author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADFORD ALBRIGHT, Defendant-Appellant.
    Third District
    No. 3-92-0977
    Opinion filed October 7, 1993.

      Kalian & Grnacek, of Joliet (Kenneth A. Grnacek, of counsel), for appellant.
    James Glasgow, State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

Defendant Bradford Albright appeals from an order of the circuit court of Will County denying his petition to rescind a summary suspension of his driver’s license arising out of his arrest for driving under the influence of alcohol. We affirm.

In the early morning hours of October 2, 1992, after an evening out with a friend, defendant was returning home via Route 53 and West River Road near Wilmington, Illinois. A police officer driving behind defendant saw defendant’s vehicle weaving within his lane and saw the car cross the solid white line on the right side of the lane. Although defendant’s vehicle did not leave the pavement or cross the center line, it did cross the line on the right side by at least a tire width three times. The officer stopped defendant because of improper lane usage, and after smelling alcohol on his breath and noticing bloodshot eyes, he gave defendant some field sobriety tests which defendant failed. Defendant was arrested for two traffic violations: improper lane usage and driving under the influence of alcohol.

Defendant refused a chemical test to determine his blood-alcohol level, and as a consequence was served with an immediate notice of summary suspension of his driving privileges pursuant to section 11— 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1). Defendant petitioned to rescind the suspension on the ground that the officer lacked reasonable grounds for the stop of his vehicle and lacked probable cause to arrest defendant for driving under the influence of alcohol or any other offense. At the hearing, the arresting officer testified that he stopped defendant only because he believed defendant was committing improper lane usage. The trial judge found insufficient facts to support a charge of improper lane usage, but held that the stop was proper because the officer did have grounds for a reasonable, articulable suspicion that defendant was driving under the influence of alcohol. Accordingly, the petition to rescind the suspension was denied, and this appeal followed.

This court has held that improper lane usage does not occur unless the defendant endangers himself, pedestrians, or other vehicles when he moves out of his lane of traffic. (People v. Halsall (1989), 178 Ill. App. 3d 617, 619, 533 N.E.2d 535, 536.) On appeal defendant contends that the trial court was correct in its ruling that no improper lane usage violation occurred but that the court erred in using an objective test in determining that the investigative stop was proper because the officer had grounds to reasonably and articulably suspect that defendant was driving while intoxicated. He insists that a subjective test is the only appropriate test for judging an investigatory stop and that the trial court should only consider what the officer actually believed at the time, not what he could have believed. Furthermore, he argues that the trial court should not be allowed to articulate a suspicion for the officer which the officer did not entertain at the time.

Defendant relies upon People v. Faletti (1991), 215 Ill. App. 3d 61, 63, 573 N.E.2d 867, 869, where this court held that, in order to justify an investigatory stop of an automobile, an officer must have an articulable and reasonable suspicion that the motorist is in violation of the law. In Faletti the trial court had held that a single, momentary crossing of the center line was not alone a sufficient basis for an investigatory stop, and we affirmed. Here defendant argues that since he did not leave his lane of traffic and did not endanger himself or others, the officer could not have had a reasonable belief that defendant was committing the offense of improper lane usage.

An investigatory stop can be made without probable cause to make an arrest. (People v. Glisan (1992), 233 Ill. App. 3d 469, 471, 599 N.E.2d 1337, 1338.) Furthermore, erratic driving, even weaving within the lane of traffic in which the vehicle is traveling, has been held to provide sufficient basis for an investigatory stop of a motor vehicle. (People v. Loucks (1985), 135 Ill. App. 3d 530, 533, 481 N.E.2d 1086, 1087; People v. Houldridge (1983), 117 Ill. App. 3d 1059, 1062, 454 N.E.2d 769, 771-72.) Thus, although defendant’s conduct may not have provided sufficient cause for an arrest for improper lane usage, we hold that it was sufficient to justify an investigatory stop.

In a factually similar case, People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750, where the defendant was stopped for illegal lane usage and ultimately charged with driving while under the influence of alcohol, the court noted that the correct standard for an investigatory stop is not the “probable cause” requirement for arrest or search but “the less exacting test of whether the police had a reasonable, articulable suspicion of criminal activity to warrant the stop.” (165 Ill. App. 3d at 94, 518 N.E.2d at 754.) The court also stated:

“Lastly, the fact that Officer Rust did not charge the defendant with improper lane usage is insignificant for purposes of our analysis because, as we have stated previously, an officer ‘need not charge a minor violation when, after a stop, he discovers a serious one.’ People v. Patterson (1980), 88 Ill. App. 3d 144, 146, 410 N.E.2d 223, 224.” 165 Ill. App. 3d at 96, 518 N.E.2d at 755.

In the case at bar, the officer did charge defendant with improper lane usage but the facts were found by the trial court to be insufficient to support that charge. The validity of the suspected improper lane usage violation was immaterial once a more serious violation was discovered. See People v. Repp, 165 Ill. App. 3d 90, 518 N.E.2d 750.

Another case where an investigatory stop resulted in a charge of driving under the influence of alcohol is People v. Houlihan (1988), 167 Ill. App. 3d 638, 521 N.E.2d 277. There an officer stopped the defendant’s truck because it was making a loud noise like a snowplow on a bare street. The officer discovered a garbage can jammed under the truck, and after field sobriety tests were administered, charged the defendant with driving while intoxicated. The officer testified that he did not observe defendant violate any laws in his presence, and the trial court suppressed the State’s evidence on the ground that there was no reasonable basis for the stop. The appellate court reversed, noting that the stop was appropriate because there was reason to believe the defendant was violating traffic laws requiring safe vehicles and vehicles that do not make excessive or unusual noise. The court cited many cases holding that a traffic violation provides a sufficient basis for a stop and held:

“It was entirely reasonable for [the officer] to pursue and stop the vehicle even though he did not observe a crime being committed where the State was able to specify statutes which were possibly violated by defendant’s conduct.” 167 Ill. App. 3d at 645, 521 N.E.2d at 282.

The decision in People v. Houlihan supports our view that the officer making an investigatory stop need not state the precise criminal violation prompting the stop as long as the State can specify the statute which was possibly violated by defendant’s conduct. The test is whether the officer had a reasonable and articulable suspicion that defendant had committed a crime, not whether he correctly articulated the probable violation. Here, as in Houlihan, the facts disclose reasonable grounds warranting an investigative intrusion.

Both parties agree that the standard of review is whether the trial court’s decision on the petition to rescind was manifestly erroneous. In this case, the officer’s investigatory stop of defendant’s vehicle was justified; thus, we conclude that the trial court’s refusal to rescind the summary suspension of defendant’s driving privileges was not erroneous.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERMAINE AMMONS, Defendant-Appellant.
    Third District
    No. 3—92—0564
    Opinion filed October 7, 1993.

      Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James Glasgow, State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

A jury convicted the defendant, Jermaine Ammons, of first degree murder. He was thereafter sentenced to 50 years’ imprisonment. He appeals, alleging the trial court erred by allowing the State to replay an audiotape of his statement to the police during rebuttal closing argument. We reverse.

The record of the trial shows that on October 13, 1991, two of the State’s witnesses were riding around Joliet in a Chevrolet Blazer owned by a member of the Vice Lords gang. While driving along Woodruff Road, they saw a group of people standing on a street corner. One of the persons in that group walked onto the street and began firing a gun at them, while several others also fired shots at them. Several of the bullets hit the Blazer. One of the bullets went through a wall of a nearby home and hit the victim, Ola Kelly, causing her death.

Detective Thomas Stein testified that he spoke to the defendant about the shooting. Defendant acknowledged he was a member of the Gangster Disciples gang. He told Stein that he and two other people saw the Blazer and knew it belonged to a rival gang member. The defendant said that each of them had a gun and was firing at the Blazer. The defendant never told Stein that he was just trying to scare the individuals in the Blazer.

Stein also testified that the defendant later gave a lengthy statement on audiotape concerning the incident. This tape was introduced into evidence and played to the jury during Stein’s testimony.

The defendant’s trial testimony was substantially the same as his taped statement, except that at trial he testified that he only fired the shots to scare the occupants of the Blazer. He claimed he did not aim at or intend to hit the people in the vehicle. In fact, most of the shots he fired hit trees.

In closing argument, defense counsel argued that the tape was not a fair characterization of the defendant’s thoughts when he began talking to the police. In rebuttal, the State asked the trial court for permission to replay the defendant’s taped statement. Over defense counsel’s objection, the 18-minute tape was replayed in its entirety for the jury.

