive unexplained possession of the Lincoln was insufficient to prove them guilty of its theft. In that case, the court said:

“To the extent that past Illinois decisions have held that exclusive and unexplained possession of recently stolen property is sufficient, standing alone and without corroborating evidence of guilt, for conviction of burglary, those decisions, in the light of the United States Supreme Court holding in County Court [County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213], can no longer be applied, * * * .’ (84 Ill. 2d 415, 423.)

While that case was concerned with burglary, defendants contend its reasoning is applicable to a charge of theft. Assuming, without deciding, that Koris’ exclusive and unexplained possession of the Lincoln is insufficient under Housby, standing alone, the facts set out above are strong corroboration of Koris’ guilt beyond a reasonable doubt. These same facts also are sufficient under the theory of accountability to find defendants Conway and Stewart guilty of theft beyond a reasonable doubt.

The facts show that defendants exerted recent, exclusive and unexplained possession of the stolen car. Koris was the sole occupant and driver of the car. He was in exclusive control of the car and Conway and Stewart acted as his partners in crime. The ownership of the garage was of minimal importance because Koris’ possession did not depend on where it was stripped. His ownership of the garage is but another piece of corroborating evidence.

Defendants contend that the trial court erred in ruling that defendants had no standing to move to quash the search warrant or to suppress evidence, without permitting defendants an opportunity to demonstrate that they had an expectation of privacy with respect to the search. Prior to trial, defendants filed a motion to quash the warrant and to suppress the evidence obtained in the execution of the search warrant — the stripped-down Lincoln found in Koris’ garage. Defendants claim that Koris, as owner, had a legitimate expectation of privacy in the garage. We disagree.

Attached to their motion was the copy of the lease of the garage premises to a Michael Antonelli. In that lease, Koris on January 1, 1977, leased the garage for a 2-year term commencing January 1, 1977, and ending January 1, 1979, to Antonelli. This lease shows that the right to a legitimate expectation of privacy in the garage was in Antonelli, the lessee. In addition, only rights to enter the premises retained by Koris under the lease (paragraph 9) were “for the purpose of examining or exhibiting the same, or to make any needful repairs, or alterations thereof which Lessor may see fit to make ” *

In People v. Bochniak (1981), 93 Ill. App. 3d 575, 417 N.E.2d 722, this court, in affirming the granting of the lessee-defendant’s motion to suppress evidence obtained in the search of the demised premises, held that the lessor who retained a key had no authority to consent to the search. The facts here are the converse of those in that case. It is the lessor, not the lessee Antonelli, who is asserting an expectation of privacy.

In Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421, the Supreme Court of the United States held that fourth amendment rights are personal rights which may not be vicariously asserted and that a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his fourth amendment rights infringed. It also held that the rule of standing to raise vicarious fourth amendment claims should not be extended by a so-called “target” theory whereby any criminal defendant at whom a search was “directed” would have standing to contest the legality of that search and object to the admission at trial of evidence obtained as a result of the search. In a footnote in that case the court said:

“Obviously, however, a ‘legitimate’ expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legimate.’ * * * Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. * * * On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. * * *” 439 U.S. 128, 143-44 n.12, 58 L. Ed. 2d 387, 401-02 n.12, 99 S. Ct. 421, 430-31 n.12.

In Rawlings v. Kentucky (1980), 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556, the court held that after Rakas the inquiry now is: “whether governmental officials violated any legitimate expectation of privacy held by” (448 U.S. 98, 106, 65 L. Ed. 2d 633, 642, 100 S. Ct. 2556, 2562) a defendant and that Rakas had “emphatically rejected the notion that ‘arcane’ concepts of property law ought to control the ability to claim the protections of the Fourth Amendment.” 448 U.S. 98,105, 65 L. Ed. 2d 633, 642, 100 S. Ct. 2556, 2562.

In United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547, the court abrogated the rule that defendants charged with a crime of possession were entitled to claim “automatic standing” to challenge the legality of a search without regard to whether they had an expectation of privacy in the premises searched. In that case the property which formed the basis for the indictment for the possession of stolen mail had been seized during a search pursuant to a search warrant of an apartment rented by the mother of one defendant. There the court stated that it had held in Rakas that an illegal search only violates the rights of those who have “ ‘a legitimate expectation of privacy in the invaded place’ ” and “[w]e simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched” and “we must instead engage in a ‘conscientious effort to apply the Fourth Amendment’ by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.” 448 U.S. 83, 91-93, 65 L. Ed. 2d 619, 628-29, 100 S. Ct. 2547, 2553.

Defendants argue that under Salvucci this cause should be remanded for an opportunity to demonstrate, if they can, that their own fourth amendment rights were violated. We disagree. It is abundantly clear that by the lease Koris had surrendered his right of possession except for a limited purpose, not here involved. A hearing could not demonstrate more than that, unless Koris took the position that there was no lease. It cannot be assumed, however, that such was the fact, because Koris himself introduced the lease into the case.

Defendants finally claim that the trial court erred in denying their motion for a continuance to enable their counsel to prepare a defense and secure the attendance of a crucial defense witness, Michael Antonelli.

