source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL L. DUDLEY, Defendant-Appellant.
    Fifth District
    No. 5 — 89—0742
    Opinion filed July 2, 1991.
    Daniel M. Kirwan, and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Carl L. Dudley, an inmate at Menard Correctional Center (Menard) in Randolph County, Illinois, was charged by information with unlawful possession of a weapon by a felon in the custody of a Department of Corrections facility under section 24 — 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(b)) in that he possessed a dagger-like weapon. He was convicted in a jury trial and sentenced to a term of 10 years’ imprisonment to run consecutive to the term of imprisonment he was currently serving in the Illinois Department of Corrections. On appeal, defendant raises the following issues: (1) whether it was improper for the trial court to permit the docket sheets and informations in his former convictions to be used for impeachment purposes at trial; (2) whether the prosecutor’s closing argument was improper; (3) whether the cause should be remanded for new post-trial proceedings on defendant’s pro se challenge to his attorney’s performance; and (4) whether the mittimus must be corrected to credit defendant with time served in custody prior to sentencing in the case at bar.

On the evening of August 8, 1988, while defendant was waiting in line in the prison yard to undergo a weapon search at Menard, a homemade knife or dagger-like weapon was found on the ground between or near his feet. Although the trial witnesses agreed on the proximate location of the knife, the origin of the weapon was in dispute. Correctional Officer Itsie Ellsworth testified that he observed defendant kneel down and remove his shoe. Defendant took an object out of the shoe and laid it in a shirt that he was holding. As defendant stood up after slipping his shoe back on, the object fell from the shirt and landed on the ground between defendant’s feet. Officer Scott McKee testified that he heard a piece of metal hit the ground and then saw a knife lying between defendant’s feet. Defendant testified, however, that while he had bent down to untie his shoelaces preparatory to being searched and did have his shirt in his hand, he did not remove a weapon from his shoe. Defendant stated that someone had thrown the knife from behind him and it had landed by his feet. Three other inmates who were standing near defendant at the time of the incident also testified that defendant did not take anything out of his shoe. Daniel Gunnels stated that he saw a knife land by defendant after it had been thrown from behind. The other two inmates testified that they heard knives being thrown and hitting the ground. All three inmates stated that they did not see defendant bend down to untie his shoes.

After the close of the evidence, the prosecution sought to introduce a copy of defendant’s prior Macoupin County convictions for escape and aggravated battery for the purpose of impeachment. During the conference on jury instructions, defense counsel objected to the inclusion of the informations and the docket sheets in these cases, arguing that the judgment orders alone were sufficient to show defendant’s prior felony record. Counsel stated that the documents attached to the judgments showed the conduct upon which the charges were based and related that other charges had been filed against defendant and dismissed, information prejudicial to defendant. The trial court overruled defense counsel’s objection, and the documents were later submitted to the jury.

On appeal, defendant asserts that he was unduly prejudiced by the use of the docket sheets and informations to prove his prior convictions for impeachment purposes. Defendant argues that the trial court erred in refusing to excise the informations and docket sheets, as requested by defense counsel, and to submit only the judgment orders to the jury. We agree.

In the case at bar, the documentation submitted to the jury on defendant’s prior felony convictions contained details of the nature of those crimes. In particular, the information for the aggravated battery charge, which named defendant and three codefendants, stated that “said defendants, in committing a battery *** without legal justification and by use of a deadly weapon, a knife, intentionally caused bodily harm to [the victim], in that they stabbed [him] in the back.” In addition, the docket sheets given to the jury referred to 13 separate charges against defendant which were dismissed in exchange for his guilty pleas to the offenses of aggravated battery and escape. These portions of the records of conviction were surplusage, irrelevant, and prejudicial and should therefore not have been admitted. See People v. Spenard (1977), 46 Ill. App. 3d 892, 897, 361 N.E.2d 856, 860; see also People v. Davis (1977), 54 Ill. App. 3d 517, 525, 369 N.E.2d 1376, 1383-84.

In Spenard, the court held that the admission into evidence by the State of authenticated copies of the entire record of the defendant’s two prior convictions, rather than just the judgment orders, was improper. However, because the defendant in Spenard failed to object to the records or seek deletion of the irrelevant portions at the time they were offered into evidence, the court held that any error committed was waived. Spenard, 46 Ill. App. 3d at 897-98, 361 N.E.2d at 860.

In Davis, the trial court allowed a certified copy of a prior conviction into evidence which contained not only proof of a theft conviction, but also burglary indictments upon which the defendant was acquitted. The appellate court held that inclusion of criminal charges upon which the defendant was not convicted was error. (Davis, 54 Ill. App. 3d at 525, 369 N.E.2d at 1383-84.) As in Spenard, however, the defendant in Davis was determined to have waived the issue on appeal where his defense counsel’s objections to the admissibility of the prior conviction’s exhibits did not address the inclusion of the surplus-age. Additionally, the Davis court stated that the irrelevant and surplus arrests in the exhibits were adequately explained and nullified by the defendant’s own testimony. Davis, 54 Ill. App. 3d at 526, 369 N.E.2d at 1384.

In the case at bar, however, counsel for defendant specifically objected to the admission of the prejudicial and irrelevant information, and defendant was given no opportunity to “nullify” the documents’ prejudicial effects. Thus, where the error, as recognized in Spenard and Davis, was here properly preserved, it cannot be said to be harmless.

The State argues that the introduction of the docket sheets and informations in the cases used to impeach defendant’s credibility was done in compliance with the requirements set forth by this court in People v. Lindsey (1986), 148 Ill. App. 3d 751, 499 N.E.2d 715. In Lindsey, this court stated that the rule in Illinois is that a prior conviction can be proved only by the record or an authenticated copy showing the caption, the return of the indictment in open court by the grand jury, the indictment and arraignment of the defendant, the impaneling of the jury and its verdict or the waiver of the jury, and the final judgment of the court. 148 Ill. App. 3d at 760, 499 N.E.2d at 721, citing People v. Lane (1948), 400 Ill. 170, 173, 79 N.E.2d 65, 66, and People v. Moore (1979), 72 Ill. App. 3d 462, 464, 391 N.E.2d 139, 141, cert, denied (1980), 444 U.S. 1091, 62 L. Ed. 2d 779, 100 S. Ct. 1056.

Lindsey and Moore involved challenges by the defendants of the legal sufficiency of the documents used to prove their prior convictions for purposes of impeachment. While neither case involved an assertion by the defendant that the documents used contained prejudicial information, the court in Moore held that the trial court did not err in admitting a certified copy of a judgment order as proof of a prior conviction. The Moore court noted that the trial court was following the more flexible approach approved by the Illinois Supreme Court in People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792, where Justice Underwood said:

“ ‘It has been repeatedly held that proof of prior convictions should be by means of certified copies of the record and identification of the defendant in the prior case as the same person. [Citations.] To the extent that these and similar holdings may be thought to create an inflexible rule requiring formal proof of earlier court records only by authenticated or certified copies of those records and proof of identity, they are incompatible with considerations of judicial economy and efficiency essential to the disposition of present-day caseloads. Nor do such procedures provide any necessary or useful safeguards to the defendants in cases such as this where the fact that the prior conviction had occurred has never been denied.’ (65 Ill. 2d 157, 164, 357 N.E.2d 792, 795.)” Moore, 72 Ill. App. 3d at 464-65, 391 N.E.2d at 141.

Further, this court has more recently suggested in People v. Johnson (1988), 173 Ill. App. 3d 998, 1012-13, 527 N.E.2d 1317, 1326, that if the details appearing on the documents necessary to authenticate a defendant’s prior convictions under the standards set forth in Lindsey were unfairly prejudicial, their admission might constitute an abuse of the trial court’s discretion. We believe the present case to be an example of such an abuse of discretion, and therefore we remand this cause for a new trial where proof of defendant’s prior convictions may be accomplished by introduction of a certified copy of the judgment order, with any irrelevant information excised.

Given our disposition of this issue, we find it unnecessary to address defendant’s remaining contentions. For the foregoing reasons, the judgment of the circuit court of Randolph County is reversed and remanded for a new trial not inconsistent with this opinion.

Reversed and remanded.

WELCH and LEWIS, JJ., concur.


author: JUSTICE LEWIS

text:
    JERRY FREESE et al., Plaintiffs-Appellees and Cross-Appellants, v. HOWARD BUOY, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5 — 90—0335
    Opinion filed July 24, 1991.

      Edward T. Graham, Jr., of Hershey, Beavers, Periard & Graham, of Taylorville, for appellant.
    Mitchell K. Shick, of Heller, Holmes, Hefner & Eberspacher, Ltd., of Mattoon, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiffs, Jerry Freese and Becky Freese, husband and wife, brought suit against the defendant, Howard Buoy, in two counts, one for breach of a sharecropping agreement and another for trespass. In each count the plaintiffs sought compensatory damages of $3,750 and punitive damages of $50,000. This cause of action arose when another farmer, Charles Shuff, who, like the plaintiffs, had a sharecropping agreement with the defendant, “moved” acreage planted in oats by the plaintiffs, as part of a “set aside” program of the Federal government, to another location on the farm owned by the defendant. Charles Shuff is not now and never has been a party to this lawsuit. Following a bench trial, the trial court entered judgment in favor of the plaintiffs and against the defendant on both counts, awarding nominal compensatory damages of $1, court costs, and punitive damages of $6,165. The defendant appeals, presenting two issues for review: (1) whether a landowner may be held liable for the actions of his independent contractor tenant which constitute a trespass to land and (2) whether a landowner may be held liable to pay punitive damages to a third-party because of the actions of his independent contractor tenant which constitute a trespass to the land of the third party. With respect to the first issue, the defendant maintains that there is no evidence in the record to substantiate the plaintiffs’ claim of trespass and that the record is devoid of facts evidencing a relationship of principal and agent between the defendant and Charles Shuff. With regard to the second issue, the defendant urges that in the absence of any relevant admissible evidence of some “outrageous” behavior on the part of the landlord, assuming the landlord was liable for damages at all, any award of punitive damages in favor of the plaintiffs is clearly inappropriate. The plaintiffs filed a notice of cross-appeal asking that the judgment for nominal damages be reversed and that this court either enter an additur or remand for a retrial solely on the issue of compensatory damages.