On appeal, the defendant argues that the trial court erred in permitting the State to replay his taped statement. Specifically, he alleges that replaying of the tape tended to overemphasize the State’s most critical piece of evidence. The State responds that no error occurred, or, if error did occur, it was invited or harmless.

We initially note that reading from a trial transcript during closing arguments is improper. The jury must pass upon the whole testimony free of the overemphasis given any portion of it by verbatim repetition during the trial’s waning moments. See People v. Hoggs (1974), 17 Ill. App. 3d 67, 307 N.E.2d 800; People v. Willy (1921), 301 Ill. 307, 133 N.E. 859.

Based on the foregoing principles, we find that allowing the State to replay the 18-minute audiotape during its rebuttal closing argument was improper. Allowing such evidence to be reintroduced dramatically overemphasized its credibility. As such, the defendant was severely prejudiced.

We also find that the error was not invited by the defendant. Defense counsel did comment on the tape in his closing argument. However, we note that he was merely questioning the credibility of the statement. He argued that when the defendant made the taped statement he had been talking to the police for over two hours and, as such, the tape was not the original version of what was on the defendant’s mind when he shot at the victims. We find that defense counsel’s comments did not amount to an invitation for the State to replay the entire tape. At most, they were comments the State could have objected to as a mischaracterization of the evidence. The proper procedure would then have been for the State to ask the court to strike the comments from the record.

We also decline to find that the error was harmless. While error may be harmless where the evidence of the defendant’s guilt is overwhelming (see People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301), that situation does not exist in the case at hand. Here, in order to obtain a murder conviction, the State needed to show that the defendant intended to kill the individuals in the Blazer. The most critical piece of evidence used to establish this fact was the defendant’s taped statement. The State had little other evidence to establish the defendant’s intent. Defendant testified at trial that he did not shoot at anyone and only fired shots into the trees in an attempt to scare the individuals.

The judgment of the circuit court of Will County is reversed and this case is remanded for a new trial.

Reversed and remanded.

McCUSKEY, P.J., and STOUDER, J., concur.


author: JUSTICE BRESLIN

text:
    RANDY FLOWERS, Plaintiff-Appellant and Cross-Appellee, v. THE CITY OF MOLINE, Defendant-Appellee and Cross-Appellant.
    Third District
    No. 3-93-0076
    Opinion filed October 4, 1993.
    — Rehearing denied November 18, 1993.

      Duane Thompson, of Braud/Warner, Ltd., of Rock Island (Walter D. Braud, of counsel), for appellant.
    Jeffrey D. Lester, of Moline, for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Randy Flowers, challenged the actions of the Moline city council, arguing that the city had attempted to change its form of government without complying with the requirements of the Illinois Municipal Code (65 ILCS 5/1 — 1—1 et seq. (West 1992)). The city moved to dismiss based on the plaintiff’s lack of standing and the court’s lack of authority to enjoin acts which were lawful and within the city’s authority. The trial court held that the plaintiff had standing but that it could not enjoin the acts of the city. We affirm.

In June 1992, the Moline city council passed an ordinance which modified the powers and duties of the mayor, the city administrator and the city council. Specifically, the ordinance provided that the city council would appoint and remove the city administrator, that the mayor would appoint the members of the boards and commissions with the advice and consent of the city council and that the city administrator would appoint and remove the heads of city departments. On the same day, the city council passed a resolution which called for submitting the ordinance in question for a public referendum in November 1992.

Shortly before the election, the plaintiff filed a complaint for declaratory and injunctive relief, seeking to keep the proposed referendum off the ballot and to enjoin the city from enacting the challenged ordinance. The plaintiff argued that the effect of the ordinance is to change the form of city government from strong mayor form to managerial form. The city moved to dismiss, arguing that the plaintiff lacked standing to sue and that the complaint sought to enjoin public officials from acts that were lawful and within their authority.

The plaintiff appeals the court’s decision that the city acted lawfully. The city cross-appeals on the issue of standing.

First we must address the issue of whether the plaintiff has standing to sue in this matter.

The purpose of the standing requirement is to assure sufficient sharpness in defining the issues before the court. (Di Santo v. City of Warrenville (1978), 59 Ill. App. 3d 931, 376 N.E.2d 288.) In order to possess standing, the plaintiff must prove (1) that he has suffered a distinct and palpable injury; (2) that the injury is fairly traceable to the defendant’s conduct; and (3) that the injury is substantially likely to be redressed by the grant of the requested relief. (Immigration & Naturalization Service v. Chadha (1983), 462 U.S. 919, 77 L. Ed. 2d 316, 103 S. Ct. 2764.) In the context of an action for declaratory relief, there must be an actual controversy between the parties and the plaintiff must possess some personal claim or right that is capable of being affected by the court’s decision. (Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 524 N.E.2d 561.) An “actual” controversy is required to distinguish justiciable issues from hypothetical disputes; it is not meant to prevent resolution of concrete disputes. Miller v. County of Lake (1980), 79 Ill. 2d 481, 404 N.E.2d 222.

In Kluk v. Lang (1988), 125 Ill. 2d 306, 531 N.E.2d 790, the Illinois Supreme Court determined that the plaintiffs possessed standing to challenge the constitutionality of a statute by virtue of being residents and voters in the legislative district in question. In that case, the plaintiffs challenged the statutory scheme which allowed political party committees to fill legislative vacancies through appointment. The court held that the right to be represented through a lawfully established mechanism was possessed equally by all the members of the electorate and no other plaintiffs could bring the issues into sharper focus or bring a keener interest to the litigation.

In the case at bar, the right to be governed in a manner provided by statute and altered only according to law is shared equally by all residents and voters of the City of Moline. The plaintiff is one such resident and voter. No one could bring a keener interest to the controversy or sharpen the issues better than the plaintiff. Therefore, we hold that the plaintiff has standing to bring the suit at issue.

The next issue is whether the trial court erred in dismissing the plaintiff’s complaint.

In 1961, the General Assembly adopted statutory guidelines which allowed cities and villages to elect the managerial form of government. (See 65 ILCS 5/5 — 1—1 et seq. (West 1992).) Subsequently, the 1970 Illinois Constitution was adopted which provided that certain municipalities could choose to be home rule units and gave home rule units the power to adopt, alter or repeal a form of government provided by law subject to approval by referendum. Ill. Const. 1970, art. VII, §§6(a), (f).

In People ex rel. Hanrahan v. Beck (1973), 54 Ill. 2d 561, 301 N.E.2d 281, the Illinois Supreme Court addressed the issue of whether a home rule unit may adopt an ordinance pursuant to its home rule powers and thereby supersede a statute antedating the present constitution. The court recognized that the 1970 Constitution was designed to drastically alter the relationship between local and State governments. While, previously, local governments had been limited to those powers expressly authorized, the new constitution allowed home rule units to exercise greater autonomy in the determination of their government and affairs. Thus, the court held that a home rule unit could supersede a statute enacted prior to the 1970 Constitution through the use of its home rule powers.

The case now before us presents the same scenario as considered in Hanrahan. The statutory provisions for adopting the managerial form of government had been in existence for nine years when the 1970 Constitution became effective. Therefore, the city was free to supersede the statute through the exercise of its home rule powers.

The plaintiff argues that the city must choose among various forms of government provided by statute without changing these forms. However, the constitution requires only that the forms of government be provided “by law.” A city ordinance is “law” within the city. (Archibald v. Board of Education (1959), 19 Ill. App. 2d 554, 154 N.E.2d 867.) Thus, the city has chosen a form of government provided “by law.” Further, if the plaintiff is correct in his interpretation, then the city may only “adopt” or “repeal” a form of government. If the city may not tailor its form of government to its own specific needs, the word “alter” as it appears in the 1970 Constitution has been rendered meaningless. Such an interpretation is contrary to the well-established rule that statutes must be read so as to give meaning to each word and phrase. (Hirschfield v. Barrett (1968), 40 Ill. 2d 224, 230, 239 N.E.2d 831 (“the fundamental rule that each word, clause or sentence must, if possible, be given some reasonable meaning [citations] is especially apropos to constitutional interpretation”).) Thus we find that the city did not exceed its authority by altering its form of government, provided such change was approved by appropriate referendum.

