author: JUSTICE RIZZI McGILLICUDDY, J., JUSTICE McNAMARA,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES CURTIS et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 83—2339, 83—2395 cons.
    Opinion filed March 29, 1985.
    McNAMARA, J., dissenting.
    James L. Hardemon and Wilson Frost, both of Chicago, for appellant James Curtis.
    Patrick A. Tuite, of Chicago, for appellant Andrew Ryder.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Timothy J. Joyce, and Brian S. Crowley, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendants James Curtis and Andrew Ryder were found guilty of armed robbery in a bench trial. We reverse the convictions and remand for a new trial because of the violation of defendants’ sixth amendment right to counsel after adversarial judicial proceedings had been initiated against them and because of the exploitation of the results of that constitutional violation at trial.

On July 18, 1979, two men entered a liquor store at about 10 p.m., near closing time. They pretended to be customers and then wielded guns and removed a gun from a part-time security guard, Fred Kennie. They also took money and checks from the store manager, Thomas Buckle, a cashier, Rosalind Harris, and another employee, Gregory Webb. The entire incident lasted from 15 minutes to a half hour. After the robbery, the police were called and Buckle related that the robbers were a white man and a black man. Buckle also gave a general description of the robbers to the police.

Nineteen months later, in early February of 1981, Kennie informed the police that he was a participant in the robbery and that his accomplices were defendants Ryder and Curtis. On February 10, 1981, two arrays of five photographs were shown to Buckle. One array included a photograph of Ryder, and the other array included a photograph of Curtis. According to the testimony of a police officer, Buckle made a tentative identification of Ryder from the first array. The same police officer testified, however, that Buckle was not sure and that, in effect, he wanted to see the man in the photograph in person before he made a positive identification. After looking at the second array of five photographs Buckle said, “this one here resembled” Curtis.

On February 11, 1981, an array of five photographs, which included a photograph of Ryder, was shown to Harris. She stated that the photograph of Ryder “looked like the guy” she saw in the store. After being shown another array of five photographs, which included a photograph of Curtis, she stated, “I thought this was the picture of the black guy.”

On February 17, 1981, felony complaints were prepared and submitted before a judge of the circuit court, naming Ryder and Curtis as defendants. The complaints charged defendants with armed robbery. After conducting a hearing, the judge determined that there was probable cause for filing the complaints. He gave the assistant State’s Attorney leave to file the complaints, and he issued arrest warrants.

At about 5 p.m. on the same day, Ryder was arrested pursuant to the warrant and taken to the area police station. He requested an attorney and declined to give a statement until he talked to his attorney. He telephoned his attorney, and he was told not to give any statements. Also, Ryder’s attorney testified that he told a police officer on the telephone that he was in the process of working on another matter, but that he would appear at the police station and represent Ryder and he would attend a proposed lineup involving Ryder. About an hour and 15 minutes later, around 8:30 p.m., before the attorney arrived at the police station and without a waiver from Ryder, a lineup which included Ryder was conducted at the police station. Ryder’s attorney appeared at the police station at 11 p.m., but the lineup had already taken place.

At the lineup, Buckle identified Ryder as one of the robbers. Ryder was the only person in the lineup who was in the array of five photographs that had been shown to Buckle seven days earlier on February 10,1981.

Curtis was also arrested on February 17, 1981. After his arrest, he was taken to the same area police station but he did not arrive there until about 6:45 p.m. At the police station, when he was read his Miranda warnings and asked if he wanted to give a statement, he said: “I told them no, until I see my attorney.” When he was asked if he wanted to call an attorney, he said: “I told them I had three attorneys and I didn’t know which one to call at that time of night, whether they’d be in the office or not.” Later, he attempted to call two of the lawyers but he was not able to reach them because no one answered the phone calls. About one-half hour to one hour later, Curtis was taken to a room where he was told, “[Y]ou’re going to have to be in a lineup and *** to stand where I wanted to.” Curtis did not voluntarily participate in the lineup. He was told he “had to stand the lineup.”

At the lineup, Buckle told the police that Curtis “resembled the man.” At no time did Curtis tell anyone that he did not want an attorney or that he waived his right to an attorney. An assistant State’s Attorney was present during the lineup involving Curtis, as well as during the lineup involving Ryder.

The police officer who arrested Curtis testified that after he read Curtis the Miranda warnings in an interview room at the police station, the following occurred:

“A. I told him there is going to be a lineup in about an hour or two and that there’d be several people viewing the lineup and he had the right to contact an attorney.
Q. What did he say to that?
A. He stated he had three attorneys and didn’t know which one he wanted to call, and I offered him the phone to call all three if he wished.
Q. What did he say to that?
A. He stated he wanted to wait and see what happened. Meaning, I assume, he meant after the lineup. I don’t know.
Q. Okay. So did he make any calls at that time?
A. He did make some phone calls.
Q. Do you know who to?
A. No.
Q. Did he tell you anything after that?
A. No.
Q. Okay. By the way, did he indicate whether he wanted to give any statement when you advised him of his Miranda warnings?
A. Right after he was advised of his rights he declined to give any statement at all.”

Curtis was then taken to another room. While he was in that room, a second police officer stepped inside the room and began conversing with Curtis. As to what occurred, the police officer testified:

“Q. What, if anything, did he say to you, what, if anything did you say to him?
A. I believe, first, I remarked about not looking like his picture. And, I told him who I was. And, I was working on the case. And, I asked him if he had been advised of his rights.
He said he had. And, he had already been advised of his rights. And, I told him that Mr. Ryder had been arrested. And also that Mr. [Kennie] had been arrested in this matter. And that he would have to stand a line-up. And, I asked him if he had an Attorney. And, advised him that Mr. Ryder had an Attorney. And he said that he had three Attorneys.
Now, on the three Attorneys he had, he used them, apparently, in some business deals or what have you, before. But, he informed me that he did not want to make a phone call. And, did not want to talk to one of the Attorneys, because — as he said — he was “gonna play it by ear” at that time. And, he didn’t know who he was going to use as an Attorney. Because he had three of them that he had dealt -with in the past.
Q. So, did he make any phone calls, at all, in your presence?
A. He made no phone calls. At that time, I asked him did he want one and he did not.”

On February 19, 1981, Harris, who had not attended the lineups, saw a picture of Ryder and Curtis in a newspaper which reported that they had been arrested for the robbery. On February 23, 1981, police officers visited Harris and showed her photographs of the lineups that had been taken on February 17, 1981. She viewed the lineup photographs and stated that Curtis and Ryder were the “guys that [were] at the store.”

The trial took place more than four years after the robbery. Except as stated, neither Buckle nor Harris had seen or viewed defendants in the interim period. At trial, defendants filed motions to suppress the lineup identifications that had been made by Buckle. The court allowed the motion to suppress as to Ryder on the basis that the lineup identification had occurred without assistance of counsel in violation of the sixth amendment. However, the court denied the motion to suppress as to Curtis on the basis that he had waived his right to assistance of counsel at the lineup.

At trial, over the objections of defendants, the court allowed Buckle and Harris to make in-court identifications of defendants. Defendants objected on the basis that the in-court identifications were the result of the unconstitutionally obtained lineup identifications and that, therefore, they should have been suppressed. In addition, over the objections of defendants, the prosecutor showed Harris the lineup photographs at trial, and Harris testified that she had seen the lineup photographs on February 23, 1981, and that she had identified defendants at that time. The lineup photographs were then admitted into evidence.

A critical issue in this case involves an accused’s sixth amendment right “to have the Assistance of Counsel for his defence.” (U.S. Const., amend. VI.) Specifically, defendants argue that their constitutional right to counsel at the lineups was violated and, therefore, the lineup evidence and the in-court identifications of defendants at trial should have been suppressed. The State counters that the lineup evidence and the in-court identifications were proper “as no right to counsel had attached at the time of the lineup[s] since no adversarial [judicial] proceedings had been initiated.”

