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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD DALL, Defendant-Appellant.
    Fourth District
    No. 4—90—0120
    Opinion filed January 17, 1991.
    — Rehearing denied February 25, 1991.

      Michael J. Costello, of Immel, Zelle, Ogren, McClain & Costello, of Springfield, and Arthur J. Inman, of Peoria, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant was convicted of aggravated criminal sexual assault and home invasion. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(2); Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 — 11.) Subsequently, the trial court sentenced defendant to two, concurrent nine-year terms of imprisonment. Defendant appeals, arguing as follows: (1) the trial court erred in denying his motion to suppress physical evidence and statements; (2) he was not found guilty beyond a reasonable doubt; (3) the trial court abused its discretion in restricting cross-examination of the victim; (4) the admission of irrelevant evidence denied him a fair trial; (5) the prosecutor’s closing argument was reversible error; (6) the trial court erred in instructing the jury; (7) the trial court erred in denying defendant’s motion for a change of venue; (8) a conflict of interest by the State’s Attorney’s office caused reversible error; and (9) the trial court abused its discretion in sentencing.

We affirm.

FACTUAL BACKGROUND

L.D., the victim, lived in Springfield on September 18 and 19, 1988. She and defendant, who had been married for nine years, were divorced in August 1988. The court had awarded custody of the parties’ only child, E.J., to L.D. However, defendant had filed a motion for reconsideration of that order. E.J. was staying with friends in Peoria during September. L.D. testified that she left the house at approximately 8:30 p.m. on September 18, 1988, and went to meet friends at a neighborhood bar. The light by the side door of the house was on when she left. She stayed at the tavern until 12:30 or 12:45 a.m. on September 19, 1988. While there, she consumed two beers, then switched to a soft drink.

After L.D. drove home, she parked her car in the driveway about six to eight feet from the side door. The light was not working. As she unlocked the entrance and opened the door, someone wearing rubber gloves grabbed her from behind and forced her into the house. A struggle ensued on the landing, where her earrings fell out. Her assailant, whom she recognized as defendant, handcuffed and gagged her with a pair of nylons. Defendant then forced her into the kitchen. While in the kitchen, he talked about the breakup of their marriage and asked about any men she had been dating. After about 10 minutes, defendant put a knife to her throat and said he had come to kill her. Defendant asked whether L.D. would scream. After she shook her head no, he slid the knife under the gag and jerked the knife. The gag fell free. For the next two to three minutes, defendant asked questions about L.D.’s boyfriends. He then hit her behind the ear, knocking her into a chair and onto the floor. The leg on the chair broke. As L.D. was lying on the floor, defendant played back the messages on her answering machine. She had messages on a tape before going out on September 18, 1988. The next day L.D. did not have any messages on the tape.

After L.D. got up from the floor, defendant removed the handcuffs and forced her into the bedroom. When L.D. refused to remove her clothing, defendant started to undress her and broke her belt. Subsequently, L.D. agreed to undress. After she had undressed, defendant had sexual intercourse with her. Defendant told L.D. to clean up and followed her into the bathroom. She put a robe on, and she and defendant reentered the kitchen, where they smoked a cigarette. L.D. stated she ran toward the door, but defendant caught her. He again threatened to kill her.

After a few minutes, defendant talked about rumors in Clinton that L.D. had left him for another man. He asked her to contact her attorney and have the divorce vacated. Defendant also told L.D. that Herb Pingsterhaus, the Clinton County Republican party chairman, would get her a job if she moved back to Clinton. L.D. stated that after defendant calmed down, she suggested they go out to a restaurant for coffee. Eventually, defendant agreed to go out and get coffee.

Defendant then roamed around the house gathering items and placing them in a green bag. He picked up a police scanner, knife, handcuffs, and pantyhose. L.D. testified defendant became agitated because he could not locate the handcuff keys. Defendant said his car was parked several blocks away. L.D. volunteered to drive defendant to his car, since it was sprinkling. She entered the driver’s side of her car and, as defendant was walking around the car, locked the doors. L.D. then drove to a nearby store where she telephoned the police.

