author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER REED BROWN, Defendant-Appellant.
    Second District
    No. 80-106
    Opinion filed September 10, 1981.

      Mary Robinson and Marilyn Martin, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Paula R. Johnson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Walter Reed Brown, was convicted of armed robbery following a jury trial and sentenced to a term of 10 to 30 years’ imprisonment. He appeals, contending that the trial court erred in denying his motion to suppress evidence, that his in-court identification was the result of impermissibly suggestive pretrial procedures, and that numerous errors in ruling on evidence together with improper argument of the prosecutor combined to deny him a fair trial.

On the morning of July 22, 1977, an individual carrying a bowling bag was observed in the game room of the Stardust Bowl in Addison, Illinois, and a white-over-blue automobile was observed in the parking lot. At approximately 9 a.m. this individual forced his way into the bowling alley’s rear office and ordered three employees, Frances Felz, Judy Busse and Patricia Nudo, against the wall. The gunman fired a shot, which embedded itself harmlessly in a wall, and took between $11,000 and $13,000 from the safe. At least part of this money had been bundled into groups and packed in bank bags. The gunman then ordered the women to lie down on the floor and left. The police were subsequently summoned, and various employees of the bowling alley who had seen the robber “contributed to a description” of the individual.

On January 16, 1978, Frances Felz observed the defendant in the bowling alley’s game room and called the police, informing them that the man who had committed the July 22 robbery had returned. The police arrived and arrested defendant, finding in his coat pocket a .38-caliber revolver which the parties stipulated at trial had not been used to fire the shot involved in the July 22 robbery. The police claimed that defendant was asked how he had gotten to the bowling alley and that he responded by pointing to a green Dodge Charger parked on the street near the main entrance. Defendant denied that he pointed out the car. Two officers remained with the car until it could be towed to the police station, at which point its contents were inventoried. The inventory produced two empty bowling bags and a blue bowling shirt. A search of defendant’s Arizona residence disclosed a white-over-blue Dodge Charger with Illinois plates, two bank bags and a photo album.

Three of the Stardust Bowl’s employees, Patricia Nudo, Judy Busse and Kay Cottone, were called to the Addison police station in January 1978. Mrs. Cottone was deceased at the time of trial. The three women were first shown a book of mug shots, but no identification was made. Busse testified that she was then shown the photo album taken from defendant’s Arizona home and identified defendant from a picture in the album, a shirt and a gun. The women then were shown the defendant, who was sitting alone in a room. Nudo and Cottone observed defendant together, while Busse observed the defendant by herself. Busse identified defendant as the robber; Nudo failed to make an identification.

Defendant’s motions to suppress the items taken from his car, and the identification of defendant by Judy Busse were denied, as was his motion in limine to exclude testimony about the pistol found on his person at the time of his arrest.

Defendant testified that he had been at a party the night before the events in question and that he had not awakened until 8 o’clock on the morning of July 22. He had then gone to his brother’s home and had thereafter driven in a blue and white Dodge Charger to a garage, where he had some speakers installed. Defendant had arrived at the garage at approximately 9 o’clock and had stayed until sometime after noon. After having lunch, defendant had assisted his girl friend prepare for a move to Phoenix, Arizona, where defendant had been living. Defendant and his girl friend left for Arizona the following day, but their relationship deteriorated, and defendant returned home in December. He had gone to the Stardust Bowl in January because he had previously worked there as a night bartender and wanted to seek employment. He was carrying a pistol which his mother had given him after some random shots had been fired at him in an incident outside a bar. Various aspects of defendant’s testimony were corroborated by his mother, brother, former girl friend, nephew, and sister-in-law, and by a neighbor of defendant’s brother. A mechanic who assisted with the installation of the speakers testified that he towed the blue-over-white Charger into Franks Garage between 8:30 and 9 a.m. on July 21, 1977, because it had no brakes. He said that the defendant was in the shop to pick up the car at approximately 10 a.m. on July 22, 1977, and then he was accompanied by his girl friend and his nephew. The witness testified also that he was a friend of the family. There was also testimony that defendant’s hair style was different from that described by the robbery victims, and that various individuals other than defendant had been seen in the bowling alley on the morning of the robbery.

I

Defendant first contends that the trial court erred in denying his motion to suppress items retrieved by the police during a warrantless search of his car. Following his arrest, defendant had been taken outside the bowling alley and questioned by the officers as to his means of transportation. Defendant pointed out a green Dodge Charger parked on the street in front of the bowling alley. Two officers were detailed to watch the car until a tow truck could arrive. One officer looked into the car’s interior through the windows and saw a gold or brownish gold bowling bag on the rear seat and part of a blue bowling shirt underneath the front seat. When the tow truck arrived, the officer entered the vehicle to straighten out the steering wheel for the tow operator, but did not search or seize any items at that time. The Dodge was then towed to the police garage, where its contents were subsequently inventoried. The officer testified that, while there was no written policy on the subject, there had been a practice in effect for seven years “that any time we bring a vehicle in involved in a crime or that was used by someone who is believed to be involved in a crime, the vehicle is completely inventoried and checked for valuables or anything that should not stay with the vehicle when the vehicle is released to the tow company.” While there was testimony that a form entitled “Tow Report” was prepared, there was no testimony that a written inventory of the contents found was ever made. The trial court denied the motion to suppress on the authority of South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092, dealing with inventory searches.

We cannot justify the search on this basis. The plurality opinion in Opperman approved routine police practice of securing and inventorying vehicles which have been properly impounded, on the basis of the need for protection of the owner’s property, to protect police against claims of loss or theft, and to protect them against potentially dangerous instrumentalities contained within the vehicle. (Opperman, 428 U.S. 364, 369-70, 49 L. Ed. 2d 1000, 1005-06, 96 S. Ct. 3092, 3097.) Following the opinion in Opperman, which is premised on the proper impounding of the vehicle in the first place, the Illinois cases also require that the police act properly in taking possession of the vehicle. E.g., People v. Schultz (1981), 93 Ill. App. 3d 1071, 1075-76.

Here, the defendant’s car was lawfully parked on a public street, and it does not appear from the record that the police had any responsibility for the vehicle or its contents. There thus was no basis upon which the police could have conducted a valid inventory search.

The State urges that the search may nevertheless be upheld as one based on probable cause and exigent circumstances. (See Arkansas v. Sanders (1979), 442 U.S. 753, 756-57, 61 L. Ed. 2d 235, 240, 99 S. Ct. 2586, 2589.) With this we agree.

Officer Tyndall, an experienced Addison police officer, testified that when he was called to the Stardust Bowl, he knew of the earlier armed robbery at that location; he had been informed that the robber was again in the bowling alley; an employee, Frances Felz, had pointed the defendant out to him when he arrived at the bowling alley and had stated “that’s him. I’m afraid he’s going to leave”; he and another officer had arrested defendant, and in patting him down had found that he was carrying a loaded blue steel revolver in his coat pocket. The officer knew that the robber in the July 22, 1977, occurrence was armed with a blue steel revolver and had carried a gold colored bowling bag. He knew that on the earlier occasion the robber had first been noticed in the game room of the establishment and that on this occasion he was also reported in the same area. The officer also knew from the defendant that he had come to the Stardust Bowl in the Dodge Charger which the defendant had pointed out as being parked on the street about 20 feet from the entrance.

Further, when Officer Peterson was directed by Tyndall to go to the car awaiting a tow, Peterson looked through the car window and observed in plain view a “gold, or some sort of brownish gold” bowling bag located on the rear seat, and saw a part of a blue shirt sticking out from the bucket seat on the passenger side in the front of the vehicle.

Under these circumstances, we conclude that the officers had reasonable cause to seize the vehicle on the basis that it contained evidence of crime or it may have been an instrument of the July 22, 1977, crime even though the description did not exactly match in color the vehicle seen in front of the Stardust Bowl on the previous occasion. See People v. Peter (1973), 55 Ill. 2d 443, 454-55; People v. Henry (1977), 48 Ill. App. 3d 606, 609-10.

The fact that the car was properly in police custody “does not of itself dispense with constitutional requirements of searches thereafter made of it.” (People v. Davis (1981), 93 Ill. App. 3d 217, 226.) However, defendant’s reliance on Coolidge v. New Hampshire (1971), 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, in support of his contention that there were no circumstances to justify the “automobile exception” as the basis for the warrantless search, is misplaced. The car was seized in a public place, and was inadvertently discovered in the process of arresting defendant when he pointed it out. These facts distinguish Coolidge. The fact that the car or its contents could have been removed provides the exigent circumstances to warrant the subsequent search. People v. Peter (1973), 55 Ill. 2d 443, 455-56; People v. Davis (1981), 93 Ill. App. 3d 217, 226.

We also observe that even if the evidence seized had been wrongfully suppressed Officer Peterson could have testified to what he saw in plain view. Thus, the effect of the admission of the bowling bag and the shirt could not have significantly contributed to the conviction and would have been, in any event, harmless error.

II

The central issue, in our view, is that of identification.