The plaintiff argues that the proposition submitted at the referendum was vague and ambiguous because it did not advise voters that they were voting on whether to change the form of city government. Although we have already held that the city acted within its authority in altering its form of government, we find it appropriate to determine whether the proposition submitted to the voters was deficient.

In Hoogasian v. Regional Transportation Authority (1974), 58 Ill. 2d 117, 317 N.E.2d 534, the plaintiff attacked the sufficiency of the referendum which approved the establishment of the Regional Transit Authority. The court held that it is not necessary for the ballot to set forth details of the proposition to be voted upon or otherwise educate the voters on its merits. A sufficient ballot need only present the proposition in a manner that the voter has a clear opportunity to express his choice on the issue. Further, the proposition need not reference any source of information to which the voter might turn for assistance in making a decision on the issue.

In the case at bar, the following proposition was submitted to the voters:

“Shall certain powers of the Mayor, City Administrator, and City Council of the City of Moline, Illinois, be reassigned and transferred so that the City Council appoints and removes the City Administrator; the Mayor appoints members of the Boards and Commissions, with the advice and consent of the City Council; and the City Administrator appoints and removes the Department Heads of the City?”

This proposition clearly sets out the changes to be made in city government. It informs the voter of which functions are to be transferred and the party who will subsequently be responsible for those functions. Although the proposition contains no date on which these changes are to be made, neither did the proposition upheld in Hoogasian. We find that the proposition sufficiently informed voters of the changes upon which they were to cast their ballots.

In reviewing a motion to dismiss, the appellate court must accept all well-pleaded facts as true and determine whether any set of facts may be proved which would entitle the plaintiff to recovery. (Toys ‘R’ Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 574 N.E.2d 1328.) Based on the previous discussion, we hold that the plaintiff cannot allege a set of facts which would entitle him to relief. Therefore, the trial court did not err in dismissing the complaint.

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

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.


text:
    JERALD W. McDONALD et al., Plaintiffs-Appellants, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3—93—0030
    Opinion filed October 8, 1993.
    Gerald L. Hall, of Pekin, for appellants.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (L. Lee Smith, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

On March 27, 1991, the plaintiffs, Jerald W. McDonald and Jerri Lynn McDonald, suffered storm damage to their home. On April 27, 1993, the plaintiffs filed this lawsuit against the defendant, American Family Mutual Insurance Co., to recover the difference between the amount the insurance company paid for the loss under a homeowner’s insurance policy and the amount the plaintiffs claimed. The trial court granted the defendant’s motion to dismiss, finding that the lawsuit was not filed within the policy’s limitations period for filing suit. The plaintiffs appeal. We reverse.

The record reveals that in August 1990, the plaintiffs purchased a homeowner’s insurance policy from the defendant. On March 27, 1991, the plaintiffs suffered a covered loss under the policy as a result of a bad storm. On April 5, 1991, the plaintiffs submitted to the defendant a local contractor’s estimate of the damage at $9,582.50. On May 3, 1991, the defendant’s property claim specialist sent the plaintiffs a letter stating that he was requesting another estimate of the damage and that he would then review and assess the loss. On May 13, 1991, the plaintiffs submitted a second estimate from an architect indicating that the entire roof would have to be replaced, and on June 3, 1991, they submitted a third estimate from a construction company indicating that it would cost $8,293 to repair the damage.

On September 6, 1991, the defendant’s property loss manager sent the plaintiffs a letter offering to settle the claim for $2,407. On October 10, 1991, the defendant’s claim representative sent the plaintiffs a check for that amount and stated that the check was in payment for the replacement cost damages to the home based on its evaluation and that the file was “being closed.”

On November 14, 1991, the defendant’s property loss manager sent the plaintiffs another letter requesting that the plaintiffs submit a sworn, signed proof of loss form and suggesting that they review page 7, paragraph 3(e) of the policy. The actual form sent on that date was entitled, “PROPERTY STATEMENT OF CLAIM.” The plaintiffs completed the form and sent it to the defendant on November 19, 1991. On December 12, 1991, the defendant sent the plaintiffs a letter denying the plaintiffs’ claim for any additional compensation. In that letter, the defendant also stated that under the terms of the policy the plaintiffs had until April 15,1992, to file suit.

Thereafter, the plaintiffs waited until April 27, 1992, to file this suit alleging that they were entitled to recover $6,745.10. The defendant filed a motion to dismiss the complaint, alleging that it was not timely filed under the limitations provision of the insurance policy. The trial court granted the defendant’s motion to dismiss. Thereafter, the trial court denied the plaintiffs’ motion to reconsider and the plaintiffs appealed.

On appeal, the plaintiffs claim that they timely filed their lawsuit within the limitations provision of the policy. That provision provides:

“We may not be sued unless there is full compliance with all the terms of this policy. Suit must be brought within one year after the loss or damage occurs. However, this one year period is extended by the number of days between the date the proof of loss is submitted and the date the claim is denied in whole or in part.”

Paragraph 3(e) of the policy states the following with regard to proof of loss:

“What You Must Do in Case of Loss *** submit to us, within 60 days after we request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief: (1) the date, time, location and cause of loss; (2) the interest you and others have in the property ***; (3) the actual cash value *** of each item damaged or destroyed; (4) other insurance that may cover the loss; (5) changes in title, use, occupancy or possession of the property period; (6) the plans and specifications of any damaged *** structure we may request; (7) detailed estimates for repair of the damage; (8) receipts for any increased costs to maintain your standard of living while you reside elsewhere, and records pertaining to any loss of rental income; and (9) evidence supporting a claim under the Credit Card, Fund Transfer Card, Forgery and Counterfeit Money protection. This should state the cause and amount of loss.”

The plaintiffs argue that the defendant never requested proof of loss before denying the claim and thus the plaintiffs were only required to submit a good-faith proof of loss and that its submission of the various estimates was a proof of loss sufficient to toll the one-year limitations period set forth in the policy. The plaintiffs contend that good-faith proof is sufficient to apprise the insurer of the character and extent of the loss where no particular form is required by the policy.

In response, the defendant argues that the policy plainly provided for a proof of loss and that the plaintiffs did not submit the required proof of loss until November 19, 1991. Therefore, the defendant argues, the limitations period was only tolled from the date the proof of loss was submitted through December 12, 1991, the date the claim was finally denied, a period of 23 days.

We note that the provision in an insurance policy requiring proof of loss is intended to give the insurer the opportunity to investigate the claim, with the view towards securing information as to any possible defense. (Second New Haven Bank v. Kobrite, Inc. (1980), 86 Ill. App. 3d 832, 408 N.E.2d 369.) Nonetheless, where one has in good faith furnished proof sufficient to apprise the insurer of the character and extent of the claim, and no particular forms are required by the policy or by statute, such person shall not be barred because of the nature or manner in which the proof was submitted and the insurer had due notice thereof. Wiacek v. Hospital Service Corp. (1973), 15 Ill. App. 3d 698, 304 N.E.2d 727.

In the instant case, we find that the defendant insurer denied the plaintiffs’ claim on October 10, 1991, when it sent the plaintiffs a check for $2,407 and indicated that the file would be closed. Thus, the defendant never did request a proof of loss under the policy before the time the claim was denied. While the policy provided for a possibility of a proof of loss if requested, it was not requested before the claim was denied, and therefore we find that the limitations period could be tolled by the plaintiffs’ submission of a good-faith proof of loss. In that regard, we find that the plaintiffs’ submission of the second estimate on May 3, 1991, was a good-faith submission of proof of loss. That estimate, along with the other two estimates submitted by the plaintiffs, adequately apprised the insurer of the nature and amount of the claim and afforded the insurer sufficient notice to investigate any possible defense. Additionally, we note that the “proof of loss form” sent by the defendant after it paid the claim and closed the file was significantly different from the form described in the policy. Under the circumstances, we find that the limitations provision of the policy was tolled for 138 days from May 3, 1991, through October 10,1991, and therefore, the plaintiffs’ claim was timely filed.

Accordingly, the judgment of the circuit court of Tazewell County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY and SLATER, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY PASTEWSKI, Defendant-Appellant.
    Third District
    No. 3—92—0394
    Opinion filed October 12, 1993.
    Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James Glasgow, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Stanley Pastewski, was charged with attempted arson and was found not guilty by reason of insanity. Thereafter, the trial court committed the defendant to the Illinois Department of Mental Health and Developmental Disabilities (hereinafter the Department of Mental Health) for a period not to exceed 14 years. The defendant appeals. We reverse and remand for proceedings consistent with this opinion.

