author: JUSTICE GOLDBERG

text:
    CHARLES E. OLSON, a Minor, by Janet E. Olson, his Mother and Next Friend, Plaintiff-Appellant, v. THE VILLAGE OF OAK LAWN, Defendant-Appellee.—(WIEBOLDT STORES, INC., et al., Defendants.)
    First District (1st Division)
    No. 81-1404
    Opinion filed February 16, 1982.
    Fred Lambruschi, of Chicago (A. Mark Ialongo, of counsel), for appellant.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Barry L. Kroll and David E. Morgans, of counsel), for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Summary judgment was entered in favor of the Village of Oak Lawn (defendant) and against Charles E. Olson (plaintiff), a minor who appears by Janet E. Olson, his mother and next friend. Plaintiff has appealed.

Plaintiff was seriously injured on February 24, 1977, by a fall while riding a skateboard on a public sidewalk running north and south on the west side of Laramie Street in defendant village. Plaintiff’s second amended complaint charged defendant with negligence in that one slab of the sidewalk was dropped and displaced with a resulting disparity apparent at the joinder of the two slabs. In count II of his complaint plaintiff joined Wieboldt’s Stores, Inc., which had allegedly sold plaintiff a device known as a skateboard. Counts III and IV of the complaint were against Santa Monica Research, Inc., a corporation, allegedly the manufacturer of the skateboard which was described as unreasonably dangerous. This appeal involves only the summary judgment entered on count I.

Defendant’s motion fcjr summary judgment includes a copy of the second amended complaint; answer of defendant thereto; the deposition of the plaintiff; photographs of the site of the occurrence; a written memorandum filed by defendant; an answering memorandum filed by plaintiff; and a reply memorandum filed by defendant.

On the date of the occurrence, plaintiff was 13 years old. Plaintiff lived at 10720 South Laramie in the defendant village. The mishap occurred some six houses south of plaintiff’s home on the sidewalk on the west side of Laramie Street. Plaintiff had previously ridden the skateboard on the walk, but this was the first time he had used it at the point of the accident. Plaintiff had walked over that portion of the sidewalk without the skateboard several times a week for some years without any problem.

Plaintiff testified he was going south at the time and did not see the disparity between the two sidewalk slabs. When the skateboard passed over the drop, plaintiff was “sling-shotted” forward and fell upon his hands and knees. He did not know the dimension of the disparity but he stated one slab was higher than the other. He generally proceeded on the skateboard without looking at the sidewalk as he went. On this particular occasion he did not see the sidewalk disparity.

Pursuant to the pertinent statute (Ill. Rev. Stat. 1979, ch. 110, par. 57(3)), summary judgment is properly granted when the record reveals “ ‘no genuine issue as to any material fact’ ” and also that the moving party is entitled to summary judgment “ ‘as a matter of law.’ ” See Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 320, 396 N.E.2d 524, quoting from Econo Lease, Inc. v. Noffsinger (1976), 63 Ill. 2d 390, 393, 349 N.E.2d 1.

In the instant case there is no dispute as to any material fact. The problem arises in determining whether defendant is entitled to a judgment as a matter of law. “ ‘It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff.’ ” (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 208, 399 N.E.2d 596, quoting from Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97, 306 N.E.2d 39.) The question of existence of a duty which is defined as “the legal obligation imposed upon one for the benefit of another, is a question of law to be determined by the court * ° Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 555, 328 N.E.2d 538; see also Bence v. Crawford Savings & Loan Association (1980), 80 Ill. App. 3d 491, 492, 400 N.E.2d 39.

It is a definitely accepted principle of law that a municipality owes the general public a duty of taking the necessary steps to maintain its sidewalks in a reasonably safe condition. Where the defect is such that “ ‘a reasonably prudent man should anticipate some danger to persons walking’ ” upon the sidewalk, a factual issue as to the existence of negligence by the municipality is presented. (Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 160, 394 N.E.2d 33, appeal denied (1979), 79 Ill. 2d 619, quoting from Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 605, 145 N.E.2d 105.) However, this principle has been evolved by the courts in connection with the rights of pedestrians. In the case at bar, we are concerned with a minor riding a skateboard upon a municipal sidewalk. This requires initially an examination of the skateboard and its operation.

The skateboard is described in the record. Basically, it is a board mounted on two wheels in the front and two in the back. It has no brakes, no motor and no steering device. The operator places one foot on the board and pushes the skateboard until it gains speed. He is then able to place both feet upon the board and to proceed at a goodly pace. The machine is propelled entirely by the rider. It has no vertical handle at the front end. The operator can change its direction only by shifting his weight. Able counsel for plaintiff makes the point “skateboards have attained wide popularity and the trial court in its opinion recognized and took notice of their wide use.”

We find no authority in Illinois bearing directly upon the pertinent legal issue here. However, the following authorities are of value:

In Cygielman v. City of New York (1978), 93 Misc. 2d 232, 402 N.Y.S. 2d 539, a 14-year-old operator of a skateboard was injured because of a break in the sidewalk. The court formulated the duty of the municipality as that of reasonable care in maintaining a reasonably safe condition for “ordinary, customary and usual modes of use.” (93 Misc. 2d 232,_, 402 N.Y.S.2d 539, 540.) The court cited precedents involving means of transportation such as a sled and a bicycle. The court stated that the nature of the skateboard was such that it was the use of this device which brought about the injury. The court also noted:

“That this accident happened; that others will continue to happen, can be predicted with almost awesome certainty. It is beyond peradventure that without proper equipment, including helmet, knee and elbow pads and a mastery of the technique, skateboarding is inherently dangerous. Possessing no braking system, once a rider has lost control or has fallen off, the skateboard will, by inertia, continue on its own, menacing unwitting pedestrians. This alone is sufficient to refuse to expand the City’s liability. The answer is, of course, in the establishment of skateboard parks designed specifically to accommodate the novice as well as the expert. The young people of this country have often petitioned for such facilities. It would be anything but foolhardy, however, to believe that they will abstain from skateboarding until their pleas are acted upon. Until such time, the pursuit of this sport will continue to resolve itself into a matter of flesh and concrete. Neither empathy nor sympathy however, is the basis for liability where none exists.” (93 Misc. 2d 232,_, 402 N.Y.S.2d 539, 542.)

The New York court entered judgment in favor of defendant, dismissing the complaint.

In Errante v. City of New York (1979), 98 Misc. 2d 896, 414 N.Y.S.2d 603, the court held there was a municipal duty to maintain the sidewalks in proper condition for the use of persons traveling on roller skates. The court cited Cygielman and expressly differentiated the use of roller skates as a contrast to a “skateboard, sled, bicycle or other such user-propelled coasting device * * The New York court then used this language:

“As the aforementioned cases illustrate, municipalities have consistently been found free from liability in negligence for injuries sustained as a result of uses of their sidewalks which are not customary. In all of these cases, it was the skateboard, sled, bicycle or other such user-propelled coasting device of the injured party which removed the case from what the City was expected to contemplate as the ordinary usage of its sidewalks. The extra degree of speed which can be attained by such devices and the limited amount of control which can be exercised in their use makes them inherently dangerous in and of themselves. It was for this reason that the City did not owe a duty to make its sidewalks safe for their use.” 98 Misc. 2d 896,_, 414 N.Y.S.2d 603, 604.

In Bartell v. Palos Verdes Peninsula School District (1978), 83 Cal. App. 3d 492, 147 Cal. Rptr. 898, plaintiffs’ son suffered fatal injuries in playing a game involving the use of a skateboard upon a school playground. The California court held there was no duty and hence no liability upon the school authority. The court pointed out that the injuries “were the direct result of the dangerous conduct of plaintiffs’ son and his companion and not of any defective or dangerous condition of the property.” 83 Cal. App. 3d 492, 497,147 Cal. Rptr. 898, 900.

The basic nature of the skateboard necessarily renders virtually any sidewalk variation dangerous to its operator. Therefore, to impose a duty on municipalities to insure that sidewalks are safe for skateboard riders, would drastically expand the current duty to maintain sidewalks. (See, e.g., Arvidson v. City of Elmhurst (1957), 11 Ill. 2d 601, 604, holding minor defects are unactionable as a matter of law.) We believe such an expansion of this duty would result in devastating public expense without affording appreciably greater safety for skateboard riders.

We conclude a municipality owes no duty regarding sidewalk conditions when injuries result from riding a skateboard upon the sidewalk.

The order for summary judgment in favor of defendant is accordingly affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    PALOS BANK AND TRUST COMPANY, Trustee, Plaintiff-Appellant, v. GUS KARDARAS et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-3075
    Opinion filed February 18, 1982.

      Marsh and Marsh, of Wheaton, for appellant.
    Wischhover and McGinnis, of Palos Hills, for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

The parties entered into a contract, the plaintiff to sell and the defendants to buy, certain real estate. The contract was contingent upon the defendants being able to obtain financing in a specified amount or a lesser amount accepted by defendants. The only issue before this court is whether the trial court, as trier of fact, erred in ruling that the defendants, who paid $2,000 to secure a mortgage commitment for a lesser amount than specified in the contract from one bank while seeking secondary financing, had not accepted that first mortgage as the sole financing within the meaning of the real estate contract. We agree with the trial court that they did not and affirm.