In addressing the issue, we first observe what the United States Supreme Court said in Gilbert v. California: “We there held [in United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926] that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.” Gilbert v. California (1967), 388 U.S. 263, 272, 18 L. Ed. 2d 1178, 1186, 87 S. Ct. 1951,1956.

Subsequent to the Gilbert decision, the United States Supreme Court decided Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877. In Kirby, the court held that an accused’s sixth amendment right to counsel attaches at or after the time that adversarial judicial proceedings have been initiated against him “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882, quoted in Moore v. Illinois (1977), 434 U.S. 220, 226, 54 L. Ed. 2d 424, 432, 98 S. Ct. 458, 464. See also United States v. Gouveia (1984), 467 U.S. 180, 187-88, 81 L. Ed. 2d 146, 153-54, 104 S. Ct. 2292, 2297; People v. Martin (1984), 102 Ill. 2d 412, 419, 466 N.E.2d 228, 231.

With this background, we focus on the question of whether at the time of the lineups in the present case, adversarial judicial proceedings had already been initiated against defendants “by way of formal charge.” We believe that the answer lies in an examination of the standard criminal procedures that are followed in Illinois and which were followed in this case.

Prosecutions are commenced by a complaint, an information, or an indictment. (Ill. Rev. Stat. 1983, ch. 38, par. 111 — 1.) When an arrest warrant is sought in a felony case, a felony complaint is presented by an assistant State’s Attorney to a judge in the circuit court. In addition to naming the State as the plaintiff, the felony complaint names the accused as a defendant and charges that he has committed a specified felony offense. The judge must examine under oath the complainant and any witnesses presented by the assistant State’s Attorney. If it appears to the judge, from his examination of the complainant and witnesses presented by the assistant State’s Attorney and the contents of the complaint, that the person charged committed the offense, the judge will approve the filing of the complaint naming the person charged as the defendant, and the judge will issue a warrant for the defendant’s arrest. Ill. Rev. Stat. 1983, ch. 38, par. 107-9.

Plainly, after the complaint is filed, the person charged has ceased being merely an accused, and he has, in fact, in every respect become a formal defendant in need of an attorney to protect his interests as a citizen at any subsequent critical stage of the criminal proceedings that are brought against him by the State. Here, we must also bear in mind that it is after this stage that the defendant may file motions to suppress or to quash the formal charges that are made against him in the complaint. Also, we note that “a complaint” is expressly included in the Code of Criminal Procedure of 1963 under sections entitled “Form of charge” (Ill. Rev. Stat. 1983, ch. 38, par. 111 — 3), and “Formal defects in a charge” (Ill. Rev. Stat. 1983, ch. 38, par. 111 — 5). Thus, it would be incongruous to conclude that after a felony complaint is judicially approved and filed in the circuit court, adversarial judicial proceedings have not been commenced against a defendant “by way of formal charge.” See Moore v. Illinois (1977), 434 U.S. 220, 226, 54 L. Ed. 2d 424, 432, 98 S. Ct. 458, 464, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877,1882.

Accordingly, we believe that adversarial judicial proceedings by way of formal charge in felony cases commence after the filing of a felony complaint in the circuit court. If it were otherwise, the use of the pertinent term “formal charge” in Kirby to designate when adversarial judicial proceedings have been initiated would be meaningless, for the term would not be distinguished from “preliminary hearing, indictment, information, or arraignment.” Moore v. Illinois (1977), 434 U.S. 220, 226, 54 L. Ed. 2d 424, 432, 98 S. Ct. 458, 464, quoting Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1882.

Under the circumstances, since we believe that adversarial judicial proceedings had already been initiated against defendants before the lineups took place, we conclude that their sixth amendment right to assistance of counsel had already attached at the time of the lineups. This being so, defendants had a constitutional entitlement to the presence of counsel at the lineups because it is firmly established that a lineup is a critical stage of the criminal proceedings against a defendant. United States v. Wade (1967), 388 U.S. 218, 227-37, 18 L. Ed. 2d 1149, 1157-63, 87 S. Ct. 1926, 1932-38; Gilbert v. California (1967), 388 U.S. 263, 272, 18 L. Ed. 2d 1178, 1186, 87 S. Ct. 1951, 1956; Moore v. Illinois (1977), 434 U.S. 220, 229-32, 54 L. Ed. 2d 424, 434-36, 98 S. Ct. 458, 465-66.

As to Ryder, he was placed in a lineup without having counsel present to protect his interests at the lineup. Thus, the trial court properly suppressed the pretrial lineup identification of him that was made by Buckle.

As to Curtis, the trial court ruled that he waived his constitutional right to assistance of counsel at the lineup. We disagree. A waiver is an intentional abandonment of a known right. Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. 2d 1461, 1466, 58 S. Ct. 1019, 1023; People v. Swift (1980), 91 Ill. App. 3d 361, 364, 414 N.E.2d 895, 898.) This precept must be applied here with utmost scrutiny, for fundamental constitutional rights, such as the right to assistance of counsel, were paid for too dearly to be lost unwittingly by any citizen. Thus, before we can conclude that Curtis intelligently waived his constitutional right to assistance of counsel at the lineup, we must determine whether he knew of the existence of that right in a very real sense. Accordingly, we must determine whether he knew under the circumstances in which he found himself that the police could not demand that he appear at the lineup without assistance of counsel.

The circumstances under which Curtis found himself are not common to the average citizen. He was under arrest and at a police station between the hours of 7 and 8 p.m. When he was given Miranda warnings, he responded by saying that he did not want to give a statement until “I see my attorney.” A police officer testified that after Curtis was advised of his rights, “he declined to give any statement at all.” Curtis had three lawyers who had represented him in business matters in the past, but he did not know which one to call at that time of night because they probably would not be in their offices. The police officer told Curtis that he was going to have to be part of a lineup and that “he had the right to contact an attorney.” The police officer stated that when he offered Curtis the phone to call his attorneys, Curtis said that he wanted to wait and see what happened. Curtis then called two of the lawyers that had represented him in the past, but no one answered the phone calls. Later, Curtis was taken to another interview room, where a second police officer told him “that he would have to stand a line-up.” It is unrebutted that all of this happened after Curtis had unequivocally told the police that he did not want to give any statement until he saw his lawyer. The second police officer then asked Curtis if he had an attorney, and Curtis told him that he had three attorneys, but did not know which one he was going to use and he would “play it by ear” at that time. This response by Curtis was made after he had already phoned two attorneys but was not able to reach them because it was nighttime, and they were not in their offices.

In its argument to establish a waiver of counsel, the State relies upon the first police officer’s statement that when he offered Curtis the phone to call his attorneys, Curtis said that he wanted to wait and see. The State also relies upon the second police officer’s statement that Curtis said he was “gonna play it by ear.” However, the crucible for determining whether there was a waiver of one’s constitutional right to counsel is plainly not solely the words attributed to a defendant by a police officer. (See People v. Dailey (1972), 51 Ill. 2d 239, 241, 282 N.E.2d 129, 130.) Here, Curtis’ words were not uttered in a vacuum, and we should not view them in that manner. Rather, we must look to the facts and circumstances surrounding his words to determine whether he uttered them as an intentional abandonment of a constitutional right that was known to him.

In this regard, since the right to assistance of counsel is a fundamental constitutional right, we must indulge in every reasonable presumption that Curtis did not waive the right, and we cannot presume acquiescence in the loss of the right. (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.) Moreover, although the trial court need not be convinced beyond a reasonable doubt when considering the issue of waiver, we must bear in mind that the State has the burden of proof on the issue. (People v. Swift (1980), 91 Ill. App. 3d 361, 364, 414 N.E.2d 895, 898.) The State’s burden to establish a waiver of the right to counsel has been described as a “heavy burden.” People v. Taylor (1979), 76 Ill. 2d 289, 310-11, 391 N.E.2d 366, 375-76.