Called as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1102), the defendant testified that, after buying the farm, he had contacted Charles Shuff about farming that part of the property not leased to the plaintiffs for 1988. The plaintiffs had leased 55 acres under a sharecropping agreement with a prior owner of the property, which lease was assigned to the defendant upon his purchase of the property. The defendant and Charles Shuff “discussed the [plaintiffs’] idle acres,” that is, the approximately 15 acres set aside. They discussed the location of the set aside and the designation of other acreage as the set aside. Charles Shuff told defendant that the plaintiffs’ set aside contained “good land.”

During that meeting they discussed planting beans in the 15-acre set aside. Asked, “And did you decide to go ahead and plant beans there?” the defendant answered, “We decided at that time to go to the ASCS [Agriculture Stabilization Conservation Service] office and get a change, Mr. Shuff was going to talk to them about changing it.” Asked further, “And you instructed Mr. Shuff to go to the ASC office?” the defendant responded, “I said it was fine. If he could get it done, we ought to do it.” The defendant never contacted the ASCS office himself prior to the moving of the set aside. The defendant did not recall the plaintiff Jerry Freese’s having told him that he could not move the set aside. Asked, “At some point in time, Mr. Buoy, did you instruct Mr. Shuff to transfer the Freese set aside and plant beans?” the defendant stated, “I okayed his suggestion to transfer the idle acres with the idea that beans would be planted there.” Asked further, “And you gave them [sic] the okay then to contact the ASCS office with regard to that, is that correct?” the defendant answered, “I am trying to remember what I said before. I think I just said if you think that’s the thing we ought to do, we ought to do it.”

The plaintiff Jerry Freese testified that on the 55 acres leased he had planted approximately 40 acres in wheat and approximately 15 acres in oats as the “cover crop” in the set aside acreage. He had finished planting the oat crop “at the last of March.” After the defendant purchased the property, the plaintiff had, he said, offered to sell his lease to him “for the wheat and the set aside,” but the defendant had indicated the price sought by plaintiff was too high and did not accept the offer. The plaintiff added, “Well, I mentioned in the deal that if he bought me out, well, you know, he would have the best ground to his favor, you know, because I had the best ground, I figured, leased.” Upon declining the plaintiff’s offer, the defendant did not ask him whether he could designate other acres as set aside. The plaintiff never saw or talked with Charles Shuff prior to the change concerning the set aside. The plaintiff testified that he had learned in the first part of May that his oat crop had been destroyed and that the 15 acres where the oats had been were planted in beans. The plaintiff had not given permission to defendant or to Mr. Shuff to go on the land. Upon discovering that the oat crop had been removed, the plaintiff’s wife called the defendant. Later that same day Jerry Freese called the defendant. At that time the defendant stated, according to Jerry Freese, that “you had the best ground tied up” and that “they shouldn’t have rented you the best ground for set aside.” On cross-examination the plaintiff testified that prior to June 20 of 1988 a farmer could change the location of a set aside.

The plaintiff Becky Freese testified concerning a conversation between defendant and her husband at the plaintiffs’ home following the defendant’s purchase of the farm and prior to the removal of the oat crop:

“He [Jerry Freese] explained to him [defendant] where the set aside was and at that time was the time he said that if he was interested in the wheat and did in fact buy the wheat, he could take our set aside, move it wherever he wanted to. Otherwise, it was our 55 acres. He couldn’t really touch it.”

Called by the plaintiff as a witness, Charles Shuff testified that the defendant had told him in the first conversation he had had with him that Shuff would be farming all of the land except for that farmed by the plaintiffs. At a later meeting with the defendant, at which the witness’ son Scott and a friend of the defendant named Betterton were present, by which time the witness had become aware that the 15 acres in question had been worked and drilled, the witness and the defendant talked about relocating the acreage set aside. Asked, “During that second meeting, did you and Mr. Buoy decide to move the set aside that Mr. Freese had planted or had worked up?” the witness answered, “It was suggested we check with the ASCS to see if it was possible to move it.” Asked whether the defendant had told him to do that, the witness responded, “He wanted to know if I would check it, yes.” Asked, “Mr. Shuff, did Mr. Buoy tell you what to do if the ASCS office had no objection to moving the set aside?” the witness stated, “To do whatever the ASCS said, yes.” The defendant did not ask the witness to check with the plaintiffs. The witness and the defendant said that the soil in the set aside “was possibly better soil” and discussed planting the set aside in beans. After this meeting the witness did not talk with the defendant prior to cultivation of the set aside by the witness on approximately May 10, 1988. Asked, “Was there an existing crop visible at the time you pulled the field cultivators through it?” the witness answered, “Hardly any,” and added, “It was just a bare field except for just a little around the edges.” The witness “could see what was up was oats.”

On cross-examination when the witness was asked, “Did you request of [the defendant] that or at least advise him that you wanted to move the set aside to some place else and that that would be more productive?” he answered, “That was in the conversation. I don’t know whether I requested that or not.” Asked, “Did [the defendant] advise you during that same conversation that you could do it if it was okay with the ASCS office?” the witness responded, “Yes.” The witness contacted the ASCS office.

Testifying in his own behalf, the defendant stated that he had purchased the farm where the 55 acres are located from the Federal Land Bank in April of 1988 and that he has no experience in operating a farm. He indicated that he had discussed the idle acres once, in the presence of Charles Shuff and his friend Betterton. The defendant recalled the conversation in general as follows:

“I know it was something that the land, that the set aside land was some of the best land, it was level, fairly level in comparison to parts of the other farm and it was better soil and they said they ought to move, we ought to move the idle acres and I don’t know who said it whether it was Charlie Shuff or Better-ton or somebody, but they said we ought to move the idle acres and I said something, questioned them about well, can you do that and they said yes, you can get it done, all you have to do is go to the ASCS office and tell them about it and have it moved and they said well, we ought to do it and I said well, if they let you do it, that’s fine.”

Asked whether he had essentially listened to what everyone else had to say during this conversation, the defendant responded, “I didn’t really know that much about farming so I couldn’t, I just listened mostly.” The following questions were directed and answers provided:

“Q. And your response was if they could do it, fine?
A. Fine.
Q. And who — did anybody offer to look into that?
A. Charlie Shuff said he would take care of it.
Q. He would take care of the whole thing?
A. Uh-huh.
Q. Did he ever get back to you and tell you what happened after he talked to the ASCS office?
A. Not until after they planted it. At the time I got the complaint.
Q. So you didn’t have any knowledge at all until after you heard from Mrs. Freese that the oats had been tilled under?
A. No.”

At no time prior to the call from Becky Freese, the defendant said, did he discuss the matter with anyone at the ASCS office.

On cross-examination, when asked, “And when the subject of set aside came up, you knew that the subject was concerning Mr. Freese’s set aside, is that correct?” the defendant answered, “It was a government set aside as far as I knew. I didn’t understand that part of it.” He indicated he did not ask whether the set aside could be relocated: “They were talking about it and I said well, if you can do it, go ahead.” Asked, “And you knew that if the set aside would be moved, it would be Mr. Freese’s set aside?” the defendant responded, “I didn’t know whose set aside it was, whether it was the government’s or the Freese’s [sic] or Shuff’s or mine.”

On redirect examination the defendant testified that he had never directed anyone either to take any action to move the set aside or to “cultivate under Mr. Freese’s oat crop.” On re-cross-examination, when the defendant was asked, “Mr. Buoy, you knew that when the set aside would be moved that beans would be planted, your beans in their place, is that correct?” he answered, “I knew that beans would be planted there, yes.” Asked, “And you knew that in planting the beans, they would have to disc it up and then plant the seeds, is that correct?” he responded, “Sure, yes.” Upon further redirect examination the defendant testified that at the time he had no knowledge of the rules and regulations of the ASCS with respect to set aside and where it is placed and how it is moved. He indicated further that he knew “a little bit” about ASCS rules and regulations concerning what is planted on set aside and what such a crop can be used for. He indicated that he did not know generally whether anyone could ever obtain authority to move the set aside in question from one place to another. Upon further re-cross-examination he stated that he had made no effort to find out whether the set aside was covered by the lease, adding, “My tenant was going to do that.”

Called as a witness on behalf of the defendant, Charles Shuff testified that he has been farming since 1954, that he has planted oats about every third year, and that he and the defendant in 1988 had entered into a cropsharing agreement whereby they shared equally the profits and expenses associated with the planting and harvesting. Charles Shuff was also participating in a program whereby he had to set aside some acreage. The witness stated that when the subject of moving the plaintiffs’ set aside came up during his conversation with the defendant, the latter’s response was that he “[wjondered if it was permissible and I said we would have to go through the ASC office to see.” The witness stated that he offered to do so and, in fact, “[w]ent over to the ASC office and asked if it was permissible.” Based on what Shirley Pfeiffer at the ASCS office told him, he said, he “[proceeded with our layout.” The witness did not think he had talked with the defendant until after he had removed the oats and planted beans on the 15 acres. The witness planted oats and clover in the acreage to be set aside with respect to his own corn crop and in the acreage to be set aside with respect to the plaintiffs’ wheat crop. On about May 10, 1988, without having contacted the plaintiffs, he went into the field where their oats were planted, which he described as “a pretty bare field,” with “[j]ust little oats around the edge of it.” When he went to this field, he said, “We seen there was no crop there so we decided we would go ahead with what we had told ASC and put beans in it.” Asked, “So if you had gone out to that field and seen that there was a crop there, what would you have done?” he responded, "Left it.” Asked further, "Under any circumstances, would you have plowed under a crop if there was something there that looked reasonable?” he answered, “No.” He added, “I wouldn’t have done it if there had been a crop there, no.” Dry weather, he said, had killed the oats. On cross-examination he responded in the affirmative to the question, “And because this stand of oats in your opinion wasn’t worth very much, you thought it would be okay to destroy what little value was there?”