Defendant contends that Judy Busse’s in-court identification of him was tainted by improperly suggestive pretrial procedures. He testified that he was placed in a small room with a one-way mirror, and that three or four women came to the window and looked in at him. There was also testimony by Patricia Nudo that “I went with • * * the other two girls” to make the identification. While somewhat equivocal, this testimony can be read as supporting defendant’s claim that all of the women looked in at him together. On the other hand, Judy Busse unequivocally stated that she saw defendant alone, and that the other women were outside the viewing room at the time.

It further appears that Busse was called at home by the police and asked to come to the station because a suspect in the July robbery was in custody. Upon arriving, Busse found the other three women present and was shown a book of mug shots. None of the women identified any of the people in the book, and Busse testified that they were then shown a family photograph album. A discrepancy arose in Busse’s testimony on the latter point, because it was established that this album did not come into police custody until approximately a week after the date of this initial identification. Busse testified that she made an identification from the family album, and that she was also shown a gun and told it had been found on the person taken into custody. Busse then was taken to view the defendant, and identified him as the robber. Busse further testified that she had an opportunity to observe the robber on July 22 when she made change for him, while he was in the game room and while he was committing the robbery. She testified that her in-court identification was “based on his face” and that it was the same face she had seen at the bowling alley.

Once the defendant satisfies his initial obligation of establishing that the pretrial identification was impermissibly suggestive, the State may secure introduction of the identification by a clear and convincing showing, based on the totality of the surrounding circumstances, that the identification has resulted solely from the witnesses’ observations at the time of the offense. (People v. McTush (1980), 81 Ill. 2d 513, 520.) Where identification testimony is reliable and there is not a substantial likelihood of irreparable misidentification, the fact that police have used suggestive identification procedures will not necessarily result in exclusion of the identification testimony. (Manson v. Brathwaite (1977), 432 U.S. 98, 113-14,53 L. Ed. 2d 140,153-54, 97 S. Ct; 2243, 2252-53.) Among the factors to be considered in evaluating the likelihood of misidentification are the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Manson, 432 U.S. 98, 114-16, 53 L. Ed. 2d 140, 154-55, 97 S. Ct. 2243, 2253; McTush, at 521.

Judy Busse testified that she was shown a family album containing photographs of the defendant before she identified him at the show-up. “The belief by a witness that police attention has narrowed to an individual can be a strongly suggestive influence in making an identification.” (People v. Jackson (1973), 54 Ill. 2d 143, 147.) However, the trial judge was not required to conclude that the witness did, in fact, see the album on January 16,1978, when she made the identification at the police station in view of the evidence that the album was not received by the Addison police from the Arizona authorities until January 20.

Nevertheless it may be reasonably argued that the showing of photos from a family album is inherently suggestive of the fact that the attention of the police has narrowed to a family member. The fact that the identification procedure at the show-up also included the showing to the witnesses, including Busse, of the gun and clothes seized from the defendant necessitate the conclusion that the procedure employed was inherently suggestive. Moreover, a one-man show-up of the defendant will generally be held unnecessarily suggestive where there was no exigency to justify such a procedure. (People v. Blumenshine (1969), 42 Ill. 2d 508, 512; People v. Stock (1973), 15 Ill. App. 3d 722, 728.) Here, no exigency justified the procedure.

We must therefore examine the record to determine whether the State has satisfied its burden of proof to show by clear and convincing evidence that the witness’ in-court identification was based solely upon her confrontation at the scene of the crime. This requires analysis of the Manson factors which are to be weighed against the corruptive effect of the suggestive identification procedure. 432 U.S. 98, 114-16, 53 L. Ed. 2d 140, 154-55, 97 S. Ct. 2243, 2253.

First, the record of the witness’ opportunity to view the criminal at the time of the crime includes Judy Busse’s testimony that although she couldn’t give an exact time she saw the robber it was “long enough at the first instance to take the dollar and give him the four quarters”; that there was fluorescent lighting; that she was within the width of a “counter top,” approximately 18 to 24 inches from him; and that she looked the person in the face. She also testified that a few minutes later the robber came back into her office displaying a gun which he subsequently fired into the wall. Although the witness’ degree of attention, the next factor in the Manson analysis, is not directly addressed in her testimony, it may be presumed that she was attentive when the robber pointed the gun at her. The other of the Manson factors, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by her at the time of the confrontation and the length of time between the crime and confrontation, are not as clearly satisfied by the record. The accuracy of the description which Busse offered in her trial testimony cannot be conclusively determined since the witnesses at trial disagreed as to defendant’s appearance on July 22, .1977. The fact that the witness failed to identify defendant’s photo from a black and white mug book detracted somewhat from the level of certainty at the time of confrontation. However, she did identify defendant from the family album, and she positively identified him through a one-way mirror at the show-up. The fact that six months intervened between the crimes and the confrontation tends to dilute the witness’ memory of defendant’s appearance at the crime as opposed to the time of the January 16 identification procedure.

We conclude, however, that under the totality of the circumstances there did not appear the substantial likelihood of misidentification which would result in the suppression of the Busse testimony. An independent origin for her testimony was established by the circumstances that she had several opportunities to observe the defendant in good light on the day of the robbery; her identification was based upon the robber’s features; her in-court identification was positive; and she testified that her in-court identification was based on her recall of defendant’s face on the day of the robbery. See People v. Daniels (1979), 73 Ill. App. 3d 394, 397; People v. Dortch (1978), 64 Ill. App. 3d 894, 898-99.

Moreover, defendant’s conviction did not depend upon the testimony of Judy Busse alone. There was strong identification testimony by another eye witness to the robbery, Frances Felz. It is well established that where the identification is in issue, the testimony of one credible witness is sufficient to convict when it is shown that the witness viewed the accused under circumstances which permit a positive identification to be made even though the testimony is contradicted by the accused. See, e.g., People v. Manion (1977), 67 Ill. 2d 564, 578.

Ill

The defendant contends that the trial court committed prejudicial error in the admission of evidence concerning a handgun found on defendant’s person at the time of his arrest where the State stipulated that it was not the weapon used in the robbery.

The contention must be viewed in the light of a number of facts in the record. Prior to trial, on defendant’s motion, an unrelated charge alleging the theft of a firearm was severed from the instant case; and the defendant moved in limine to exclude evidence of the gun seized at the time of defendant’s arrest in this trial. The judge ruled that the State was entitled to show that defendant was carrying the gun at the time of his arrest but that the gun itself was not admissible in evidence. At trial, the State called Officer McCallum, who testified to the discovery of the weapon on his “pat-down” of the defendant at the time of the arrest.

On cross-examination of McCallum defense counsel sought to establish that he had the gun with him when he questioned Frances Felz at the time of the arrest. A further question, whether Frances Felz had seen the gun, was objected to. In chambers, the court cautioned defense counsel that he was possibly “opening the door” to the jury’s seeing the gun. Counsel refused to withdraw the question and received an answer from the witness in the jury’s presence that the officer did not remember showing the gun to Felz. Subsequently the State moved to show the gun to the jury. Over defense counsel’s objection, the court ruled that he would allow the State to go into the identification of the gun conditioned upon its establishing that it was not the gun used in the robbery. The State stipulated that it was not the gun used in the robbery, but defense counsel insisted that the matter be proved before the jury. Defendant’s counsel on cross-examination of Officer Tyndall elicited testimony that after the arrest the officer questioned whether the gun was used in the robbery, but after a ballistics test it was determined that it was not the same gun used in the robbery. The State thén moved to have the gun introduced into evidence, but this was denied.

The State argues that the claim of error involving the rulings as to the gun have been waived by the action of the defense counsel in pursuing the matter of the gun at trial and in. a cross-examination. In People v. Spates (1979), 77 Ill. 2d 193, the Illinois Supreme Court held that the defendant had properly preserved for review the admissibility of defendant’s conviction of misdemeanor theft even though his motion in limine had been denied and he had himself introduced the prior misdemeanor conviction as a tactical measure. The court noted that after the denial of a motion in limine a party has the right to limit the effect of the matter without having waived the issue. (77 Ill. 2d 193, 199-200.) Spates may be distinguished in that here defense counsel chose to affirmatively use the evidence of the gun to attempt to establish that it was a substantial factor in the identification of the defendant to support his theory that the identification procedure was unduly suggestive.

In any event, we find no prejudicial error in the trial court’s rulings. We acknowledge the general rule that it is error to admit a gun found in a defendant’s possession when arrested, where there is no connection between the gun and the charged offense. (E.g., People v. Pointer (1981), 93 Ill. App. 3d 1064, 1070.) There is some inconsistency in the authorities as to whether the suitability of the weapon in the commission of the offense may be shown when the prosecution concedes that the particular weapon was not used in the crime.

In People v. Wade (1977), 51 Ill. App. 3d 721, principally relied upon by the defendant, the conviction of murder was reversed when evidence of a gun not used in the crime charged was admitted. However, the court noted that the State “elicited considerable testimony from the officer concerning the gun,” including the information that the defendant had additional ammunition in his pocket, that the .357 Magnum would pierce a car’s bumper, and that the car in which the victim was killed showed a large hole in the rear bumper. (51 Ill. App. 3d 721, 723.) In addition, in Wade the officers testified to their investigation of defendant’s involvement in five other crimes. (51 Ill. App. 3d 721, 728.) In a number of cases relied upon by the State the admission of a gun found on a defendant at the time of his arrest, although not claimed to be used in the crime, has been held not to constitute reversible error. E.g., People v. Braxton (1980), 81 Ill. App. 3d 808, 817; People v. Upshire (1978), 62 Ill. App. 3d 248, 252; People v. Hagen (1978), 63 Ill. App. 3d 944, 949. See also People v. Longstreet (1974), 23 Ill. App. 3d 874, 882; People v. LeBron (1980), 83 Ill. App. 3d 598, 603.