In the present case, we believe the facts plainly manifest that under the circumstances in which he found himself, Curtis did not know that the police could not demand that he appear at the lineup without assistance of counsel. Rather, it was made to appear as if his participation in the lineup that night, with or without counsel, was inevitable. We also believe that the facts and circumstances surrounding Curtis’ answers to the police officers strongly militate against the conclusion that Curtis intentionally abandoned a constitutional right that was known to him. (Cf. Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019; People v. Swift (1980), 91 Ill. App. 3d 361, 414 N.E.2d 895; People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) Thus, applying the waiver principles to the facts before us, we conclude that the trial court’s ruling that Curtis waived his constitutional right to counsel at the lineup is against the manifest weight of the evidence. See People v. Martin (1984), 102 Ill. 2d 412, 426, 466 N.E.2d 228, 234.

In addition, before the conversations on which the State relies to establish a waiver took place, Curtis had already told the police that he did not want to give any statements until he saw his lawyer. In our view, once Curtis asserted his right to counsel, the police were obligated not to initiate any conversation with him concerning a critical stage of the criminal proceedings against him until he had a reasonable time to make contact with his counsel, or at the very least, until he was furnished with substitute counsel. (See United States v. Wade (1967), 388 U.S. 218, 237, 18 L. Ed. 2d 1149, 1163, 87 S. Ct. 1926, 1937-38.) Instead, after Curtis had asserted his right to counsel, the police readied him for the lineups and initiated the conversations with him on which the State relies to establish a waiver of assistance of counsel. We believe that the conversations were improperly initiated by the police. By way of comparison, in a fifth amendment right to counsel setting, the United States Supreme Court held that once a suspect in custody asserts his right to counsel, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1884-85; see also Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490.) If the authorities initiate further communications, exchanges, or conversations with the defendant, any information or waiver resulting therefrom would be unconstitutionally obtained. (People v. Hammock (1984), 121 Ill. App. 3d 874, 879-80, 460 N.E.2d 378, 382.) We see no reason why the pertinent rationale and holdings in Edwards and Smith should not apply in a sixth amendment right to assistance of counsel setting in regard to communications, exchanges, or conduct involving a critical stage of the criminal proceedings against the defendant. Rights and guarantees afforded by the Bill of Rights cannot be made the subject of an endurance test. (See People v. Smith (1984), 102 Ill. 2d 365, 378, 466 N.E.2d 236, 242 (Simon, J., dissenting), majority rev’d sub nom. Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490; People v. Hammock (1984), 121 Ill. App. 3d 874, 879-80, 460 N.E.2d 378, 382-83.) This fact can be stated judicially without reservation, for it is plainly ingrained in our American ideals.

Accordingly, not only do we conclude that the trial court’s ruling that Curtis waived his constitutional right to assistance of counsel at the lineup is against the manifest weight of the evidence, but we also conclude that under the circumstances any waiver of that right would have been unconstitutionally obtained. Cf. Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386-87, 101 S. Ct. 1880, 1884-85; People v. Hammock (1984), 121 Ill. App. 3d 874, 879-80, 460 N.E.2d 378, 382-83.

Next, the State, relying upon Wade, takes the position that even if defendants’ constitutional right to counsel was violated at the lineup and there was no waiver, no error occurred at trial because there was an independent basis for the in-court identifications made by Buckle and Harris. In Wade, the court held that if the prosecution established by clear and convincing evidence that the in-court identification is based upon observations of the suspect other than from the lineup identification, then the in-court identification is permissible, (United States v. Wade (1967), 388 U.S. 218, 239-42, 18 L. Ed. 2d 1149, 1164-66, 87 S. Ct. 1926, 1939-40.) However, in Wade, unlike the present case, the prosecution did not elicit from the witnesses the fact that they had identified the defendant at the lineup, and there was no evidence of the lineup itself introduced at trial. See Moore v. Illinois (1977), 434 U.S. 220, 225-26, 54 L. Ed. 2d 424, 431-32, 98 S. Ct. 458, 463.

Here, the prosecutor opportunistically elicited testimony from Buckle that he had identified defendants at the lineups, which were held in violation of defendants’ constitutional rights. Moreover, the prosecutor showed Harris the lineup photographs at trial and elicited testimony from Harris that she had seen the lineup photographs on February 23, 1981, and identified defendants at that time from the lineup photographs. The lineup photographs were then admitted into evidence. Plainly, this testimony and evidence were the direct results of the unconstitutional lineups, obtained by the prosecutor’s exploitation of the primary illegality. The testimony and evidence should therefore have been prohibited without regard to whether the prosecution was able to prove that the pretrial identifications or the in-court identifications had an independent source.

Moreover, only a per se exclusionary rule as to such testimony and evidence can be an efficacious sanction to assure that law enforcement authorities will respect an accused’s constitutional right to assistance of counsel at all critical stages after adversarial judicial proceedings have been commenced against him. (Moore v. Illinois (1977), 434 U.S. 220, 231-32, 54 L. Ed. 2d 424, 435-36, 98 S. Ct. 458, 466; Gilbert v. California (1967), 388 U.S. 263, 272-74, 18 L. Ed. 2d 1178, 1186-87, 87 S. Ct. 1951, 1956-57.) Thus, in the present case, the State was not entitled to show that the testimony and other evidence of the pretrial identifications, or the in-court identifications, had an independent source.

Under the circumstances, a question arises as to whether we are able to declare a belief that the violation of defendants’ sixth amendment right to assistance of counsel was harmless beyond a reasonable doubt. (Chapman v. California (1967), 386 U.S. 18, 24, 17 L. Ed. 2d 705, 710-11, 87 S. Ct. 824, 828; Moore v. Illinois (1977), 434 U.S. 220, 232, 54 L. Ed. 2d 424, 436, 98 S. Ct. 458, 466; Gilbert v. California (1967), 388 U.S. 263, 274, 18 L. Ed. 2d 1168, 1187, 87 S. Ct. 1951, 1957.) We conclude that we cannot make such a declaration.

In this regard, we first observe that Webb, who was present throughout the robbery and presumably could have made an identification of the robbers, was not called as a witness by the State. In addition, while Webb witnessed lineups which included defendants right after the lineup witnessed by Buckle on the night of February 18, 1981, the record is silent as to whether Webb identified either of the defendants at those lineups. Here, we note that although an assistant State’s Attorney was present at the lineups, defendants did not have counsel present to observe or perhaps memorialize Webb’s responses or reactions at the lineups.

Since the State did not call Webb as a witness, the only witness to identify defendants besides Buckle and Harris was Kennie. However, while Kennie’s testimony may be true, it is subject to reasonable doubt. In February 1981, 19 months after the robbery, Kennie first named defendants as the robbers. At the time, in addition to his part-time security job at the liquor store, he was working full-time for the Chicago fire department as an emergency medical technician. He had worked for the Chicago fire department for 10 or 12 years. Kennie testified that in February 1981, Ryder was a captain in the Chicago fire department assigned to the Internal Affairs Division. Kennie also testified that in February 1981, he knew that Ryder and the IAD were investigating him for stealing money from dead people and sick people in fire department ambulances. Kennie testified that he knew that if the charges against him which Ryder was investigating at the time were proved, then he would lose his job with the Chicago fire department.

There are other aspects of Kennie’s testimony that are worth noting. According to Kennie’s own testimony, he had “an agreement with the People of the State of Illinois” relative to his testimony at trial. The agreement was that the State would recommend that he receive minimum concurrent sentences for an armed robbery charge and a forgery charge then pending against him. In addition, Kennie had a possession-of-controlled-substance charge pending, which, under Kennie’s agreement with the State in the present case, the State would nol-pros or dismiss. Kennie’s agreement with the State in the present case also included a disposition of two counts of deceptive practice charges pending against him for cashing worthless checks.