Called by the defendant as a witness, Shirley Pfeiffer testified that she has been employed by the Shelby County ASCS office for 30 years and is responsible for administering the wheat and feed-grain programs. She stated that once a tract of land is designated or certified as set aside, it can never be combined and the only purposes to which it may be put are grazing or haying if the county has been declared by the government to be a “disaster county” and the farmer has obtained special permission to use it for those purposes. Because 1988 was a “disaster year,” a farmer could hay his set aside after August 31 of that year if he had applied to do so. Even though the plaintiffs’ land had been “premeasured” with respect to a set aside, the set aside could have been changed “anywhere on the farm” through June 20, 1988, the final certification date. On March 2, 1988, she testified, the plaintiff had come into the office to designate his set aside acreage; at that time his set aside acres had not been seeded. Had the Freeses wished to designate another tract of land as set aside, they could have done so, the witness indicated, at any time through June 20. On April 27, 1988, the witness testified, Charles Shuff came into the office. “[W]hen he was in there getting premeasurement for the rest of the farm, another girl premeasured him and she [Peggy Witt] came and asked me for permission if they could move the set aside.” The witness did not talk to Charles Shuff but “gave her permission to move the set aside and put it all where he wanted for both the wheat and the corn program.” The witness testified, “Peggy Witt came to me because Charlie Shuff had asked permission if it was possible for him to move the wheat set aside [the plaintiffs’ set aside] to elsewhere on the land.” She stated further that “since it was not seeded — as far as I know, it was not seeded, I gave her permission or gave Charlie Shuff permission to move it.” The new designation was entered in the records at that time: “Peggy Witt moved it on her new premeasurement form.” The witness indicated that no one had asked for early certification of the plaintiffs’ set aside or advised her that their set aside acres had been planted in oats. At the end of the season Mr, Freese received his government payment for the acres set aside, which payment was not affected by the change in the location of the acreage.

The trial court asked this witness a number of questions for “clarification of what happened on April 27”:

“Mrs. Pfeiffer, if anyone had come into that office be it Mr. Shuff or some other person and said that they wanted to move Mr. Freese’s set aside, would that permission have been granted?
WITNESS: As long as I know [sic] it had not been seeded and I knew that the right amount of set aside for both the wheat and the feed program were going to be maintained, I would have allowed it.
THE COURT: So it didn’t matter whether Mr. Freese wanted it moved or didn’t want it moved?
WITNESS: No. If he would have had it seeded, he should have come back in for another signature.
THE COURT: If he hadn’t done anything and Mr. Shuff had not come in and asked to have the set aside moved, would Mr. Freese have been under the program based on his prior meeting with you?
WITNESS: We would have had to have known it was seeded before it would have been good set aside.
THE COURT: So if he had not come back at all, he would not have qualified for the set aside program?
WITNESS: Because it was not seeded because all set aside is required to have a cover on it unless they have a clean tillage permission just to maintain and keep the weeds down.
THE COURT: So if I had come in to you on August [sic] 27 and said I want to move Mr. Freese’s set aside, you would have done that and Mr. Freese would have qualified under the program?
A. Yes.”

For further clarification defendant’s counsel inquired of the witness:

“Q. Mrs. Pfeiffer, as opposed to anybody, is there any regulation or requirement that the person who comes in and asks to designate the set aside have some relationship to the land?
A. Absolutely. He has to be an operator.
Q. So if I come in, the lawyer from Taylorville that doesn’t know anything about farming and has never seen that 380[-]acre tract of land and I say I want to move Mr. Freese’s set aside, will you allow me to do it?
A. No. It has to be an operator. We have people listed as OT, that is other operators or an owner before we would have allowed anyone. That’s what I thought you meant by anyone.
Q. So in this particular case, it would have allowed Mr. Buoy, Mr. Shuff or Mr. Freese to change the set aside designation?
A. Yes.”

In their amended complaint the plaintiffs alleged in the first count, for breach of contract, that in causing or directing Charles Shuff to trespass upon their property and to destroy their crops the defendant breached the terms and conditions of the farm lease between them and the defendant. In the second count, for trespass, they alleged that the defendant caused or directed Charles Shuff to trespass upon their property, to destroy their oat crops, and to plant his own crop there. In his brief defendant asserts that his “liability in contract, therefore, must arise or fail upon his responsibility for Tenant’s [Shuff’s] trespass to Freese’s land.”

Trespass is an intentional invasion of the exclusive possession and physical condition of land (Dietz v. Illinois Bell Telephone Co. (1987), 154 Ill. App. 3d 554, 507 N.E.2d 24.) One can be liable in trespass for an intrusion by a thing or third person if he acts with knowledge that his conduct will, to a substantial degree of certainty, result in the intrusion. (Dietz, 154 Ill. App. 3d 554, 507 N.E.2d 24.) In other words, a person must know with a high degree of certainty that the intrusion will naturally follow from his act before liability for trespass attaches. (Dietz, 154 Ill. App. 3d 554, 507 N.E.2d 24.) Thus, a person who aids, abets, assists, or directs the commission of a trespass by another is liable for trespass. Dietz, 154 Ill. App. 3d 554, 507 N.E.2d 24.

The judgment of the trial court will not be reversed on review unless it is manifestly contrary to the evidence in the record. (John J. Calnan Co. v. Talsma Builders, Inc.. (1979), 77 Ill. App. 3d 221, 395 N.E.2d 1076.) As the defendant states, a judgment is contrary to the manifest weight of the evidence only when an opposite conclusion is apparent or when the trial court’s findings appear to be unreasonable, arbitrary, or not based upon the evidence (Briggs v. Gaddis (1985), 133 Ill. App. 3d 704, 479 N.E.2d 350.) However, we must disagree with the defendant that the instant record is barren of evidence in support of the trial court’s decision and, for that reason, must be reversed. The trial court could have concluded that under the circumstances the defendant knew with a high degree of certainty that the intrusion by his tenant Shuff onto part of the property leased by his other tenants, the plaintiffs, would occur if Shuff found at the ASCS office that the set aside could be located elsewhere on defendant’s farm, that is, on part of the property leased by Shuff. The defendant knew that, if the set aside could be relocated, Shuff would plant beans on approximately 15 of the 55 acres he had leased to the plaintiffs. The plaintiffs’ permission to relocate the set aside, which was never given, appeared to have been immaterial to the defendant as long as permission to relocate the set aside could be obtained from the ASCS office. On the basis of the evidence in the record, the trial court could well have deemed the defendant to be one who aided, abetted, assisted, or directed the commission of the trespass by Shuff upon the property leased by his other tenants, the plaintiffs. Hence, the trial court’s finding of trespass was not against the manifest weight of the evidence and supported that part of the judgment entered in favor of the plaintiffs and against the defendant on both counts of their amended complaint.

We turn to the second issue raised by the defendant, that pertaining to the imposition of punitive damages. It has long been established in Illinois that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence, or oppression, or when the defendant acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) Where punitive damages may be assessed, they are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future. (Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353.) As a general rule, punitive damages are not recoverable for a breach of contract. (Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 492 N.E.2d 181.) However, an exception to the general rule that punitive damages are not recoverable for breach of contract exists when the conduct causing the breach is also a tort for which punitive damages are recoverable. (Morrow, 112 Ill. 2d 87, 492 N.E.2d 181.) That is to say, punitive damages are recoverable where the breach amounts to an independent tort and there are proper allegations of malice, wantonness, or oppression. (Morrow, 112 Ill. 2d 87, 492 N.E.2d 181.) While the measurement of punitive damages is a question for the trier of fact, the preliminary question of whether the facts of a particular case justify the imposition of punitive damages is properly one of law. Kelsay, 74 Ill. 2d 172, 384 N.E.2d 353.

In making its ruling concerning the imposition of punitive damages, the trial court stated:

“Now, we get to the issue of the punitive damages and I believe that the plaintiff has proved out a claim for punitive damages, and I am going to award punitive damages in the amount of $6,165.00. This is unusual in the sense that this type of case in that we are dealing with a share cropping arrangement. This is independent contractor situation. Normally, there can be no liability. The owner in this case of the land cannot be found liable for the actions of an independent contractor. However, here, we are dealing with somebody more than was usually the case. Here, we are dealing with 15 acres of land that had been rented, leased to the Freese’s [sic] and the plaintiff here — strike that — the defendant knew the location of those 15 acres and the arrangements that he made with the independent contractor for the farming of that 15 acres required that the independent contractor go in and destroy that crop and based on the evidence I have here, Mr. Buoy knew that the Freese’s [sic] were not likely to agree with the movement of that 15 acres voluntarily. It was the best land on the farm and armed with that knowledge and with the conversation that is on record that he had with Mr. Shuff, he basically — I think Mr. Shuff inferred that he had the okay to go in and destroy that crop and to plant beans in its place and Mr. Buoy did receive the benefits of that in that he did get half the bean crop.”

At trial, as they do on review, the plaintiffs advanced a theory of agency, under which Charles Shuff acted as the defendant’s agent. The trial court expressly found Charles Shuff to be an independent contractor. In their brief the plaintiffs assert that “[e]ven though it may be argued that Shuff worked for Buoy as an independent contractor, ‘a person may be both an independent contractor and an agent for another.’ Hoffman & Morton Co. v. American Ins. Co., 35 Ill. App. 2d 97, 181 N.E.2d 821, 823 (1st Dist. 1962).” However, we think that whether Charles Shuff is considered to be the agent of the defendant in this regard — and we make no determination as to whether Charles Shuff was, in fact, the defendant’s agent in these circumstances — the facts of the instant case do not, as a matter of law, justify the imposition of punitive damages.

The initial question to be answered when punitive damages are sought is whether the facts and circumstances of the particular case justify their imposition. (Varilek v. Mitchell Engineering Co. (1990), 200 Ill. App. 3d 649, 558 N.E.2d 365.) Because of their penal nature, punitive damages are not favored in the law, and the courts must take caution to see that punitive damages are not improperly or unwisely awarded. (Varilek, 200 Ill. App. 3d 649, 558 N.E.2d 365.) With respect to the imposition of punitive damages in an action of trespass, our supreme court observed long ago in Hawk v. Ridgway (1864), 33 Ill. 473, 476:

“In the action of trespass, the question of whether it was wantonly or willfully committed, is important to be considered in measuring the damages. Where the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquillity. Foot v. Nichols, 28 Ill., 486. But when the wrongdoer acts in good faith, with honest intentions, and with prudence and proper caution, and he shall invade the rights of others so as to render himself liable to the action, preventive [punitive] or exemplary damages are improper. If no aggravating circumstances appear in the evidence, then vindictive damages should not be given.”