L.D. stated she had talked to defendant earlier on September 18, 1988. Defendant left the message on her answering machine at 10:45 a.m. He said it was an emergency concerning her son. She called back at 11 and learned no emergency existed. L.D. ended the conversation. Defendant called back twice, but L.D. did not return his calls. While the divorce was pending, defendant had called L.D. as many as 25 times a day. He sent numerous gifts and letters. L.D. did not ask defendant to come to Springfield on September 18, 1988. She did not consent to sexual intercourse on September 19, 1988, and had not given defendant authority to enter her house. During their nine-year marriage, she and defendant never engaged in bondage.

L.D. stated she sustained several cuts and bruises, marks on her wrists, and a cut lip as a result of the incident.

On cross-examination, L.D. stated she and defendant had reconciled after separating in 1985. She had never seen defendant carry a bag while they were married. He often wore a police scanner clipped to his belt. L.D. stated defendant usually appeared nervous as his hands shook. L.D. admitted her ears and her genital area were not injured. In her written statement, she did not mention the gloves.

Steven Lindsey, an employee of the White Hen Pantry, stated L.D. entered his store at approximately 2:15 a.m. on September 19, 1988. She asked to use the telephone. Her eyes were watering, she could barely talk, and she said she had been raped.

Kathy and Larry Whieties testified they met with L.D. at a tavern at 8:30 p.m. on September 18, 1988. She did not have any bruises at that time. They left at 12:30 a.m. on September 19, 1988. L.D. had consumed two or three beers.

Springfield police officer Bruce Alderson testified he met L.D. at the White Hen Pantry at 2:27 a.m. on September 19, 1988. Her clothes were neat, she had red watery eyes, she was very nervous, and she had a lump on her head. Alderson noted L.D.’s wrists were red and sore. L.D. reported she had been raped. Alderson stated the marks on her wrists looked as if they were caused by someone struggling against handcuffs. L.D. did not tell Alderson defendant had a knife.

Springfield police officer Keith Ushman stated that at approximately 2:27 a.m. on September 19, 1988, he was investigating a possible burglary at Sixth and Black Streets in Springfield. He saw defendant, who was carrying a green bag, running south on Fifth Street. Ushman told defendant to stop and asked why he was running. Defendant stated he did not want to get wet. Ushman thought this was an unusual answer since he had been out in the mist for a long time and was not wet. Ushman stated defendant appeared quite nervous and was sweating profusely. Ushman asked defendant for some identification and defendant told him he did not have any. Ushman then asked why defendant was carrying the bag. Defendant told him he had valuable personal possessions in it which he did not want stolen from his vehicle.

Ushman stated defendant consented to a search of the bag. Defendant, in the hearing on his motion to suppress, stated that to the best of his knowledge, he did not consent to a search of the bag. At trial, defendant stated he consented to a search of the green bag. Ushman unzipped the bag and observed a police scanner tuned to the Springfield police department channel. It was common practice for burglars to carry police scanners. After observing the scanner, Ushman asked defendant where his identification was located and escorted defendant back to his vehicle. Defendant retrieved his license from the vehicle. While they were waiting for a license check, defendant stated he and his wife had had a fight. Ushman looked in the green bag again and saw a knife, rubber gloves, nylons, a note, handcuffs, and the scanner.

Springfield police officer Jeffrey Bivens assisted Ushman. Bivens told defendant the police would detain him until they could check on the welfare of L.D. Defendant said she would either be getting coffee or talking to the police. After the dispatcher stated L.D. was making a complaint, Bivens searched defendant and placed him in the squad car. Officer William Neale advised defendant of his Miranda rights.

Neale stated defendant told him L.D. asked defendant to come to her house on September 18, 1988. They had consensual sexual intercourse. He accidentally picked up her nylons with the scanner. He brought the scanner because he would be able to hear if L.D. called the police and leave before they arrived. Subsequently, defendant talked to Neale and Detective Joe Goulet. He stated L.D. had called him and arranged to meet with him at the Springfield College parking lot on September 18, 1988. She did not appear at the lot so he drove to her house. Later, he drove back to the lot, parked, and walked to the house. L.D. arrived between 11:30 p.m. and 12:30 a.m. They engaged in consensual sexual intercourse and did not engage in any kind of bondage. Neale further testified L.D. told him that defendant had plastic gloves on when he entered the house.

Springfield police officer Tom Cocayne investigated L.D.’s house. He found a pair of women’s earrings on the landing adjacent to the side door. He observed a kitchen chair with a broken leg and noted that a portion of a broken belt was next to the chair. The rest of the belt was on the bedroom floor. The bed was made but messed up.