Palos Bank and Trust Company, the plaintiff, as trustee, was the owner of certain real estate. A contract was entered into between seller and Sirles and Son Realty Company, Inc., giving the latter exclusive right to list and sell the property for 24 hours. Despite contrary testimony at trial, the date on the contract which was in the record and stipulated to is January 21, 1978. A contract to sell the property for $275,000 to defendants Kardaras and Berios was executed on October 21,1978. This contract was conditioned on the purchasers beng able to procure, within 60 days, a firm commitment for a loan to be secured by a mortgage “in the amount of $225,000, or such lesser sums as PURCHASER accepts” with interest not to exceed 10% a year to be amortized over 25 years, the commission not to exceed 3%. First Federal of Chicago (First Federal) on February 2, 1979, offered defendants a 25-year, $200,000 mortgage, at 10 3/4%. According to the letter, the commitment would terminate two months from the date of the letter. However, to secure the commitment, a nonrefundable fee of $2,000 would have to be paid by February 12. The loan approval was subject to several requirements including the condition that there be no secondary financing. A copy of this letter was sent to Dominick Ferro, a salesman of Sirles and Son.

The Bank of Hickory Hills (Hickory Hills) on February 9,1979, sent a letter approving a seven-year assignment of beneficial interest loan for $30,000 at 13.70%, the commitment to expire in five days. Upon acceptance of the commitment, the letter was to be signed by defendants and returned to Hickory Hills. The letter was neither signed nor returned to Hickory Hills. Furthermore, no appraisal fee or credit report fee was paid to Hickory Hills although the commitment was made subject to both conditions.

On March 2 David Hill, a vice president of the beneficial owner, demanded that defendants close the transaction, stating that the financing contingency was satisfied by the $200,000 loan from First Federal and the $30,000 from Hickory Hills. Defendants responded that the loan commitments were unacceptable because (1) the commitment with First Federal was for $200,000 and not $225,000 and it forbade secondary financing; (2) even if that prohibition would be overlooked, the arrangement with Hickory Hills was unacceptable because of the time period and interest rate.

All of these facts were stipulated by the parties before trial. It was also stipulated that the sole issue between the parties was whether defendants accepted the financing made available to them as acceptable but different than the terms specifically set forth in the contract.

Seller sued for forfeiture of the $10,000 held in escrow by Sirles and Son. Defendants counterclaimed for its recovery. The case was decided on the merits after a full trial before the judge, sitting as trier of fact as well as law. The court ruled for the defendants on both the claim and counterclaim.

At trial, three witnesses testified: Dominick Ferro, salesman of Sirles and Son, David Hill, stipulated to be plaintiff’s agent, and Gus Kardaras, one of the defendants.

Ferro at the time in question had been a salesman for Sirles and Son. He testified that there had already been a listing agreement on behalf of Sirles and Son with the plaintiff and he was instrumental in having a contract executed. He admitted that if the plaintiff won the case, the company would receive 25% of the award and he personally would receive 12M% of that.

As a real estate man, he helped defendants to get a mortgage. He suggested certain banks. Ferro denied that he ever went with Kardaras to the banks but agreed that an office manager did go with Kardaras to Hickory Hills. That officer called the bank to arrange for the loan review application. While Ferro testified that it was his opinion that the First Federal commitment met the terms of the contingency clause of the real estate contract, he had recommended that Kardaras go to Hickory Hills because Ferro knew Kardaras needed $225,000 by way of mortgage. The first mortgage was acceptable, but it obviously was not enough since it was only for $200,000 and not $225,000.

According to Ferro, Kardaras telephoned Ferro and informed him of his acceptance by First Federal. Likewise sometime after February 9, 1979, Kardaras telephoned him and said he had been accepted by Hickory Hills. First, Ferro stated that Kardaras did not express any satisfaction or dissatisfaction regarding the latter. Later he contradicted himself and said Kardaras had indicated that the financing issued and available was satisfactory. This was after February 9, but the witness did not know how soon after that date. At another point he admitted that he did not remember most of the telephone conversations.

Ferro stated that Kardaras did not indicate his dissatisfaction untill three or four weeks later. The thing he was dissatisfied with was that he had to transfer his assets from Continental Bank to Hickory Hills.

Ferro also testified that he sent copies of the commitment to Hill. Ferro had received the letters from the banks.

Hill, at the time in question, had been the executive vice president of all marketing of multi-family and single-family and land developments of Town and Country, the beneficial owners of the property. He testified that he recommended to Ferro that he direct the purchaser to First Federal. Ferro called him about the middle or end of the first week of February and informed him that a first mortgage commitment had been issued by First Federal. About 48 hours later, Ferro telephoned him and informed him that a second mortgage had been arranged, that a copy of the commitment would be forthcoming and Hill should “pull title; they had a deal.” Ferro sent him the copies of the commitment letters. Neither defendant indicated to Hill that the loan commitments had been accepted. Hill did learn that the fee had been paid to First Federal; he believed that he telephoned the bank to find out.

Hill denied that he considered Ferro to be his agent. He admitted signing an exclusive listing agreement but stated that it was signed purely as a courtesy to get Ferro a larger share of the commission. The listing contract was signed after the real estate contract was signed. He agreed that the real estate contract listed Sirles and Son as the broker.

Kardaras testified that he made applications to different banks in Chicago. At the end of January 1979, the broker sent him to First Federal Savings and Loan. It was to obtain financing at 10% interest, 25 years and not over 3 points. They told him to go there and talk to Mr. Shepp and that he had the money available. The application was at Shepp’s desk. Kardaras just signed the application and walked out. He did not actually meet Shepp. Kardaras already knew he was going to give him $200,000 as the broker had told him so.

$200,000 was not enough so about one or two days later he made application for a $30,000, 25-year second mortgage at Hickory Hills. Both Ferro and an officer from the real estate company were present when he made the application.

Kardaras received the commitment letter from First Federal during the first week of February. Ferro told him to wait for the Hickory Hills’ answer. The broker also told him not to worry about the restriction on secondary financing. “He told me don’t worry. Go and talk to Mr. Shepp, and he knew me, and we talked to him already and don’t worry about that.”

On February 9, Don Turns called Kardaras from Hickory Hills and told him the bank had accepted the mortgage and would send him a letter.

Under the letter sent by First Federal, he had 10 days to pay half the points. He made that payment the last day he had. He had not yet received the letter from Hickory Hills and he did not have any more time to wait for it. He did not, at that time, know the terms of the mortgage at Hickory Hills. He finally received that letter either February 13 or 14 and immediately told Ferro he could not accept the loan under the terms asked. There were several other phone calls in which Ferro tried to make him accept the second mortgage. He refused.

When asked if Ferro was working for him or for someone else, Kardaras answered “look like work for me and work for somebody else too.” When further asked by plaintiff’s counsel whether Kardaras considered Ferro his agent or the seller’s, he answered “I know he got paid from the seller, and he going to work for the seller.” He agreed with plaintiff’s counsel’s statement that he knew Ferro was working not for him but for the seller.

After hearing the evidence and arguments of counsel, the trial court ruled for defendants on both the plaintiff’s complaint and the counterclaim, stating that the broker had been aware that almost simultaneously with the application for the first mortgage there was an application for a second mortgage; the terms differed greatly from the terms of the contract; and there were no acts indicating a waiver.

I

Plaintiff does not contend that defendants obtained a mortgage conforming to the specifications set forth in the contract. What plaintiff does contend is that defendants, by paying the $2,000, accepted the nonconforming mortgage from First Federal and that this acceptance waived the specification clause. This contention is without merit because (1) defendants never accepted the First Federal mortgage offer and (2) even if they had, that mortgage was, as the trial court considered, inexorably linked with the second mortgage application to the Bank of Hickory Hills. There can be no dispute that the Hickory Hills’ totally nonconforming commitment was not accepted since the parties stipulated that the letter of commitment was not signed and returned to the bank as accepted nor were the fees paid.

Under the terms of the commitment letter of First Federal, all the defendants’ payment of $2,000 did was to secure the commitment for two months, that is, for two months the bank could not rescind its offer. This was an option contract. (See Restatement (Second) of Contracts §25 (1981).) By paying the $2,000 the defendants had acquired the right to accept or reject the offer within two months. (Morris v. Goldthorp (1945), 390 Ill. 186, 60 N.E.2d 857.) First Federal was bound to keep the offer open for two months. It was also required to loan the money if defendants within the two months accepted the offer and complied with the other conditions set forth in the letter. But contrary to the plaintiff’s contention, payment of the $2,000 did not, of itself, bind the bank to loan the funds.

However, even if defendants’ payment of the $2,000 were to be considered as an acceptance of First Federal’s commitment, this was not sufficient since, as the trial court found, the two applications were inexorably intertwined and Hickory Hills’ commitment was never accepted.

The evidence was sufficient to support the trial court’s finding, as trier of fact, that the two mortgages were inexorably intertwined. Kardaras testified that the applications were made within days of each other and that the broker sent him to Hickory Hills because First Federal was only willing to loan $200,000. Ferro agreed that he sent Kardaras to Hickory Hills because the first mortgage was ..not enough. Indeed, according to Kardaras, both Ferro and an officer of Sirles and Son were present when he made the second application. Likewise Kardaras testified that when he received the first commitment Ferro told him to wait for the Hickory Hills’ answer. Ferro notified Hill of the acceptance of the applications by both banks and it was only after the acceptance by Hickory Hills that he said they had a deal. Hill’s letter of March 2 did not state that the commitment of First Federal satisfied the conditions but rather that the commitments of First Federal and Hickory Hills satisfied the condition. Since the two applications were intertwined, it is clear that any acceptance of First Federal’s commitment could only have been conditional and that it fell when the totally nonconforming response from Hickory Hills was rejected.