We will not attempt to reconcile all of the cases. Under the particular circumstance found in this case, we conclude that the denial of the motion in limine and the subsequent ruling that the gun could be referred to in relating the circumstances of the arrest and shown to the jury, but that the gun itself was not admissible in evidence, was not error.

In People v. Moore (1969), 42 Ill. 2d 73, 78, the crime charged admittedly involved the use of a shotgun and the State displayed to the jury the handgun and holster found on Moore at the time of his arrest some six months following the crime. The defendant contended that the severe prejudice involved in the display was not alleviated by the instruction of the court to disregard it and the ruling that the gun and holster were not to be admitted in evidence. The court disagreed. The testimony regarding the circumstances of the arrest, including those relating to the gun and holster, was held proper, the court noting:

“We think that despite the length of time between the crime and the arrest, testimony regarding the circumstances of the arrest was admissible, including testimony relating to the weapons found in defendant’s possession or control at the time of the arrest.” (42 Ill. 2d 73, 78.)

Here, only the testimony that the gun was found on defendant’s person when arrested and that it was not the gun used in the robbery would have gone to the jury under the court’s ruling. The fact that the gun was ultimately displayed to the jury was the clear result of the tactics of the defense.

IV

The defendant next asserts that his right of meaningful cross-examination of identification witnesses was infringed when the trial court granted a motion in limine excluding use of a police composite sketch compiled after the robbery and when the court sustained prosecution objections to questions about statements by Kay Cottone during the identification process.

In People v. Rogers (1980), 81 Ill. 2d 571, the Illinois Supreme Court resolved any previous uncertainty as to testimony relating to out-of-court identification involving composite sketches, and ruled that where the identifier is present at trial, a composite sketch is admissible either as corroborative of the witness’ testimony or in cross-examination, as a prior extrajudicial statement not barred by the hearsay rule. 81 Ill. 2d 571, 580. See also People v. Tyllas (1981), 96 Ill. App. 3d 1, 4.

The State argues that Rogers should not be given a retroactive effect. We disagree since, as the supreme court ruled in Rogers, the admission of prior identification evidence has long been allowed where the identifier is present at trial and available for cross-examination. (81 Ill. 2d 571, 580.) Moreover, as the evidence involves the truth-finding function, retroactive effect should be afforded to the decision in any event. (See Hankerson v. North Carolina (1977), 432 U.S. 233, 53 L. Ed. 2d 306,97 S. Ct. 2339.) However, we conclude that the error is harmless in the particular circumstances of this case because the composite was the result of group description and therefore cross-examination of the three witnesses (the fourth having died) would not have established responsibility for individual features on the composite. Thus it would not have served as any more a useful method of impeachment than the individual cross-examination.

Defendant further maintains that the trial court erred in sustaining objections to his efforts to cross-examine Mrs. Busse as to whether there were any photographs of defendant in the family picture album which she had been unable to identify. The court also precluded inquiry concerning whether Kay Cottone had told Busse that defendant had come back to rob the bowling alley again or had said anything to Patricia Nudo at the time of the identification. In our view, the rulings of the trial court on these points were erroneous. However, we do not believe that defendant was prejudiced. Questions concerning Mrs. Busse’s failure to identify various pictures from the family album were not beyond the scope of a direct examination which had dealt with an identification of pictures in that album, but the jury was most likely not misled on this point. Busse testified that she picked out only one photograph from the family album, establishing by implication that she had not identified any other picture in that book. Moreover, such an inquiry was pointless, since a witness who has identified only one picture necessarily could not know the number of other photographs in which defendant appeared. As to the questions concerning the role of Mrs. Cottone, it appears that the trial court felt that an extrajudicial statement is hearsay unless the declarant is available for cross-examination. Although such a statement, not offered for its truth, is not hearsay, the trial court’s error was also harmless. Mrs. Busse elsewhere testified that if she had a conversation with the other women prior to making the identification, it was nothing she could remember. Patricia Nudo, despite any conversation which may have occurred, was unable to identify defendant at the show-up. Defendant thus suffered no prejudice from the court’s rulings.

V

Defendant also challenges the trial court’s exclusion in limine of expert testimony from Dr. Terrence Luce on the reliability of eyewitness identification, and specifically that there is no relationship between an individual’s confidence in his ability to identify another and the accuracy of the identification, and that an identification resulting from a group consensus is 40-50 percent more inaccurate than an individual identification. This court recently discussed the subject of expert testimony in the area of cross-racial identification in People v. Dixon (1980), 87 Ill. App. 3d 814. In that case, also involving testimony by Dr. Luce, the court concluded that expert opinions may not be admitted on matters of common knowledge unless the subject is difficult of comprehension and explanation. The court concluded that expert testimony in the area of cross-racial identification was inadmissible. In the course of its holding, the court observed that “the trustworthiness of eyewitness observations is not generally beyond the common knowledge and experience of the average juror and is, therefore, not a proper subject for expert testimony.” Dixon, at 818.

The courts have uniformly upheld a trial court’s refusal to allow expert testimony on the subject of eye witness identification. (See, e.g., United States v. Brown (10th Cir. 1976), 540 F.2d 1048, 1054 cert, denied (1977), 429 U.S. 1100, 51 L. Ed. 2d 549, 97 S. Ct. 1122; Smith v. United States (D.C. App. 1978), 389 A.2d 1356, cert, denied (1978), 439 U.S. 1048, 58 L. Ed. 2d 707, 99 S. Ct. 726; State v. Valentía (1977), 118 Ariz. 136, 575 P.2d 335, 337; Nelson v. State (Fla. App. 1978), 362 So. 2d 1017, 1021; State v. Fernald (Me. 1979), 397 A.2d 194,197; State v. Porraro (R.I. 1979), 404 A.2d 465, 471.) These courts have generally held that factors such as stress, opportunity to observé, distortion of memory, and problems of interracial identification, are within the realm of common experience and can be evaluated by the jury without expert assistance.

Defendant asserts that Dixon is distinguishable because there the expert testimony confirmed generally held views, whereas here Luce’s testimony would have run counter to common experience. However, we find little in the circumstances of this case differing from the usual problems of identification which historically have been within the province of the jury which has the benefit of cross-examination to point out various inconsistencies and to assess the opportunity of the witness to accurately observe. We therefore conclude that the trial court did not abuse its discretion in disallowing the expert testimony.

VI

Defendant further maintains that the trial court erred in refusing rehabilitation testimony by an alibi witness, Susan Romano, who had claimed to recall defendant’s activities on July 22,1977, because that was the day before her first anniversary. The State subsequently introduced a marriage license showing that the witness had been married on September 10, 1976. The defense made an offer of proof that the witness would testify that she and her husband, with whom she had lived prior to marriage, celebrated a “fictitious anniversary” on July 23 because of their child. The trial court precluded such testimony. The trial court’s ruling was erroneous, given the well-established rule that a witness who has been impeached by proof of a prior inconsistency should be allowed the opportunity to rehabilitate his credibility. (People v. Hanson (1980), 83 Ill. App. 3d 1108, 1114.) However, defendant failed to include this allegation of error in his post-trial motion and therefore has waived this issue unless it falls within the ambit of the plain-error rule. (People v. Jackson (1981), 84 Ill. 2d 350, 359-60.) Although the impeachment evidence was damaging to the credibility of the witness, and the strength of defendant’s alibi was accordingly impaired, the trial court’s ruling was not plain error in view of the fact that there were a number of other alibi witnesses and in view of the jury’s refusal to accept the credibility of the alibi testimony generally. The trial court’s error was therefore waived.

VII

Finally, defendant challenges several remarks made in the course of the State’s closing argument, characterizing the alibi witnesses as liars and the defense as fraudulent and fabricated. Defendant takes particular exception to remarks portraying the testimony of defendant’s 14-year-old nephew as “the most unconscionable use of a human being and disregard of human dignity * ° In response, the State notes that defendant offered no contemporaneous objection to these remarks and contends that any error is therefore waived. Defendant counters that People v. Jackson (1981), 84 Ill. 2d 350, 359, indicates that error will be preserved for review where the objection is made either contemporaneously or in the post-trial motion. Although Jackson involved a case where there had been neither a contemporaneous nor a post-trial objection, we do not read the opinion as having been intended to relax the rule that objections must be both raised at trial and in the post-trial motion. Assessing the remarks in question for plain error, we believe that none was present. It is improper for the prosecutor to state in argument that the defendant or a defense witness has lied unless such a remark is based upon the evidence or a reasonable inference drawn therefrom. (People v. Anderson (1981), 95 Ill. App. 3d 492, 495.) A reading of the argument to which defendant objects discloses that the characterization of the defense testimony and evidence as false was accompanied by a statement of reasons why the State so characterized it. The prosecution’s remarks concerning defendant’s nephew did not relate so much to the contents of his testimony as to defendant’s motives for calling him as a witness. As such, scant attention was focused on this witness’ testimony, but rather the prosecutor castigated the defense for having taken advantage of a vulnerable youngster. This remark was unmistakably invective and tended to stigmatize the defense as a whole, but we are nonetheless unable to say that it constituted a material factor in the conviction so as to rise to the level of plain error.