Defendants were initially represented by an attorney who filed and then, on October 28, 1977, withdrew a motion to quash the search warrant, with right to refile. On May 25,1978, a different attorney entered his appearance for defendants, but withdrew because of ill health on December 13, 1979. In March of 1980, another attorney (John Conniff) entered the case for defendants. Shortly thereafter, he was hospitalized and was unable to resume his law practice until early June of that year. On July 3, 1980, the State announced that because the court had sustained a defense motion to suppress evidence in another prosecution against defendant Koris and three others, it could be ready on the next trial date (July 17) on the indictment involved in this case. On July 17 the State did not answer ready. Attorney Conniff entered his appearance for defendants and informed the court that he intended to submit an amended motion to quash the search warrant and suppress evidence. The court then set the matter for August 26 for a hearing on the motion to quash the warrant. On that date defendants’ attorney filed a motion to quash warrant and to suppress evidence. The State objected to the filing on the ground that under United States v. Salvucci defendants had no standing to file the motion. The motion was then amended to include the lease of the premises to Antonelli. The court held that because of the lease Koris had no legitimate expectation of privacy and therefore no standing to pursue the motion. Although the matter had been set for that date for only a hearing on the motion, trial commenced.

After the State had rested its case in chief and defendants’ motion for a directed verdict had been denied, the motion to quash and suppress was renewed and again denied. One witness defendants wished to call was Antonelli, who was a Federal prisoner. Conniff stated that he had not been aware that he was going to have to go to trial on August 26 and that he would be prejudiced if he had to proceed without the Federal prisoner.

When Conniff discovered on August 26 that Antonelli was the lessee of the garage, he found that a conflict of interest arose because of his representation of Antonelli in several criminal matters, both Federal and State. Conniff was permitted to withdraw on August 27 and the trial suspended until September 18. The court stated that it was the responsibility of the defendants to get a lawyer as soon as possible and he will get a writ to secure Antonelli’s presence and, if that was not done, the next court date would be the final court date; the case would be concluded on that date.

On September 18, 1980, Attorney Louis P. Buffardi entered his appearance for defendants and asked for a continuance for additional time in which to prepare a defense. He stated that he had attempted to secure Antonelli’s presence but that the correspondence he had with the Federal prison system and the State’s Attorney’s office showed that approval by and cooperation by the State’s Attorney’s office was needed, which he had been unable to secure. Defendants’ attorney made an offer of proof that lessee Antonelli’s testimony would be relevant and probative as to whether he had possession of the garage. The motion for continuance was denied and the defense rested without calling defendants as witnesses.

Defendants argue that they were prejudiced because this refusal of a continuance prevented defense counsel from calling defendants and from securing the trial attendance of a crucial witness, Antonelli.

The. granting or denial of a continuance to procure a witness is a matter within the sound discretion of the trial court (People v. Jackson (1979), 72 Ill. App. 3d 231, 390 N.E.2d 47) and depends on the circumstances surrounding the request. (People v. Rivers (1978), 61 Ill. App. 3d 376, 377 N.E.2d 1245.) Section 114 — 4(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 4(e)) provides: “(e) All motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant.” When reviewing the denial of such a continuance, this court must determine whether defendants acted diligently, whether the witness’ testimony is material and could have affected the outcome of the case. (People v. Rivera (1.978), 64 Ill. App. 3d 49, 380 N.E.2d 1018.) In addition, the extent to which the denial embarrasses defendants in the preparation of their case and prejudices their rights must be considered. People v. Jefferson (1976), 35 Ill. App. 3d 424, 342 N.E.2d 185.

Defendants had three weeks to locate and secure the attendance of Antonelli. The trial court specifically continued the case from August 27 until September 18 for that purpose. Moreover, defendants did not act diligently in securing the attendance of their witness. Defendants were aware that Antonelli was in a Federal prison when the case was continued on August 27. Defendants also knew before the final date that Antonelli would not be present in court. More importantly, defendants were aware of the Federal procedure for dealing with a State writ of habeas corpus ad testificandum. Federal authorities notified defendants nearly two weeks before the final date that they should procure Antonelli’s testimony by deposition or interrogatories.

Defendants never made an offer of proof that they tried to depose Antonelli or send him interrogatories. Defendants realized that Antonelli might not answer any questions, just as he might have exercised his fifth amendment right to remain silent if he had been present at trial. At any rate, the failure to comply with the guidelines established by the Federal prison authorities demonstrated defendants’ lack of diligence in securing the attendance of their witness at trial. This is so even if, as defendants contend, the State’s Attorney’s office refused to cooperate to secure Antonelli’s presence.

Nor did the denial of the motion for a continuance allow defendants’ attorney insufficient time to prepare for the conclusion of the trial. On August 27 defendants were granted a continuance to secure the testimony of Antonelli and to retain another attorney. The trial court admonished defendants that it was their responsibility to do both of those things. The trial court clearly instructed defendants that the next date was also the final date. The case arose out of an incident three years old. Defendants had sufficient time to prepare for the charges facing them. Further, the People had rested their case. Defendants had already presented a witness. Defense counsel knew that Antonelli would not be present, yet nothing was done to obtain his testimony. Also, defense counsel was accurately informed about the case or he would have withdrawn from representing defendants. The record shows that the trial court gave counsel the opportunity to withdraw if defendants had misrepresented the status of their case to him. The three-week continuance provided defendants sufficient time to prepare their case.

Even if Antonelli had testified, his testimony would have been immaterial. Defendants had already apprised the trial court that Antonelli was the lessee of the garage where the stolen auto was recovered. The lease between Antonelli and defendant Koris was before the trial court and spoke for itself. Any lease agreement was immaterial in light of the surveillance testimony. All three defendants were associated with the stolen vehicle before the car even entered the garage. Koris drove the stolen Lincoln and Stewart and Conway assisted Koris. The actions of the latter two demonstrated that the operation had been carefully planned. They arrived at the garage less than a minute before Koris. As he neared the garage, Stewart left Conway and unlocked and opened the gates for Koris. Koris drove into the garage. Stewart and Conway secured the gates and joined Koris inside the garage.

Further, even if Antonelli’s testimony was material, it would not have any relation to the convictions of Conway and Stewart.

The convictions and sentences are affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.