Springfield police officer John Adelman’s testimony corroborated Cocayne’s testimony. Adelman stated the kitchen telephone had been disconnected.

William Frank, a forensic serologist, testified seminal material found on L.D.’s panties, a towel, and in the vaginal swab could be from defendant. Hairs found on the knot in the nylons had been forcibly removed and were consistent with L.D.’s hair samples. The ends of the nylons had been cut. Stains from an enzyme predominantly found in saliva were on the pantyhose. The stains could have come from the victim.

Goulet investigated the assault report. Defendant told Goulet L.D. had called him twice the previous weekend to set up a visit. Defendant set up a meeting for 10 p.m. at a parking lot. L.D. was not there so, after waiting 15 minutes, defendant drove to her home. She was not at home so defendant drove back to the lot, left his vehicle, and walked to L.D.’s house. L.D. arrived between 11:30 p.m. and 12:30 a.m. She invited him inside, where they talked for about V-k hours. They then engaged in consensual intercourse. Defendant told Goulet no bondage occurred. L.D. had not asked to be gagged, and he had not gagged her. He did not handcuff her.

Goulet also interviewed L.D. L.D. told him defendant had cut the nylons off with a knife. She did not say the knife was used to threaten her. She told Goulet that defendant had caught her as she ran toward the door and threatened to kill her again. In Goulet’s opinion, the marks on L.D.’s arms and wrists were consistent with those caused by a person struggling against handcuffs.

Over defendant’s objection, a note found in the green bag was admitted into evidence. The note said:

“Entrance
Telephone
Questions
Boyfriends
Lawyer
Rumor
Job-summer-Herb
Letters
Mom + me
Cleanup
Exit
Herb”

The green bag and its contents were also admitted.

Defendant testified in his own behalf. He lived in Carlyle, Illinois, and was the sheriff of Clinton County. He had been elected to the sheriff’s office for six terms. He started as a deputy sheriff in 1959. In his opinion, the handcuffs could not have caused the marks on L.D.’s wrists and arms. Defendant stated he had a hereditary medical condition which caused his hands to shake and affected his close body control.

He and L.D. married in 1979. They had one child, E.J., who was eight at the time of the trial. In 1985, he and L.D. separated for IOV2 months before reconciling. L.D. filed a dissolution of marriage action in March 1987. She left the marital home in November 1987. Between March and November, he and L.D. continued to engage in sexual intercourse. L.D. left E.J. with defendant when she moved. In August 1988, the divorce became final. Defendant stated the divorce and custody battle were extremely bitter. Both parties wanted E.J. In August 1985, he filed a motion to reconsider the custody order. He called L.D. frequently because he loved her and wished to reconcile the marriage. He and L.D. engaged in sexual relations after November 1987.

Defendant stated he called L.D. first on September 18, 1988; then, she returned his call. They agreed to meet in the Springfield College parking lot because L.D. did not want her family to know she was meeting defendant. Defendant did not want to leave his equipment in the car because it could be burglarized. L.D. did not meet defendant at the lot, so he drove by her house and her parents’ house. He then drove back to L.D.’s house and, subsequently, returned to the parking lot. At 11:15 to 11:20 p.m., he walked over to L.D.’s house. It was drizzling rain at that time. L.D. arrived immediately after midnight. He told her she was late, and she responded that she had stopped for drinks with friends. Defendant further stated he held L.D.’s purse while she unlocked the door. When she pushed open the door, she dropped items which she was holding in her hand. He helped her pick up the items off of the floor.

Defendant admitted he was carrying a green duffle bag. He did not want the equipment, which he used in his position as sheriff, to litter his vehicle. Previously, he had kept the equipment in his patrol car, but when he got a new car, he needed to keep the items in the bag to keep them organized. The note had been in the bag since the spring of 1988. Defendant then provided an explanation of the words listed on the note. He stated that “entrance” referred to a guardrail that he needed to place around a wheelchair lift so the county could qualify for self-insurance. “Telephone” referred to a new telephone system which had been installed in the courthouse. Defendant did not remember what “questions” referred to. “Boyfriends” referred to his oldest daughter’s boyfriends, of whom he did not approve. “Lawyer” referred to his divorce lawyer. “Jobs-summer-Herb” referred to jobs the Republican county chairman had procured for high school students. “Letters — Mom + me” refer to his one-third interest in real estate. “Clean up” referred to prison inmates which he had used to clean areas in the county during the summer. It was to remind him to send a thank you note. “Exit” referred to exit signs needed for the self-insurance program. “Rumors” referred to rumors about a deputy who was cohabiting with someone in the county.