We believe that Kennie’s agreements with the State relative to his testimony at trial, his history of criminality and the circumstances under which his “cooperation” with the State arose seriously impugn his testimony and subject it to reasonable doubt. Thus, in reality, this case may have hinged on the weight that was given to the identifications that were made by Buckle and Harris. As to these two witnesses, not only did the prosecutor expediently buttress their in-court identifications with the unlawful lineup identifications and the pretrial identifications that had been made with the use of the lineup photographs, but he also put into evidence the unlawful lineup photographs themselves. The prosecutor’s wrongful enhancement of the identifications made by Buckle and Harris is clearly significant, because (1) neither Buckle nor Harris had ever seen defendants before the robbery, (2) more than 19 months had elapsed from the time of the robbery until Buckle and Harris first saw photographs of defendants, (3) Buckle and Harris’ initial identifications from the photographs were not absolutely certain, according to the police officer, (4) Harris had seen photographs of defendants in a newspaper account of defendants’ arrest for the robbery only four days before she identified defendants in the lineup photographs, and (5) except for the unlawful lineup identifications by Buckle 19 months after the robbery, neither Buckle nor Harris had seen defendants in person for more than four years, from the time of the robbery until the trial.

We conclude that for all of the reasons that we have stated, we cannot declare a belief that the violation of defendants’ sixth amendment right to assistance of counsel at the lineups and the exploitation of that violation by the prosecutor were harmless beyond a reasonable doubt. Therefore, the convictions must be reversed.

One other issue is raised by defendants. They contend that the State failed in its burden to prove that the robbers were armed with dangerous weapons as required by the armed robbery statute. We find this contention to be totally without merit, and it does not warrant any discussion.

Accordingly, we reverse the convictions and remand the case for a new trial because of the violation of defendants’ sixth amendment right to assistance of counsel after adversarial judicial proceedings had been initiated against them and because of the exploitation of the results of that constitutional violation at trial.

Reversed and remanded.

McGILLICUDDY, J.,

concurs.

JUSTICE McNAMARA,

dissenting:

I respectfully dissent from the majority’s decision reversing defendants’ convictions. The trial court correctly found that Curtis waived his constitutional right to counsel at the lineup and that the lineup and photographic identification procedures were not suggestive. There was also clear and convincing evidence presented to show that the in-court eyewitness identifications of both defendants were based on a source independent of the lineups. Accordingly, the trial court properly found that the testimony concerning the lineup identification of Curtis and the in-court identifications of both defendants was admissible at trial. I would affirm the convictions of both defendants.

An accused’s sixth amendment right to counsel attaches at the commencement of adversarial judicial criminal proceedings. (Moore v. Illinois (1977), 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458; People v. Burbank (1972), 53 Ill. 2d 261, 291 N.E.2d 161, cert, denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017.) However, neither the United States Supreme Court nor our supreme court have decided whether sixth amendment rights attach upon the filing of a complaint and the issuance of an arrest warrant. Nevertheless, it is unnecessary to address this issue, because the trial court had ample proof to find that Curtis waived any right to counsel.

A waiver of counsel must be voluntary and must constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) A determination of waiver depends “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023.) It is for the trial court to decide whether there has been a waiver of the right to counsel; the court need not be convinced beyond a reasonable doubt, and the court’s decision will not be disturbed unless it is against the manifest weight of the evidence. (People v. Dailey (1972), 51 Ill. 2d 239, 282 N.E.2d 129.) Moreover, our supreme court has held that “a valid relinquishment of the right to counsel is not dependent upon an express waiver.” People v. Martin (1984), 102 Ill. 2d 412, 425, 466 N.E.2d 228, cert, denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270,105 S. Ct. 334.

Before being placed in the lineup, Curtis was informed of his right to counsel at the lineup. The majority states that Curtis’ statements as reported by the police officers that he wanted to “wait and see” before calling an attorney and that he did not wish to call an attorney before the lineup because he was “gonna play it by ear” do not indicate a waiver. Contrary to the majority’s holding, the surrounding facts and circumstances and Curtis’ background and conduct demonstrate that he knew he had a right to an attorney and waived that right.

When Curtis was initially advised of his right to counsel, the police testified that Curtis stated he had three lawyers, but did not want to call them. He had not made up his mind which attorney to call or if he was going to contact an attorney. After making two calls, Curtis stated that he would “play it by ear” and did not want to make a call or have an attorney present. He thereafter proceeded voluntarily to the lineup without an attorney. Although Curtis may have been unfamiliar with a station-house setting, he had a high school education and had served in the military. He had contact with attorneys in the past and was advised that this was a serious case. Curtis chose to deal with the authorities on his own and to make his own legal decisions. (See Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) Curtis’ background and experience demonstrate that he understood his right to counsel, and his language and conduct prior to the lineup show that he knowingly, intelligently and voluntarily waived this right.

The majority also asserts that, according to Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, any police-initiated conversation with Curtis after he asserted his right to counsel was improper and should not be used as the basis for its finding. The United States Supreme Court has recently set forth its analysis of the fifth amendment right to counsel in Smith v. Illinois (1984), 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490. Two distinct inquiries are necessary in determining a fifth amendment constitutional violation: whether the accused invoked his right to counsel and if so, whether the accused initiated further conversation with police and thereafter knowingly and intelligently waived his right. The fallacy in extending the fifth amendment Edwards-Smith analysis to a sixth amendment lineup is that the right to counsel in each instance exists to protect different constitutional rights. The fifth amendment right to counsel attaches to protect an accused from self-incrimination during custodial interrogation. (Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.) The sixth amendment right to counsel provides an attorney to assist an accused and insure fairness at the beginning of adversary judicial proceedings. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) While an accused can assert his fifth amendment right and halt questioning, an accused cannot halt a police investigation or judicial proceeding.

Therefore, applying the Edwards-Smith proscription that police cannot initiate further questioning once a lawyer has been requested to a sixth amendment lineup setting is illogical and improper. (See Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297,100 S. Ct. 1682.) It is entirely appropriate for police officers to again ask an accused if he wishes to call a lawyer or if he has contacted a lawyer, and if so, when the lawyer is expected to arrive. It would be impractical to prohibit any further inquiry concerning the request for a presence of an attorney at the anticipated lineup. The State should not have to wait until the accused initiates further conversation to determine if or when an attorney is coming. For sixth amendment lineup purposes, police officers should be able to make further inquiries concerning counsel without a constitutional violation.

Moreover, even if the Edwards-Smith rule did apply to a sixth amendment lineup setting, there is no clear and unequivocal indication that Curtis requested an attorney’s presence at the lineup. When advised of his right to counsel, Curtis responded equivocally. His statements and conduct showed indecisiveness and do not demonstrate a clear request for counsel. (See People v. Krueger (1980), 82 Ill. 2d 305, 412 N.E.2d 537, cert, denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 390, 101 S. Ct. 3009; People v. Winston (1982), 106 Ill. App. 3d 673, 435 N.E.2d 1327.) This is not to say that an accused must make two separate requests for counsel for fifth and sixth amendment purposes. The right to counsel is not dependent on a request by the defendant. (Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) Courts, however, must engage in separate inquiries to determine constitutional violations of those rights. See Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.

The majority concludes that, because of the sixth amendment violation, the State was not entitled to show either that the testimony and photographic evidence of pretrial identification or that the in-court identification had an independent source. The majority’s conclusion is contrary to the interpretation of the Wade-Gilbert exclusionary rule. (See Moore v. Illinois (1977), 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458.) Even if a lineup identification violates an accused’s sixth amendment right, subsequent in-court identifications are still admissible if based on a source independent of and untainted by the lineup identifications. United States v. Wade (1967), 388 U.S. 218,18 L. Ed. 2d 1149, 87 S. Ct. 1926; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.