In Wetmore v. The Ladies of Loretto (1966), 73 Ill. App. 2d 454, 220 N.E.2d 491, the court held that nominal damages should have been awarded to the counterplaintiff for the trespasses of the counter-defendant. The court in Wetmore found that the trespasses and actions of the counterdefendant were committed under a claim of right, albeit a mistaken one. Relying upon the principle that punitive damages are recoverable only where a wrongful act is accompanied by aggravating circumstances such as willfulness, wantonness, malice, or oppression, the Wetmore court concluded that under the circumstances it was not error for the trial court to find no malice and to refuse to award punitive damages. Similarly, in Scott v. Bryson (1874), 74 Ill. 420, the landlord sold corn his tenant claimed to have set apart as his own. In the action that followed for taking away the corn, the court found no basis in the testimony for the award of punitive damages. Having determined that there was a strong preponderance of evidence that the landlord had taken the com in question “under a claim of right, made in good faith” (74 Ill. at 423), the court observed that “[u]nder such a state of the case it would be a perversion of the principle upon which the rule allowing punitive damages rests, to permit this verdict to stand” (74 Ill. at 423). Likewise, in Gravett v. Mugge (1878), 89 Ill. 218, the jury erroneously awarded damages in an action in trespass brought because the defendant had taken and carried away lumber the plaintiff claimed belonged to him. The court in Gravett determined that to the extent the award consisted of exemplary damages it was “clearly wrong”: “The lumber was taken by defendant in good faith, under the confident belief it all belonged to his principals, except a small quantity which was taken to save it from being washed away by the floods and lost, and if he was mistaken he ought only to be responsible in actual damages. There were strong grounds for the belief defendant had a legal right to take the lumber at any time as his own.” 89 Ill. at 220.

The parties have cited us to and our research has disclosed no cases involving trespass arising out of a change in the location of acreage planted as part of a “set aside” program of the Federal government. In the absence of a case more nearly like the one at bar, we find Hawk, Wetmore, Scott, and Gravett instructive. In the instant case, the evidence is undisputed that, prior to relocating the set aside, Charles Shuff, in accord with the plan he and the defendant had agreed upon, requested and received permission from a Federal agency to relocate the plaintiffs’ set aside. That permission was apparently given erroneously and would have been withheld had the agency known that the set aside acreage had already been planted. However, there is no evidence to suggest that either Charles Shuff or the defendant knew that set aside acreage, once planted, may not be relocated or that Charles Shuff in any way concealed the fact that the set aside acreage had already been planted or in any way misrepresented any information at all to personnel at the office of the Agriculture Stabilization Conservation Service. Having obtained the permission of the Federal agency to relocate the plaintiffs’ set aside acreage, Charles Shuff planted as the plaintiffs’ set aside a cover crop on approximately 15 acres of the property he himself leased from the defendant. For this acreage, planted by Charles Shuff, the plaintiffs received the same amount of money from the Federal government that they would have received had the set aside not been relocated. We think that under all of these circumstances, in the absence of aggravating circumstances, it was error for the trial court to award punitive damages. We note as well the observation of our supreme court in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509, that the punitive and admonitory justifications for the imposition of punitive damages are sharply diminished in those cases in which liability is imposed vicariously. That part of the judgment awarding punitive damages in the amount of $6,165 is, accordingly, reversed.

Concerning the issue raised by the plaintiffs in their cross-appeal, the trial court in making the award of nominal damages stated as follows:

“I find that the damages are nominal, speculative and not such that the Court can address any specific amount and as such, I am going to give judgment to the plaintiff in the amount of $1.00.
With regard to compensatory damages, on the basis of that, I don’t think by any stretch of the plaintiff’s imagination, the plaintiff is entitled to $3,700. I also note that which the actions of the plaintiff [sic] were wrongful, that the plaintiffs did get the advantage of the set aside, did get some government payments and they accepted those payments. I believe that effected [sic] their damages and as has been evidenced by the argument today, the testimony received indicated that the use to which the plaintiffs could have put those oats were [sic] quite limited assuming that they intended and did in fact participate in the government set aside program. Therefore, the total amount of compensatory damages is $1.00 plus the costs.”

Having reviewed the entire record, we cannot say that the trial court’s award was against the manifest weight of the evidence. The evidence was greatly in conflict as to the height of the oats and the number of plants that were growing in the field when on approximately May 10, 1988, Charles Shuff removed them. The trial court could have believed on the basis of the evidence in the record that the condition of the oats when they were removed was not as robust as described by the plaintiffs and their neighbor William Cloe and that in a drought year, as was 1988, the value of such plants to the plaintiffs would ultimately have been negligible.

Affirmed in part; reversed in part.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE WELCH JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE L. EILAND, Defendant-Appellant.
    Fifth District
    No. 5 — 90—0317
    Opinion filed July 26, 1991.

      HARRISON, J., dissenting.
    William D. Stiehl, Jr., of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellant.
    Scott Mansfield, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Johnnie Eiland, appeals from a judgment of conviction of the offenses of unlawful possession of 200 grams or more of a substance containing cocaine with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1401(a)(ll)), and unlawful possession of more than 30 grams but not more than 500 grams of a substance containing cannabis with the intent to deliver (Ill. Rev. Stat. 1989, ch. 56x/2, par. 705(d)), entered upon a jury verdict in the circuit court of St. Clair County. Defendant contends that (1) the trial court erred in denying his motion to suppress evidence; (2) the trial court erred in denying defendant’s motion in limine to bar the State from introducing evidence of defendant’s prior conviction; (3) the evidence was not sufficient to prove defendant guilty beyond a reasonable doubt; and (4) the State’s closing argument was prejudicial.

On September 11, 1989, an information was filed charging defendant with the above-stated offenses based upon evidence seized during a warrantless search of his apartment and automobile conducted by defendant’s probation officer on June 15, 1989. Defendant filed a motion to suppress evidence, arguing that a search of his apartment by East St. Louis police officers on June 8, 1989, during which illegal drugs were seized, was unlawful and that the probation officer’s search on June 15 was both without probable cause and “fruit of the poisonous tree.”

At the hearing on defendant’s motion to suppress, Scott Dennis, a friend of defendant, testified that he was at defendant’s residence on June 8, 1989, as a baby-sitter for defendant’s infant son. According to Dennis, two police officers broke open the back door and a third officer entered through the front door. The officers searched defendant’s home.

Detective Delbert Marion, East St. Louis police department, testified that he went with two other police officers to defendant’s apartment on June 8 in response to a citizen’s complaint by Danny Thompkins that a youth believed to be defendant’s son had burglarized Thompkins’ home and stolen a rifle. Thompkins told the police that defendant took the rifle away, so Detective Marion and the other officers went to defendant’s residence in order to recover the weapon. Detective Marion went to the front door of defendant’s apartment, and Scott Dennis allowed him to enter. From his location inside the apartment, Detective Marion could see a scale and two bags containing white powder. The officers seized the two bags, which appeared to contain cocaine, the scale, baggies, a 12-gauge shotgun, and a large sum of money.

Robert Hanson, an intensive probation supervision officer with the Twentieth Judicial Circuit, identified People’s exhibit No. 1 as a copy of the conditions of intensive probation supervision that had been given to defendant. Hanson, who conducted defendant’s intake interview, stated that he had read through the conditions with defendant and that defendant indicated his understanding of those conditions and signed the agreement. Hanson stated that condition 10(d) was defendant’s consent to submit to a search of his person, residence, automobile, and other effects upon request by the probation officer, and consent to the use of anything seized as evidence in a court proceeding.

Michael Buettner, supervisor of the intensive probation unit, testified that the intensive probation program differed from regular probation in that it was an intense monitoring of the probationer with very strict rules requiring, among other things, curfews and urinalysis testing. Buettner testified that he had made the decision to search defendant’s residence and automobile based upon defendant’s urinalysis on March 22 and May 23 showing the presence of controlled substances. In addition, on June 15 defendant’s probation officer, Thomas McManemy, provided Buettner with information he had received that day from Captain Terry Delaney, a member of the Illinois State Police, Division of Criminal Investigation. Delaney had learned from a reliable informant that defendant was involved in drug trafficking. Both Buettner and McManemy testified that although they were aware the East St. Louis police had searched defendant’s apartment on June 8, their decision to conduct a search on June 15 was based on defendant’s urinalysis results and on the information provided by Captain Delaney, and not on the fact that the police had found cocaine and drug paraphernalia in defendant’s residence on June 8.

Buettner further testified that he and four other probation officers participated in the search of defendant’s apartment and automobile on June 15, 1989. The probation officers told defendant that they intended to conduct the search pursuant to the conditions of his probation and defendant did not deny them permission to search. The officers escorted five or six other people out of the apartment and discovered in plain view a scale, a spoon, and a plate, all having a white powdery residue on them. Defendant was then placed under arrest, read his Miranda rights and searched. One thousand and fifty-one dollars in United States currency was found on defendant’s person. The search of the residence also produced various types of ammunition and a dresser drawer containing a white powdery residue. The officers discovered a bag of cocaine and a bag of cannabis in the trunk of defendant’s automobile.