We therefore affirm the judgment.

Affirmed.

NASH and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HEIPLE

license: Public Domain

text:
    THE DEPARTMENT OF CONSERVATION, Plaintiff-Appellee and Cross-Appellant v. LAWRENCE LAWLESS, Defendant-Appellant and Cross-Appellee.—LAWRENCE LAWLESS, Plaintiff-Appellee, v. DAVID KENNEY, Director of Conservation, Illinois Department of Conservation, Defendant-Appellant.
    Third District
    Nos. 80-573, 80-477 cons.
    Opinion filed September 3,1981.
    Rehearing denied October 14,1981.

      Tyrone C. Fahner, Attorney General, of Springfield (Roy Frazier, Assistant Attorney General, and Thomas Feehan, Special Assistant Attorney General, of counsel), for appellant.
    Raymond A. Feeley, of Kozlowski, Polito & Feeley, of Joliet, and Lawrence Lawless, pro se of Chicago, for appellee.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

This consolidated appeal involves the Department of Conservation’s (the Department) attempt to purchase the residence and surrounding four acres of Lawrence Lawless, which is located in Will County. Two lawsuits resulted. In the first, Lawless as plaintiff, sought a writ of mandamus ordering the Department’s director to purchase the property by condemnation. The writ issued. In the second cause, the plaintiff, the Department, brought an eminent domain action against the defendant, Lawless. Although defendant received a favorable verdict, he complains about the trial court’s denial of certain post-trial motions. The facts follow.

In 1972 the Department told Lawless of its intent to purchase his property as part of an overall plan to develop Thorn Creek Woods Nature Preserve in Park Forest, Illinois. The Lawless property abuts this area. Between January 1976 and March 1978, negotiations resulted in several offers which Lawless rejected as inadequate. On January 31, 1978, the Department notified Lawless of its intent to take his property by eminent domain. On June 4,1978, a public dedication ceremony was held for the Thorn Creek Woods Nature Preserve. The Department acted as sponsor. The general public was invited. Lawless’ home was designated, and publicly represented, as the Preserve’s “Interpretive Center.” The land encircling his home was earmarked as public picnic and parking areas.

On June 27,1978, Lawless sought a writ of mandamus to compel the Department to proceed by condemnation to purchase his property. In response to this complaint the Department did nothing. Although personally served, it did not file an appearance nor an answer. On August 9, 1978, the plaintiff moved for a default judgment, which was granted. The order provided the Department to proceed by eminent domain in the Lawless purchase. Two years later, the Department sought to vacate this order. On October 1, 1980, such motion was denied. The Department now appeals.

The eminent domain proceeding was initiated by the Department filing a petition to condemn the Lawless real estate on July 28, 1978. Lawless was personally served in such action on August 17, 1978, eight days after the execution of the mandamus order. After some confusion about the legal ramifications of the latter order and the filing of tome-like briefs and memoranda, trial was set for June 23,1980. It lasted four days. The jury returned an award of $180,000 as compensation for the Lawless property. Judgment was entered thereon. Lawless then filed motions for statutory interest on the award, and mortgage interest accruing from June 4, 1978, appraisal fees-, costs, and attorney’s fees for pro se and outside counsel. It is from the trial court’s decisions on these motions that he now prosecutes his appeal.

The mandamus action

The Department alleges the trial court erred in granting the writ of mandamus. It argues the trial court lacked jurisdiction to consider the writ because no controversy existed between the parties. Since the eminent domain action had already been filed, it urges, the mandamus order requiring it to perform an act already done is useless and moot. It also complains that Lawless either lied, or concealed a material fact, when, in applying for mandamus, he stated the Department had not filed an eminent domain suit, had threatened condemnation, and invited the general public to his home. Finally, it contests the award of attorney’s fees and costs, since, it claims, the Department undertook condemnation proceedings voluntarily, not by order of court. We affirm.

If the trial court lacked subject matter jurisdiction the Department correctly observes that its orders are void, can be contested at any time, and have no binding effect. In arguing the trial court was so disposed, the Department ignores the facts, as well as its own inertia, as a party in such litigation.

Lawless requested mandamus on June 27,1978. The Department was personally served three days later. Instead of responding to the complaint, the Department, inexplicably, did nothing until August 8, 1980, when it sought to vacate the trial court’s default order of August 9, 1978. The fact the Department filed an eminent domain action on July 28,1978, does not alter the mandamus writ ordering it to file such a suit, although the latter was entered subsequently. The record makes clear that Lawless was not personally served with process in the eminent domain action until August 17,1978. If Lawless was unaware of that suit, how could he inform the mandamus court of its existence on August 9, 1978? Such is impossible. The law imposed no duty on Lawless to search the records of the Will County Courthouse endlessly to ascertain whether the Department had filed a lawsuit against him.

Similarly, the record does not support the Department’s contention that Lawless lied or concealed facts relevant to issuing the writ of mandamus. It is undisputed that on June 4, 1978, the Department held a public dedication ceremony for the Thorn Creek Woods Preserve. The entire 900-acre area, including the Lawless property, was dedicated. It matters not one whit, as the Department argues, that such ceremony was held on the edge of the preserve opposite the Lawless real estate. The point is the Lawless property was represented as being public land. Although we agree that literally “thousands” of persons did not descend upon the Lawless dwelling, such hyperbole does not amount to misrepresentation.

We hold the issuance of the writ of mandamus was a valid, legal act, binding the parties to those terms which it specifically encompassed. The Department was duty-bound to adhere to its provisions. And, since the Department was ordered to proceed by condemnation, the subsequent award of attorneys’ fees and costs was proper. The statute so provides. (Ill. Rev. Stat. 1979, ch. 47, par. 9.8.) Obviously, if the Department had taken the time to answer the mandamus complaint by showing proof of filing the eminent domain action, the time, effort, and expense this litigation spawned might have been reduced, if not eliminated. It cannot now seek to validate its position by its prior inaction. Although we recognize that Illinois courts are liberal in setting aside default judgments (Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 310-11), such a result is not warranted where, as here, the failure to appear is due to the Department’s own negligence, mistake, or calculated indifference. No abuse of discretion occurred in denying the Department’s motion to vacate the final mandamus judgment, or in awarding attorney’s fees.

The eminent domain suit

As appellant, defendant Lawless raises three issues for our review: (1) whether statutory interest of 6 percent accrues from June 4, 1978 to June 26,1980, the date of the eminent domain judgment; (2) whether mortgage interest owed on the condemned property during the same period should be awarded; (3) whether pro se attorney fees at trial, as well as pro se and outside attorney fees, appraisal fees, and costs should be allowed after judgment is entered at the trial level. The latter error will be addressed separately.

We do not agree with Lawless’ contention that statutory interest accrues from June 4, 1978, the date of “taking” established in the mandamus judgment. Although appealing is a very technical sense, several reasons exist why such a conclusion is wrong.

Generally, a condemnation award earns interest from the time the judgment is entered until the condemnor pays the award to the county treasurer. (Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 358.) Common sense dictates that interest should not accumulate until actual possession takes place. Although defendant argues the mandamus court found a “taking” of the Lawless property on June 4,1978, this does not necessarily mean that at such time the Department took possession of the property. In arguing it does, Lawless ignores reality. As the trial judge noted, Lawless continued to live on the condemned premises after June 4,1978, until June 26,1980, the day the jury returned its verdict. In short, he had actual occupancy of the property. After the initial dedication ceremony the record is barren of any affirmative actions the Department undertook to cause Lawless to give up possession of those premises.

In this regard, Department of Public Works v. Exchange National Bank (1975), 61 Ill. 2d 346, is instructive. In that case, a State agency filed a petition to condemn 4000 of approximately 23,000 square féet of a building used as a restaurant and a dwelling. The condemnee cross-petitioned, claiming the State must purchase the whole fee interest, since if it did not, the remainder of the property would be useless. The State took possession of the land on September 1, 1970. Public access to the building was eventually halted on August 1, 1971. In affirming the trial court, the supreme court found the latter date controlling as to the date of possession (and thus when interest should be computed), since the condemnees had the use and occupancy of the property until that time. Although a “quick-take” condemnation case, this opinion as to the issue of when statutory interest is to be computed is fully applicable to the case at bar. Lawless retained actual, physical possession of the condemned property up until the time of the verdict and judgment. The Department did not obstruct his occupancy or continued use of such property.

the mandamus judgment did not bar the eminent domain court from considering when possession by the Department actually occurred. In the mandamus action the trial judge never determined, as a matter of fact, when Lawless surrendered actual possession of the condemned property. Since never determined originally, the eminent domain court was required to consider it. This is so because the finding of the particular fact of actual occupancy by the Department was material to the outcome in both lawsuits. Upon such finding hinged the date from which statutory interest would accrue. Moreover, it is unclear from the mandamus proceeding whether the date of “taking,” namely, June 4, 1978, was viewed by the mandamus judge as the date when Lawless was actually dispossessed, in fact, or merely the date to be used for valuation of the Lawless property for purposes of compensation. Accordingly, since uncertainty exists on this vital issue, the trial judge in the eminent domain proceeding was not precluded from determining this fact which was a material and controlling consideration in rendering a proper judgment on the condemnation award. Lange v. Coca-Cola Bottling Co. (1969), 44 ILl. 2d 73.