The record reveals that both Buckle and Harris had ample opportunity to view defendants the evening of the robbery. Buckle testified that the liquor store had fluorescent lighting and that defendants were in the store approximately 15 minutes. Buckle had face-to-face conversations with both defendants and observed them at a close distance while they removed money from the safe and cash registers. Immediately after the robbery, Buckle described the physical characteristics of the robbers to the police. Those descriptions substantially matched the actual descriptions of Curtis and Ryder. Buckle identified both defendants from an array of five photographs, one week before defendants’ arrest and lineup.

Harris testified that she observed both defendants in the store prior to the actual robbery and that she was standing approximately five feet from the black man and seven feet from the white man. Harris also observed defendants during the 15-minute robbery and thereafter furnished a description to the police which matches defendants’ actual descriptions. Harris viewed a photographic array and stated that defendants’ photographs looked similar to those of the robbers.

The testimony of both witnesses reveals no discrepancy between any prelineup descriptions and defendants’ actual descriptions nor any failure to identify defendants on a prior occasion. (People v. Marshall (1977), 47 Ill. App. 3d 784, 365 N.E.2d 367.) The trial court had ample evidence that the in-court identifications of defendants were based upon origins independent of the lineups and, therefore, the absence of defense counsel at the lineups does not require reversal on appeal. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489; People v. Giovanetti (1979), 70 Ill. App. 3d 275, 387 N.E.2d 1071; People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513.) The fact that there were 20 months between the crime and the lineup identification by Buckle and identification from the lineup photographs by Harris is not determinative. In People v. Martin (1970), 47 Ill. 2d 331, 265 N.E.2d 685, cert, denied (1971), 403 U.S. 921, 29 L. Ed. 2d 700, 91 S. Ct. 2240, the court found that despite a time lapse of approximately two years between the robbery and photographic identifications and over three years between the crime and trial, the delay did not preclude independent observations.

I note also that, since Ryder’s lineup identifications were suppressed by the trial court, Buckle did not testify that he had identified Ryder at the lineup. If there were any illegality connected with that lineup identification of Ryder, it would have been dissipated by Buckle’s observation of Ryder independent of the lineup. The fact that Harris stated that the photographs of each defendant “looked like” the gten who robbed the store and did not make a positive identification until viewing the lineup photographs does not make her in-court identification less reliable. (See People v. Anton (1981), 100 Ill. App. 3d 344, 426 N.E.2d 1070.) Further, defendants make no contention that the lineups or photo identification procedures were unnecessarily suggestive, nor does the record so indicate. (See Munson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243; Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.) Additionally, the sixth amendment does not require that defense counsel be present when a witness views photographic arrays. (United States v. Ash (1973), 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568.) Therefore, both witnesses’ testimony about the pretrial identifications from the photo array for each defendant was proper.

Harris’ testimony that she identified defendants from photographs of the lineups and the introduction of those photographs into evidence was proper. The majority concludes that since the uncounseled lineups violated defendants’ sixth amendment right, this testimony and evidence were a direct result of the constitutional violation and should have been excluded. As I have noted, I believe that the trial court was justified in finding that Curtis waived his right to an attorney at the lineup. Consequently, there was no primary illegality as to his lineup, and the subsequent photographic identification and testimony by Harris were not tainted, nor was the introduction into evidence of the • lineup photograph. While the trial court suppressed the lineup identification of Ryder by Buckle, Ryder had no right to an attorney at a photographic display. (United States v. Ash (1973), 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568.) Moreover, assuming that the admission of evidence concerning Harris’ photographic identification of either defendant was tainted, such introduction was harmless error because Harris had a clear and independent opportunity to view defendants during the occurrence and made a positive in-court identification. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; People v. Strater (1979), 72 Ill. App. 3d 486, 390 N.E.2d 979.) Since any error in the admission of the photographs or Harris’ testimony was harmless, it is not a ground for reversal on appeal. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.

Accordingly, I would affirm the judgments of convictions as to both defendants.

       This case involves defendants’ sixth amendment right to counsel and not their fifth amendment right to counsel. One’s fifth amendment right to counsel comes into existence during custodial interrogation. Its purpose is to protect a citizen from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. Here, neither the lineups nor anything that defendants were required to do in the lineups violated their privilege against self-incrimination. See United States v. Wade (1967), 388 U.S. 218, 221-27, 18 L. Ed. 2d 1149, 1154-58, 87 S. Ct. 1926, 1929-32; People v. Martin (1984), 102 Ill. 2d 412, 419, 466 N.E.2d 228, 231.

       In the present case, the judge subscribed to the following statement on the face of the felony complaints: “I have examined the above complaint and the person presenting the same and have heard evidence thereon, and am satisfied that there is probable cause for filing same. Leave is given to file said complaint.”

       The felony complaint that is filed in court after a judicial hearing and approval also serves as the basis for the preliminary hearing upon which the State’s Attorney signs and files an information if there is probable cause. Ill. Rev. Stat. 1983, ch. 38, pars. 109 — 3,111—3.

       But see People v. Boswell (Mar. 14,1985), No. 83 — 169.

       The record reflects that Curtis had no previous convictions, and the transcript of the sentencing hearing suggests that he has steady employment, strong familial ties and no history of serious criminality. In sentencing Curtis, the trial judge imposed the statutory minimum sentence of six years. In Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023, the court held that “the background, experience, and conduct of the accused” in each case is to be taken into consideration in determining “whether there has been an intelligent waiver of the right to counsel.”

       Knowledge of Curtis’ previous statement to the police that he did not want to give any statement until he saw his lawyer is imputed to the second police officer. See People v. Hammock (1984), 121 Ill. App. 3d 874, 881 n.4. 460 N.E.2d 378, 383 n.4, citing People v. White (1975), 61 Ill. 2d 288, 294, 335 N.E.2d 457, 461.

       0n this point, we note with interest that three justices presently sitting on the United.States Supreme Court support the position that only an express and specific waiver of the right to counsel will justify a loss of the constitutional right. (North Carolina v. Butler (1979), 441 U.S. 369, 377-79, 60 L. Ed. 2d 286, 294-96, 99 S. Ct. 1755, 1759-60 (Brennan, J., dissenting, joined by Marshall and Stevens, JJ.).) In his dissent, Justice Brennan states: “[T]he requirement of an express waiver would impose no burden on the police not imposed by the Court’s interpretation. It would merely make that burden explicit. Had Agent Martinez simply elicited a clear answer from Willie Butler to the question, ‘Do you waive your right to a lawyer?’ this journey through three courts would not have been necessary.” 441 U.S. 369, 379, 60 L. Ed. 2d 286, 296, 99 S. Ct. 1755, 1760. But see People v. Martin (1984), 102 Ill. 2d 412, 425, 466 N.E.2d 228, 234: “This court has held that a valid relinquishment of the right to counsel is not dependent on an express waiver.”

       The Johnson and Swift eases involve a claim of waiver of one's right to counsel under the sixth amendment. There is authority to support the position that there is a higher standard that must be met to show a waiver of one’s sixth amendment right to counsel than to show a waiver of one’s fifth amendment right to counsel. (Wyrick v. Fields (1982), 459 U.S. 42, 52-55, 74 L. Ed. 2d 214, 221-24, 103 S. Ct. 394, 398-400 (Marshall, J., dissenting).) However, there is also authority to support the position that the standard that must be met to show a waiver of one’s right to counsel is the same under the fifth and sixth amendments. See People v. Owens (1984), 102 Ill. 2d 88. 102. 464 N.E.2d 261. 267.