Defendant denied wearing rubber gloves on September 18 or 19, 1988. He did not place a knife to L.D.’s throat or cut a gag of pantyhose. Defendant carried a scanner with him to L.D.’s house because she had called the police to report him being there a few weeks before. He took the bag to protect the scanner from the rain.

After L.D. invited him into her house on September 19, 1988, they discussed reconciliation. They engaged in consensual intercourse. Defendant had been wearing the handcuffs clipped to his belt. When he undressed, he left the handcuffs on a chair. After he had dressed, defendant playfully cuffed L.D.’s hands and said he would take her home now instead of waiting. The nylons were on the end table in the living room. He accidentally picked them up when he gathered his other items. Defendant denied gagging L.D., handcuffing her behind her back or hitting her. Defendant stated he and L.D. were in good spirits when they left the house.

After L.D. locked him out of her vehicle, he started walking back to his car. He did not recall telling the police he was nervous because he had had a fight with his wife. Defendant did not believe he told police officers that he and L.D. were to meet at her house. He still loved L.D. and begged her to reconcile with him.

On cross-examination, defendant stated that at one time L.D. had sought an order of protection.

In rebuttal, Eric Rhein, L.D.’s attorney in the custody action, stated the criminal matter concerning defendant and L.D. was not raised in the custody dispute.

L.D. denied engaging in consensual sexual intercourse with defendant after she had left the marital home.

ANALYSIS

Suppression Motion

Defendant filed motions to suppress the items found in the green bag and statements made by him thereafter. He based his trial motions on fourth and fifth amendment grounds. (U.S. Const., amends. IV, V.) On appeal, defendant argues the court erred in denying his motions as Ushman did not have a reasonable suspicion that he was involved in criminal activity at the time Ushman initiated a Terry stop. Defendant argues his statements that he was nervous because he had fought with his wife and she was either getting coffee or calling the police were results of the illegal detention and should be suppressed. Finally, he contends he did not consent to a search of the green bag and, if he did consent, his consent was coerced.

The State responds that this was a chance encounter between Ushman and defendant, which did not implicate the fourth amendment. Alternatively, the State argues Ushman had a reasonable suspicion that defendant was engaged in criminal activity when he stopped him. The fourth amendment provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” (U.S. Const., amend. IV.) In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court noted the fourth amendment provides security from unreasonable searches and seizures. However, when a police officer has a reasonable suspicion, based on articulable facts, that a citizen is engaged, has engaged, or is about to engage in criminal activity, the officer may stop and question the person. If he reasonably fears for his own safety or the safety of another, he may conduct a limited search for weapons.

However, not all encounters between citizens and law enforcement officers implicate the fourth amendment.(Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) Although consensual questioning does not implicate the fourth amendment (Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324), a seizure of the person would implicate the fourth amendment. A seizure occurs when a law enforcement officer restrains the citizen’s liberty by force or by a show of authority. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509,100 S. Ct. at 1877.

Section 107 — 14 of the Code of Criminal Procedure of 1963 also provides a police officer may stop a person in a public place when from the circumstances he reasonably infers that criminal activity is occurring. The officer may ask for the individual’s name, address, and an explanation of his actions. (Ill. Rev. Stat. 1987, ch. 38, par. 107— 14.) The statute codifies Terry. People v. Lee (1971), 48 Ill. 2d 272, 269 N.E.2d 488.

An objective standard is used in determining the reasonableness of the stop. {People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688.) A trial court’s findings on a motion to suppress will not be reversed unless the findings are manifestly erroneous. People v. Jones (1989), 190 Ill. App. 3d 416, 545 N.E.2d 1332.

Here, Ushman yelled at defendant and ordered him to stop. He then approached and asked defendant questions. In Mendenhall, the Supreme Court noted language or tone of voice indicating that compliance is required is a factor which indicates a seizure of the person has occurred. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.) A seizure of defendant occurred when Ushman ordered him to stop. However, the trial court’s determination that the stop was justified under Terry and the Code of Criminal Procedure of 1963 is supported by the evidence. It was after 2 a.m. Defendant was running faster than a jog in an area where Ushman was investigating a burglary. He was carrying a duffle bag. These factors justify Ushman’s initial questioning of defendant. Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14.