The record shows that on May 14, 1992, a hearing was held at which defense counsel stipulated to a report which indicated that the defendant was subject to involuntary commitment. A discussion was then held concerning the maximum period to which the defendant could be committed. The defendant argued that the maximum term was seven years, less day-for-day good time credit and 180 days of good conduct credit. The State argued that based on a prior arson conviction, the defendant was eligible for an extended-term sentence. The State therefore requested that 14 years be set as the maximum term of commitment.

Following arguments, the trial court found the defendant to be subject to involuntary admission on an inpatient basis and committed the defendant to the Department of Mental Health. Based on the prior conviction, the court found that the defendant was eligible for an extended term of commitment. The court set the maximum term the defendant could serve at 14 years, less credit for 622 days already served. The court denied the defense request for 180 days of good conduct credit. However, it allowed the defendant day-for-day credit and set August 31,1997, as the maximum period of commitment.

On appeal, the defendant first argues that the trial court erred in using the extended-term sentencing provision to determine his period of commitment. He alleges that the term of commitment for an insanity acquittee should never exceed the nonextended term of imprisonment for the offense. We agree.

The maximum period for an involuntary commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior, before becoming eligible for release had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity. (Ill. Rev. Stat. 1991, ch. 38, par. 1005— 2 — 4(b).) We note that the Illinois Supreme Court has explicitly stated that “[t]he maximum period of commitment for an insanity acquittee may not be based upon the extended-term statute.” People v. Palmer (1992), 148 Ill. 2d 70, 94, 592 N.E.2d 940, 951.

In the case at hand, the State asks this court to limit the holding of Palmer. The State argues that our supreme court’s holding in Palmer was expressed in overbroad terms. We note that the issue presented in Palmer was whether the extended-term statute could apply to an insanity acquittee when the underlying crime involved brutal and heinous behavior. Our supreme court concluded that it could not. However, as noted above, it did not limit its holding' to that issue. Instead, it specifically held that an insanity acquittee’s term of commitment could not be based upon the extended term statute. Since our supreme court did not limit its holding, we are bound by its ruling. Accordingly, we conclude that the trial court erred in utilizing the extended-term statute to increase the defendant’s period of commitment.

The defendant next argues that the trial court erred in refusing him an additional 180 days of good conduct credit when it determined the length of his commitment term.

The Department of Corrections shall prescribe rules and regulations for the early release on account of good conduct of persons committed to the Department. Such rules and regulations shall provide that the Director of the Department may award up to 180 days’ additional good conduct credit for meritorious service in specific instances as the Director deems proper. (Ill. Rev. Stat. 1991, ch. 38, par. 1003— 6 — 3(a)(3).) With regard to good conduct credit, an individual in the custody of the Department of Mental Health should be treated the same as an individual in the custody of the Department of Corrections. See In re Commitment of Coppersmith (1982), 108 Ill. App. 3d 161, 438 N.E.2d 1267.

In the case at hand, we decline to find that the trial court erred in refusing to award the defendant an additional 180 days of good conduct credit. As the statute cited above indicates, the awarding of good conduct credit is discretionary. Therefore, whether the defendant is entitled to the credit is a matter for the Director of the Department of Mental Health to decide. However, on remand, when the trial court recalculates the defendant’s release date, it should inform the Director that the defendant may be released 180 days prior to that date if the Director finds that the defendant is entitled to all of his good conduct credit.

For the reasons indicated, the judgment of the circuit court of Will County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

STOUDER and LYTTON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MONROE LAMPKIN, Defendant-Appellant.
    Third District
    No. 3-91-0157
    Opinion filed October 4, 1993.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    William Herzog, State’s Attorney, of Kankakee (Roland W. Burris, Attorney General, and Marcia L. Friedl, Assistant Attorney General, of counsel), for the People.
   JUSTICE BRESLIN

delivered the opinion of the court:

The defendant was charged with the April 7, 1979, murders of two police officers and a civilian. Following a jury trial, he was convicted of all three counts and was sentenced to death. On direct appeal to the Illinois Supreme Court, his convictions were reversed and the cause was remanded for a new trial. (People v. Lampkin (1983), 98 Ill. 2d 418, 457 N.E.2d 50.) On remand, the defendant was again convicted by a jury. On appeal to this court, the defendant’s convictions were reversed and the cause remanded for a third trial. In so doing, this court found that one witness improperly testified to certain facts which were the product of post-hypnotic recall. (People v. Lampkin (1990), 193 Ill. App. 3d 570, 550 N.E.2d 278.) On remand, the defendant was again convicted. The defendant appeals, contending that the same occurrence witness again testified based on improper post-hypnotic recall. The defendant also argues that the State improperly elicited testimony relating to his post-arrest silence. We find that the defendant received a fair trial and we affirm.

The defendant’s cause proceeded to trial by jury a third time on January 24, 1991. The evidence adduced at that trial revealed that the defendant was a passenger in a Thunderbird driven by his brother, Cleveland Lampkin. The two men travelled southbound on Interstate 57, near Paxton, Illinois, shortly before 9 p.m., on April 7,1979.

Melvin Lynch testified that on the evening of April 7, 1979, he and his wife were driving south on 1-57 in a white van. As they did so, they paced themselves with three other southbound vehicles: a red pickup truck driven by David and Clyde Lampkin, who were the defendant’s brothers; a silver Thunderbird driven by the defendant’s brother Cleveland Lampkin and in which the defendant was a passenger; and an old dark-colored Buick. As the four vehicles approached the ramp for Paxton, a blue unmarked State police car, driven by Illinois State Trooper Michael McCarter, apparently attempted to stop the other above-mentioned vehicles. McCarter’s brother-in-law, Donald Vice, was a passenger in McCarter’s unmarked police car. The Lynches pulled off on the shoulder of the highway and stopped, as did the other vehicles, except for the Thunderbird. It sped off in the passing lane at high speed.

At that point, a white Paxton police car, driven by Paxton police officer William Caisse, came down the southbound ramp and pulled off onto the shoulder of the highway.

Lynch testified that Trooper McCarter exited his unmarked squad car, in uniform, walked to the old, dark-colored Buick, and said something to the driver. McCarter then came to the van and asked Mrs. Lynch for her driver’s license, and she handed it to him. McCarter told Mrs. Lynch that she would have to pull up the road to where Officer Caisse had stopped since he was going to have to run down the car that did not stop. As the van and the Buick pulled to the rear of Officer Caisse’s Paxton police car, McCarter passed the other vehicles and stopped in front of the red pickup. After talking with and exchanging papers with Caisse, McCarter got back in his car and drove south at high speed. Caisse, who was in uniform, then came back to the Lynch van and explained that he would get behind the three stopped vehicles with his lights on for safety.

Mr. Lynch testified that eventually Officer Caisse got out of his squad car and told them that they would have to pull up to where Trooper McCarter had the other vehicle stopped. Caisse and the other three vehicles that had stopped then drove for about a mile until they came to a viaduct where the Thunderbird and McCarter’s car were stopped. The Thunderbird was just south of the viaduct, half on the shoulder of the highway and half on the grass. McCarter’s car was also south of the viaduct, but was behind the Thunderbird. The red pickup truck stopped behind McCarter, followed by the Lynch van, the old Buick, and Caisse’s squad car.

After hearing two or three gunshots to the south on the western side of the viaduct, Mr. Lynch saw Trooper McCarter, who was standing by the driver’s side rear tire, fire one round in an elevated, southwesterly direction. He then walked at a fast pace north past the driver’s side of the van with his service revolver in his right hand. After a conversation with Officer Caisse, McCarter walked back to the viaduct on the left side of the line of vehicles. At that time, Caisse pulled his car into the right lane of the highway and drove toward the viaduct, where he stopped with his car behind McCarter’s and directly under the viaduct, half on the shoulder and half on the highway. As McCarter passed by the van, Mr. Lynch noticed a blood stain on the lower left side of the trooper’s back. After his car was parked, Caisse got out and assisted McCarter to Caisse’s squad car. Caisse placed McCarter in the passenger seat with his feet hanging out on the ground. Lynch never saw McCarter move again.

Sometime after Officer Caisse assisted Trooper McCarter, Paxton police Sergeant Larry Hale drove up behind the line of vehicles. Sergeant Hale, who was in uniform, got out of his squad car and ran under the viaduct to the left front fender of Caisse’s car. Hale drew his service revolver and fired two rounds in an elevated, southwesterly or westerly direction. Thereafter, Hale and Caisse removed a shotgun from the trunk of Caisse’s car. Caisse kept the shotgun.