Plaintiff contends that defendants could not have intended to use the loan from Hickory Hills if it had been obtained since the commitment letter from First Federal precluded secondary financing. However, the conduct of all three parties, as previously described, clearly establishes that they did intend to use it. Furthermore, Kardaras testified that Ferro told him not to worry about the restriction. And there was no evidence that the provision could not have been waived or that Kardaras could not have obtained the $200,000 from First Federal even if he had obtained a second mortgage from Hickory Hills.

Plaintiff also contends that defendants’ communication of their acceptance to the seller waived their right to insist on the terms set forth in the contingency clause. Since there was never any acceptance, this argument fails. In addition, as Hill admitted, neither defendant communicated any acceptance or indication of satisfaction to Hill. Hill testified that Ferro told him that the banks had accepted the application. This was an acceptance by the banks, not by the defendants. Hill did not say Ferro told him defendants had accepted the commitment; the only knowledge Hill had of the payment of the $2,000 came from his own telephone call to the bank, and it was not a communication by either the defendants or Ferro. Furthermore, the evidence in the record was insufficient to show either that Ferro, at the time in question, was acting as an agent of the defendants or had the authority, actual or apparent, to accept the contract contrary to the wishes of the defendants. The burden to prove agency and the scope of authority is on the person seeking to charge the alleged principal. Schoenberger v. Chicago Transit Authority (1980), 84 Ill. App. 3d 1132, 405 N.E.2d 1076; Easterday v. Marchman (1962), 36 Ill. App. 2d 321, 183 N.E.2d 182.

In any event, waiver is the intentional relinquishment of a known right. (Pantle v. Industrial Com. (1975), 61 Ill. 2d 365, 335 N.E.2d 491; Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223, appeal denied (1979), 79 Ill. 2d 620.) Since it is clear from the evidence that defendants never intended to rely on the First Federal’s loan alone, communication of either the application or its acceptance by First Federal, even if that communication had been authorized by defendants, would not have waived defendants’ right to rely on the contingency clause.

Ferro at one point in his testimony stated that sometime after February 9 Kardaras said he was satisfied with the loan. Kardaras denied this and stated that immediately upon receipt of the letter from Hickory Hills he informed Ferro he could not accept it. Credibility of the witnesses is for the trier of fact to determine. (People ex rel. Borelli v. Sain (1959), 16 Ill. 2d 321, 157 N.E.2d 417; Guzell v. Kasztelanka Cafe and Restaurant, Inc. (1980), 87 Ill. App. 3d 381, 408 N.E.2d 1124.) Moreover Hill has never contended that Ferro communicated this statement to him, and in light of the fact Hill denied under oath that Ferro was his agent, plaintiff cannot contend that any communication to Ferro was ipso facto a communication to it.

II

In its brief plaintiff raises several other issues such as whether defendants were “unable” to obtain a satisfactory mortgage; whether defendants exercised good faith or reasonable efforts in their attempts to secure the required financing; and whether defendants breached the contract by failing to give the plaintiff a 60-day period in which to secure financing, as required in the contract. None of these issues were raised below, and they cannot be raised here. (Waterford Condominium Association v. Dunbar Corp. (1982), 104 Ill. App. 3d 371, 432 N.E.2d 1009; Marynczak v. D & L Transport Co. (1981), 94 Ill. App. 3d 381, 418 N.E.2d 972.) Indeed, the parties stipulated that the sole issue to be determined was whether defendants accepted the financing. This stipulation was binding on the parties and the court. (Ziebell v. Board of Trustees (1979), 73 Ill. App. 3d 894, 392 N.E.2d 101; Bridges v. Neighbors (1975), 32 Ill. App. 3d 704, 336 N.E.2d 233.) Having stipulated as to the only issue before the court, no other issues can be raised.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ., concur.


author: JUSTICE WILSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS DAVIS, Defendant-Appellant.
    First District (5th Division)
    No. 78-1978
    Opinion filed February 19, 1982.

      James J. Doherty, Public Defender, of Chicago (Geraldine V. Biggs and James L. Rhodes, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joel A. Stein and Mark S. Komessar, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WILSON

delivered the opinion of the court:

In a previous opinion relating to this appeal (79 Ill. App. 3d 784, 398 N.E.2d 1129), we reversed the judgment of the trial court holding that defendant’s acts did not constitute the offense of disorderly conduct, as a matter of law. On appeal from our decision, the Illinois Supreme Court, in its opinion (82 Ill. 2d 534, 538, 413 N.E.2d 413), held:

“We think the defendant’s conduct falls squarely within the type of conduct intended to be proscribed by section 26 — 1(a) (1). Ill. Rev. Stat. 1977, ch. 38, par. 26 — 1(a)(1).
A collateral contention raised by the defendant is that, in order to provoke a breach of the peace, an act must be performed in public view. We find this contention devoid of merit. A breach of the peace may as easily occur between two persons fighting in a deserted alleyway as it can on a crowded public street.”

Consequently, our supreme court reversed and remanded this matter for consideration of the other issues raised on appeal that: (1) defendant’s cross-examination regarding his prior felony conviction resulted in substantial prejudice; (2) the prosecutor’s opening and closing arguments deprived defendant of a fair trial; and (3) the trial court erred in instructing the jury. Accordingly, we have restudied the remaining issues and affirm the trial court. The essential facts follow.

The complainant, Mrs. Pearl Robinson, testified that on January 3, 1978, at approximately 2 p.m., she was at home sleeping because she was ill; her granddaughter was with her. At the time, she was 81 years old and had lived across the street from the defendant for several years. She stated that the defendant, who was uninvited, entered her home carrying a complaint involving his brother, Donald. She had signed the complaint in 1977, and Donald was subsequently arrested. Defendant stated that his brother was not going to court, nor was he going to jail. Defendant pointed his hand in her face from a distance of about 18 inches and stated, “If you do, Miss Pearl, you know me” and left.

Chicago Police Officer Daniel Alesi testified that on January 10,1978, he had a conversation with the complainant and arrested defendant several days later pursuant to a warrant obtained by the complainant. Between 8 and 9 p.m. that evening, after Alesi advised defendant of his Miranda rights, defendant stated that he was at the complainant’s house on the day in question. Upon arriving there, he knocked on the door and after hearing no response, he walked in and saw her on the couch. He then sat down and informed her that his brother was going to trial on a charge she had instituted, and he asked her not to testify against his brother.

Defendant testified that the complainant’s granddaughter admitted him into the house and conducted him into the living room where he spoke with the complainant for several minutes in an attempt to settle the dispute peaceably. He denied ever having threatened her. During cross-examination he was asked if his residency in the complainant’s neighborhood since 1969 had been “uninterrupted” and responded that he had been “in and out” of the penitentiary and the county jail. He was then asked if he had ever been convicted of a felony with no objection by defense counsel. He replied that he had been convicted of either aggravated assault or battery, but was not certain. A certified copy of defendant’s 1975 conviction for aggravated battery was then admitted into evidence over defense counsel’s objection.

During the instructions conference, Illinois Pattern Instructions, Criminal, No. 3.06 (1968) (hereinafter IPI), concerning the weight to be given an admission, was admitted over the objection of defense counsel. Thereafter, the jury found defendant guilty of disorderly conduct and he was fined $500 and sentenced to 30 days in the House of Correction and a one-year probation.

Opinion

Defendant contends that the cross-examination eliciting information about his prior conviction resulted in substantial prejudice because the evidence did not conclusively show him to be guilty. He asserts that unless the evidence clearly showed him to be guilty, so that a court could say he was not substantially prejudiced, such improper questioning necessitates reversal.

Our supreme court has determined that defendant’s conduct falls squarely within the statute’s proscription. (82 Ill. 2d 534, 538.) Moreover, no objections were made by defendant to this cross-examination, nor was it properly preserved in defendant’s motion for a new trial. It is fundamental to our adversarial system that counsel object at trial to alleged errors, and failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) Thus, defendant has waived any error which might have arisen from the admission of this testimony. Nor is this an appropriate case to invoke the plain error exception to the general waiver principle (Ill. Rev. Stat. 1979, ch. 110A, par. 615(a)). In light of the determination regarding defendant’s guilt, there is no necessity to correct any alleged injustices which may have been done to defendant from this questioning.

Defendant next argues that the State’s opening statement of facts purported to recite evidence but was not followed by proof at trial and the misstatement of evidence during closing argument amounted to prejudicial error, resulting in depriving him of a fair trial. We disagree.

During the opening statement the assistant State’s Attorney made the following remarks which defendant alleges were not followed by proof:

“Rather, please just consider this as a summary of what I expect the evidence to be as the witnesses take the stand and as they explain the events of January 3rd to you.
# # #
[W]e are alleging, that he [Curtis Davis] committed the offense of disorderly conduct by coming into her home and by threatening her and informing her that she is not to testify in the matter which she had previously said she was going to testify in involving the brother of Curtis Davis, the defendant.”

Additionally, in closing argument, the assistant State’s Attorney summarized the complainant’s testimony as follows:

“He shook that piece of paper in her face, pointed his finger in her face and stated that she wasn’t going to testify against his brother. She wasn’t going to go to Court and there wasn’t going to be no testimony against his brother.”