According to Ushman, defendant did not have an identification, appeared very nervous, and was sweating profusely. Defendant provided an explanation for running which Ushman believed was suspicious. Finally, although defendant was ambivalent about whether he consented to a search of the bag during the hearing on his motion to suppress, at trial defendant stated he gave Ushman consent to look in the bag. Ushman’s testimony was consistent with consent. After Ushman observed the police scanner, which he knew was commonly used by burglars in the Springfield area, he was justified in holding defendant to investigate further. The trial court correctly denied defendant’s motion to suppress.

Reasonable Doubt

Defendant next argues he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault because L.D.’s testimony was not clear and convincing or substantially corroborated. He contends the jury erred in finding L.D. more credible. This court has recently abandoned the “clear and convincing or substantially corroborated” standard in viewing the sufficiency of evidence in a sex offense case. (People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208, appeal denied (1991), 136 Ill. 2d 552; People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732, appeal denied (1990), 135 Ill. 2d 562; People v. Cole (1990), 193 Ill. App. 3d 990, 550 N.E.2d 723 (Steigmann, J., specially concurring).) The appropriate standard of review is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) A reviewing court will not overturn a jury’s credibility determination. Collins, 106 Ill. 2d 237, 478 N.E.2d 267.

Here, a credibility question was posed to the jury. Additionally, L.D.’s testimony that she had not consented to sexual intercourse was supported by the evidence of her physical injuries, testimony that the handcuffs had injured her wrists, evidence that the pantyhose had been used as a gag and cut, and indications that a struggle had occurred at the residence. Items found on defendant’s person also supported the inference that he had engaged in criminal activity. The evidence was sufficient to sustain the conviction.

Defendant next argues he was not proved guilty beyond a reasonable doubt of home invasion. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 — 11.) Defendant contends that since L.D. was entering an empty house at the time defendant attacked her and forced her into the house, no one was “physically present” in the house at the time of the invasion. Section 12 — 11 of the Criminal Code of 1961 provides:

“(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the. dwelling place of another and remains, in such dwelling place until he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.” Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 — 11(a).

Defendant relies on People v. Pettit (1984), 101 Ill. 2d 309, 461 N.E.2d 991. However, Pettit is distinguishable. Pettit’s conviction for home invasion was reversed on appeal. Pettit and two others had invaded the first floor of a house which had been divided into two apartments. The residents of the upstairs apartment were baby-sitting for the downstairs residents. All of the evidence indicated Pettit and the other defendants were unaware of the fact that the house had been divided into two apartments. After waiting for. the first-floor apartment dwellers to return, Pettit took his hostages upstairs. He was charged with home invasion of the second-floor apartment. The supreme court affirmed reversal of the convictions, noting that no evidence indicated Pettit knew he was entering the “dwelling of another” when he went upstairs.

Here, L.D. had unlocked both the locks on her side door and started to open it when defendant accosted her. Forcing a person into her own home and following that person into the home without authority satisfies the portion of the home invasion statute, that defendant, without authority, enters the dwelling place of another knowing that one or more persons are present. The evidence, thus, supports a finding that defendant, who watched L.D. start to enter, knew she was home.

Cross-Examination

Defendant next argues the trial court abused its discretion in restricting cross-examination of L.D. to show bias. Defendant wanted to introduce evidence that L.D. had been accused of sexually assaulting E.J. The trial court granted the State’s motion in limine to preclude introduction of this evidence.

The confrontation clause of the sixth amendment (U.S. Const., amend. VI) guarantees a defendant the right to cross-examine a witness against him for the purpose of showing the witness’ motive to testify falsely, bias, or interest. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) However, the sixth amendment does not prevent the trial judge from imposing limits on defense counsel’s inquiry. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) A trial judge retains wide latitude in imposing reasonable limits on cross-examination based on concerns of harassment, prejudice, confusion of issues, witness safety, or repetitive interrogation. (Harris, 123 Ill. 2d at 144, 526 N.E.2d at 348.) The relevant inquiry on review is whether the limitation created a substantial danger of prejudice by depriving defendant of the ability to test the truth of the witness’ direct testimony. (Harris, 123 Ill. 2d at 145, 526 N.E.2d at 348.) The trial court will only be overturned upon a showing of a clear abuse of discretion which prejudiced the defendant. People v. Roy (1988), 172 Ill. App. 3d 16, 526 N.E.2d 204, cert, denied (1989), 490 U.S. 1094 104 L. Ed. 2d 997, 109 S. Ct. 2441.