Subsequent to the hearing, the trial court entered an order denying defendant’s motion to suppress and finding, inter alia, as follows:

“1. Defendant was placed on I.P.S. [intensive probation supervision] for a term of 30 months commencing 1-27-89, in case No. 88 — CF—436, and defendant is still on said probation.
2. Illinois Revised Statutes Chapter 38, Sec. 1005 — 6—3(b) grants the Court authority to impose ‘other reasonable conditions “[of probation]” [sic] relating to the nature of the offense or the rehabilitation of the defendant...[.]’
3. Pursuant to the authority granted under Chapter 38, Sec. 1005 — 6—3(b), specific [sic] Rule 10(d) of the conditions of probation provides as follows:
‘Submit to searches of your person, residence, papers, automobile and/or effects at any time such requests are made by the probation officer, and consent to the use of anything seized as evidence in a court proceeding.’
4. A warrantless search with less than probable cause may be reasonable under the Fourth Amendment if it is conducted pursuant to a regulation that is a reasonable response to the special needs of the operation of the probation system. Griffin v. Wisconsin [1987], 483 U.S. 868, 97 L. Ed. 2d 709[, 107 S. Ct. 3164]. It is sufficient to uphold the reasonableness of the search ‘if the information provided indicates...only the likelihood [***] of facts justifying the search.’ See 483 U.S. 868 at 880.
* * *
Based upon the foregoing, this Court finds that, without considering the results of the search on June 8, 1989, information provided indicated the likelihood of facts justifying the search of the defendant who was subject to searches pursuant to the condition of I.P.S., the probation which defendant and his counsel actively sought and requested this Court to impose at the time of his sentencing in case No. 88 — CF—436.”

We believe the trial court correctly denied defendant’s motion to suppress. A trial court’s ruling on a motion to suppress will not be overturned on appeal unless it is clearly erroneous. (People v. Guerrieri (1990), 194 Ill. App. 3d 497, 503, 551 N.E.2d 767, 771; People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869, 871.) Here, it is clear that neither the trial court’s findings of fact nor its application of the law as stated in Griffin v. Wisconsin (1987), 483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164, to those facts was in error.

In Griffin, the United States Supreme Court held that a warrantless search of a probationer’s residence was “reasonable” within the meaning of the fourth amendment because it was conducted pursuant to a regulation that was itself a reasonable response to the “special needs” of a probation system. The Court observed that a State’s operation of a probation system, like its operation of a school, government office, or prison, or its supervision of a regulated industry, presented “special needs” beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. (483 U.S. at 873-74, 97 L. Ed. 2d at 717, 107 S. Ct. at 3168.) Restrictions on a probationer, the Court further stated, are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s conditional liberty status. These goals require and justify the exercise of supervision to assure that the restrictions are in fact observed. “Supervision, then, is a ‘special need’ of the State permitting a degree of infringement upon privacy that would not be constitutional if applied to the public at large.” (483 U.S. at 875, 97 L. Ed. 2d at 718, 107 S. Ct. at 3168.) This special need is equally applicable to the State of Illinois and its probation system.

The Griffin Court reasoned that in conjunction with the need for supervision, a degree of flexibility must also be accorded the probation officer. A warrant requirement would interfere to an appreciable degree with the probation system, setting up a magistrate rather than the probation officer as the judge of how close a supervision the probationer requires. Additionally, the delay inherent in obtaining a warrant would make it more difficult for probation officials to respond quickly to evidence of misconduct and would reduce the deterrent effect that the possibility of expeditious searches would otherwise create. 483 U.S. at 876, 97 L. Ed. 2d at 719, 107 S. Ct. at 3170.

The probation agency must be able to proceed on the basis of its entire experience with the probationer and, especially in cases involving drugs or illegal weapons, probation officers must be able to act based on a lesser degree of certainty than the fourth amendment would otherwise require in order to intervene before a probationer does damage to himself or society. (Griffin, 483 U.S. at 879, 97 L. Ed. 2d at 721, 107 S. Ct. at 3171.) Thus, the Court believed the search decision should be left to the expertise of probation authorities rather than a magistrate, and should be supportable by a lesser quantum of concrete evidence justifying suspicion than would be required to establish probable cause. (483 U.S. at 879 n.6, 97 L. Ed. 2d at 721 n.6, 107 S. Ct. at 3171 n.6.) The Court in Griffin therefore concluded that it was reasonable to permit information provided by a police officer, whether or not that information was based on firsthand knowledge, to support a probationer’s search. “[W]e think it enough if the information provided indicates *** only the likelihood *** of facts justifying the search.” 483 U.S. at 879-80, 97 L. Ed. 2d at 721-22,107 S. Ct. at 3171-72.

In the instant case, section 5 — 6—3(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3(b)) authorized the trial court to impose reasonable conditions of probation relating to the nature of the offense and the rehabilitation of the defendant. Pursuant to this section, a condition of defendant’s intensive probation was that he submit to searches of his “person, residence, papers, automobile and/or effects” at any time the probation officer requested and that he consent to the use of anything seized as evidence in a court proceeding. Based upon the Court’s reasoning in Griffin, we find this condition to be a reasonable response to the “special needs” of Illinois’ probation system. Thus, a search pursuant to said condition would be a justified departure from the usual warrant and probable cause requirements.

Additionally, a search conducted pursuant to a valid consent does not violate the fourth amendment. (Washington v. Chrisman (1982), 455 U.S. 1, 9-10, 70 L. Ed. 2d 778, 787, 102 S. Ct. 812, 818; see also People v. Kelley (1979), 76 Ill. App. 3d 80, 86, 394 N.E.2d 739, 744.) While defendant acknowledges that he signed a form consenting to warrantless searches in order to obtain probation, defendant argues that under such “coercive” circumstances, his consent was not voluntary. However, a probationer’s waiver of his fourth amendment rights is no less voluntary than the waiver of rights by a defendant who pleads guilty to gain the benefits of a plea bargain. See Bordenkircher v. Hayes (1978), 434 U.S. 357, 360-64, 54 L. Ed. 2d 604, 609-11, 98 S. Ct. 663, 666-68; People v. Bravo (1987), 43 Cal. 3d 600, 738 P.2d 336, 238 Cal. Rptr. 282, cert, denied (1988), 485 U.S. 904, 99 L. Ed. 2d 234, 108 S. Ct. 1074.

In Bravo, the California Supreme Court examined whether a warrantless search was within the scope of a probationer’s consent to search pursuant to a probation condition worded similarly to the condition in question here. The California court reasoned that a probationer consents to the waiver of his fourth amendment rights in exchange for the opportunity to avoid serving a State prison term. “Probation is not a right, but a privilege.” (Bravo, 43 Cal. 3d at 608, 738 P.2d at 341, 238 Cal. Rptr. at 287; see also People v. Henderson (1971), 2 Ill. App. 3d 401, 405, 276 N.E.2d 372, 375.) If defendant had refused to agree to abide by the conditions of probation, the court would have had a basis to deny probation on the ground that the defendant was unwilling to accept and abide by its proposed terms. People v. Kelley (1985), 129 Ill. App. 3d 920, 923, 473 N.E.2d 572, 574.

We therefore see no reason for denying a defendant the right to waive his fourth amendment rights in order to accept the benefits of probation. However, unlike the California court, which held that a search condition of probation that permits a search without a warrant also permits a search without reasonable cause (Bravo, 43 Cal. 3d at 611, 738 P.2d at 342-43, 238 Cal. Rptr. at 289), we believe a probationer’s waiver of fourth amendment rights extends only to searches conducted upon a reasonableness standard, as any probation condition imposed must be “reasonable” under the language of section 5 — 6—3(b). Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3(b).

In the instant case, defendant had agreed to allow a search pursuant to what we have determined to be a reasonable condition of his intensive probation. As in Griffin, the probation officers had information from a police officer, Captain Terry Delaney, that defendant was committing a criminal offense and were entitled to rely upon that information. (Griffin, 483 U.S. at 879-80, 97 L. Ed. 2d at 721, 107 S. Ct. at 3171-72.) Additionally, the probation officers knew that two of defendant’s urinalysis tests were positive for cocaine and cannabis. The search itself was therefore reasonable in that the information the probation officers possessed indicated the likelihood of facts justifying the search. Thus, given defendant’s consent and the additional facts known to the probation officers, the justification for the instant search was even greater than in Griffin.

Despite defendant’s authorization of the probation officers’ search on June 15, 1989, and its reasonableness under Griffin, defendant contends that the evidence should have been suppressed because its seizure resulted from an illegal search by police officers on June 8, 1989, and therefore constituted “fruit of the poisonous tree.” (Wong Sun v. United States (1963), 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.) However, the probation officers gave two independent reasons for their decision to search and testified that the June 8 search did not influence them. The trial court heard this testimony, and the credibility of the witnesses was strictly within its purview. (Guerrieri, 194 Ill. App. 3d at 503, 551 N.E.2d at 771.) The trial court therefore correctly denied defendant’s motion to suppress the evidence, where it found the reasons for searching defendant and his property on June 15 were sufficiently distinguishable from the police officers’ search on June 8 to be purged of any taint from it. See Wong Son, 371 U.S. at 487-88, 9 L. Ed. 2d at 455, 83 S. Ct. at 417.

Defendant’s second contention of error concerns the trial court’s denial of his motion in limine to bar the State from using his 1988 conviction for possession of cocaine for impeachment purposes. Defendant argues that, based on the trial court’s ruling, he decided not to testify because he believed that the State’s use of the 1988 conviction to impeach him would have been too prejudicial. However, in Luce v. United States (1984), 469 U.S. 38, 43, 83 L. Ed. 2d 443, 448, 105 S. Ct. 460, 464, the United States Supreme Court held that a defendant must testify at trial in order to raise and preserve for review his claim that it would be improper for the prosecution to impeach his testimony with evidence of a prior conviction. (Accord People v. Rush-Bey (1987), 152 Ill. App. 3d 17, 22, 503 N.E.2d 1193, 1195-96.) Therefore, where defendant has failed to properly preserve this issue, he is precluded from raising it on appeal.

The third issue we address is whether defendant was proved guilty beyond a reasonable doubt. To obtain a conviction for the unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of the drugs and that the drugs were in his immediate possession and control. (People v. Gallagher (1990), 193 Ill. App. 3d 566, 569, 550 N.E.2d 255, 256; People v. Evans (1986), 143 Ill. App. 3d 236, 238, 492 N.E.2d 1036, 1038.) Possession may be established by evidence of actual physical possession or constructive possession. Constructive possession exists where there is no actual personal present dominion over the narcotics, but there is an intent and a capacity to maintain control and dominion over them. Gallagher, 193 Ill. App. 3d at 569, 550 N.E.2d at 256-57.