Lawless also seeks to recover the amount of mortgage interest he owes on the condemned property from June 4, 1978, to June 26, 1980. This amount, he claims, is an element of “just compensation” to which he is entitled under the Illinois and Federal constitutions. This argument is completely meritless. Does Mr. Lawless expect to live on the condemned premises for a two-year period for nothing? Such is the result, if we accept the argument he advances. As long as people pay for housing, either by mortgage or rental payments, Mr. Lawless can expect to do no less.

Fees and costs

The final issue is double-barrelled: (1) is Lawless entitled to outside attorney, appraisal, and engineering fees and costs in connection with post-trial and appellate proceedings in these lawsuits? (2) was the denial of pro se attorneys’ fees to Lawless himself in this entire litigation error? While we respond to the former affirmatively, we are constrained to deny such expenses in the latter instance.

Because our decision must turn on an interpretation of section 9.8 of the Eminent Domain Act, we set it out in full:

“Where the State of Illinois, a political subdivision of the State or a municipality is required by a court to initiate condemnation proceedings for the actual physical taking of real property, the court rendering judgment for the property owner and awarding just compensation for such taking shall determine and award or allow to such property owner, as part of such judgment or award, such further sums, as will in the opinion of the court, reimburse such property owner for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees actually incurred by the property owner in such proceedings.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 47, par. 9.8.

The statute is not a paradigm of legislative clarity. It says a trial court “shall p p make an award of attorneys’ fees and other litigation expenses, while permitting a trial judge to allow or refuse such an award based on his sound discretion. Nonetheless, the trial judge’s denial of

Lawless’ outside attorney, appraisal and engineering fees, as well as costs in all post-trial proceedings, was error.

It is well settled in Illinois that appeal costs, including attorneys’ fees, are not recoverable in the absence of statutory authorization. (House of Vision v. Hiyane (1969), 42 Ill. 2d 45,51-52.) Although the aforementioned statute expressly permits an award of attorneys’ fees and other litigation expenses, at the trial level, the State argues, if the statute is strictly construed, it says nothing about such post-trial expenses, and therefore does not authorize them. Contrary to the State’s assertion, Department of Public Works v. Lanter (1958), 15 Ill. 2d 33, does not warrant denial of such expenses.

Lanter involved a condemnee’s appeal after the State dismissed a petition to condemn Lanter’s property. (See Ill. Rev. Stat. 1979, ch. 47, par. 10.) Attorneys’ fees for appellate legal work were denied. Lanter’s appeal was not considered an integral component of the original eminent domain action. This is because, in appealing, Lanter effectively took the “offensive” in the litigation and thereby assumed a posture contrary to his position on the original condemnation petition. Accordingly, without a specific legislative authorization, the supreme court would not allow attorneys’ fees concerning the appeal.

A defendant in an eminent domain action has both statutory (Ill. 11 Rev. Stat. 1979, ch. 47, par. 12) and constitutional (111. Const. 1970, art. VI, §6) rights to appeal an eminent domain judgment. The General Assembly is charged with knowledge of the existence of such rights when it enacted section 9.8 of the Eminent Domain Act. This statute specifically authorizes awarding reasonable litigation expenses in inverse condemnation suits. Unlike Lanter, Lawless has taken an adverse position to the Department from the outset. Therefore, if the constitutional right of appeal means anything, the posture of a condemnee in an inverse condemnation action is irrelevant as long as the appeal he prosecutes is not completely frivolous. In the instant appeal Lawless is not the only appellant. The Department seeks to overturn the mandamus judgment. Since the actions have been consolidated, even Lanter would authorize Lawless’ post-trial costs and attorneys’ fees in the appeal of the latter judgment. This is so because the mandamus judgment was the legal catalyst for the eminent domain litigation. Moreover, the Department’s failure to respond to the mandamus complaint' was the cause of its own appeal. If it had answered in a timely fashion, no doubt an appeal of the mandamus judgment would not have been filed. Accordingly, the trial court erred when it did not allow reasonable outside attorneys’ fees and the other enumerated expenses section 9.8 permits concerning post-judgment proceedings in this litigation.

Also, the trial court erred in denying pro se attorneys’ fees with respect to the instant litigation. The statute says the trial judge shall determine the composition of those enumerated litigation expenses, and allow or refuse such expenses in the exercise of its sound discretion. This means reasonable expenses should be allowed, whereas unreasonable ones should not. In determining whether a pro se award is reasonable, the fact an attorney appears in propria persona, in addition to hiring outside counsel, is not the sole determinant in justifying an award of attorneys’ fees. The trial judge apparently thought it was.

Various factors such as the time and labor required, the customary fee for such legal work, the amounts of such awards in similar cases, the novelty of the question presented, the actual necessity of hiring additional counsel, and the attorney’s reputation and experience, form that matrix of factors which comprise the reasonableness of an attorney’s fee. The record does not reflect these components formed the basis for the trial court’s denial of a pro se award. The fact that Mr. Lawless performed legal work in his own behalf does not, in and of itself, denote that compensation for such work is either unreasonable or reasonable. The justification for an award must turn on analysis and balancing of all factors enumerated above.

Therefore, on remand the trial court shall determine all litigation expenses, including pro se attorneys’ fees, as enumerated in section 9.8 of the Eminent Domain Act. Such calculation is to include trial, post-judgment, and appellate proceedings. Once the amounts are computed, the trial judge must then determine whether such are reasonable or unreasonable and enter an award for such expenses accordingly.

For the reasons stated, the mandamus judgment of the Circuit Court of Will County is affirmed. The eminent domain judgment is accordingly vacated as to the amount of the judgment. This cause is remanded to the Will County Circuit Court for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part; cause remanded.

BARRY and STOUDER, JJ., concur.


author: Mr. PRESIDING JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS CROSS et al., Defendants-Appellants.
    Third District
    Nos. 79-451, 79-450 cons.
    Opinion filed September 18,1981.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellants.
    Bruce W. Black, State’s Attorney, of Pekin (Donald L. Hays and Kenneth R. Boyle, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendants appeal judgments of conviction of arson (Ill. Rev. Stat. 1979, ch. 38, par. 20 — 1(a)) entered upon jury verdicts and the sentences imposed. Upon denial of post-trial motions, Cross was sentenced to 7 years and Hunt was sentenced to 3 years and 6 months in prison. Defendants urge numerous claims of error.

A tavern owned by Peggy Artman was set afire at approximately 3 a.m. on August 11, 1978. A son of the owner, who was doing inside cleaning, heard the sound of an explosion and discovered the fire. The owner went to the tavern when advised of the fire, and there she indicated to the police the names of several possible suspects, including the defendants. The defendants had spent several hours at the tavern on the evening of August 10, and were leaving as the owner returned shortly before midnight. Following the fire, a dented five-gallon can without a cap for the spout was found on the roof of the tavern at the area of the fire.

An essential part of the case for the prosecution is the identification of the defendants as the purchasers of a quantity of gasoline which was placed in a five-gallon can. The can was described as battered or dented and without a cap for the spout.

The identification of the defendants was made by a witness, Liggons, who was the night attendant at an Owens gasoline station in the neighborhood. The record shows that this station was one of two stations in the community which were open all night, and the only one that had sold gasoline placed in a container on that night shift.

Liggons testified that at about 1:30 a.m. on August 11, gasoline was purchased for an older model automobile driven by a woman accompanied by two men. Defendants admit being the male occupants of that automobile. Although defendants testified concerning the event without stating a specific time, the context of their testimony suggests that the purchase was made shortly after leaving the Artman tavern.

Liggons testified that the same two men and woman returned to the station at about 3 a.m. and purchased gasoline which was placed in a metal can. Since the spout had no cap, he stuffed it with paper towels and the can was placed in the car. Liggons identified the gasoline can introduced into evidence as being the same can, or very like the can he had filled for the two men. The witness agreed that the appearance of the can was changed by smoke and scorching, but he believed that it had the same dented appearance as the can that he filled. The defendants deny returning to the station to purchase gasoline on this last occasion, and each presented alibi testimony.

Liggons identified the defendants as the two men who purchased the gasoline for both the automobile and for transporting in the can under the following circumstances: Bassett, a policeman, reported to the police station when called concerning the fire. By reason of information given to him, he prepared a panel of six photographs of individuals, including each of the defendants. He then went to the Owens station and showed the panel of six photographs to Liggons. The latter identified the defendants from the photographs in the panel, and at the trial made an in-court positive identification of the defendants as the men who purchased the gasoline both for the automobile and the can.

A truck driver, Wesselmann, testified that he was repairing his truck at approximately 3 a.m. at a place 200 feet east of the tavern. He observed a light-colored older model car drive up and stop, and two men left the automobile. The driver, who appeared to be a woman, then drove away. The two men, carrying a large can, proceeded to the back of a building and later he saw a puff of smoke from the roof of the tavern. He did not see any fire. He advised the police of his observations after he learned of the fire.