With respect to the opening and closing statements, we again state that defendant never objected and did not raise these issues as error in his post-trial motion. It is well established that the failure to object will waive the issue on appeal (People v. Carraro (1979), 77 Ill. 2d 75, 394 N.E.2d 1194, cert, denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340), and generally the failure to raise an issue in a written motion for a new trial constitutes a waiver of that issue which cannot then be urged as a ground for reversal on appeal. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Accordingly, these issues were not properly preserved.

In any event, if we were to consider these issues, we would find no reversible error. The purpose of an opening statement is to apprise the jury of facts each party expects to prove in the course of the trial (People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181), and absent deliberate misconduct, any error is not a ground for reversal unless the reference resulted in substantial prejudice to the defendant. People v. Sanders (1980), 81 Ill. App. 3d 1001, 401 N.E.2d 1103.

From an examination of the record, we do not believe that the State has violated this principle and we find no reversible error on this point.

Furthermore, a prosecutor is allowed wide latitude in closing arguments, and a misstatement by a prosecutor does not deprive defendant of a fair trial, unless such remark clearly affected the outcome of the case. (People v. Chancy (1980), 91 Ill. App. 3d 817, 414 N.E.2d 1239.) We do not believe the State’s closing remark served to confuse the jury and deny defendant a fair trial.

The remaining issue on appeal alleged by defendant states that the trial court erred in instructing the jury because there was no admission to the criminal activity charged.

At the State’s request, the court gave IPI Criminal No. 3.06 on admissions, which states:

“You have before you evidence that the defendant made an admission of a fact or facts relating to the crime charged in the [complaint].
It is for you to determine whether the defendant made the admission, and, if so, what weight should be given to the admission. In determining the weight to be given to an admission, you should consider all of the circumstances under which it was made.”

An admission is defined as “ ‘any statement or conduct from which guilt of the crime may be inferred but from which guilt does not necessarily follow.’ ” (People v. Bundy (1979), 79 Ill. App. 3d 127, 135, 398 N.E.2d 345.) In this instance, defendant told Officer Alesi that he had gone to the complainant’s home on January 3, 1978, and entered uninvited. He then stated that his brother was going to trial on a charge she instituted, and he asked her not to testify against his brother. This statement along with the complainant’s testimony may lead to an inference of guilt, and thus it was proper to give the instruction on admissions.

After carefully considering the remaining issues raised by defendant, we affirm the judgment of the trial court.

Affirmed.

SULLIVAN, P. J, and LORENZ, J, concur.


author: JUSTICE MEJDA

text:
    THE BASSICK COMPANY, Plaintiff-Appellant, v. MISSISSIPPI VALLEY ERECTION COMPANY OF ILLINOIS, Defendant-Appellee.
    First District (5th Division)
    No. 80-2604
    Opinion filed February 19, 1982.
    Wildman, Harrold, Allen & Dixon, of Chicago (Thomas D. Allen, Edward T. Butt, Jr., and Ruth E. Van Demark, of counsel), for appellant.
    French and Rogers, of Chicago (Richard G. French and Dorothy F. French, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Following the payment of a judgment rendered against it in a Structural Work Act case, and pursuant to a written agreement between the Bassick Company (Bassick) and Cunningham Brothers, Inc. (Cunningham), another defendant in that same case, Bassick brought an indemnity action against Mississippi Valley Erection Company of Illinois (Mississippi). The trial court found that the agreement between Cunningham and Mississippi barred Bassick’s action and entered judgment in favor of Mississippi. Bassick appeals.

The issue raised on appeal is whether the agreement between Bassick and Cunningham bars Bassick’s indemnity action against Mississippi.

Two employees of Mississippi, injured during construction of a building addition, brought an action pursuant to the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) against Bassick and Cunningham and other parties not relevant here. Bassick was the owner of the premises to which the building addition was being constructed. Cunningham was the general contractor and Mississippi was the subcontractor. Bassick and Cunningham in turn filed third-party indemnity actions against Mississippi. Both predicated their indemnity claims on an active-passive negligence theory. Bassick also filed a cross complaint against Cunningham seeking indemnity on an active-passive negligence theory. During the course of trial Bassick’s third-party action against Mississippi was voluntarily dismissed without prejudice and its counterclaim against Cunningham severed. The judge directed liability on plaintiffs’ claims against Cunningham. The jury returned a verdict of $182,000 in favor of the plaintiffs against both Bassick and Cunningham and also found that Cunningham was not entitled to indemnity from Mississippi. Cunningham appealed from the jury’s verdict against it in its indemnity action against Mississippi but the appellate court affirmed, holding that based on the evidence the jury could have reasonably found Cunningham actively negligent. Goodrick v. Bassick Co. (1978), 58 Ill. App. 3d 447, 374 N.E.2d 1262.

Following denial of their post-trial motions in the Structural Work Act case Cunningham offered to indemnify Bassick for the satisfaction of the judgment if Bassick would dismiss its still pending counterclaim against Cunningham for indemnity and reinstate its indemnity action against Mississippi. Bassick dismissed its counterclaim against Cunningham and the parties executed a “Conditional Agreement As To Financial Responsibility” (Bassick Agreement). The financial terms of the Agreement required that: (1) Bassick pay $163,800 in satisfaction of the judgment rendered to plaintiffs in the Structural Work Act case; (2) Bassick file and prosecute an indemnity action against Mississippi; (3) Cunningham pay Bassick $163,800 in the event Bassick failed to recover from Mississippi; (4) Cunningham pay Bassick the difference between $163,800 and any lesser amount Bassick recovered from Mississippi; (5) Cunningham pay nothing to Bassick if Bassick recovered the full $163,800 from Mississippi; (6) Cunningham pay 6% interest on the $163,800 paid to plaintiffs by Bassick computed to and including the date Bassick received payment from either Mississippi or Cunningham; and (7) these financial terms bind the parties should Bassick settle its suit against Mississippi; however, Cunningham’s consent was required of any settlement which would necessitate payment by Cunningham to Bassick.

In addition to these financial terms the Agreement stated that Cunningham, and not Bassick, had the right to elect to appeal a judgment adverse to Bassick, and would pay one-half the attorney fees and expenses incurred in such an appeal.

Following the execution of the Agreement, Bassick satisfied the judgment rendered in the Structural Work Act case and filed this indemnity action against Mississippi. At trial the parties stipulated to the facts, including Mississippi’s active negligence, Bassick’s passive negligence, and that Mississippi waived a portion of its Workmen’s Compensation lien to make up the remaining amount of the original $182,000 judgment. The trial court found that Bassick’s action was a sham proceeding which really benefited Cunningham, for it allowed Cunningham to be indirectly indemnified by Mississippi even though the jury in the underlying case decided such indemnification was improper. The court then entered judgment in Mississippi’s favor. Bassick appeals.

Opinion

Bassick asserts that its Agreement with Cunningham is a loan receipt agreement sanctioned by the Illinois Supreme Court in Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382, and its progeny. Mississippi urges that the Agreement acts as a complete satisfaction of Bassick’s right to indemnity, and therefore Bassick has no standing to bring an indemnity action against Mississippi.

The validity of loan receipt agreements, by which a concurrent tortfeasor may escape liability and judgment by loaning funds to a plaintiff, was first considered and upheld in Reese. There a railroad employee was killed on the job when struck by a 1200-pound bucket attached to a crane. His widow, as administrator of his estate, sued the railroad under the Federal Employers’ Liability Act (45 U.S.C. §§51-60 (1939)) and the crane manufacturer on a strict liability theory. The railroad counterclaimed the crane manufacturer for indemnity. Prior to trial the railroad and the plaintiff executed a loan receipt agreement, whereby the railroad loaned the plaintiff a certain sum of money which the plaintiff promised to repay from any judgment collected from the crane manufacturer. On plaintiff’s motion the railroad was dismissed without prejudice prior to trial and the plaintiff proceeded only against the crane manufacturer. The Reese court offered three policy reasons for approving the loan receipt agreement before it: funds under this type of arrangement might be more readily offered to injured plaintiffs; and further the loan receipt device might simplify complex multiparty litigation, and also facilitate private resolution of litigation. Furthermore, the Reese court specifically limited its consideration to those situations in which a concurrent tortfeasor might escape the adjudication of liability and the entry of judgment by loaning funds to a plaintiff. 55 Ill. 2d 356, 363, 303 N.E.2d 382, 386.

Subsequent supreme court decisions have further enunciated that the use of loan receipt agreements is only proper if executed before the liability of multiple defendants is adjudicated (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 396 N.E.2d 534; Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859; Harris v. Algonquin Ready Mix, Inc. (1974), 59 Ill. 2d 445, 322 N.E.2d 58) and if disclosed. Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 337 N.E.2d 23, cert, denied (1976), 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669.