Where possession is proved, the element of knowledge may be inferred from the surrounding facts and circumstances, and both knowledge and possession may be proved by circumstantial evidence. (Evans, 143 Ill. App. 3d at 239, 492 N.E.2d at 1038.) It is no defense that another had knowledge of the drugs and control of them, as defendant’s possession may be joint with that of another. (People v. Birge (1985), 137 Ill. App. 3d 781, 790, 485 N.E.2d 37, 44.) Finally, whether the defendant had knowledge and possession are questions of fact to be resolved by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to guilt. People v. Scott (1987), 152 Ill. App. 3d 868, 871, 505 N.E.2d 42, 45.

Review of the evidence in this case fails to uncover such weakness that it can be held that defendant was not proved guilty. Defendant admits that traces of cocaine and drug paraphernalia were found in his residence, a large sum of money was found on his person, and quantities of cocaine and marijuana were found in the trunk of his automobile. Defendant argues, however, that his apartment was rented by Lee Jacobs, and that in addition to Jacobs and defendant, several other people lived on the premises. Defendant also points to evidence that the trunk lock of his automobile was broken, thus allowing access by “any number of people,” and to evidence that defendant owned and operated a landscaping service which did business largely in cash, thus explaining the $1,051 in his possession at the time of the search. However, in reviewing the sufficiency of the proof, the appellate court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found proof beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Controlled substances discovered on premises, or in a vehicle, under the defendant’s control and in a place where he could have been, or should have been, aware of them give rise to an inference of knowledge and possession by defendant which may be sufficient to sustain a conviction for unlawful possession of controlled substances. (Scott, 152 Ill. App. 3d at 871, 505 N.E.2d at 45; People v. Evans (1979), 80 Ill. App. 3d 87, 92, 398 N.E.2d 1219, 1223.) Mere access by other persons to the area where drugs are found is insufficient to defeat a charge of constructive possession; if two or more people share immediate and exclusive control or share the intention and power to exercise control, then each has possession. (Scott, 152 Ill. App. 3d at 871, 505 N.E.2d at 45.) Therefore, the fact that Lee Jacobs or others may have had access to defendant’s apartment and the trunk of his car would not defeat the conclusion that defendant had constructive possession.

In addition, although one of defendant’s witnesses testified that he saw Jacobs with a scale and a bag containing white powder on the day of the search, the witness admitted that he did not tell the police about what he had seen, and his credibility was for the jury to decide. Furthermore, even if the jury chose to believe the witness’ testimony, this fact would not preclude a finding that defendant was in joint possession of the drugs with Jacobs. Based upon the evidence presented, we believe the jury could reasonably find that defendant had knowledge and possession of the drugs found herein. As for proof of defendant’s intent to deliver, the quantity of drugs along with the ammunition and drug paraphernalia found in the search entitled the jury to conclude that the drugs were possessed with an intent to deliver. See People v. Romero (1989), 189 Ill. App. 3d 749, 756, 546 N.E.2d 7,11.

Defendant’s final contention of error is that the prosecutor, in his closing argument, improperly commented upon defendant’s failure to produce a witness and improperly implied that defense counsel should have called as a witness someone counsel knew would refuse to testify. At trial, defendant presented evidence that Lee Jacobs, who shared defendant’s apartment, was seen at the residence on the day of the search in possession of a scale and a white powdery substance and that Jacobs may have used defendant’s automobile that day. In his closing argument, defense counsel argued that the controlled substances defendant was charged with possessing had probably belonged to Lee Jacobs. In his rebuttal argument, the prosecutor stated: “Why wasn’t Lee Jacobs called up here, subpoenaed and asked was this your stuff? He could have plead [sic] the Fifth, said, no, I’m not going to answer that. They have that power.” Defendant’s objection to the argument was overruled, but the trial court directed the prosecutor to move on to a different point.

As a general rule, it is improper for the State to comment on a defendant’s failure to present a witness when that witness is equally accessible to both parties; however, when a defendant injects a witness’ name into his defense and locating that witness is within a defendant’s control or knowledge, comments on the failure to produce the witness are not improper. (People v. Doe (1988), 175 Ill. App. 3d 371, 377, 529 N.E.2d 980, 985; People v. Adams (1985), 109 Ill. 2d 102, 120-21, 485 N.E.2d 339, 345, cert, denied (1986), 475 U.S. 1088, 89 L. Ed. 2d 730, 106 S. Ct. 1476.) It is a reasonable and fair inference that people who are living with a defendant at the time of the offense are more accessible to the defendant than to the State. (Doe, 175 Ill. App. 3d at 378, 529 N.E.2d at 985; People v. Bianchi (1981), 96 Ill. App. 3d 113, 116, 420 N.E.2d 1187, 1190.) In the instant case, defendant and Lee Jacobs were living in the same apartment at the time of the offenses, and it was defendant’s evidence that injected Jacobs’ name into the trial. Therefore, it was not improper for the prosecutor to comment upon defendant’s failure to produce Jacobs as a witness.

However, it was improper for the prosecutor to suggest that defense counsel should have called a witness whom he knew would refuse to answer questions. It has been often held that it is improper for a party to call a witness if the party has reason to believe the witness will invoke his fifth amendment privilege against self-incrimination before the jury. (People v. Natty (1985), 134 Ill. App. 3d 865, 869-70, 480 N.E.2d 1373, 1377; People v. Myers (1966), 35 Ill. 2d 311, 334, 220 N.E.2d 297, 311, cert, denied (1967), 385 U.S. 1019, 17 L. Ed. 2d 557, 87 S. Ct. 752.) Here, therefore, the prosecutor’s comments misled the jury as to the ability of defense counsel to call Lee Jacobs and have him assert his fifth amendment privilege.

Improper comments or arguments will be deemed sufficiently prejudicial so as to result in reversible error when the remarks constitute a material factor in the defendant’s conviction or result in substantial prejudice. (People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68, 76.) In determining whether the prosecutor’s comments constituted prejudicial error, the test employed is whether the jury would have reached a contrary verdict had the improper remarks not been made and, in so determining, reference must be made to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. Witted, 79 Ill. App. 3d at 165, 398 N.E.2d at 76.

It is well established that an accused is guaranteed a fair trial, not one totally free from error; accordingly, where the evidence adduced is so overwhelming that a conviction would, of necessity, result even if the error were eliminated, a court on review will not reverse the trial court’s judgment. (People v. Bianchi (1981), 96 Ill. App. 3d 113, 117, 420 N.E.2d 1187, 1191.) In the instant case the cocaine and cannabis with which defendant was charged with possessing with intent to deliver were discovered in the trunk of defendant’s automobile, and a search of defendant’s person uncovered more than $1,000 in cash. Moreover, drug paraphernalia, a weapon, ammunition, and a large sum of money were seized from defendant’s apartment. We have previously noted the impeachment of defendant’s witness who raised the issue that the drugs could have belonged to Lee Jacobs instead of defendant. Given the evidence of defendant’s guilt adduced at trial and lack of credible evidence supporting the defense expounded at trial, reasonable grounds do not exist for believing that the remark prejudiced the jury’s deliberations and affected its verdict, and therefore the error should be deemed harmless.

Accordingly, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

LEWIS, J., concurs.

JUSTICE HARRISON,

dissenting:

I believe the prosecutor’s comments regarding defendant’s ability to call Lee Jacobs and have him assert his fifth amendment right against self-incrimination constituted reversible error. I disagree with the majority’s conclusion that the evidence adduced in the instant case was “so overwhelming” that a conviction would have resulted even had the fallacious statements not been made. Given the evidence that Jacobs might actually have been the person to whom the controlled substances belonged, the erroneous inference that defendant could have called Jacobs to assert the privilege and thus bolster defendant’s innocence by refusing to incriminate himself created substantial prejudice. Defendant was entitled to have his guilt or innocence determined by the jury without prejudicial comment or argument. People v. Popely (1976), 36 Ill. App. 3d 828, 836, 345 N.E.2d 125,131.

Further, to view these remarks as harmless error is to sanction the prosecution’s boldfaced misstatement of the law. This I refuse to do, especially where no curative instruction was given the jury to clarify the misperceptions caused by these comments. Although the jury was instructed on the purposes of argument, if error of this nature were deemed so easily cured, the prosecution could improperly advise the jury and argue harmless error in any case. (See People v. Eddington (1984), 129 Ill. App. 3d 745, 776-77, 473 N.E.2d 103, 125.) For these reasons, I respectfully dissent.


author: JUSTICE HOWERTON JUSTICE LEWIS,

text:
    LARRY N. BRUMMET, Plaintiff-Appellant, v. MICHAEL J. FAREL, Defendant (Larry D. Brummet, Defendant-Appellee).
    Fifth District
    No. 5 — 90—0358
    Opinion filed August 2, 1991.
    LEWIS, J., dissenting.

      Pratt & Callis, P.C., of Granite City, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stephen R. Swofford, Dawn A. Sallerson, and Gary J. Bazydlo, of counsel), for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

The circuit court ruled that plaintiff made judicial admissions in a pretrial deposition, and on the strength of those admissions, granted summary judgment for defendant. We reverse, holding that the admissions were evidentiary, not judicial, admissions.

Plaintiff was injured while riding as a passenger in a truck driven by his father, defendant. The truck collided with a car driven by Michael Farel.

In support of his motion for summary judgment, defendant attached plaintiffs deposition testimony:

“Q. Do you know whether he [father] applied his brakes or not as he got over to the rail?
A. I really can’t answer that. I really don’t know.
Q. At any time before the impact between the two vehicles, did your dad’s truck cross the center line?
A. No.
Q. So your recollection of this is your dad was in his own lane of traffic, this other car comes toward him and he pulls over to the right as far as he could go and there is an impact?
A. Yes.
Q. And the impact, as I understand what you are saying here, it occurred right along the east side of that northbound traffic; in other words, on the right-hand guard rail?
A. Yes.
* * *
Q. And now I forgot to ask you one other thing. Do you see or do you claim that your father in driving the truck that evening and being in this accident did anything wrong?
A. No.
Q. He didn’t do anything wrong?
A. No.
Q. His conduct and his driving had absolutely nothing to do with how the accident occurred, is that a true statement?
A. Yes.”