A police officer, Salmon, testified that shortly after 3 a.m. he received radio information concerning the fire and thereupon searched for an older model car of a light color. At a point approximately five blocks from the tavern he stopped an automobile which appeared to match the description. The defendant Cross was present in the car as was his companion, Candice Karnes. The occupants identified themselves to the officer as requested and granted permission to search the car and the trunk. Although he specifically sought the smell of gasoline, he detected no such odor. He then released the car and occupants.

It is first contended that the defendants were not proved guilty beyond a reasonable doubt. The argument is bottomed upon the hypothesis that the evidence was entirely circumstantial, that there were gaps and weaknesses in the prosecution witness, and that credible alibi evidence was presented.

The argument that the witness, Liggons, failed to describe certain tattoos, the clothing of the defendants, and was confused as to the color of the automobile is essentially irrelevant for the reason that the presence of the defendants at the filling station to purchase gasoline for the Karnes’ automobile was admitted. There is testimony descriptive of the five-gallon can being used as a container for gasoline purchased from Liggons, and that can is identified as being the one found at the scene of the fire. A witness near the scene identified an automobile substantially matching that used by defendants and Karnes. Two men who left the car were observed carrying a large can near the tavern while a driver, believed to be a woman, drove away. Defendant, Cross, and Karnes were observed to be in the automobile a short distance from the fire shortly after the fire was discovered.

A conviction may rest upon circumstantial evidence and the inferences drawn therefrom. (People v. Fletcher (1978), 72 Ill. 2d 66, 377 N.E.2d 809.) Indeed, the crime of arson is by its very nature secretive and usually incapable of direct proof. (People v. Smith (1976), 44 Ill. App. 3d 237, 357 N.E.2d 1320.) A conviction based on circumstantial evidence may be sustained so long as the proof is of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion of guilt and producing a reasonable and moral certainty that the accused and no one else committed the offense. (Fletcher.) The triers of fact are not required to search out possible explanations compatible with innocence and elevate them to the status of reasonable doubt. People v. Huff (1963), 29 Ill. 2d 315, 194 N.E.2d 230.

While the evidence outlined was circumstantial, it was nevertheless proper evidence from which the trier of fact could determine defendants’ guilt. In addition to the facts in evidence here summarized, the jury had the opportunity to observe and hear the witnesses as an aid in reaching their verdict.

Defendants argue that the trial court committed reversible error by permitting the panel of photographs from which Liggons identified defendants to be sent to the jury room. Defendants made no objection to admitting the photographs into evidence, but now claim that there was error since such photographs were obviously “mug shots” which suggested prior criminal conduct or police contact. The record discloses that defendants’ trial tactics made the claim of prejudice untenable. There was no objection made to the testimony of the officer, Bassett, concerning the preparation of the panel of photographs to include defendants. Counsel cross-examined Bassett concerning the preparation of the photographic panel and inquired of both Bassett and Liggons whether or not Bassett had taken Liggons to the police station to view other “mug shots,” and, as to Bassett, inquired why he had not taken Liggons to the police station for such purpose. In the light of such emphasis by counsel, the view of the photographs by the jury would hardly constitute a source of revelation to the jury that defendants had prior police association.

Whether the exhibit may be taken to the jury room is a matter within the discretion of the trial court, and its decision will not be reversed on appeal in the absence of a showing of an abuse of judicial discretion which prejudices the defendants. (People v. Allen (1959), 17 Ill. 2d 55,160 N.E.2d 818.) While it is error for “mug shots” to be shown to the jury where they have no probative purpose, they may be admitted for the purpose of demonstrating how defendants could have been identified even though there is incidental indication of a prior arrest. (People v. Woodruff (1978), 62 Ill. App. 3d 949, 379 N.E.2d 907.) The primary issue in this case was the identity of the two individuals who purchased gasoline placed in the can. Liggons’ testimony concerning immediate identification of defendants through the pictures was probative of his clear and positive identification. People v. Morano (1979), 69 Ill. App. 3d 580, 387 N.E.2d 816.

Defendants argue that it was error for the court to permit the prosecutor to refresh the memory of Liggons from police reports because it had not been established that the witness’ recollection was exhausted. The question was whether the witness recalled what he had told the police some months before concerning the description of the car and the defendants. The response was vague, and the witness was asked if the police reports would refresh his recollection. Whatever the significance of defendants’ objection at this moment in trial, it is apparent that upon the full record any alleged error was harmless. In the defense evidence it is admitted that the defendants purchased gasoline at the Owens station while passengers were in the car of Karnes, and engaged in the first purchase of gasoline which Liggons described. One cannot find a genuine issue of fact as to whether Liggons had seen both the defendants and the automobile on the date in question. In that context, there is no claim that the witness had misidentified defendants because they had not actually been at the Owens station on the early morning in evidence.

A review of the testimony shows that Liggons’ memory of the conversation was virtually nonexistent as to what was stated. A witness may refresh and assist his memory by use of a written memorandum when he is unable to remember relevant facts even though the writing is not prepared by the witness if, after inspecting the writing, the witness can speak of facts from his own recollection. (People v. Bean (1978), 63 Ill. App. 3d 264, 379 N.E.2d 723.) Although there was possibly inadequate foundation for refreshing the witness’ recollection, it cannot be said under the circumstances that the defendants were prejudiced.

Defendants argue several matters regarding physical evidence found at the time of the fire. Officials examining the scene found a wrapper or package for a cupcake on the roof of the tavern, as well as a five-gallon can. Soil samples were also taken and certain laboratory tests were made. A residue of gasoline in the can was tested in comparison with gasoline samples from the Owens pumps.

At the time of trial the gasoline samples, the pastry wrapping, and the soil samples were not available. The record discloses that on September 25, 1978, the prosecution advised defendants that the physical evidence was available for examination. Defendants moved to examine such evidence on January 22, 1979. A stipulation discloses that the samples of gasoline, the wrapper and the soil samples were destroyed on November 9, 1978. The police requested such destruction because of the hazard in storing gasoline in the evidence locker. The record conflicts as to whether defense counsel agreed to the destruction. Defendants argue reversible error in the denial of their motion to exclude testimony concerning the tests of these items.

Defendants admit that the record shows that they were not diligent in seeking examination and they have not shown that such items would be evidence favorable to them.

The forensic laboratory tests did not establish any identification of the gasoline residue in the can. The witness could not determine whether the samples were leaded or unleaded. The most that he could say is that the residue in the can and the sample from the Owens unleaded pump “could have had a common source.”

Similarly, we find no reversible error in the failure to preserve the wrapper of the cupcake. While it would be admissible as an item of physical evidence found or associated with the fire, no evidence in the record connects the wrapper with defendants. While there is testimony that a defendant purchased snacks from a vending machine at the Owens station, the record is clear that this item was not purchased from the vending machine at that place. Defendants, in fact, argued to the jury that the prosecution had presented no evidence connecting the wrapper with either defendant.

The facts in this case are distinguishable from those in People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573, and People v. Dodsworth (1978), 60 Ill. App. 3d 207, 376 N.E.2d 449. In those cases concerning possession of controlled substances, the nature and identity of the substance alleged to be contraband was a necessary element in the case for the prosecution. Since defendants, in those cases, “could not make independent tests of the substance as contraband” and, because those courts recognized that the accuracy and conclusiveness of the tests performed differed, the defendants were denied their right to confront evidence against them. Here, the nature of the accelerant is not an element of the offense, and there is no genuine issue than that gasoline was used at the scene of the fire. The expert did not undertake to say whether the gasoline in the can was leaded or unleaded, or identify it with defendants. Hence, we conclude that there is no reversible error.

Defendants argue matters of asserted prejudicial argument to the jury by the prosecutor. With but one exception, the defendants failéd to object to the statements now asserted to be error. The post-trial motion contains a single unspecific statement that the prosecutor referred to improper and erroneous matters designed to prejudice the jury. At the hearing upon the motion defendants waived any statement or argument. Thus, the matters now asserted to be grounds for a new trial were never presented to the trial court. It is proper to deem such matters to have been waived. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Without addressing all of the allegedly objectionable arguments that were not otherwise cured by an objection sustained by the court, we consider the prosecution’s comments that the defense undertook to establish a “red herring” and the statement that Liggons had come from Missouri to testify because “he was a good citizen.”

It has been held that referring to the defense case as a “red herring” is not reversible error. People v. Tolefree (1973), 14 Ill. App. 3d 754, 303 N.E.2d 555; People v. Galloway (1979), 74 Ill. App. 3d 624, 393 N.E.2d 608.

Liggons had failed to appear as a witness and ultimately a warrant was issued and he was returned by police officers to testify at the trial. The facts concerning his return were testified to by a police officer. The remark of the prosecutor was an inexcusable misrepresentation.

Improper remarks in argument do not constitute reversible error unless they produce substantial prejudice to the defendant. (People v. Nilsson (1970), 44 Ill. 2d 244, 255 N.E.2d 432.) Substantial prejudice only results from improper argument when the verdict would have been different in the absence of such argument. (People v. Lyons (1974), 26 Ill. App. 3d 193, 324 N.E.2d 677.) Since the jury heard the testimony that Liggons was brought back under process as a witness at trial, and since the jury heard defendants’ countervailing argument as to the facts in evidence, we cannot find that there was such prejudice as to constitute reversible error.