Bassick argues that as it is a plaintiff in its indemnity action against Mississippi, it is in the same position relative to Cunningham as the Reese plaintiff was to the railroad. Bassick therefore concludes that its Agreement with Cunningham is a valid loan receipt agreement. We disagree with Bassick’s contention that its Agreement with Cunningham is a loan receipt agreement as contemplated by Reese and its progeny. The most obvious distinction between the Bassick Agreement and previous loan receipt agreements considered by the supreme court is that the Bassick Agreement does not provide for a loan of funds which must be repaid by one agreeing party to the other. Rather, it contemplates a guaranteed reimbursement of the funds initially expended by Bassick to satisfy the underlying judgment should Bassick fail to be fully indemnified by Mississippi. A further distinction is that, rather than providing a means by which funds might more readily be placed in the hands of an “injured plaintiff,” the Bassick Agreement requires the “plaintiff” and not the “defendant” to bear the initial financial burden. We conclude therefore that by its terms the Bassick Agreement is not a loan receipt agreement. As a further note, even had we concluded that the Bassick Agreement was a loan receipt agreement, its execution subsequent to the determination of the liability of the multiple defendants in the underlying Structural Work Act case would have nevertheless rendered it invalid. (Rucker; Kerns; Harris.) Having concluded that the Bassick Agreement is not a loan receipt agreement, we next consider its effect, if any, on Bassick’s indemnity action against Mississippi.

Although “indemnity” is not expressly used in the Bassick Agreement, it is by its terms an indemnity contract. A contract of indemnity is an agreement by which one party is obligated to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit. (42 C.J.S. Indemnity §1, at 564 (1944).) By the terms of the Bassick Agreement, Bassick agreed to satisfy the judgment for which Cunningham was jointly and severally liable and pursue its third-party action against Mississippi. In return Cunningham agreed to make good any financial loss ultimately accruing to Bassick by promising to fully repay Bassick should Mississippi fail to do so. An agreement to pay a loss which results by reason of a third party doing or refraining from doing a particular thing is a contract for indemnity. City of Chicago v. Siebert (1927), 244 Ill. App. 83.

The Bassick Agreement has of necessity altered the relationship of its signatories. Bassick and Cunningham are no longer independent co-defendants against whom judgment has been entered. They now stand in privity (Sanitary District v. United States Fidelity & Guaranty Co. (1946), 392 Ill. 602, 65 N.E.2d 364) and their identity of interests is presumed. (Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 318 N.E.2d 315.) By agreement Cunningham has assumed primary liability for the satisfaction of the judgment Bassick has paid, and has thus acquired a direct interest in Bassick’s suit against Mississippi. (Sanitary District.) We conclude, therefore, that although the instant suit has been brought in Bassick’s name, the real issue being litigated is not whether Bassick will bear the burden of satisfying the plaintiff’s judgment in the underlying action, for that possibility has been eliminated by the Bassick Agreement. Rather, it is whether Cunningham, which now contractually bears the ultimate liability for that burden as between itself and Bassick, will be able to shift that burden to Mississippi — an issue which has already been adjudicated adversely to Cunningham. Having determined therefore that there is an identity of interests between Bassick and Cunningham in this suit, that they stand in privity, and that the real issue being determined has already been adjudicated, we conclude that Cunningham whether individually or through Bassick is barred from relitigating this issue. The Agreement cannot accomplish indirectly what Cunningham is unable to do directly. Harris.

To conclude otherwise would be tantamount to approving the purchase of an indemnity action by a party whose rights to indemnity have already been foreclosed by judicial determination. Such maneuvering by defendants whose liability has been adjudicated has met with disapproval by our supreme court. (See Harris; Kerns.) For the reasons cited herein, the judgment of the trial court is affirmed.

Affirmed.

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


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. J. R. JENKINS, Defendant-Appellant.
    First District (1st Division)
    No. 79-1897
    Opinion filed February 22, 1982.
    James J. Doherty, Public Defender, of Chicago (Robert Guch and John Kalnins, Assistant Public Defenders, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David A. Stoioff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

On September 27, 1975, Thaddeus Jenkins, son of defendant J. R. Jenkins, died of a gunshot wound. Defendant was indicted for crimes allegedly committed to avenge the death of his son. After a jury trial, defendant was found guilty of solicitation of Barry Smoot to murder Robert Osborne, solicitation of Barry Smoot to murder Kenneth King, conspiracy, attempt murder and aggravated battery. Defendant was sentenced to the Illinois Department of Corrections to serve concurrent terms of 7 years for conspiracy, 10 years for attempt murder, and 10 years for each count of solicitation. Defendant appeals.

On appeal, defendant contends (1) he was denied his right to confront witnesses; (2) the grand jury testimony of a State’s witness was highly suspect; (3) he was not proved guilty beyond a reasonable doubt; and (4) his conspiracy conviction should be reversed because it is a lesser included offense of attempt murder.

Douglas Iseminger testified that on September 27, 1975, he met Thaddeus Jenkins in a parking lot. He gave Jenkins $400 with which Jenkins was to buy marijuana. Thaddeus was accompanied by Robert Osborne who knew where the marijuana was to be purchased. Later that day, the body of Thaddeus Jenkins was found in a car in a ditch off the side of a road in Will County. Thaddeus had been shot and died as a result of the gunshot wound.

Patrick Barry, a Will County sheriff’s deputy, ascertained that defendant J. R. Jenkins was the owner of the auto in which Thaddeus Jenkins was found. He testified that he informed defendant of the death of his son. While talking with defendant, Barry learned that Thaddeus had been cooperating with police in a drug investigation and that Thaddeus had feared for his life. Barry further testified that Robert Osborne had been charged with the murder of Thaddeus Jenkins.

Roy Anderson, a Will County sheriff’s deputy, testified at the coroner’s inquest into the death of Thaddeus. At the trial below, he testified that defendant attended the inquest. Anderson read that portion of the inquest transcript wherein defendant asked if private citizens had to take the law into their own hands and apprehend criminals.

The State also called Ira Goldstein as a witness. In 1975 Goldstein was an assistant State’s Attorney in Will County. He testified that within one week of the dismissal of the murder charge against Robert Osborne, defendant came to the State’s Attorney’s office and spoke to the chief felony assistant. Goldstein heard defendant speaking loudly and entered the room in which defendant and the assistant were meeting. He recounted defendant’s statements that “someone should put a bomb in the Will County Courthouse” and that “if the State’s Attorney’s office 009 isn’t going to do anything about this, I will.”

Barry Smoot was also called as a witness by the State. He testified that in 1975, he worked with defendant. He recalled firing a gun through a door of a home in Calumet City in 1975 and stated that defendant, prior to the incident, had pointed out the house to him. He further testified that Thomas Young was with him when the shooting occurred. Smoot recalled testifying before the grand jury in 1977. However, Smoot could not recall whom he intended to shoot, whether Young had fired any shots, whether anyone was injured by the shots he fired, where he went after the incident, how long he had known defendant, or whether he spoke with defendant after the incident.

After the unsuccessful attempts to elicit testimony from Smoot, the State requested that Smoot be called as a court’s witness. The trial court heard arguments on this point and granted the State’s request. The court based its decision on its observation of Smoot’s demeanor and Smoot’s ability to recall some facts and not others. The court concluded that Smoot was “trying to foster off a sham” on the court.

The State resumed its examination of Smoot. Each time Smoot was unable to recall a fact, the State read the transcript of the grand jury proceeding concerning that matter. Occasionally, the statement Smoot gave police was also read. The evidence elicited via this procedure was that Smoot had known defendant since 1973. On October 1975, defendant asked Smoot to murder Robert Osborne, whom defendant believed was responsible for the murder of his son. To accomplish the deed, defendant gave Smoot a pistol, a .44 magnum, and a machine gun. Smoot gave the latter two.,weapons to his brother. Defendant paid Smoot $1600 to kill Osborne and Smoot, in turn, paid Young $250 to assist him. After the shooting occurred, defendant met Smoot at work and told him James, rather than Robert Osborne, had been shot and asked Smoot to try again to murder Robert Osborne. Defendant also had asked Smoot to kill Kenneth King.

First, defendant contends he was denied the right to confront witnesses against him where the trial court admitted into evidence the grand jury testimony of Barry Smoot. He maintains that said testimony was inadmissible because he had no opportunity to cross-examine Smoot during the grand jury proceedings. Defendant further maintains that the testimony was inadmissible as substantive evidence.

The primary purpose of the confrontation clause is to assure that the trier of fact has a satisfactory basis for evaluating the truth of testimony. (United States ex rel. Thomas v. Sielaff (S.D. Ill. 1975), 404 F. Supp. 1037, affd (7th Cir. 1976), 539 F.2d 715.) Stated differently, the issue under the confrontation clause is whether the jury has been made aware of adequate factors to determine the witness’ credibility. People v. Hines (1981), 94 Ill. App. 3d 1041, 419 N.E.2d 420, citing Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, and Thomas v. Cardwell (9th Cir. 1980), 626 F.2d 1375.

In the present case, defendant was afforded the opportunity to cross-examine Smoot and challenge his credibility. Smoot was questioned at length about the length of time police held him in custody and the procedures employed in questioning him. Defendant inquired about Smoot’s heroin addiction in the years in question, and Smoot admitted using heroin at the time of the occurrence. During defendant’s examination of Smoot, Smoot admitted he was offered leniency when questioned by police. He also admitted receiving immunity from prosecution in return for his testimony before the grand jury. Thus, we find the jury was presented with various factors upon which to judge Smoot’s credibility and conclude defendant’s confrontation rights were not violated.