In opposition to defendant’s motion for summary judgment, plaintiff stated:

“A deposition was taken of Michael Farel on May 10, 1989 at that time, Mr. Farel stated, Pg. 13, T am heading southbound, And I noticed and everyone else noticed that — off in the distance that the headlights were coming, you know, it looked like the headlights were in our lane, you know, coming straight at us. And someone said from the back seat, you know, is this a one way street, cause this guy was coming straight in our lane.’ ‘The crest of the hill I could see clearly that the car was driving a straight line and in my lane. He was in the southbound lane coming north, completely within the confines of the lane. And I slowed at that point and veered as far as I could.’ ”

Plaintiff argues that there is conflict over who crossed the center line, precluding summary judgment.

We look to the pleadings, depositions, admissions, and affidavits to determine if there is an issue of material fact. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.

Summary judgment is proper only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt the right thereto. (Fisher v. Crippen (1986), 144 Ill. App. 3d 239, 493 N.E.2d 1204, citing Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 456 N.E.2d 958.) Summary judgment is a drastic remedy and should be awarded with due care and caution. (Rivan Die Mold Corp. v. Stewart Warner Corp. (1975), 26 Ill. App. 3d 637, 325 N.E.2d 357.) In deciding whether to grant summary judgment, a court must construe the evidence strictly against the movant and liberally in favor of the opponent (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 415 N.E.2d 397); however, when defendant files a motion for summary judgment, plaintiff must oppose a motion for summary judgment with evidence of defendant’s negligence. Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 504 N.E.2d 243.

The dispositive issue in this case is whether plaintiff’s statements are judicial admissions.

A judicial admission is a (1) deliberate, (2) clear, (3) unequivocal, (4) statement of a party, (5) about a concrete fact, (6) within that party’s peculiar knowledge. Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301.

“Admissions come in two varieties, judicial and evidentiary. A judicial admission is conclusive upon the party making it; it may not be controverted at trial or on appeal. Judicial admissions are not evidence at all but rather have the effect of withdrawing a fact from contention.” (M. Graham, Evidence Text, Rules, Illustrations and Problems, at 146 (1983) (hereinafter cited as Graham).) Included in this category are admissions made in pleadings, formal admissions made in open court, stipulations, and admissions pursuant to requests to admit. Graham, at 146.

Evidentiary admissions, on the other hand, may be controverted or explained by the party. Evidentiary admissions may be made in, among other things, pleadings in a case other than the one being tried, pleadings that have been superseded or withdrawn, answers to interrogatories, and other statements made pursuant to Federal Rule of Evidence 801(dX2) (Fed. R. Evid. 801(d)(2)). Graham at 146.

Insofar as discovery is concerned, answers to interrogatories and testimony at evidence and discovery depositions may be treated as judicial admissions (Van’s Material Co. v. Department of Revenue (1989), 131 Ill. 2d 196, 545 N.E.2d 695; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill App. 3d 562, 390 N.E.2d 60; Albright v. Parr (1984), 126 Ill. App. 3d 464, 467 N.E.2d 348; Hansen v. Ruby Construction Co. (1987), 164 Ill. App. 3d 884, 518 N.E.2d 354), and the legal effect of those admissions may be tested by summary judgment proceedings. Young v. Pease (1983), 114 Ill. App. 3d 120, 448 N.E.2d 586; Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301.

The general rule, however, is qualified. It applies only when a party’s testimony, taken as a whole, is unequivocal. The rule is inapplicable when the party’s testimony is inadvertent, or uncertain, or amounts to an estimate or opinion rather than a statement of concrete fact. In addition, the rule is inapplicable when the facts relate to a matter about which the party could easily have been mistaken, such as swiftly moving events preceding a collision in which the party was injured. Graham at 146; See McCormack v. Haan (1960), 20 Ill. 2d 75, 169 N.E.2d 239.

Defendant argues that Finley v. Mercer County (1988), 172 Ill. App. 3d 30, 526 N.E.2d 635, controls this case. The issue in Finley was whether a stop sign had been twisted long enough to give the defendant county constructive notice of its condition. The county filed a motion for summary judgment arguing there was no issue of material fact as to whether it had notice of the sign’s condition. In support of his motion for summary judgment, defendant attached plaintiffs’ depositions, wherein plaintiffs admitted they had traveled the intersection a week before the accident and the sign was not twisted. While the motion was pending, plaintiffs produced and deposed another witness who testified that the stop sign had been twisted three months prior to the collision. Finley held that summary judgment was proper because plaintiffs were bound by their deposition testimony.

There is a distinction between Finley and this case. In Finley plaintiff’s witness’ testimony was developed only after defendant had filed its motion for summary judgment, and the witness’ perceptions in Finley went to notice of the condition of the stop sign — a static condition. In this case there are conflicting perceptions of eyewitnesses to a fast-moving car wreck — a fluid event, rather than a static condition.

The “swiftly moving event” exception to the general rule more appropriately allows the trier of fact to evaluate credibility and resolve conflicts in the testimony. Automobile accident cases often turn on the perceptions of the eyewitnesses, and the total picture of the event cannot rest on one witness’ testimony alone. Treatment of a declaration as a judicial admission rather than an evidentiary admission “depends upon an evaluation of all [the] testimony, and not just a part of it [ ] *** [and] upon an appraisal of [the] testimony in the light of the testimony of the other witnesses and a consideration of their respective opportunities to observe the facts about which they testify. McCormick on Evidence, pp. 513-516; 9 Wigmore on Evidence, 3rd ed., sec. 2594(a).” (McCormack, 20 Ill. 2d at 78, 169 N.E.2d at 241.) These qualifications of the general rule serve several important policies, not the least of which is the restraint of judicial comment on the credibility of witnesses. If the court chooses to treat a declaration of a party that has been contradicted by other witnesses as a judicial admission, the court, in effect, has commented on credibility, i.e., it has found one to be more worthy of belief than the other.

In this case, plaintiff said defendant did not drive the truck across the center line. A codefendant, however, testified in a deposition that defendant had driven the truck across the center line. In finding that plaintiff made a judicial admission, the circuit court necessarily found plaintiff’s version more credible than that offered by the codefendant, a role traditionally and wisely either reserved to a jury, or, in a bench trial, an act withheld until the proof is closed. We are mindful that the ruling made by the circuit court has a practical effect: after all, under most circumstances it makes sense to accept plaintiff’s version, because it relieves the trier of fact of resolving a paradox — namely a party's assertion that he or she is not believable when he or she said “X.” In the case at bar, of course, that paradox will be present when plaintiff, in effect, takes the position that the jury should not believe his statement that “defendant did nothing wrong.” Ordinarily, that ruling would be one to be endorsed. Here, however, the rapidly moving, startling events cause us to make an exception. After all, credibility itself depends in part on the ability and opportunity to observe, and under these circumstances, an exception should be made to the general rule that imposes upon a party all risks contained within the declarations they make. Therefore, plaintiff’s statements should be treated as evidentiary, rather than judicial admissions. Plaintiff, by producing conflicting evidence, has presented a genuine issue of material fact. The circuit court’s order granting defendant’s motion for summary judgment, therefore, is reversed, and we remand for further proceedings.

Reversed and remanded.

WELCH, J., concurs.

JUSTICE LEWIS,

dissenting:

I respectfully dissent from the majority’s opinion treating the plaintiff’s statements as evidentiary, rather than as judicial, admissions.

The majority properly cites the law, but then proceeds to carve out an exception for swiftly moving events. “A judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar knowledge.” (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 480, 508 N.E.2d 301, 303.) Insofar as discovery is concerned, answers to interrogatories and testimony in evidence and discovery depositions may be treated as judicial admissions. Van’s Material Co. v. Department of Revenue (1989), 131 Ill. 2d 196, 545 N.E.2d 695; Hansen v. Ruby Construction Co. (1987), 164 Ill. App. 3d 884, 518 N.E.2d 354.

The majority states correctly that the rule applies only when a party’s testimony taken as a whole is unequivocal. I believe that his testimony in the discovery deposition, taken as a whole, is unequivocal. The law is also clear that, having made judicial admissions so adverse to his own claims, the plaintiff cannot effectively contradict them by attempting to adopt inconsistent evidence which might be produced by other witnesses. Hansen, 164 Ill. App. 3d 884, 518 N.E.2d 354; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1979), 71 Ill. App. 3d 562, 390 N.E.2d 60.

Finley v. Mercer County (1988), 172 Ill. App. 3d 30, 526 N.E.2d 635, and Van’s Material Co. (131 Ill. 2d 196, 545 N.E.2d 695), also strongly support my position.

McCormack v. Haan (1960), 20 Ill. 2d 75, 169 N.E.2d 239, relied upon by the majority, is inapposite. In that case the court found that even though the statement of plaintiff was a judicial admission, it did not follow that he was exonerated from responsibility because it was clear that he had other duties to perform from which the jury could find liability.

I would affirm the order of the circuit court granting defendant’s motion for summary judgment.


author: JUSTICE CHAPMAN

text:
    In re MARRIAGE OF DANNY RIEMANN, Petitioner-Appellee, and JOYCE MARIE RIEMANN, Respondent-Appellant (Boatmen’s National Bank of Hillsboro et al., Respondents in Discovery-Appellees).
    Fifth District
    No. 5 — 89—0728
    Opinion filed June 26, 1991.

      Duane D. Young, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellant.
    Kelly D. Long of Hillsboro, for appellee Boatmen’s National Bank.
    No brief filed for other appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This dissolution of marriage action was commenced on August 25, 1988. On approximately February 2, 1989, Joyce Marie Riemann, appellant, mailed to Boatmen’s National Bank and Farm Credit Services of West Central Illinois (the banks) the subpoena duces tecum set forth below:

“SUBPOENA DUCES TECUM
YOU ARE COMMANDED to appear to produce the following documents at 500 East Monroe Street, Suite 900, Springfield, Illinois, on Monday, February 20, 1989, at 9:00 a.m.
YOU ARE COMMANDED ALSO to bring the following: Re accounts in the name of Danny B. Riemann, R.R., Farmersville, Illinois, 62533, d/b/a Riemann Brothers, R. 1, Box 101, Harvel, Illinois 62538. A true and accurate copy of all financial statements submitted to you in the past five years by Danny B. Riemann or Riemann Brothers Partnership in your possession or control.
YOUR COMPLIANCE WITH THIS SUBPOENA, BY MAIL, BEFORE THE DATE STATED WILL ALLEVIATE THE NEED TO APPEAR.”