While the officers were getting the shotgun out, David Lampkin exited the red pick-up truck and retrieved a shotgun from the back. David Lampkin then shot Officer Caisse. Caisse had been standing with his weapon diagonally in front of him while he looked in a southwesterly direction toward the viaduct. As Caisse fell to the ground, David Lampkin ran to Caisse’s squad car, put the barrel of his weapon against Trooper McCarter’s chest, and fired again. At that point, the Lynches drove away. As they drove off, Lynch saw David Lampkin looking toward the top of the south end of the viaduct.

The testimony of Hobert Litteral, from the second trial, was read at the third trial. Hobert Litteral testified that he was driving north on 1-57 on the evening in question. He saw a State trooper who appeared to be wounded pursuing a man in a bright colored “reddish” or brown jacket, which was made of vinyl or leather. The man in the jacket was running north and jumped over a guardrail and appeared to be going over the embankment. Litteral identified the jacket the defendant had been wearing as similar to the jacket he saw on the fleeing man.

Another passerby who testified as to what he saw on 1-57 on the night of April 7, 1979, was William Brinegar, who stopped his car on Route 17 and looked down and saw two cars below. Prior to trial, the defendant filed a motion in limine to exclude Brinegar’s testimony, which the trial court denied, finding that Brinegar could testify as to his prehypnotic recall. Brinegar described seeing two men in the area of McCarter’s car, one lying on the ground next to the rear of the car and the other sitting on the ground at a 90-de-gree angle to the car with his shoulder against the door post and his head on the front passenger’s seat. Hearing a “pop” and then a series of pops or shots as he went back to his car, Brinegar drove off.

Paxton city police Sergeant Larry Hale testified about what happened after he arrived at the scene. Seeing two muzzle flashes near the upper part of the Route 17 overpass, he fired twice in that direction with his handgun. Hale then got a shotgun out, handed it to Caisse, and warned him to put on a bulletproof vest. Going back to his own car, Hale radioed for help and then got a shotgun and bulletproof vest out of his trunk. While at his car, Hale heard a car door slam on the overpass and also heard' gunshots. After walking back to the area of Caisse’s car, David Lampkin shot Hale in the leg. David Lampkin fired again, but Sergeant Hale fired back four times with his shotgun, spinning David Lampkin around and killing him.

When other officers and emergency personnel arrived at the scene they found Trooper McCarter dead, sitting in the front seat of Officer Caisse’s car. Vice was found dead on the ground next to McCarter’s car, while Cleveland Lampkin lay facedown on the passenger’s side front seat of that car with his legs hanging out on the ground. Caisse and David Lampkin were found on the ground near Caisse’s car.

Captain William Willis, an Illinois Department of Law Enforcement investigator, testified that he arrested the defendant just before midnight on April 8, 1979, in a ditch near the intersections of Routes 9 and 45 near Paxton. The defendant had been shot in the wrist and was wearing a reddish-brown leather jacket. No weapon was found on or near the defendant. After the defendant was given his Miranda warnings, the defendant told the investigator that a State trooper shot him.

At this point in Investigator Willis’ testimony, the prosecutor asked the investigator the following question: “After this conversation what, if anything did you do with the defendant ***[?]” Willis responded that “[the defendant] said T don’t have to say anything’ after he said, T — you know, I didn’t have a gun.’ ” At that point, defense counsel objected and moved for a mistrial. Outside the presence of the jury, the respective counsel argued their positions on whether a mistrial should be granted. Twenty-eight minutes after defense counsel made his initial objection, the trial court sustained the objection and instructed the jury to disregard the last question and response, but denied the mistrial.

Ballistics expert Krail Lattig testified that the projectile recovered from the body of Cleveland Lampkin was consistent with having been fired by Trooper McCarter’s handgun. The projectiles recovered from the body of Officer Caisse and the chest of McCarter were consistent with- the rifle found next to David Lampkin. The projectile recovered beneath the body of David Lampkin was consistent with Sergeant Hale’s handgun. The projectiles recovered from the shirt of McCarter and from the body of Vice were apparently fired by the same weapon, but that weapon was not found at the scene. The cartridge cases recovered from the fence area and bridge' area of the Route 17 overpass did not match any of the weapons found at the scene.

Deborah Verges, a former forensic scientist for the Illinois Department of Law Enforcement, testified that tests revealed that the defendant had type 0 blood and that Cleveland Lampkin had type B blood. Verges further determined that blood scrapings from the concrete abutment at the Route 17 overpass on 1-57, "as well as the blood on casings discovered in that area, were type 0 and thus were consistent with the blood of the defendant and inconsistent with that of Cleveland Lampkin.

On appeal, the defendant argues that Brinegar was erroneously allowed to give hypnotically enhanced testimony that went beyond his prehypnotic recall. The defendant claims that Brinegar’s testimony at the third trial went beyond a statement he gave to police before he was hypnotized in several key respects. The defendant contends that he was prejudiced by the discrepancies between the two .versions because the trial testimony tended to show that it had to be the defendant who fired the gun from near the top of the viaduct because it indicated that Cleveland Lampkin, the only other possible suspect, had been mortally wounded earlier on in the gun battle.

In People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571, the Illinois Supreme Court addressed the question of whether a previously hypnotized witness may testify regarding his prehypnotic recollection. There, a witness testified that he observed the shooting of two police officers from inside his home. The witness underwent hypnosis to recall the license plate number of the vehicle the officers had stopped. Four days later, the witness identified the defendant as one of two men who had shot the officers. In Wilson, the supreme court noted that the main danger to prehypnotic testimony lies in the bolstered confidence that hypnosis may impart even to testimony based on prehypnotic recollection. Nonetheless, the court noted that a total bar on testimony derived from prehypnotic recollection would exact an unnecessary toll. The court stated that the proponent of such testimony should establish the nature and extent of the witness’ prehypnotic recall. The parties should also be permitted to present expert testimony to explain to the trier of fact the potential effects of hypnosis. Finally, the court held that the State must demonstrate to the court that the post-hypnotic identification of the defendant was anchored in the witness’ prehypnotic recollection.

Brinegar’s prehypnotic statement to the police stated in relevant part:

“While approaching the overpass, Brinegar observed one set of red lights flashing to the north side of the overpass on Interstate 57 southbound *** [Brinegar] then exited his vehicle, leaving the left front door open and went to the southwest corner of the bridge and looked down onto the southbound lanes. [He], at that time observed a gray 2-door unit sitting south of the overpass on the shoulder of southbound land. The gray unit’s left door was open and he noticed the glass was missing. [He] then observed a dark colored unit sitting directly below him or just south of the bridge, on the southbound shoulder. Both right doors on this dark colored unit were opened. At this time, he observed a person lying partially in the right front seat of the dark colored unit.
The shoulder and head of this individual were on the right front seat of the dark colored unit. [He] then noticed a man lying to the right rear of the dark colored unit, with his feet toward the west. Neither individual that he observed made any movements. William then heard a shot, turned and returned to his vehicle during which he heard five or six more shots. All shots that [he] heard sounded the same. [He] then drove his vehicle to the service road ***.”

The defendant points to six different discrepancies between Brinegar’s trial testimony and the above-quoted statement to police. First, Brinegar told police in his statement that he saw a person on the passenger’s side “lying partially in the right front seat of the dark colored unit” and that “the shoulder and head of this individual were on the right front seat” and that he did not make any movements. The defendant claims that this portion of his statement to police is somehow consistent with the possibility that the individual described lying in the right front seat was McCarter crouching down to avoid bullets. The defendant argues that the trial testimony precludes this possibility because Brinegar testified that the person he observed was “sitting on the ground” with his shoulder up against the door post and “lying at probably a ninety degree angle to the car.”

After carefully comparing the police report with the trial testimony, we fail to see how the trial testimony was any more inculpatory than the statement in the police report. If anything, the trial testimony gave more support to the defendant’s theory that the individual near the front seat was McCarter and not an incapacitated Cleveland Lampkin. As the State points out, a literal reading of Brinegar’s police statement would have more clearly than his trial testimony placed Cleveland Lampkin’s body in the position that Dan Grady testified that it was in when found at the scene. Grady testified that Cleveland’s body was half in and half out of the car and facedown. His upper torso was on the right seat as were both of his hands.