The fact that defendant was not present- and had no opportunity to cross-examine Smoot at the grand jury hearing does not prohibit the use of his grand jury testimony at the trial. In United States v. Insana (2d Cir. 1970), 423 F.2d 1165, cert, denied (1970), 400 U.S. 841, 27 L. Ed. 2d 76, 91 S. Ct. 83, a government witness consistently claimed lack of memory during trial. The government’s request that the witness be declared hostile was granted and the court permitted the government to lead the witness and impeach his lack of memory by the use of his grand jury testimony. The court of appeals rejected defendant’s contention that the witness’ claimed lack of memory prohibited effective cross-examination regarding the extrajudicial statements. The court reasoned that the witness was present in court and subject to cross-examination there. Similarly, in this case at bar, Smoot was present at trial and subject to cross-examination. As noted previously in this opinion, defendant conducted a detailed and thorough examination.

We further find that the trial court did not err in admitting into evidence Smoot’s grand jury testimony. As noted in United States v. Insana:

“[T]he trial judge’s hands should not be tied where a witness does not deny making the statements nor the truth thereof but merely falsifies a lack of memory. Here [the witness] had testified in detail before the grand jury, 6 * 0 and on the stand identified [defendant] and testified to * * * relevant events. Based upon these facts, the only rational conclusion is that [the witness] was fully aware of the content of his grand jury testimony but wished to escape testifying against [defendant] and thus make a mockery of the trial. By conceding that his lack of memory was due to his desire not to hurt anyone, he impliedly admitted the truth of the extrajudicial statements harmful to the defendant. Thus we believe that these statements are admissible not only to impeach his claim of lack of memory but also as an implied affirmation of the truth.” 423 F.2d 1165, 1170.

In this case, Smoot admitted testifying before the grand jury under oath and never denied the truthfulness of his testimony. He impliedly admitted the truth of the extrajudicial statements by repeatedly saying the statements must have reflected the truth as remembered by him at that time. Thus his grand jury testimony was admissible.

Second, defendant contends the grand jury testimony of Smoot was highly suspect because Smoot was a drug addict and had been granted immunity in return for his testimony. However, the credibility of witnesses is left to determination by the trier of fact. (People v. Flores (1979), 79 Ill. App. 3d 869, 398 N.E.2d 1132.) Here, the jury had the opportunity to observe Smoot and heard the evidence regarding Smoot’s drug use and immunity from prosecution. We should not substitute our judgment regarding Smoot’s credibility for that of the jury. People v. Escobar (1979), 77 Ill. App. 3d 169, 395 N.E.2d 1028; People v. McNair (1979), 71 Ill. App. 3d 782, 390 N.E.2d 142.

Third, defendant contends he was not proved guilty beyond a reasonable doubt. He specifically argues that additional, more damaging evidence was presented against Young and that in light of Young’s acquittal, a reasonable doubt exists as to his guilt.

First, we note that Smoot’s grand jury testimony regarding the defendant’s degree of involvement differed substantially from that regarding Young’s participation. We further recognize that other evidence, namely a statement purportedly given by Young to police and Young’s testimony at a prior hearing, was introduced by the State against Young. Thus, the evidence against the co-defendant differed and the failure to convict one does not raise a reasonable doubt of guilt as to the other. (People v. Brown (1977), 47 Ill. App. 3d 920, 365 N.E.2d 514; People v. Boyce (1976), 41 Ill. App. 3d 53, 353 N.E.2d 287.) Furthermore, Young took the stand and refuted the evidence against him. It was the function of the jury to determine his credibility and the credibility of the witnesses against him and we will not usurp this function.

Fourth, defendant contends that conspiracy is a lesser included offense of attempt murder and that his conspiracy conviction should therefore be reversed.

In People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289, 1294, the court stated:

“An included offense is defined by statute as an offense which ‘(a) [i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or (b) [c]onsists of an attempt to commit the offense charged or an offense included therein.’ (Ill. Rev. Stat. 1975, ch. 38, par. 2 — 9.) In order to be classified as a lesser included offense, ‘all the elements of the lesser must be included within the greater.’ People v. King (1966), 34 Ill. 2d 199, 200.”

The elements of conspiracy are (1) the intent to commit an offense (2) an agreement with another to commit that offense, and (3) an act by one of the co-conspirators in furtherance of the agreement. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 2(a).) The crime of attempt murder requires proof of (1) intent to commit an offense and (2) a substantial step towards the commission of that offense. (Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a).) In comparing the necessary elements of proof for these offenses, it is clear that conspiracy is not a lesser included offense of attempt murder because conspiracy requires proof of an additional element, namely an agreement with another to commit an offense. We therefore find defendant’s final contention to be without merit.

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

Judgment affirmed.

GOLDRERG and O’CONNOR, JJ., concur.

       Thomas Young was also indicted for crimes arising from this incident and was tried simultaneously with defendant Jenkins. Young was found not guilty.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM GRIGGS et al., Defendants-Appellants.
    First District (1st Division)
    No. 79-2114
    Opinion filed February 22, 1982.

      Ralph Ruebner and Fe Fernandez, both of State Appellate Defender’s Office, and Richard E. Gorman, both of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

After a jury trial, William Griggs and Edward Nelson were found guilty of armed robbery. Griggs was sentenced to 30 years imprisonment and Nelson to 60 years. Both now appeal their convictions.

On appeal, both Griggs and Nelson argue that the trial court erred in denying their motion for substitution of judge for cause. Defendant Griggs additionally argues that: (1) the trial court erred in denying his motion for severance; (2) the trial court improperly permitted the introduction of hearsay evidence which directly implicated him in the offense; and (3) that he was denied a fair trial by the admission into evidence of defendant Nelson’s escape.

We affirm.

Phillip Perez testified that on October 22, 1978, at around noon, he was at Teresa’s Jewelry Store, which he owns in partnership with Teresa Garcia. A man and a woman entered the store and walked toward the back where Perez was showing jewelry to other customers. Another man then entered the store. Garcia walked out from the back of the store when she heard the second man enter. The second man opened fire at the ceiling. The first man then put a revolver to Perez’ stomach and took him into the back. When Garcia began screaming, the second man hit her in the face. After the woman accompanying them grabbed some watches from the showcase, the threesome left.

Shortly after the incident, Investigator John Putney interviewed Perez, Garcia and Larue Foster. Perez described the perpetrators of the crime to Putney. Foster gave Putney a partial license plate number and description of the automobile he had seen leaving the scene of the crime. Putney fed into a computer the information Foster had given him. After obtaining information from the computer, Putney proceeded to 7206 S. Cornelia, where he saw an automobile which fit the description that Foster had provided. He observed Griggs and a short black female enter the car. He stopped the vehicle and arrested the two. Putney obtained a telephone number from Griggs and called the Zenith Plant in Melrose Park, where he went to arrest Nelson.

On October 23, 1978, Perez picked out a photograph of William Griggs from a group of photographs he was shown. On October 24, Perez and Garcia viewed lineups. Both picked out Griggs and Nelson as two of the perpetrators of the crime. Following the lineups, Griggs told Perez that he was sorry about the robbery and offered to make restitution.

A deputy Cook County sheriff testified that on July 30, 1979, he had transported Griggs and Nelson from Cook County Jail to the courthouse at 13th and Michigan. He stated that he had a mittimus bearing Nelson’s name. When the bus arrived at the courthouse, the sheriff saw Nelson exit the bus. A fight broke out between Griggs and another prisoner. It was then discovered that Nelson was missing. On September 19,1979, Nelson was reapprehended. He was found with two loaded pistols in his possession, one of which Perez testified Griggs had used in the robbery.

Griggs and Nelson were jointly tried. Carolyn Collins, who had been arrested with Griggs, was tried separately. Throughout the trial, both Griggs and Nelson disrupted the proceedings and were highly abusive toward the judge and jury. Both defendants were found guilty of armed robbery. (See Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2.) Griggs was sentenced to 30 years imprisonment and Nelson to 60 years. Both defendants appeal their convictions.

First, Griggs and Nelson both argue that the trial court erred in denying their motion for substitution of judge for cause. The statute which presently governs such motions became effective on September 26, 1979. It provides that “[u]pon the filing of [a motion for substitution of judge for cause] a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion.” (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 5(c).) Prior to September 26, 1979, a trial judge was not required to order a hearing before another judge. See Ill. Rev. Stat. 1977, ch. 38, par. 114 — 5(c).

Defendants’ 114 — 5(c) motion was made approximately one month after the date when the statute as amended became effective. Griggs and Nelson claim that because the hearing on the motion was conducted by the trial judge and not another judge, the provisions of 114 — 5(c) were not complied with, and they did not receive a fair trial.

Several considerations persuade us that the trial court’s denial of the motion for substitution of judge for cause was proper. Initially, we note that defendants did not specifically request that another judge hear the motion-for substitution of judge for cause. We further note that defendants had been granted two prior substitutions. More importantly, defendants’ abusive language and conduct from the outset of the trial court proceedings evidence their total lack of respect for the judicial process. It is apparent that the motion was not made in good faith and was a mere artifice to delay the trial court proceedings. Based on these facts, we believe that the trial court did not err in failing to assign the motion to another judge.

Defendant Griggs argues that his motion for severance should have been granted because defendant Nelson’s defense was to implicate Griggs in the offense. As a general rule, defendants jointly indicted should be jointly tried and separate trials are required only when the defendants’ defenses are so antagonistic that a fair trial can be granted only through severance. (People v. Barbaro (1946), 395 Ill. 264, 270, 69 N.E.2d 692; People v. Murphy (1981), 93 Ill. App. 3d 606, 609, 417 N.E.2d 759.) There are no hard and fast rules as to when severance should be granted. Whether separate trials should be granted is a matter within the sound discretion of the trial court. People v. Canaday (1971), 49 Ill. 2d 416, 424, 275 N.E.2d 356; People v. Murphy (1981), 93 Ill. App. 3d 606, 609.