The banks filed their objections to the subpoena duces tecum on February 10 and 17, 1989. There were no Supreme Court Rule 201(k) statements contained in the objections. (134 Ill. 2d R. 201(k).) The banks argued that the subpoenas were improper because the documents sought were not “returnable to court” and that compliance with Rule 201(k) was not required because a subpoena duces tecum is not a discovery device. The trial court agreed, quashed the subpoenas, and ordered appellant to pay $150 in attorney fees and expenses related to the filing of the objections. Respondent appeals.

Supreme Court Rule 201(k) provides:

“Every motion with respect to discovery shall incorporate a statement that after a personal consultation and reasonable attempts to resolve differences the parties have been unable to reach an accord.” (Emphasis added.) 134 Ill. 2d R. 201(k).

The subpoena duces tecum when used alone is independent of the discovery rules and therefore can be classified as a nondiscovery device. (People ex rel. Fisher v. Carey (1979), 77 Ill. 2d 259, 265, 396 N.E.2d 17, 21.) Because this form of a subpoena duces tecum is a non-discovery device, any objections to its issuance need not contain a Rule 201(k) statement. The materials sought in such a subpoena technically must be returned to the court. (Fisher, 77 Ill. 2d at 265, 396 N.E.2d at 19; see also People v. Hart (1990), 194 Ill. App. 3d 997, 552 N.E.2d 1.) However, a subpoena duces tecum when coupled with a notice to take the deposition of the person to whom it is directed under Rule 204(a) (134 Ill. 2d 204(a)) is clearly a discovery procedure requiring any objections to it to contain a Rule 201(k) statement.

The facts before us clearly indicate that the subpoenas set forth above, no matter how classified, were improper. They were neither returnable to court nor accompanied by a notice to take the deposition of the custodian of the records. (Jones v. Continental Casualty Co. (E.D. Va. 1981), 512 F. Supp. 1205; Turner v. Parsons (E.D. Pa. 1984), 596 F. Supp. 185.) It is unclear whether the subpoena duces tecum set forth earlier was intended to come under Rule 204(a), a discovery procedure, or an attempt to utilize only the section 2 — 1101 subpoena (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1101), technically a nondiscovery procedure. (Fisher, 77 Ill. App. 3d 259, 396 N.E.2d 17.) We conclude that the problem with our inability to classify the subpoena duces tecum rests with appellant, the party seeking the documents. Appellant could have easily come within the provisions of Rule 204(a) by attaching to the subpoena duces tecum a notice to take the depositions of the custodians of the material sought. We note also that while section 2 — 1101 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1101) does not specifically provide for notice for service of subpoenas to be furnished, appellant, under Supreme Court Rule 206(a) (134 Ill. 2d R. 206(a)), would have been required to notify all counsel of any deposition.

Appellant did not meet these requirements. She made no attempt to depose anyone, and there is no indication in the record that she notified the petitioner, whose financial records were being sought, of the service of the subpoenas. While courtesy among counsel and judicial efficiency might be fostered by the use of a Rule 201(k) conference under the circumstances of this case, the supreme court has said that the subpoena duces tecum is independent of the discovery rules. (Fisher, 77 Ill. 2d at 265, 396 N.E.2d at 29.) Therefore, the banks were not required to comply with Rule 201(k).

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: PRESIDING JUSTICE RARICK

text:
      In re MARRIAGE OF WAYNE DAVIS, Petitioner-Appellee, and BETTY DAVIS, Respondent-Appellant.
    Fifth District
    No. 5 — 90—0307
    Opinion filed June 27, 1991.
    Rehearing denied August 13, 1991.

      Hoefert & Perica, P.C., of Alton, for appellant.
    Barbara Crowder, of Crowder & Taliana, of Edwardsville, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court;

Respondent, Betty Davis, appeals from the order entered by the circuit court of Madison County granting the petition for declaration of invalidity of marriage filed by petitioner, Wayne Daws, through his guardian. We affirm.

Betty and Wayne Davis were originally married in December of 1958. In August of 1978, Wayne Davis was declared incompetent, and Wayne’s sister purportedly was appointed as guardian of Wayne’s person and estate. The marriage of Betty and Wayne subsequently was dissolved in April of 1979 in Missouri. On July 17, 1982, however, Betty and Wayne remarried in Las Vegas, Nevada, while Wayne’s sister was still the guardian of her brother’s estate and person. After their second marriage, Betty and Wayne resided in Missouri and then in Florida. Eventually Betty was appointed guardian of her husband’s estate and person in September of 1983 with the consent of Wayne’s sister. Betty and Wayne continued to live together as husband and wife in Florida until September of 1987. At that time, Wayne returned to Illinois. Guardianship was returned to his sister in January of 1989. In the order retransferring guardianship, the court also authorized Wayne’s sister to proceed in Illinois to have the second marriage of Wayne and Betty declared void. The court noted Betty expressly consented to Illinois’ jurisdiction over her. Wayne’s sister thereupon filed a petition for declaration of invalidity of marriage on February 21, 1989. Betty responded that the petition was untimely filed and that the trial court lacked subject matter jurisdiction over the matter. The trial court ruled Betty was estopped from asserting the defense of the guardian’s petition being time barred because of her knowledge of Wayne’s disability. The court further held the petition was timely because of the tolling of the limitation period as a consequence of the parties’ residing outside Illinois after the second marriage ceremony. The court concluded the marriage of Betty and Wayne was invalid and accordingly granted the guardian’s petition. A new guardian has since been substituted for Wayne’s sister, who passed away during these proceedings.

Betty argues on appeal the trial court did not have subject matter jurisdiction to grant the declaration of invalidity of her marriage to Wayne as the 90-day time limit of section 302 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 302) had already passed. Section 302 states in part:

“A declaration of invalidity of marriage under paragraphs (1) through (3) of Section 301 [in this instance, incapacity] may be sought by any of the following persons and must be commenced within the times specified:
(1) for any of the reasons set forth in paragraph (1) of Section 301 [again, incapacity], by either party or by the legal representative of the party who lacked capacity to consent, no later than 90 days after the petitioner obtained knowledge of the described condition.” (Ill. Rev. Stat. 1989, ch. 40, par. 302.)

Betty points out that Wayne’s sister had knowledge of the described condition on the very day of the parties’ second marriage. She had been appointed as guardian of Wayne’s person and estate long before the parties’ second marriage and in fact continued in that capacity for over V-k years after the ceremony. Moreover, she had attempted to talk Wayne and Betty out of their impending second marriage; therefore, she obviously was aware of the marriage’s occurrence. Consequently, Betty believes the 90-day time limit began to run on the date of the parties’ second marriage, July 17, 1982. Because Wayne’s sister did not file the petition to invalidate the marriage until February 21, 1989, some 61k years later, Betty concludes the trial court lacked subject matter jurisdiction to rule on the matter. In general, we would agree. Section 13 — 208 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 208), however, provides that a statute of limitations is tolled during those periods the defendant is outside of the State of Illinois unless he or she is subject to the jurisdiction of the court under a long-arm provision, in this instance maintaining a matrimonial domicile in Illinois. (See Ill. Rev. Stat. 1989, ch. 110, par. 2— 209(a)(5).) Betty and Wayne did not reside in Illinois at any time after their second marriage; consequently, no marital domicile had ever been created here. With no applicable long-arm provision, no action for invalidity of the parties’ marriage could be brought in Illinois until Betty expressly consented to jurisdiction over her. Wayne certainly was in no position to bring the action himself, and a person who is in fact incapacitated cannot be held accountable for delay in seeking redress through the courts. (See Payton v. Payne (1980), 90 Ill. App. 3d 892, 896, 414 N.E.2d 33, 36.) Moreover, Betty’s conflict of interest, being both wife and guardian, prevented any failure to act on her part being held against a successor guardian. (See Payton, 90 Ill. App. 3d at 896-97, 414 N.E.2d at 36-37.) This being so, the 90-day limit could not start to run until Betty consented to Illinois jurisdiction and a guardian with the power to file a petition to have the marriage declared invalid was appointed. (See In re Driskell (1990), 197 Ill. App. 3d 836, 841, 555 N.E.2d 428, 430-31.) These two conditions did not occur until January 24, 1989. As a result, the 90-day period did not begin to run until January 24, 1989. With the petition being filed on February 21, 1989, less than one month later, we must conclude the action was timely filed. The trial court therefore correctly denied Betty’s challenge based on the statute of limitations. See Payton, 90 Ill. App. 3d at 897, 414 N.E.2d at 37.

We also find no error in the trial court’s ruling that Wayne Davis lacked the capacity to enter into a valid marriage contract. Capacity to contract requires that a party be of sufficient mental ability to appreciate the effect of what he is doing. (See Larson v. Larson (1963), 42 Ill. App. 2d 467, 473, 192 N.E.2d 594, 597.) Wayne as a ward did not have the capacity to enter into a marriage. He had and has been under a guardianship of both his estate and person since 1978, and at least one doctor believes Wayne remains in need of such guardianship. Even Betty admits Wayne is mentally incompetent. When a party lacks the capacity to enter into a marriage at the time of being solemnized, the court is to enter a judgment declaring such marriage invalid. (See Ill. Rev. Stat. 1989, ch. 40, par. 301; see also Larson, 42 Ill. App. 2d at 473, 192 N.E.2d at 597.) Sufficient evidence existed on the record here to establish Wayne Davis did not understand the nature, effect, duties, and obligations of his second marriage; consequently, the trial court’s findings are not against the manifest weight of the evidence. See Driskell, 197 Ill. App. 3d at 845-46, 555 N.E.2d at 433-34.

For the aforementioned reasons, we affirm the judgment of the circuit court of Madison County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.