Second, the defendant complains that Brinegar noted in his police statement that he heard one shot followed by five or six more but that he testified at trial that the first shot was followed by a series of shots. The defendant argues that this “new detail” allowed the prosecutor to argue before the jury that the shots were fired in succession. We find the defendant’s argument unpersuasive. The prosecutor could have made the same argument using either the statement or the testimony. The police report distinguished the one shot from the five or six more which all occurred from the time Brinegar turned to his car and the time he reached his car. Further, all the shots sounded alike.

Third, the defendant argues that Brinegar should not have been allowed to identify the photograph of the scene which was taken of the two vehicles mentioned in the statement sometime after Cleveland’s body was removed from the vehicle but before Vice’s body was removed. We disagree. In view of the detail in Brinegar’s prehypnotic statement to police, we find that there was sufficient evidence to indicate that the witness’ post-hypnotic identification of the photo was anchored in the witness’ prehypnotic recollection. See People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571.

Finally, the defendant points to three other discrepancies between Brinegar’s statement and his trial testimony. Specifically, the color of the car (dark v. blue), the position of the person’s feet Brinegar saw lying in the rear passenger side door, and the use of the term “bodies” rather than terms such as “individuals” or “persons” to describe the people he saw lying in the vehicle. We find that the complained-of discrepancies were so insignificant that they were harmless. Moreover, we note that they were irrelevant to any theory of innocence suggested by the defendant.

After the second trial of this case, this court noted on appeal that it was concerned with the following discrepancies between the police report and trial testimony: (1) the police report did not mention the race of the individual Brinegar saw in the front doorway of McCarter’s car; (2) the police report stated that the individual did not move; and (3) there was no indication in the police report that Brinegar knew the direction from which the shots he heard were fired. In the third trial, Brinegar did not testify in contradiction to the police report on any of the points that were of concern to the appellate court after the second trial. Moreover, the claimed discrepancies in the third trial, unlike the discrepancies pointed out by this court after the second trial, were minor and insignificant. Further, they were not relevant in that the trial testimony was not in any way more inculpatory to the defendant than was the police statement. In sum, the trial testimony as a whole was consistent with the police report and only differed in very minor and insignificant detail, which was peripheral to the defense and which would only be natural given that the trial testimony was introduced some 12 years after the statement to the police. Thus, we conclude that the State met its burden of establishing that Brinegar’s testimony was based solely upon his independent, prehypnotic recall. See People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513.

The defendant next argues that the trial court erred when it failed to grant a mistrial but instead admonished the jury to disregard the arresting investigator’s unsolicited reference to the defendant’s post-arrest silence. The defendant relies on Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, in support of his assertion.

The actual holding of Doyle is that the due process clause bars the use of a defendant’s post-arrest silence for impeachment purposes. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240; Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) The Doyle court noted that “ ‘it does not comport with due process to permit the prosecution during trial to call attention to [the defendant's] silence.' (Emphasis in original.) (Greer v. Miller (1987), 483 U.S. 756, 763, 97 L. Ed. 2d 618, 629, 107 S. Ct. 3102, 3108, quoting Doyle v. Ohio (1976), 426 U.S. 610, 619, 49 L. Ed. 2d 91, 98, 96 S. Ct. 2240, 2245.) The fact that the prosecution did not elicit the response, but instead the remark was a spontaneous comment by the witness, mitigates in favor of a finding that the error was harmless. (United States v. Smith (5th Cir. 1981), 635 F.2d 411.) It has been found significant that in each of the cases in which the Supreme Court has applied Doyle, the trial court permitted specific inquiry or argument regarding the defendant’s post-arrest silence. Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.

In Greer, the Supreme Court held that an objection which was interposed before an improper question about post-arrest silence could be answered, and which was followed by an instruction to the jury to ignore the question, sufficed to prevent a Doyle violation from even occurring. The Court also considered that curative instructions were at least effective to prevent the prosecutorial misconduct of putting defendant’s post-arrest silence before the jury from rendering the trial fundamentally unfair. See United States v. Carter (5th Cir. 1992), 953 F.2d 1449.

In the instant case, the prosecutor did not elicit the complained-of remark of Investigator Willis. The remark was not responsive to the prosecutor’s question and was the only comment on the defendant’s silence at trial. The prosecutor did not focus on or highlight the defendant’s silence in his examination of the witnesses or in his closing argument. Moreover, the trial judge sustained the defendant’s objection and admonished the jury without repeating the question (thus not highlighting it) to disregard the comment some 28 minutes after it was made. Furthermore, the comment was not used for impeachment purposes, nor did it undermine any exculpatory defense offered by the defendant. Under the circumstances, we find that any error with respect to the remark was harmless.

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

Affirmed.

McCUSKEY, P.J., and BARRY, J., concur.


text:
    DARREL WEBER, Ex’r of the Estate of Joseph R. Weber, Deceased, Plaintiff-Appellee, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellant (Sharon Health Care Elms, Inc., Defendant).
    Third District
    No. 3—92—1019
    Opinion filed October 12, 1993.
    Paul C. Estes, of Hinshaw & Culbertson, of Peoria (W. Mark Rasmussen, of counsel), for appellant.
    Swain, Johnson & Gard, of Peoria (Mark D. Howard, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiff, Darrel Weber, brought this declaratory judgment action as executor of the estate of Joseph R. Weber, deceased. The decedent, a resident at the Sharon Health Care Elms, Inc., nursing home, allegedly wandered away from the home and eventually died from exposure to the elements. The plaintiff sought a declaration that an insurance policy issued by the defendant, St. Paul Fire and Marine Insurance Company, on behalf of the nursing home included coverage for exposure to treble damages under the Nursing Home Care Act (Act) (Ill. Rev. Stat. 1991, ch. 111V2, par. 4153 — 602). The trial court found that the insurance policy would provide coverage for treble damages under the Act if such damages were awarded in the underlying tort action previously filed by the plaintiff against the nursing home. The insurance company appeals from that decision and we reverse, finding that the action is not ripe for adjudication.

The record shows that the plaintiff filed a five-count complaint against the nursing home. One of the counts sought treble damages under the Nursing Home Care Act. The insurance company sent the nursing home letters on two occasions denying coverage to the nursing home for exposure to liability for treble damages under the Act. Thereafter, the plaintiff filed the instant declaratory judgment action against the insurance company. The insurance company filed a motion to dismiss the complaint contending that the plaintiff did not have “standing” because the action was “premature.” The trial court denied that motion. The parties subsequently filed cross-motions for summary judgment on the merits of the coverage issue. The trial court granted the plaintiff’s motion for summary judgment, finding that the policy included coverage for treble damages under the Nursing Home Care Act.

On appeal, the insurance company first argues that the trial court should have dismissed the complaint for lack of an actual controversy.

Initially, we note that the parties cite Reagor v. Travelers Insurance Co. (1981), 92 Ill. App. 3d 99, 415 N.E.2d 512, and Batteast v. Argonaut Insurance Co. (1983), 118 Ill. App. 3d 4, 454 N.E.2d 706, in their discussion of this issue. Those cases involve the use of the term “standing” in analyzing whether a party could maintain a declaratory judgment action. However, we find the term “standing” to be a misnomer and misleading in this context.

To maintain a declaratory judgment action, there must be an actual controversy between the parties capable of being affected by a determination of the case. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701.) A party has “standing” to bring an action when that party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. (See Black’s Law Dictionary 1405 (6th ed. 1990).) However, whether an action is “premature,” that is, not ripe for adjudication, focuses on an evaluation of the fitness of the issue for judicial decision at that point in time. See Board of Trustees of the Addison Fire Protection District No. 1 Pension Fund v. Stamp (1993), 241 Ill. App. 3d 873, 608 N.E.2d 1274.

In the instant case, it appears that the insurance company is challenging the ripeness of the issue, rather than the plaintiff’s general “standing” to bring the declaratory judgment action. Whether the plaintiff has a sufficient stake in the controversy prior to a judgment awarding triple damages in the underlying tort action, while in one sense related to the issue of ripeness, is a separate question. The insurance company is arguing the issue is not ripe at this stage. This question is distinguishable from the question of who has the right to bring such an action. The issue here is whether, absent a finding of liability and a judgment for triple damages in the underlying action, a determination of the insurance company’s obligation to indemnify is premature, regardless of who is bringing the action, i.e., insurer, insured, or injured third party.