       Compare People v. Smith (1982), 93 Ill. 2d 179, 190, 442 N.E.2d 1325, 1330, where the court stated: “Finally, the State argues that even if the statements should not have been admitted, admitting them was harmless error. Considering the record we cannot agree. *** Moreover, as the defendant points out, the only other evidence directly linking the defendant to the crimes was the testimony of Mary Smith, who pleaded guilty to armed robbery, and whose murder charges were dropped in exchange for her testimony.”


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    W. E. ERICKSON CONSTRUCTION, INC., et al., Plaintiffs and Counterdefendants-Appellants and Cross-Appellees, v. CONGRESS-KENILWORTH CORPORATION et al., Defendants and Counterplaintiffs-Appellees and Cross-Appellants.
    First District (4th Division)
    No. 83-2197
    Opinion filed January 10, 1985.
    Modified on denial of rehearing May 2, 1985.

      Stuart M. Widman, of Much, Shelist, Freed, Denenberg, Ament & Eiger, of Chicago, for appellants.
    Nathan Diamond-Falk, of Chicago, for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Plaintiffs, W. E. Erickson Construction, Inc., and Wilbert E. Erickson (jointly Erickson) brought this action to recover a sum allegedly due under a contract entered into with defendants, Congress-Kenilworth Corporation, James Adams and John Stafford (jointly C-K) for the construction of a concrete water slide, known as “Thunder Mountain Rapids” in Crestwood. C-K filed a counterclaim for damages, among other things, for construction defects. Following a bench trial, judgment was rendered for Erickson on count II of its amended complaint (breach of contract) in the amount of $202,000. The remaining counts I and III (preliminary injunction/appointment of receiver), IV (account stated), V (quantum meruit) and VI (accord and satisfaction) of Erickson’s amended complaint and C-K’s counterclaim were dismissed for want of equity. The trial court also awarded attorney fees to C-K from a fund held by the receiver, which previously had been appointed. Erickson appeals from the award of damages, the dismissal of counts I, III, IV, V and VI of its amended complaint and the award of attorney fees to C-K. C-K filed a cross-appeal which it has not pursued in this appeal.

The parties here are no strangers to this court. In an earlier appeal, we reversed an order appointing a receiver for C-K. (See W. E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1983), 112 Ill. App. 3d 847, 445 N.E.2d 1209.) Much of the background surrounding this controversy is contained in that opinion and will not be repeated here. In summary, Erickson, a general contractor, entered into a contract with C-K for the construction of a concrete water slide for a total cost not to exceed $535,000, exclusive of additional costs and interest. The contract provided that Erickson would be paid the cost of the work performed by subcontractors, a contractor’s fee of 15% of the project cost, exclusive of concrete, carpentry, architectural and engineering costs, Erickson’s labor for concrete and carpentry work, and overhead, as well as additional amounts attributable to the costs of extra or modified work, permits, engineering fees, certain sewer and sanitary work, and interest at the rate of 2% over prime for overdue balances. Work commenced on April 15, 1981, and was completed on July 3, 1981. The project was open to the public the next day on July 4,1981. To date, Erickson has been paid $150,000 on the contract.

Under its amended count II, Erickson sought damages under the contract in the amount of approximately $550,000, the value of the contract Erickson claimed for its full performance under the contract. The trial court, however, found Erickson was entitled to $352,000 on its contract claim, and, after deducting $150,000 already paid to Erickson, awarded a judgment to Erickson for $202,000.

Erickson argues that the trial court erred in the assessment of damages awarded to it under the contract. Erickson maintains that the trial court, by entering judgment for it under its contract count, had found that Erickson had substantially performed under the contract. However, Erickson contends, the trial court did not award it damages for its substantial performance under the contract. Rather, Erickson asserts, the trial court erroneously entered judgment for it only in the amount of its out-of-pocket expenses for subcontractor labor and materials. C-K argues that the judgment entered was proper. C-K asserts that the trial court had found that Erickson had failed to substantially perform under the contract and, therefore, Erickson was not entitled to damages under the contract. Alternatively, C-K maintains that if the trial court had found that Erickson had rendered substantial performance, the award entered was still proper as it represented the value of the contract fully performed as proved by Erickson. The first issue to be resolved is whether Erickson substantially performed under the contract.

Under the doctrine of substantial performance, the general rule regarding building contracts is that a builder is not required to perform perfectly, but rather is only held to a duty of substantial performance in a workmanlike manner. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673, 356 N.E.2d 565.) A purchaser who receives substantial performance of the building contract must pay the price bargained for, less an offset for defects in what he received as compared to what strict performance would have given him. (Park v. Sohn (1982), 89 Ill. 2d 453, 464-65, 433 N.E.2 651; Mayfield v. Swafford (1982), 106 Ill. App. 3d 610, 612, 435 N.E.2d 953; Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673-74, 356 N.E.2d 565; Restatement (Second) of Contracts sec. 347 (1979).) A contractor whose work amounts to less than substantial performance may not recover on the contract. Under such circumstances, a contractor may recover under a quasi-contractual theory for the reasonable value of its services rendered less any damages suffered by the purchaser. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673, 356 N.E.2d 565; J. Calamari & J. Perillo, Contracts sec. 11 — 26, at 426-28 (2d ed. 1979).) The question of whether substantial performance has been given varies on the facts presented in each case. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673, 356 N.E.2d 565.) The trial court’s finding will not be disturbed on appeal unless the holding of the trial court is against the manifest weight of the evidence. V & V Cement Contractors, Inc. v. LaSalle National Bank (1983), 119 Ill. App. 3d 154,157, 456 N.E.2d 655.

Judgment was rendered for Erickson on its contract count, count II of its amended complaint, in the amount of $202,000, plus statutory-interest and costs. That count alleged C-K’s breach of contract for nonpayment and sought approximately $550,000 in damages, the value of the contract for Erickson’s full performance. The trial court found that while there existed defects in construction of the water slide they were insufficient in themselves to sustain a finding that the water slide was constructed in a “wholly unworkmanlike manner.” However, the court found that with respect to the selection of architects and in the subcontractor-bidding process, Erickson “wholly failed to perform.” Notwithstanding this conclusion, the court then went on to enter judgment on amended count II (the breach of contract).

C-K asserts that the finding of these deficiencies in Erickson’s performance by the trial court indicates that the trial court had concluded that Erickson had not substantially performed under the contract. Contrary to C-K’s contention, we believe that as the trial court had entered judgment on its contract count, the trial court necessarily found that Erickson had substantially performed under the contract. This conclusion is supported by the trial court’s dismissal of Erickson’s amended count V, which sought recovery on a noncontractual theory of recovery, quantum meruit.

Moreover, the evidence presented at trial established that Erickson had substantially performed under the contract. There was no substantial difference between what C-K contracted for and what it received. There was considerable testimony adduced with regard to the extensive cracking of the concrete flumes within the water slide. Witnesses for both parties presented conflicting testimony as to whether such damage was beyond acceptable limits. But all agreed that the cracks did not affect the operation of the structure as a water slide. Further, an important factor in determining whether a contractor or builder has rendered substantial performance is the actual receipt and enjoyment of benefits by the purchaser. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673, 356 N.E.2d 565.) We conclude that there was sufficient evidence to support the trial court’s finding that Erickson sustained its burden in proving that its performance was substantial. Damages, therefore, should have been measured on this basis.