Antagonistic defenses in the context of severance have been confined to those instances where one or more codefendants testifies implicating the other. (People v. Murphy (1981), 93 Ill. App. 3d 606, 609, 417 N.E.2d 759; People v. Precup (1977), 50 Ill. App. 3d 23, 29, 365 N.E.2d 1007.) In the present case, neither Griggs nor Nelson testified. In fact, the only defense witness to testify was a police officer who was called merely to explain the descriptions given by the victims to the police following the armed robbery. On these facts, we find that the trial court did not err in denying a severance.

Next, defendant Griggs argues that he was deprived of a fair trial by the introduction of hearsay evidence which directly implicated him in the offense. On direct examination, State’s witness Investigator John Putney testified that he had spoken with Larue Foster at the scene of the crime and that he went to the police station and put a partial license plate number into a computer at police headquarters. On cross-examination by defendant Nelson’s attorney, Putney testified that Foster had provided the license plate number and a description of the getaway vehicle. Putney further stated on cross-examination that the vehicle belonged to defendant Griggs.

Where a police officer testifies that he had a conversation with an individual and that he subsequently acted thereon, without revealing the substance of the conversation, such testimony is based on the officer’s personal knowledge and is competent to show the officer’s investigatory procedure. (People v. Dunning (1980), 88 Ill. App. 3d 706, 709, 410 N.E.2d 1052.) Putney’s testimony on direct examination, therefore, was not hearsay.

The testimony elicited on cross-examination by defendant Nelson’s attorney, on the other hand, was hearsay. A rule of evidence not invoked by timely objection, however, is waived for purposes of appeal. (People v. Akis (1976), 63 Ill. 2d 296, 299, 347 N.E.2d 733.) Griggs’ counsel failed to object to Putney’s cross-examination testimony that Larue Foster had provided a partial license number and description of the getaway car. As a result, the issue was waived. Furthermore, it has been held that where there is no reasonable possibility that a jury would have acquitted defendant if the hearsay evidence had been excluded, the admission of the evidence is harmless error. (People v. Hall (1980), 90 Ill. App. 3d 1073, 1077, 414 N.E.2d 201.) Here, no reasonable jury would have acquitted defendant Griggs in light of the convincing eyewitness identifications made by both victims.

In addition, defendant Griggs claims that it was reversible error to admit hearsay evidence that Carolyn Collins, the female involved in the offense, was Griggs’ sister. On direct examination, the State’s Attorney asked Investigator Putney whether he had occasion to find out the relationship between Griggs and Collins. Griggs’ attorney objected. The objection was overruled and Putney stated that Griggs and Collins were brother and sister. We do not believe this was inadmissible hearsay evidence.

Finally, defendant Griggs argues that he was denied his right to a fair trial by the admission into evidence of defendant Nelson’s escape. Initially, he claims that the admission into evidence of the escape was impermissible because the State failed to prove that Nelson did in fact escape. We find no merit in this argument. Two officers from the Cook County Department of Corrections testified that on July 30, 1979, defendants Griggs and Nelson were transported to 1340 S. Michigan, that defendant Griggs was involved in a fight with another prisoner after the prisoners had exited the transport bus outside 1340 S. Michigan and that Nelson was missing after the fight. A Chicago police officer testified that on September 19,1979, he observed Nelson and pursued him until Nelson was captured with two loaded pistols in his possession.

Griggs argues that even if the evidence of the escape was admissible against Nelson, it was inadmissible against him because there was no evidence that Griggs was involved in Nelson’s escape. We agree that the evidence introduced at trial did not show that Griggs collaborated with Nelson in his escape plan. Thus, we believe it was improper for the prosecutor to state during closing argument that Griggs probably staged the fight to give Nelson an opportunity to escape. We note that the prosecutor prefaced his remark by telling the jury that evidence of the escape was limited to Nelson. Because of this fact, and because we do not believe that the remark materially contributed to Griggs’ conviction, we decline to reverse on the basis of this improper remark.

Both Griggs and Nelson have presented us with numerous other arguments as to why their convictions should be reversed. We find no merit whatsoever in these arguments and decline to address them.

For the foregoing reasons, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY DIXON, Defendant-Appellant.
    First District (1st Division)
    No. 80-2121
    Opinion filed February 22, 1982.
    Rehearing denied March 15, 1982.

      Ralph Ruebner and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Edward F. Cozzi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

After a jury trial defendant Larry Dixon was found guilty of three counts of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2(a)) and two counts of unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, par. 10 — 3), and received an extended sentence of imprisonment of 45 years for each count of armed robbery and six years for each count of unlawful restraint (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2), the terms to run concurrently. On appeal defendant raises the following issues: (1) whether he was denied due process of law when the State, after indictment and without notice to him, showed prosecution witnesses photographs of a lineup which they had not previously viewed; (2) whether he was denied his right to have counsel of his own choice represent him; (3) whether the trial court erred in excluding defense evidence concerning the identification testimony of three State witnesses and restricting defense evidence as to the defendant’s physical condition at or near the time of the offense; and (4) whether the sentences imposed must be vacated or alternatively, whether this cause must be reversed and remanded so that defendant can make a meaningful election as to which code to be sentenced under.

For the reasons set forth herein the judgment of the circuit court is affirmed.

At trial, Valerie Murphy Hall testified that on September 4,1976, she was riding with her boyfriend Darrell Hall in his car. He subsequently became her husband. They flagged down a gold Cadillac which they believed was occupied by friends of her brother. The driver of the car got out and asked her for a match. He then put a gun to her head, after which he and the other occupant of the Cadillac forced their way into the Hall car. She identified the gunman as Larry Dixon, and the other man as Billups. Dixon and Billups forced Darrell to drive around Harvey, Illinois, for a while, as Dixon sat next to her and held a gun to her side. Then Darrell was put in the back seat and Dixon got into the back seat with him. Billups began to drive. When they got to Robbins, Illinois, Darrell was placed in the trunk of the car. Dixon again sat beside Valerie and held the gun to her side. Billups drove to a Clark gas station at 144th and Crawford. There were three people standing by the pump. Billups and Dixon got out of the car, and she heard Dixon say, “It’s a stickup.” After the Hall car left the station they again drove to Robbins, where they were stopped by the police. Defendant jumped out of the car, jumped over a fence and began running. Valerie saw defendant standing next to her shortly after she had been handcuffed by the police. The testimony of Darrell Hall corroborated that of Valerie Hall. In addition, Hall testified that he was in the back seat with Larry Dixon for about 10 minutes on the night of the incident.

Kevin Burke testified that on September 4, 1976, between 11 p.m. and midnight he was working as a gas attendant at a Clark gas station. A 1970 black Ford pulled into the station. He went to service another car that had pulled into the station, and his brother Michael went to service the black car. His brother called him over. His brother’s friend Eric Plane was standing beside his brother, as were two other men. The station was well lit. One of the men had a gun which he pulled out of his pocket and showed to Burke. Burke identified defendant as the man who had the gun. Defendant and the other man robbed him. After he was robbed, one of the men went inside with his brother and took several cartons of cigarettes. The men then got back into the car where a girl was and left. He followed them in his car until he saw a Crestwood police car. He told the officer what had happened and that the car was headed east on the Midlothian Turnpike. On October 7, 1976, he viewed a lineup at the Markham police station where he identified numbers one and seven as the gunmen. The testimony of Michael Burke corroborated that of Kevin Burke. Michael Burke did not testify as to any identification.

Eric Plane testified that he and Michael Burke had been robbed by two men at a Clark gas station on September 4, 1976, and that one of the men had a gun. He identified defendant as the man with the gun. When he viewed a lineup in October 1976, he identified number seven (the defendant) as one of the men who had robbed him.

Bernard Armel, attorney, testified that he was hired by and did represent defendant in September 1976. He first saw defendant at the Markham police department in September 1976, at which time defendant was shaking and appeared weak. He observed that defendant wore a colostomy bag.

Initially, defendant contends that he was denied due process of law when after his indictment and without notice to him, prosecution witnesses Valerie Murphy Hall and Darrell Hall were shown photographs of a lineup which they had not attended. The Halls viewed the photographs in the State’s Attorney’s office shortly before the trial began. Defense counsel was not present at that time and learned of the photographic viewing during cross-examination of Valerie Hall. The Halls each identified number seven (defendant herein) as the man with the gun in the instant action. The Halls also testified that they had previously identified defendant in October 1976, when they appeared in court and signed complaints. Defendant urges that since the Halls had not been present at the lineup, their viewing of the lineup photographs must be considered the equivalent of a corporeal lineup. He contends that since defense counsel was not present when the Halls viewed the photographs, he was denied the right to counsel at the equivalent of a post-indictment lineup. Defendant cites no authority for this position, but relies instead on Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877, and Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967, wherein the Supreme Court held that an accused has a right to counsel at a post-indictment lineup. Defendant acknowledges that the United States Supreme Court held in United States v. Ash (1973), 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568, that no right to counsel exists at a post-indictment photographic identification, but urges that under the facts and circumstances of this case, where the viewing took place in the State’s Attorney’s office with several other people present, he had the right to have counsel present to insure the fairness of the procedure, and in the absence of counsel at the viewing, his motion to suppress the identification testimony of the Halls should have been granted. (Moore v. Illinois (1977), 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458; People v. Robinson (1970), 46 Ill. 2d 229, 263 N.E.2d 57.) Defendant claims that the error was compounded by the State’s failure to disclose the pretrial photographic identification in response to his motion for discovery.