Here, the insurance company apparently does not challenge its duty to defend the insured in the underlying action. Rather, the insurance company questioned whether it had a duty under the policy to indemnify if triple damages were awarded.

The duty to defend is much broader than the duty to indemnify, so that an insurer may be obligated to defend an action even though it may not, ultimately, be obligated to indemnify the insured. (Hertz Corp. v. Garrott (1990), 207 Ill. App. 3d 644, 566 N.E.2d 337.) The duty to defend is determined by the allegations of the complaint; however, the duty to indemnify will not be defined until adjudication of the action the insurer is called upon to defend. (Maryland Casualty Co. v. Chicago & North Western Transportation Co. (1984), 126 Ill. App. 3d 150, 466 N.E.2d 1091.) Thus, the issue of a duty to defend is generally ripe for adjudication soon after the occurrence giving rise to the claim. Whether or not there is a duty to indemnify, however, does not arise until an insured becomes legally obligated to pay damages in the underlying action. Bituminous Casualty Corp. v. Fulkerson (1991), 212 Ill. App. 3d 556, 571 N.E.2d 256.

A declaratory judgment, action is not intended to permit moot or hypothetical cases, or to enable parties to secure advisory opinions or legal advice from the court with respect to anticipated future difficulties, i.e., there must be an actual controversy between the parties. (Weary v. School District No. 189 (1974), 20 Ill. App. 3d 37, 312 N.E.2d 764.) Thus, a declaratory judgment action brought to determine an insurer’s duty to indemnify its insured, brought prior to a determination of the insured’s liability, is premature since the question to be determined is not ripe before adjudication in the underlying action. Bituminous Casualty Corp. v. Fulkerson (1991), 212 Ill. App. 3d 556, 571 N.E.2d 256.

In Reagor, the insurance company, after assuming the defense in the underlying tort action, withdrew, contending the policy it had issued did not cover the claim brought by the plaintiff. The tortfeasor/insured agreed the claim did not fall within the coverage of the policy. The plaintiff in the underlying action brought a declaratory judgment action to determine “coverage” under the policy. The Reagor court held the plaintiff had “standing” to maintain the action because it had a sufficient beneficial interest in the insurance policy. The court, however, did not distinguish between the insurer’s duty to defend and its duty to indemnify. Nor did it analyze whether determination of either duty would be premature. We view Reagor as a duty to defend case. Although there was a controversy as to whether the policy covered the alleged injury, the real issue from the standpoint of a ripeness analysis was whether the insurance company had a duty to defend the insured. The duty to indemnify would arise later. The issue of whether the insurance company had a duty to defend was not premature and could properly be adjudicated in the declaratory judgment action.

On the other hand, in Batteast there was no issue as to the duty to defend. In that case, a dispute arose as to the interpretation of a provision of the insurance policy. The question was whether three types of coverage, each limited to $1 million, could be aggregated resulting in coverage up to $3 million. The court distinguished Reagor, finding the action was premature because the right to any specific amount was contingent on a finding of liability in the underlying case. Resolution of the dispute would be unnecessary unless the amount received in the judgment exceeded $1 million. The issue in Batteast involved a duty to indemnify. Since resolution of that issue was contingent on a finding of liability in the underlying action, the declaratory judgment action was premature.

In the instant case, the insurance company has not challenged its duty to defend. It has only questioned its obligation to indemnify the insureds should triple damages be awarded in the underlying tort action. Since the issue of liability has not been adjudicated, nor has a judgment for triple damages been awarded, the issue raised by the plaintiff is not ripe for adjudication at this time. The trial court in effect issued an advisory opinion on the insurance company’s obligation to indemnify the insured in the hypothetical case that triple damages are awarded. Thus, the trial court erred in denying the insurance company’s motion to dismiss the action as premature.

Accordingly, the judgment of the circuit court of Peoria County is reversed.

Reversed.

LYTTON and STOUDER, JJ., concur.


author: JUSTICE CAHILL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MANUEL RIVERA, Defendant-Appellant.
    First District (4th Division)
    No. 1—91—2291
    Opinion filed August 5, 1993.
    — Rehearing denied September 8, 1993.

      Rita A. Fry, Public Defender, of Chicago (Beth I. Solomon and Vicki Rogers, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Cristine Cook, and Thomas J. Darman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAHILL

delivered the opinion of the court:

A jury found Manuel Rivera guilty of first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)) and attempted first degree murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 9 — 1). The trial judge sentenced him to concurrent terms of 50 years and 30 years in the Illinois Department of Corrections. On appeal the defendant contends: (1) the court erred when it failed to excuse two jurors who were parties to lawsuits pending in the circuit court of Cook County; (2) the jury instructions incorrectly stated the elements of attempted murder; (3) prosecutorial misconduct in closing argument deprived the defendant of a fair trial; and (4) his sentence was improper. We affirm.

The defendant was arrested for the murder of Marlon Wade and the attempted murder of Tran Brown after they were shot on the corner of Broadway and Sheridan in Chicago on September 30, 1989. The shooting occurred at approximately 11:45 p.m. when rival gangs stood on opposite sides of the street near Gill Park and flashed their gang sign at each other. Brown was a member of the Vice Lords; the defendant was a member of the Spanish Cobras.

Five witnesses testified at trial that they saw the defendant shoot Brown and Wade.

Virgilio Muniz and his girl friend Loretta Helean testified they were sitting on a bench in Gill Park when they saw the defendant, whom they knew as “Gigolo,” walk into the park and hide a gun in bushes about 15 feet from the bench. A few minutes later Muniz and Helean walked to the front of the park and saw a group of blacks on one comer of Broadway and Sheridan and a group of Hispanics on the opposite corner throwing bottles and shouting at each other. Then they saw the defendant run into the park, get the gun hidden in the bushes, and fire the gun five or six times at the group of black males across the street. Helean stated the defendant wore blue jeans and a white jacket. Muniz stated the defendant wore white “sweats.” Muniz was a member of the Latin Eagles gang.

Genarro Loza also was a member of the Latin Eagles. He testified he also was at Gill Park on September 30, 1989. Sometime after 11:30 p.m. he saw 25 black males walk to the corner of Broadway and Sheridan. He flashed the Latin Eagle’s gang sign at them, and they flashed back the Vice Lord’s gang sign. The Vice Lords began to throw bottles across the street; then Loza heard gunshots behind him. He ducked, and the Vice Lords turned and ran. Loza turned around and saw the defendant firing a gun. He had seen the defendant a few times before the shooting and knew he was a member of the Spanish Cobras.

Tran Brown, a member of the Vice Lords, was shot in the back of the knee. He was taken to the hospital where he identified Loza as the male he had seen flashing gang signs from the west side of Broadway. Brown testified he was standing across the street with a group of males when he saw the defendant run to the corner behind Loza, pull out a gun, and fire towards Brown and his group. As Brown turned to run, he saw Marlon Wade fall to the ground and then he felt a shot in the back of his knee.

Ramon Morgan, a friend of Marlon Wade, saw the defendant fire a gun into a group of males killing Wade and injuring Brown. He stated the defendant wore dark pants and a white turtle neck.

The defendant presented an alibi defense. Three witnesses testified on his behalf.

Daniel Gonzalez testified he was with the defendant on September 30, 1989, from 6 p.m. until 11:15 p.m. when he drove the defendant home. Gonzalez telephoned the defendant 15 minutes later at 11:30 p.m. and asked if he wanted to go back out. The defendant said he was going to sleep. Gonzalez stated the defendant wore jeans and a white jacket that night. He stated the defendant was known as “Gigolo” and he and the defendant were members of the Spanish Cobras. He further explained the Latin Eagles blamed a recent killing of one of their members on the Spanish Cobras.

The defendant’s mother testified she saw the defendant when he came home around 11 p.m. on September 30, 1989, and she did not see or hear him go out again that night.

The defendant’s father stated he heard the defendant come home around 11 p.m.

A jury found the defendant guilty of the murder of Wade and the attempted murder of Brown.

On appeal the defendant first contends the trial court erred when it did not excuse two jurors who were parties to lawsuits pending in the circuit court of Cook County. He cites section 14 of the Jury Act (Ill. Rev. Stat. 1989, ch. 78, par. 14), which states “[i]t shall be sufficient cause of challenge of a petit juror that he *** is a party to a suit pending for trial in that court.” The statute further provides “[i]t shall be the duty of the court to discharge from the panel all jurors who do not possess the qualifications provided in this Act, as soon as the fact is discovered.” Ill. Rev. Stat. 1989, ch. 78, par. 14.