The trial court did not, however, apply the standard of substantial performance in assessing Erickson’s damages under the contract. While the trial court entered judgment on the contract, it is evident from the amount awarded that damages were not calculated upon Erickson’s substantial performance under the contract. Erickson sought recovery for its damages under the contract. It appears from the amount Erickson was awarded that Erickson only recovered its out-of-pocket expenses for subcontractor labor and materials. Based on this award, it would seem that the trial court may have unintentionally used the noncontractual theory of quantum meruit to measure Erickson’s damages under the contract. We note, as we stated earlier, that the trial court dismissed Erickson’s claim for quantum meruit under its amended count V. Nevertheless, under the circumstances, the trial court’s award was not a proper method of computation of damages under the doctrine of substantial performance. The judgment as to damages therefore must be vacated and the cause remanded for a recalculation of the amount of damages Erickson is entitled to receive for its substantial performance under the contract.

Erickson next raises a number of arguments relating to the pleadings and to the particular calculations of damages. The matters concerning the pleadings, we believe, will not arise again, and we will not address them here. As to the particular findings of damages, the propriety of these findings is not clear at this point, and consequently we will not consider those issues. In light of our remandment for a reassessment of damages, the trial court is directed to recalculate damages and to take whatever evidence is necessary, if any, in order to calculate damages on the basis of substantial performance.

Erickson also contends that it is entitled to a rate of 2% interest over the prime rate for balances due but unpaid as provided under the contract. The contract provided that Erickson was to make written application for monthly progress payments and that C-K was required to pay within 30 days of application. On June 16, 1981, when the project was 60% completed, Erickson submitted to C-K an application for payment in the amount of $246,958 for the period April 1 to May 31, 1981. The trial court found that as Erickson never tendered a 30-day itemized statement to C-K as required by the contract, Erickson forfeited any claim to interest due since June 1981. The testimony of Erickson and Adams established that the only written application for payment to C-K was prepared in order for C-K to obtain a loan to enable C-K to pay Erickson. Despite Erickson’s argument to the contrary, there was no testimony that the application was ever intended to be an application for payment due. Furthermore, C-K did not waive this contract provision by making payments on July 14 and August 20, 1981. The contract specifically provided that a precondition to a payment is a submission of an application. Interest is predicated on such an application. Thus, no waiver occurred. Accordingly, the trial court’s findings were not against the manifest weight of the evidence.

As an alternative ground for recovery, Erickson contends that the trial court erred in not entering judgment for it on the basis of an account stated for which Erickson would then be entitled to the full contract price. In support of this contention, Erickson points out that on June 20, 1981, C-K issued a corporate resolution authorizing the transfer by deed to Erickson of the land upon which the water slide was being built as security for payment. Also, on July 14, 1981, 10 days after the project was opened, C-K’s attorney sent Erickson a letter which stated:

“Please be advised that my office is representing Congress-Kenilworth Corp. in the pursuit of financing re: Thundermountain Rapids, Crestwood, Illinois. We totally acknowledge our indebtedness to W. E. Erickson Construction, Inc. and in the amount of $550,000 to date.”

It is undisputed that Adams gave Erickson a check for $50,000 that same day.

An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance. (LaGrange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1053, 436 N.E.2d 645; Motive Parts Company of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 938, 369 N.E.2d 119.) The agreement must manifest the mutual assent of both the creditor and the debtor. (Allied Wire Products, Inc. v. Marketing Techniques, Inc. (1981), 99 Ill. App. 3d 29, 40, 424 N.E.2d 1288; Protestant Hospital Builders Club v. Goedde (1981), 98 Ill. App. 3d 1028, 1032, 424 N.E.2d 1302.) The meeting of the minds upon the correctness of an account is usually the result of one party’s rendering a statement of account to which the other party acquiesces. (LaGrange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1053, 436 N.E.2d 645; Motive Parts Company of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 938, 369 N.E.2d 119.) The form of acquiescence is immaterial, and the meeting of the minds may be inferred from the conduct of the parties and the circumstances of the case. Where a statement of account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection, this constitutes a recognition by the latter of the correctness of the account and establishes an account stated. LaGrange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1053, 436 N.E.2d 645; Allied Wire Products, Inc. v. Marketing Tech niques, Inc. (1981), 99 Ill. App. 3d 29, 424 N.E.2d 1288; Motive Parts Company of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 939, 369 N.E.2d 119.

Based on our review of the evidence in this case, we conclude that the facts do not establish an account stated. First, the correspondence between the parties Erickson relies upon was not in the form of a statement of account. According to the definition of an account stated, the statement of account must be founded on previous monetary transactions between the parties which merely renders certain the amount of debt for a preexisting liability. (Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 941, 369 N.E.2d 119; 1 C.J.S. Account Stated sec. 44, at 726 (1952).) In the present case, the amount the parties were bound to pay was fixed in the contract. There were no series of previous transactions by which prior unliquidated amounts were merged together. Furthermore, the testimony established that the corporate resolution and letter from C-K’s attorney were not intended as a statement of account, but rather were rendered in order for Erickson to secure financing on behalf of C-K as security for payment due under the contract. The fact that Adams made a partial payment of $50,000 on the account cannot be regarded as an acknowledgment of a balance due. Allied Wire Products, Inc. v. Marketing Techniques, Inc. (1981), 99 Ill. App. 3d 29, 424 N.E.2d 1288.

Also, in order to have an account stated there must be mutual assent to the account by both parties. This testimony revealed that the parties understood that C-K’s obligation to Erickson was dependent upon the obtaining of additional financing for the project and Erickson could not be paid until after the requisite financing had been obtained. An account stated presupposes an absolute acknowledgment or admission of a sum certain due. If the assent to the amount due is qualified, there is not an account stated. Allied Wire Products, Inc. v. Marketing Techniques, Inc. (1981), 99 Ill. App. 3d 29, 41, 424 N.E.2d 1288.

Finally, where the existence of an account stated is disputed, the issue of whether it exists is a fact question which in a bench trial is properly resolved by the trial court. (LaGrange Metal Products v. Pettibone Mulliken Corp. (1982), 106 Ill. App. 3d 1046, 1053, 436 N.E.2d 645; Motive Parts Co. of America, Inc. v. Robinson (1977), 53 Ill. App. 3d 935, 940, 369 N.E.2d 119.) The trial court dismissed Erickson’s amended count IV alleging an account stated for want of equity. Under the circumstances, we cannot hold that this determination was erroneous. Based on our conclusion, there is no need to reach the issue of whether the trial court erred in denying Erickson prejudgment interest on the account stated.

Erickson further contends that the same facts also render C-K liable to Erickson on the theory of an accord and satisfaction. To constitute an accord and satisfaction, there must be an honest dispute between the parties, a tender with explicit understanding of both parties that it was in full payment of all demands, and an acceptance by the creditor with the understanding that the tender is accepted in full payment. (Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 1012, 455 N.E.2d 876.) As with all contracts, to be enforceable there must be consideration, a meeting of the minds with the intent to compromise and, finally, execution of the agreement. (Gord Industrial Plastics, Inc. v. Aubrey Manufacturing, Inc. (1982), 103 Ill. App. 3d 380, 383-84, 431 N.E.2d 445.) However, the above presupposes a disagreement as to the amount due and partial payment of an amount undisputably due is not satisfaction of the whole debt and does not constitute consideration. Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 822, 420 N.E.2d 567; Upper Avenue National Bank v. First Arlington National Bank (1980), 81 Ill. App. 3d 208, 211, 400 N.E.2d 1105.

We do not agree that the correspondence between the parties indicates that the terms of the original contract and the amount of fees due pursuant to this contract were fairly in dispute to constitute an accord and satisfaction. As we stated earlier in discussing Erickson’s claim for an account stated, the testimony showed that this correspondence was engaged in for the purpose of securing financing. It was not intended as an agreement to settle a bona fide dispute over an unliquidated sum. The trial court dismissed Erickson’s count for an accord and satisfaction on the basis that it was not sufficiently established. We cannot say this ruling was error.