The State contends that the trial court properly denied defendant’s motion to suppress the identification testimony of Valerie and Darrell Hall. In reliance on United States v. Ash the State claims that the sixth amendment does not grant an accused the right to have counsel present when the government conducts a post-indictment photographic display containing a picture of the accused for the purpose of allowing a witness to attempt an identification of the offender. See People v. Shorter (1978), 59 Ill. App. 3d 468, 375 N.E.2d 513.

We agree with defendant that both Kirby and Stovall correctly state the law that an accused is entitled to have counsel present at a post-indictment lineup; however, neither Kirby nor Stovall actually involved a lineup or a photographic display, and the record reflects that defendant herein was in fact represented by counsel at the lineup in question. Defendant urges, however, that in addition to being represented by counsel at the lineup, he should also have been represented by counsel when the Halls viewed the photographs of the lineup. This issue has been passed on by the United States Supreme Court in United States v. Ash, where the Supreme Court declined to extend the right to counsel to a portion of the prosecutor’s trial preparation interview with witnesses, finding that defense counsel may also conduct photographic displays with potential witnesses. The Supreme Court held that since the accused himself is not present at the time of the photographic display, the accused has no right to have his counsel present. Defendant’s claim that he was prejudiced by the State’s failure to disclose the pretrial photographic identification is also without merit, for the record reveals that defendant was aware of the lineup, was represented by counsel at the lineup, and had been given the names of the Halls as possible prosecution witnesses in response to his motion for discovery. Moreover, defendant admits in his brief that he had also been tendered the photographs of the lineup. Therefore, defendant was not precluded from conducting his own photographic display with the Halls. We also do not find the Moore case supportive of defendant’s position. Moore concerned the in-court identification of an accused at a preliminary hearing at which the accused was not represented by counsel. Defendant has not alleged that he was not represented by counsel when the Halls identified him in court in October 1976, and that issue is not before this court. The testimony of both Valerie and Darrell Hall was that they spent considerable time in the actual presence of defendant during the alleged criminal acts, and that they had identified defendant in court on a previous occasion, thus there was sufficient independent basis for their in-court trial identification of defendant, and the trial court did not err when it denied defendant’s motion to suppress the identification testimony of the Halls. People v. Shorter.

Secondly, defendant contends that he was denied the right to counsel of his choice when the trial court denied his request to substitute Bernard Armel for his trial counsel during the course of the trial of this matter. Bernard Armel had represented defendant in this case from September 1976, until he withdrew from the case in 1978. Mr. Armel was not present at the time the request was made during the third day of trial, and the State contends that the trial court did not abuse its discretion in denying said request on the grounds that it was untimely and because of the efforts of trial counsel on defendant’s behalf. (People v. Solomon (1962), 24 Ill. 2d 586,182 N.E.2d 736.) Moreover, defendant did not raise this issue in his written motion for a new trial, and the law in Illinois is that a point not raised in a written motion for a new trial is deemed to have been waived and is not subject to review. People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

Defendant’s third contention is that the trial court erred in excluding the testimony of Bernard Armel relative to the identification testimony of Kevin Burke, Eric Plane, and Michael Burke. The offer of proof made by defense counsel was that Mr. Armel, the previous defense counsel, would have testified that he was defendant’s attorney and was present at a lineup on October 7,1976, and that defendant was in the seventh position at said lineup. Armel would have testified further that at said lineup Plane identified the person in the sixth position, Kevin Burke identified no one, and Michael Burke identified numbers one and seven. The trial court excluded the proffered testimony on the grounds that it was hearsay, and that no foundation had been laid for impeachment. Defendant, in reliance on People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223, urges that Armel’s testimony went to the credibility of the witnesses, and should have been admitted. In Rogers the Illinois Supreme Court held that once a witness testifies about an out-of-court identification at trial, a third person should be allowed to testify that he heard or saw the witness make the identification. This would not constitute hearsay since both the witness and the third party would be subject to cross-examination concerning the out-of-court identification. The trial court also limited Armel’s testimony concerning the physical condition and appearance of defendant subsequent to September 4, 1976, ruling that it was immaterial in seeking to establish his condition on the date of the incident. Defendant urges that Armel’s testimony, that he saw defendant shortly after the incident and that defendant had a colostomy bag at that time, was material and probative of the issue of defendant’s identification since it was unlikely that he could have been the man the police chased.

The State urges that the Rogers decision should not apply to the instant issue as Rogers allows for the corroboration of an out-of-court identification but not for its impeachment. We do not agree. The Rogers case clearly sets forth the rules that should govern the admissibility of third-party testimony concerning out-of-court identification, and Armel’s testimony should have been admitted under the reasoning set forth in Rogers. However, in light of the overwhelming evidence against defendant introduced at trial, and in light of defense counsel’s suggestion at the time of his offer of proof that Armel had gotten Kevin Burke and Michael Burke mixed up and did not know Kevin from Michael, we do not find that defendant was prejudiced by the exclusion of Armel’s testimony on this matter. Defendant did not raise the issue of the limitation of Armel’s testimony concerning his appearance and physical condition at their first meeting in September 1976, in his written motion for a new trial, and this issue is deemed to have been waived and is not subject to review. People v. Jackson.

Defendant’s final contention is that the sentence imposed must be vacated or this cause must be reversed and remanded so that he can make a meaningful election as to which code to be sentenced under. At the time of sentencing defendant was allowed to elect to be sentenced under the law in effect at the time of the offense or the law in effect at the time of sentencing, after the court explained to him the difference between the two sentencing laws. He elected to be sentenced under the new law. He urges that his election was made in reliance on the validity of section 5 — 5—4.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—4.1) (the modification-of-sentence provision), which the Illinois Supreme Court subsequently held invalid in People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541. Defendant asks this court to invalidate section 5 — 8—2 (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 8—2) (the extended-term provision) in light of the Cox decision. Defendant claims that in light of Cox, sentencing him under section 5 — 8—2 violated his right to due process under the Illinois Constitution. His argument is premised on his assessment of the legislative intent in enacting these two sections which he claims envisioned that any sentences imposed under section 5 — 8—2 would be tempered on appeal by the now void section 5 — 5—4.1. Defendant further argues that if the validity of section 5 — 5—4.1 had been upheld this court would have been empowered to review the sentence imposed as if it were sitting as the sentencing court. Since this court does not have the power defendant anticipated that it would have at the time he made his election, he urges that the election was not meaningful, and that he must be allowed to make a new election if the validity of section 5 — 8—2 is upheld.

The State cites section 8 — 4—1 (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 4—1) as supportive of its position that the invalidity of section 5 — 5—4.1 does not affect the validity of section 5 — 8—2. Section 8 — 4—1 provides for the severability of invalid provisions of the Code from other provisions of the Code which can be given effect without the invalid provision. The State urges that sections 5 — 5—4.1 and 5 — 8—2 are not directly dependent on each other, and that the nature, character and extent of the penalties for a particular offense are matters for the legislature. People v. Smith (1958), 14 Ill. 2d 95, 150 N.E.2d 815.

We agree with the State that the invalidity of section 5 — 5—4.1 does not affect the validity of section 5 — 8—2. Section 5 — 5—4.1 was held invalid because it infringed upon the court’s exclusive power to regulate judicial review. (People v. Cox.) The reasoning expressed in Cox does not apply to section 5 — 8—2, for the nature, character, and extent of the penalties for a particular criminal offense are matters for the legislature and not the judiciary. (People v. Smith.) Moreover, section 5 — 8—2 can be given effect without the application of the invalid section 5 — 5—4.1. In enacting section 8 — 4—1 (the severability provision) the legislature clearly intended that the invalidity of one provision of the Code would not invalidate any other provision unless the application of another provision depended upon the application of an invalid provision. (Ill. Rev. Stat. 1979, ch. 38, par. 1008 — 4—1.) The law in Illinois is that a statute enjoys a strong presumption of constitutionality, and the burden of showing the invalidity of a statute is on the party challenging the enactment. (People v. La Pointe (1981), 88 Ill. 2d 482.) We do not find that defendant has met this burden, or that defendant’s right to due process was violated because defendant was sentenced under the extended-term provision. We observe from the record that defense counsel stated that he had explained the changes in the law to defendant and that defendant elected to be sentenced under the new law. The court thereafter explained the sentencing alternatives to defendant, and defendant personally elected on the record to be sentenced under the new law. The record also discloses that before imposing sentence the trial court considered that defendant’s conduct had threatened serious physical harm to a number of people, defendant’s extensive prior criminal record and defendant’s prior conviction for armed robbery, that defendant had jumped bond in this matter and had been returned to court involuntarily, defendant’s potential for being a law-abiding citizen, and the concern of defendant’s family for him. The record supports the State’s contention that defendant made a meaningful election to be sentenced under the new law, and it is pure speculation on the part of defendant to suggest that had the validity of section 5 — 5—4.1 been upheld, a review of his sentence might have resulted in a lower sentence.

For the reasons set forth herein the judgment of the circuit court is affirmed.

Affirmed.

GOLDBERG and O’CONNOR, JJ„ concur.