The State maintains the defendant waived this issue because he had three unused peremptory challenges after the jury was selected. We agree.

Although the trial court lacks discretion to empanel a juror when that juror is disqualified by statute (People v. O’Malley (1986), 143 Ill. App. 3d 474, 493 N.E.2d 82), a defendant cannot complain when he does not exhaust his peremptory challenges (People v. Gonzalez (1992), 238 Ill. App. 3d 303, 606 N.E.2d 304; People v. Cunningham (1970), 123 Ill. App. 2d 190, 260 N.E.2d 10). In Cunningham, the defendant argued that the court erred when it refused to exclude members of the venire who were exposed to pretrial publicity. The trial court did not disqualify the members for cause, but instead expanded the voir dire examination to determine the effect of pretrial publicity on prospective jurors. After the jury was chosen, the defendant had 19 unused peremptory challenges. This court held the defendant must exhaust his peremptory challenges to preserve on appeal the argument of improper jury selection. The court reasoned the defendant must have thought the jury was fair and impartial because he did not exhaust his peremptory challenges. Cunningham, 123 Ill. App. 2d at 199, 260 N.E.2d at 14.

The Gonzalez court applied the same reasoning and held the defendant waived any argument challenging jury selection because he did not exhaust his peremptory challenges. The defendant in Gonzalez argued that the trial court made improper remarks during jury selection which implied that prospective jurors who had litigation pending would not be automatically disqualified. While holding the defendant waived this argument, the court also held the trial court did not violate any of the provisions governing jury selection. Gonzalez, 238 Ill. App. 3d at 323, 606 N.E.2d at 318.

We recognize neither Gonzalez nor Cunningham involved a juror who was a party to a pending lawsuit. But two additional cases provide further guidance. In Mathieu v. Venture Stores, Inc. (1986), 144 Ill. App. 3d 783, 494 N.E.2d 806, during trial, a juror informed the court that after he was sworn he was named a defendant in a civil suit. The defendant objected at trial. The court overruled the objection and refused to excuse the juror for cause. On appeal the court held the defendant failed to show prejudice and therefore refused to decide whether the trial court was required to excuse the juror for cause.

Similarly in People v. Foster (1990), 195 Ill. App. 3d 926, 552 N.E.2d 1112, the court held the defendant was not prejudiced by the trial court’s failure to excuse a prospective juror for cause. The defendant used a peremptory challenge to excuse the juror but still had unused peremptory challenges after the jury was selected. This court held that because the defendant did not exhaust his peremptory challenges, he was not denied a fair and impartial jury. The court stated, “Since the defendant has demonstrated no prejudice,- we do not find that the court’s action was error.” Foster, 195 Ill. App. 3d at 949, 552 N.E.2d at 1128-29.

We apply the reasoning of these cases and hold that a defendant who fails to exhaust his peremptory challenges cannot complain that the jury selection was improper.

Next the defendant argues the court erred when it tendered an attempted murder instruction which improperly defined murder under that charge. The court instructed the jury on murder and attempted murder but included only one definition for murder. The defendant cites People v. Harris (1978), 72 Ill. 2d 16, 377 N.E.2d 28 and People v. Trinkle (1977), 68 Ill. 2d 198, 369 N.E.2d 888, for the holding that a defendant tried for both murder and attempted murder is entitled to a separate instruction on the attempted murder charge which limits the murder definition to acts committed with the specific intent to kill.

The State concedes the attempted murder instruction was erroneous but maintains the defendant waived this argument because he did not object at the instruction conference, did not offer an alternative instruction, and did not raise the issue in his post-trial motion. People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 335 (when a party does not object to jury instructions, waiver is the rule).

The court erred in this case when it instructed the jury that the defendant was guilty of attempted murder if it found the defendant intended to kill or do great bodily harm to Tran Brown. (People v. Felder (1992), 224 Ill. App. 3d 744, 586 N.E.2d 729.) Although the defendant did not object or offer an alternative instruction, Supreme Court Rule 451(c) provides for judicial review of substantial defects in jury instructions to correct grave errors, even though a party fails to object. (134 Ill. 2d R. 451(c).) That is, where a case is close factually, fundamental fairness requires the jury to be properly instructed. When intent to kill is evident from the facts, our supreme court has held that although an attempted murder instruction is erroneous, it is harmless. People v. Leger (1992), 149 Ill. 2d 355, 597 N.E.2d 586; see also People v. Pasch (1992), 152 Ill. 2d 133, 171, 604 N.E.2d 294, 308 (substantial instructional defects are not waived by failure to object if the interests of justice require review).

This case was not close factually. For the charge of attempted murder, the State was required to show the defendant intended to kill. The evidence showed the defendant went to Gill Park and hid a gun. When rival gang members appeared across the street from the park he retrieved the gun and fired five or six shots at Tran Brown, Marlon Wade and the rest of the scattering rival gang members. Intent to kill may be inferred from the character of the assault and the use of a deadly weapon. (People v. Jones (1989), 184 Ill. App. 3d 412, 429, 541 N.E.2d 132, 142.) Here, substantial evidence was presented to show the defendant acted with intent to kill. Five witnesses, including one of the victims, testified they saw the defendant fire his gun five or six times into a group of rival gang members after 11:45 p.m. The only contradictory evidence offered was the testimony of a fellow gang member and the defendant’s mother and father that the defendant was not at Gill Park but at home. Even they were unable to account for his whereabouts after 11:30 p.m. that night. And, Gonzalez, a defense witness, confirmed two State witnesses who testified the defendant wore dark pants and a white shirt. We find the error in the instruction was harmless. See Leger, 149 Ill. 2d 355, 597 N.E.2d 586.

The defendant next argues the prosecutor in closing argument misstated the law of attempted murder and improperly accused the defendant of “concocting” a defense. The defendant did not object to the alleged misstatement of the law and did not include the issue in his post-trial motion. So, it is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) The defendant also argues he was prejudiced when the prosecutor said in closing argument, “They came up with this concocted scheme.” The record shows the trial court sustained the defendant’s objection to the word “concocted” and instructed the jury to disregard the remark. The admonition is sufficient to blunt prejudice to the defendant. People v. Halteman (1956), 10 Ill. 2d 74, 139 N.E.2d 286; People v. Cobbins (1987), 162 Ill. App. 3d 1010, 516 N.E.2d 382.

Finally the defendant contends his sentence is excessive. He argues the court abused its discretion by not taking into account his age, rehabilitation potential, and desire to continue his education. He also argues the court erred in considering the victim’s death as an aggravating factor.

The trial court sentenced the defendant to 50 years for his conviction for first degree murder. The sentence range for first degree murder is 20 to 60 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a).) When a sentence is within the statutory guidelines we will not reduce it unless we find the court abused its discretion. (People v. Cabrera (1987), 116 Ill. 2d 474, 508 N.E.2d 708.) The record shows the court considered the defendant’s education, employment history, the fact that he helped out at his grandmother’s neighborhood store, the lack of drug use, and his family history. The court also considered the defendant’s gang affiliation, finances, prior convictions, and that he was on probation when he committed the crime in this case. We find no abuse of discretion in the sentence.

The defendant further argues the court included Marlon Wade’s death as an element in aggravation when he stated during the sentencing hearing:

“I am considering the injuries involved here, that the acts of Mr. Rivera caused these very serious injuries, as serious as you can get, the death of one individual, a young boy just starting in life as an adult or not even actually legally an adult, but just starting his life ***.”

Generally an element of the offense cannot be used in aggravation in sentencing. (People v. Ferguson (1989), 132 Ill. 2d 86, 97, 547 N.E.2d 429, 433.) Death is an essential element in murder and it is improper for a court to consider it a matter in aggravation. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138 (victim’s death could not be considered as an aggravating factor in a conviction for voluntary manslaughter); People v. Fisher (1989), 186 Ill. App. 3d 255 (victim’s death could not be considered as an aggravating factor in a conviction for second degree murder).

The court in Saldivar explained it was proper to consider the degree of harm, the force employed and the manner in which the victim died. When the remarks of the trial judge here are read in the context of the facts established at trial — firing at least five rounds from a lethal weapon in the general direction of a group, killing one and seriously wounding another — it is clear that they are within the Saldivar guidelines.

Affirmed.

JOHNSON and HOFFMAN, JJ., concur.