Erickson next contends that the trial court erred in denying it an equitable lien upon the water slide and its proceeds. We agree. An equitable lien is the right to have property subjected to the payment of a claim. It is neither a debt nor right of property, but a remedy for a debt. (Watson v. Hobson (1948), 401 Ill. 191, 201, 81 N.E.2d 885; Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924, 930, 463 N.E.2d 1226.) The imposition of an equitable lien arises in two situations: first, where the parties express in writing their intention to make a particular property, real or personal, or some fund the security for a debt, or where there has been a promise to convey or assign the property as security (Oppenheimer v. Szulerecki (1921), 297 Ill. 81, 87-88, 130 N.E. 325; Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 495, 464 N.E.2d 751; 4 J. Pomeroy, Equity Jurisdiction sec. 1235 (5th ed. 1941)); and, second, equity has also recognized similar liens without an express agreement between the parties which arise wholly from general considerations of fairness and justice, such as where a party has made improvements on the property of another. (Oppenheimer v. Szulerecki (1921), 297 Ill. 81, 87-88, 130 N.E. 325; Pope v. Speiser (1955), 7 Ill. 2d 231, 238-39, 130 N.E.2d 507; Calacurcio v. Levson (1966), 68 Ill. App. 2d 260, 264, 215 N.E.2d 839; Restatement of Restitution sec. 170 (1937).) In either case, the essential elements of an equitable lien are (1) a debt, duty or obligation owing by one person to another, and (2) a res to which that obligation fastens. Hargrove v. Gerill Corp. (1984), 124 Ill. App. 3d 924, 931, 464 N.E.2d 1226; Marshall Savings & Loan Association v. Chicago National Bank (1965), 56 Ill. App. 2d 372, 378, 206 N.E.2d 117.

The debt Erickson alleges is owing by C-K is the amount under the contract. The res to which the complaint seeks to fasten that debt is the water slide. The record shows that C-K deeded the property on which the water slide was being built to Erickson as security for payment under the contract. Erickson was to reconvey the property to C-K when payment had been made. The security failed when it was learned that C-K did not own the property. This court earlier noted in W. E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1983), 112 Ill. App. 3d 847, 445 N.E.2d 1209, that an equitable lien could properly be imposed on behalf of Erickson because of the mutual mistake regarding the validity of the warranty deed Erickson received from C-K as security for additional financing for the improvements. (112 Ill. App. 3d 847, 850, 445 N.E.2d 1209.) It appears that the essential elements for the imposition of an equitable lien were present in the instant case. Here, when the security failed, Erickson in effect was expending its own money for the improvement of C-K’s property. Under the circumstances, Erickson is entitled to an equitable lien on the premises for the reasonable value of the permanent improvements it placed on the premises. Pope v. Speiser (1955), 7 Ill. 2d 231, 130 N.E.2d 507; Calacurcio v. Levson (1966), 68 Ill. App. 2d 260, 215 N.E.2d 839.

Furthermore, we reject C-K’s contention that as Erickson failed to specifically pray for an equitable lien on the premises or the proceeds in its amended complaint, Erickson has waived this issue. In count I of the amended complaint, Erickson sought a preliminary injunction, the appointment of a receiver and any other equitable relief that the court deemed appropriate in order to protect and preserve the assets of C-K to assure that there remained a source of funds with which the obligation owed to Erickson could be satisfied. Count III of the amended complaint alleged additionally that C-K was diverting funds and that as such the revenue generated by the operation of the water slide constituted a special fund, and requested judgment against C-K as prayed for in amended count I. Thus, we believe that the allegations of the amended complaint and the proof at trial reasonably informed C-K that Erickson was claiming an equitable right to recover the value of the improvements made to C-K’s premises. See Pope v. Speiser (1955), 7 Ill. 2d 231, 243,130 N.E.2d 507.

Erickson finally argues that the award of attorney fees to C-K out of the receiver’s fund was improper. In May of 1981, Erickson filed an action requesting the circuit court to appoint a receiver over the assets of C-K. C-K opposed the imposition of a receiver, but one was subsequently appointed. In February of 1983, this court reversed the appointment of the receiver. (W. E. Erickson Construction, Inc. v. Congress-Kenilworth Corp. (1983), 112 Ill. App. 3d 847, 445 N.E.2d 1209.) The trial court on June 9, 1983, awarded attorney fees to C-K for fees incurred after the appointment of the receiver and only those fees incurred to contest the receivership. Approximately $16,000 in attorney fees were awarded on July 6 and September 30,1983.

Erickson first argues that as a receiver should only pay attorney fees for activities which benefit the receiver or protect and preserve the receiver’s fund (Robinson v. Ruprecht (1909), 147 Ill. App. 646), C-K was not entitled to an award of attorney fees out of the fund for resisting the receivership.

As a general rule, where application has been made for the appointment of a receiver for a corporation, attorney fees and expenses in resisting such application, if made in good faith and upon reasonable grounds, may become a valid claim against the receiver, such claim being addressed to the sound discretion of the trial court. (Assets Realization Co. v. DeFrees, Brace & Ritter (1907), 225 Ill. 508, 513, 80 N.E. 263; People ex rel. Schacht v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 338, 448 N.E.2d 950; 2 Clark on Receivers sec. 642(b), at 1107 (3d ed. 1959).) This is based on the idea that where the very existence of the corporation is attacked, it is the corporation’s right and duty of its officers to protect the interest of the corporation and its creditors. (People ex rel. Schacht v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 338, 448 N.E.2d 950.) This rule is not limited to situations where the appointment of a receiver is resisted in the first instance but it applies also to good faith efforts, on reasonable grounds, to discharge a receiver already appointed. (People ex rel. Schact v. Main Insurance Co. (1983), 114 Ill. App. 3d 334, 341, 448 N.E.2d 950; Sims v. Homeseekers Fire Insurance Co. (1938), 120 W. Va. 459, 199 S.E. 69, 70-71.) Here, as C-K had both the right and the duty to repel an attack upon its corporate existence it regarded as unfounded, it was entitled to recover enough of its own assets to pay the expenses of its defense. Accordingly, payment out of the receiver’s fund was proper.

Erickson also contends that as they sought to obtain the appointment of the receiver and to protect and preserve the fund, Erickson has a priority claim against the receiver’s fund for fees. While it is true that an award of attorney fees is proper to the party who had succeeded in procuring the receivership in order to protect the fund (Hozz v. Varga (1958), 166 Cal. App. 2d 539, 543-44, 333 P.2d 113, 117; 75 C.J.S. Receivers sec. 293(d) (1952)), where the judgment appointing the receivership is reversed because of insufficient facts to justify the appointment, as in the instant case, the property involved is not chargeable with the services of the party securing the appointment. 75 C.J.S. Receivers sec. 305, at 987 (1952); O’Malley v. Hankins (1936), 209 Ind. 461, 465, 199 N.E. 558, 560.

Lastly, Erickson maintains that the payment of C-K’s attorney fees before the litigation was concluded constituted a premature determination of the rightful owner of the fund. Erickson argues that since it is entitled to an equitable lien upon that money, the payment to C-K impaired that relief. Here, attorney fees were awarded before the mandate issued from this court on November 18, 1983. The granting of attorney fees, made after the appellate court had reversed and vacated the order appointing the receiver but before the issuance of the mandate, was premature (75 C.J.S. Receivers sec. 384, at 1051 (1952); see Hare & Chase, Inc. v. Dunton (Tex. 1928), 8 S.W.2d 315, 316.) However, no prejudice to Erickson resulted, because the payment of attorney fees, as part of the cost of the receivership, has priority (75 C.J.S. Receivers sec. 293(d) (1952)), and this rule is not affected by the existence of Erickson’s equitable lien. Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1044, 389 N.E.2d 182.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed in part and reversed and remanded for reassessment of damages.

JOHNSON and ROMITI, JJ., concur.