We have examined defendants’ numerous claims of improper argument, to which no objection was made at trial and not preserved in the post-trial motion, and conclude that there is no plain error which requires reversal.

The defendants argue that since the evidence presented to the jury was circumstantial only, it was error for the trial court to refuse to give the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (1968), with the language:

“[You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.]”

The prosecution persuaded the trial court that Liggons’ testimony which identified the gasoline can constituted such direct testimony that it was unnecessary to give the second paragraph of the instructions. We agree with defendants that the evidence of guilt was all circumstantial.

The jury was instructed as to the presumption of innocence, that the defendants were not required to prove themselves innocent, and that the prosecution must prove defendants guilty beyond a reasonable doubt. The language of the omitted paragraph is essentially a restatement'that defendants must be proved guilty beyond a reasonable doubt. In People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471, the court examined the history of the instruction and concluded that courts of review are reluctant to consider that the failure to give the quoted paragraph of the instruction is reversible error. That opinion adopted the views of cited cases that reversal is not required unless it appears that justice had been denied, or that the verdict resulted from such error. To the same effect is the opinion in People v. Garcia (1981), 95 Ill. App. 3d 792, 420 N.E.2d 482. It has been held that the same conclusion controls where the instruction has been requested. People v. Boose (1978), 65 Ill. App. 3d 127, 382 N.E.2d 532.

Defendants urge that the trial court erred in ordering restitution to be made by the defendants because a hearing upon such question was never held, and the court did not make a finding that defendants were financially able to make restitution. Section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6) provides that if restitution is part of the disposition:

“(a) A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and conditions of payment at the court’s discretion.”

In People v. Abraham (1980), 89 Ill. App. 3d 786, 412 N.E.2d 45, it was held that it was a matter of the trial court’s discretion to hold a hearing upon the issue. In People v. Pitts (1980), 83 Ill. App. 3d 738, 404 N.E.2d 857, it was held that the failure of the trial court to hold a hearing of the defendant’s ability to make restitution did not deprive the trial court of jurisdiction to make such order, and where, as here, a hearing upon the ability to make restitution was not requested a holding of such hearing is subject to waiver. (Pitts; People v. Wilson (1980), 87 Ill. App. 3d 544, 408 N.E.2d 1209, appeal denied (1980), 81 Ill. 2d 598.) We note that at the hearing in aggravation and mitigation the defendants testified and counsel argued that the evidence showed that they were employable.

The prosecution concedes that as to defendant Cross, the trial court erred in its order seizing a bail deposit to apply upon the value of the services of the public defender, and that such order must be reversed by reason of the authority of People v. Cook (1980), 81 Ill. 2d 176, 407 N.E.2d 56.

At the sentence hearing the trial judge referred to the presentence report and made inquiry concerning a statement that the victim of a battery for which Cross was convicted had died. The trial court was advised that defendant had been charged with murder but that the jury verdict convicted him of battery rather than murder. The trial judge then stated:

“For the record, the court will simply note that the victim of the battery died and will not take into account the charges which were not proved.”

The trial court’s statement of the perimeters of his consideration is at best ambiguous and uncertain. The court again noted the purported distinction in imposing a maximum sentence upon Cross. While the record supports a conclusion that defendant had a substantial history of violent conduct, it is impossible within his phraseology to determine what weight the trial court gave to the death noted.

In People v. Gant (1974), 18 Ill. App. 3d 61, 309 N.E.2d 265, the trial judge, in substance, considered the fact that the victim of a robbery died two days after the offense. Defendant was neither charged, nor convicted, with causing that death. The opinion stated:

“[B]ut where the record shows that the judge allowed his determination of what sentence to impose to be affected by incompetent evidence, then we must vacate the sentence [citation]. * 9 * The defendant was ‘clothed in a presumption of innocence’ regarding the death of the complaining witness, and it was therefore prejudicial to him when the trial judge imposed a sentence based at least in part on his belief that the defendant was somehow responsible for her death [citation.]” (18 Ill. App. 3d 61, 66-67, 309 N.E.2d 265, 268-69.)

In People v. Maldonado (1980), 80 Ill. App. 3d 1046, 400 N.E.2d 656, defendant was tried and convicted of robbery. The evidence disclosed hearsay statements that the victim never recovered and became unable to continue his employment. The reviewing court determined that it was improper for the trial judge to consider such alleged fact, as no causal connection was established in the record between the robbery and the asserted injuries. In accordance with the authority of the cited opinions, we conclude that the sentence of the defendant Cross should be vacated and remanded for a new sentence hearing.

For the reasons set forth, the. conviction and sentence of the defendant Hunt are affirmed; the conviction of the defendant Cross is affirmed; the sentence imposed upon the defendant Cross is vacated and remanded for a new sentence hearing; the order applying bail deposit of defendant Cross to reimbursement for the services of the public defender is reversed.

Affirmed in part, reversed in part, and remanded with directions.

GREEN and WEBBER, JJ., concur.


author: Mr. JUSTICE MILLS

text:
    DUNN, BRADY, GOEBEL, ULBRICH, MOREL, KOMBRINK & HUNDMAN, Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY, Defendant-Appellant.
    Fourth District
    No. 17024
    Opinion filed September 4, 1981.
    Rehearing denied October 14, 1981.

      James C. Wollrab, of Costigan & Wollrab, of Bloomington, for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Our inquiry: Is plaintiff law firm entitled to attorney fees on the subrogation recovery paid to State Farm?

We hold not.

We reverse.

State Farm Insurance (defendant) appeals a circuit court judgment granting plaintiff’s motion for summary judgment and denying State Farm’s cross-motion for summary judgment. Dunn, Brady (plaintiff) — a legal partnership — sued to recover attorney’s fees for services allegedly performed which were beneficial to State Farm. Dunn, Brady claims that through its representation of individuals insured by State Farm (a subrogee), it recovered monies paid to the clients under State Farm’s automobile insurance policy.

Facts

The chronology of events is complex.

On June 19, 1975, at Zephyr Cove, Nevada, an automobile accident occurred. Dallas Lane, members of his family, and a family friend were passengers in Lane’s Winnebago which was struck head-on by a car driven by a California resident. The Winnebago was destroyed, Lane’s party suffered personal injuries, and the California resident was killed.

The California resident was insured by Commercial Union Assurance Company (Commercial). Lane, an Illinois resident, was insured by State Farm for personal injury, property damage, medical payments, lost earnings, and collision. The Lanes were ultimately paid in excess of $28,000 for physical damages, and medical and wage claims, by State Farm under the policy.

In July 1975, Lane hired plaintiff law firm to represent him in the personal injury suit, and plaintiff contacted State Farm to obtain its investigation file. State Farm referred plaintiff to a field claim representative for Commercial. Both carriers were advised that plaintiff represented the passengers in the Winnebago.

In September of 1975, State Farm began reimbursing the injured for their medical bills, and the insureds signed forms entitled “receipt for expense advance.” Those payments continued through 1977, when the case was ultimately settled.

On September 26, 1975, State Farm sent Commercial its notice of subrogation lien. An interoffice memorandum, and deposition testimony in the record from Gerald Larsen, a claims adjuster for Commercial, indicate that by November of 1975 Commercial accepted liability on behalf of its deceased insured and would honor State Farm’s subrogation payments upon requisite proof of loss.

On January 28, 1976, plaintiff asked defendant if it could represent State Farm on its subrogation claim. State Farm refused, telling plaintiff that it intended to pursue the subrogation claim directly with Commercial. On April 1, 1976, Commercial began making payments directly to State Farm to offset State Farm’s payout to its insureds.

By letter of June 16, 1976, plaintiff notified State Farm that it had filed a negligence suit against the estate of the decedent in Federal court. On May 12, 1977, plaintiff sent a letter to State Farm requesting that it forward an account of all monies received by State Farm from Commercial after the date of the filing of the lawsuit since plaintiff expected State Farm to pay its ratable share of attorney’s fees from the monies received on the subrogation claim. By return letter, State Farm refused the request for fees, claiming that it had settled the claim directly with Commercial.

On December 8, 1976, Commercial paid State Farm the second installment on the subrogation claim. A final payout for several inadvertently overlooked items was made by Commercial in early 1978.

On August 17, 1977, State Farm executed a release in the amount of $27,732.82. On or about the same day, a $96,000 settlement was reached, and the insureds also executed releases. The personal injury lawsuit was dismissed on September 27,1977.

On November 1, 1977, plaintiff again contacted State Farm and requested attorney’s fees and a proportionate share of costs. State Farm again declined the request for fees, and this lawsuit resulted.

Theory of Suit

Plaintiff’s right to recover attorney’s fees is ostensibly based on the equitable “fund doctrine.” The doctrine has been thus described:

“[Wjhere a fund has been created as the result of legal services performed by an attorney for his client, and a subrogee of the client, who has done nothing to aid in creating the fund, seeks to benefit therefrom, the attorney is entitled to a fee from the subrogee in proportion to the benefit received by the subrogee. This theory of recovery by an attorney, known as the ‘fund doctrine,’ is based on the equitable concept that an attorney who performs services in creating a fund should in equity and good conscience be allowed compensation out of the whole fund from all those who seek to benefit from it.” (Baier v. State Farm Insurance Co. (1977), 66 Ill. 2d 119, 124, 361 N.E.2d 1100, 1102.)

Stated in a different manner it has also been held that,

“In order to recover under the doctrine it is necessary for a plaintiff seeking recovery from a subrogee to show (1) that the fund was created as a result of legal services performed by an attorney * * *, (2) that the subrogee did not participate in the creation of the fund, and (3) that the subrogee benefited out of the fund that was created.” Smith v. Marzolf (1980), 81 Ill. App. 3d 59, 64, 400 N.E.2d 949, 953.

Here, the trial court, relying upon Sobczak v. Whitten (1979), 75 Ill. App. 3d 208, 393 N.E.2d 1080, concluded that the fund doctrine was applicable because the “settlement” of the subrogation claim between the carriers was only reached after State Farm knew of Dunn, Brady’s representation of the insured parties and anticipated ancillary legal action. On appeal, State Farm argues that the fund doctrine is inapplicable to this case because no fund was created and none of Dunn, Brady’s legal services in the ancillary personal injury action benefited State Farm. In a nutshell, defendant argues that its activities — not plaintiffs’s — were responsible for settlement of the subrogation claim.

I

The initial question we must resolve has two distinct aspects. Is there a fund, and if so, was it created as a result of legal services performed by plaintiff? The record discloses that agents for Commercial admitted liability as early as November of 1975, four months after they learned plaintiff was representing the Lanes, but seven months prior to the filing of the personal injury lawsuit. In addition, Commercial began making payments on the subrogation claim directly to State Farm some two months prior to the filing of that lawsuit. The record also discloses that settlement negotiations between plaintiff and Commercial were directed solely to the value of the injuries to plaintiff’s clients without specific regard to defendant’s subrogation interests. On the facts of this case, we hold that no “fund” was created since Commercial acknowledged and agreed to honor State Farm’s subrogation claims irrespective of the inchoate personal injury claim. Absent a fund, plaintiff has not demonstrated that it is entitled to any fee for its alleged services.

Even were we to accept the claim that a fund had been created on the theory that the monies emanate from a common source, we nevertheless cannot accept plaintiff’s claim to fee entitlement. The second aspect of the fund doctrine requires that the subrogee not participate in the creation of the fund. Here, the facts graphically demonstrate that defendant expended direct and substantial time and energy in pursuing its subrogation claims directly with Commercial.

Thirdly, any possible benefit which defendant might have received on the basis of plaintiff’s activity was purely incidental. One must distinguish between the acts establishing the fund as opposed to caretaker activity subsequent to the creation of that fund which necessarily must occur until such time as the nature and extent of the injuries have been diagnosed and treated and all claims have been processed and paid. Plaintiff’s only activity in this regard was to gather records, bills, and receipts, turning them over either to State Farm or directly to Commercial on occasion. None of those activities are related to the creation of any fund.

Under the insurance policy, the insured is required to cooperate with his insurance company. To that end, defendant could well have collected the same information directly from the insured without the involvement of plaintiff. Moreover, it is arguable that the marshaling of this documentary evidence was of benefit to the insured rather than the subrogee to the extent that a determination of the nature and extent of the injuries affected the potential value of the injury claim, irrespective of the subrogation lien.

II

Plaintiff’s reliance upon Sobczak v. Whitten (1979), 75 Ill. App. 3d 208, 393 N.E.2d 1080, for the proposition that the fund doctrine is applicable because the subrogation “settlement” was only reached after defendant knew of plaintiff’s representation of the insured parties and anticipated ancillary legal action is misplaced. In that case, Sobczak was insured by Government Employees Insurance Company (GEICO). Defendant driver of the other vehicle was insured by Dairyland Insurance Company. Sobczak filed a complaint for personal injuries on September 22, 1976. Sometime between October and November of 1976, GEICO sent subrogation notices to Dairyland. On December 20, 1976, Dairyland filed a motion requesting leave to pay the monetary equivalent of the stated policy limits into the court. On the same day, Dairyland deposited $20,000 with the court.

On March 14, 1977, Sobczak filed a motion requesting a hearing to allow plaintiffs to prove damages and allow GEICO to proceed on its claim for subrogation. On March 31, 1977, GEICO filed a petition to intervene, and the funds were ultimately disbursed. GEICO thereafter appealed the trial court’s order granting Sobczak’s motion to reconsider a prior motion of the court disbursing the $20,000 without any allocation of an amount for plaintiffs’ attorney’s fees on the proportionate share received by GEICO on its subrogation claim. In granting the motion to reconsider, the court ordered that plaintiffs’ attorneys receive approximately one-third of the $20,000 as a fee.

GEICO asserted on appeal that the fund doctrine did not apply because it did not realize any actual benefit from the attorney’s services since liability on the claim was clear and payment by the defendant insurance company was certain. The court noted that although defendant’s answer to the complaint contested liability, defendant intended to settle from the suit’s inception. The court also concluded, however, that it was only through the negotiations of plaintiffs’ attorney that the suit was ultimately settled. Issues with regard to the limits of defendant’s liability and the documentation of the extent of injuries were resolved solely on the basis of plaintiffs’ lawsuit. The appellate court then held that it was not error for the trial court to direct an award of attorney’s fees.

Not only are the facts of Sobczak distinct from the case at bar, but we do not read the case as broadly as either plaintiff or the trial court. In Sobczak, the facts clearly demonstrated that GEICO did nothing to secure payment on its subrogation claim other than tender notices of subrogation to the parties. Sobczak’s attorney was primarily responsible for the actual negotiation which resulted in settlement. GEICO played a completely passive role in the litigation up to the point it petitioned to intervene, several months after the funds were already on deposit with the court and subject to Sobczak’s motion to prove up damages and allow GEICO to present its claim.

III

Moreover, while we agree that the questions of notice, anticipated litigation, and contested liability are important, they are not determinative of a subrogee’s liability for attorney’s fees without an examination of the nature and extent of the carrier’s own activities. Were it otherwise, subrogees would always be liable for a proportionate share of attorney’s fees in the event an insured’s attorney noticed the parties of an intent to file a claim for damages at a time when actual liability for the claim had not yet been conceded by the other carrier. To give effect to plaintiff’s argument would force counsel upon a subrogee which not only does not want counsel but does not need counsel to pursue its subrogation claim.

While plaintiff is correct in asserting that no case holds that a complaint must be filed before the fund doctrine applies (Krause v. State Farm Mutual Automobile Insurance Co. (1969), 184 Neb. 588,169 N.W.2d 601), plaintiff ignores the subsequent language in that opinion to the effect that allowance of attorney’s fees depends upon “consideration of all of the circumstances including the nature of the contract with the insured and the amount and nature of the services rendered, and the other principles relating to the award of attorney’s fees under the law.” (184 Neb. 588, 596, 169 N.W.2d 601, 605-06.) In the same light, we have considered each of the cases cited by plaintiff in support of its position and conclude that the factual setting in each case is clearly distinguishable from that present in the case at bar.

IV

We also reject plaintiff’s claim that defendant is estopped from denying liability for fees on the theory that defendant could not have been subrogated to its insured while simultaneously receiving direct payments from Commercial. Plaintiff interprets the insurance contract to require the filing of a lawsuit to protect defendant’s subrogation rights. Plaintiff then argues that the failure to file such a suit would abrogate the insured’s duty under the insurance contract and defendant would be free to seek repayment of any monies advanced under the policy. The thrust of plaintiff’s argument is that the efforts plaintiff rendered in connection with the filing and prosecution of the lawsuit were not only necessary but inherently beneficial to defendant. This argument is without merit.

While the insurance policy requires that the insured do nothing to prejudice the rights of the subrogee, the policy does not dictate that the insured take any particular legal action to enforce the rights of the subrogee. If that were not the case, the International Reciprocal Arbitration Agreement requiring internal negotiation and settlement of certain subrogation claims under a stated amount would be pointless. The insurance contract clause is clearly there for the protection of the subrogee in the event that the insured finds it necessary to file suit to seek damages in excess of those or different from those covered by the insurance policy. The subrogee, however, is obviously free to pursue its own remedy against another carrier without the consent of the insured.

V

Finally, plaintiff argues that the trial court could have entered summary judgment on count II of the amended complaint, which alleged that under Nevada law, plaintiff was entitled to equitable apportionment of the expenses, costs, and services rendered. The trial court specifically declined to grant relief to plaintiff on that count because disposition with regard to count I terminated the litigation, obviating the need to address the alternative theory. The trial court did, however, deny defendant’s motion for summary judgment, which was directed toward both counts of the complaint. Since the denial of a motion for summary judgment is never a final or appealable order, that issue is not properly before this court for review at this time. (Simon v. Jones (1968), 96 Ill. App. 2d 1, 238 N.E.2d 259.) In view of the erroneous disposition as to plaintiff’s motion for summary judgment, we remand to the trial court for reconsideration of count II of the complaint.

For the foregoing reasons, the judgment of the circuit court is reversed and remanded with directions to enter summary judgment in favor of defendant as to count I of the complaint and for further proceedings.

Reversed and remanded with directions.

LONDRIGAN and GREEN, JJ., concur.