Extensive evidence was introduced during pretrial motion hearings on the admissibility of the allegation of sex abuse.- That evidence indicates defendant had been found in contempt of court for making unfounded allegations that E.J. had been abused by L.D.’s son by a prior marriage. His divorce attorney had been censured by the Clinton County court for lying in a pleading. Defendant then took E.J. to a psychologist. The psychologist in an affidavit and in deposition stated he believed defendant prompted E.J. to accuse his stepbrother of molestation. However, after several sessions, the psychologist believed E.J. had been abused by someone. The psychologist stated that either defendant or L.D. could have abused E.J. It was also possible that E.J. had learned how to create a believable allegation of sexual abuse. E.J. wanted to stay -with his father. Defendant filed a motion for reconsideration of custody, alleging L.D. had sexually abused E.J. We note that subsequently an investigation by the Department of Children and Family Services (DCFS) found this allegation was unfounded.

The trial judge stated in ruling on the motion in limine that defendant could bring out that a custody dispute was ongoing and bitter. Defendant could also establish that he had filed a motion for reconsideration of custody. However, a minicustody battle would not occur in the criminal trial.

No abuse of discretion occurred from this ruling. Had defendant been allowed to examine L.D. about the sexual abuse allegation, the State could have brought forth information concerning prior allegations and the entirety of the psychologist’s opinion in an effort to rehabilitate L.D.’s credibility. Generally, when cross-examination of a witness develops that the witness is biased, the offering party is entitled to rehabilitate the witness. (People v. Burke (1964), 52 Ill. App. 2d 159, 201 N.E.2d 636.) This testimony would have caused a confusion of the issues in the instant case. It also would have been unduly harassing since the allegation of sexual abuse in the instant case against L.D., due to the past circumstances, was not reliable.

Additionally, L.D.’s divorce attorney testified the criminal matter was not used by L.D. in the custody proceedings. We note that had all of the information concerning the allegations of sexual abuse been brought forth, defendant could have been harmed rather than aided. He was allowed to develop his defense that L.D. was lying due to the fact that she wished to maintain custody of the child. The trial court properly exercised its discretion in limiting questioning concerning allegations of sexual abuse.

Evidentiary Errors

Defendant next argues the trial court erred in admitting evidence (1) that L.D. had sought an order of protection; (2) that he had threatened to kill L.D.; (3) that L.D. did not use the pending criminal matter during the hearings on defendant’s motion for reconsideration of custody; and (4) of the note found in the duffle bag. Defendant contends the evidence was irrelevant. He also contends the order of protection and threat indicate he committed an uncharged offense. Evidence is relevant when it tends to make the existence or nonexistence of a fact of consequence more or less probable. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) Physical evidence is generally admissible if it is tied to defendant and the crime. Free, 94 Ill. 2d 378, 447 N.E.2d 218.

Defendant made a motion in limine seeking to -prohibit admission of evidence that he had violated an order of protection. The pretrial judge found the order of protection was invalid. She, therefore, allowed the motion. Prior to trial, the prosecution filed a motion seeking to use the fact that L.D. had sought an order of protection as relevant to defendant’s authority to enter the home. Over defendant’s objection, the court stated that it would allow only the question concerning whether L.D. had sought an order of protection.

The prosecution did not introduce evidence of the order of protection in its case in chief. Defendant, during his testimony, stressed that he was trying to reconcile with L.D. He noted that L.D. would often invite him and E.J. to go on outings; then, she would call the police when he arrived. This was the reason defendant gave for carrying the police scanner. Defendant also testified that September 18, 1988, L.D. had invited him to her home. On cross-examination, defendant admitted L.D. had sought an order of protection. The fact that L.D. had sought an order of protection was relevant as rebutting defendant’s contention that she invited him to the house. It also served to discredit defendant’s testimony. The order of protection was relevant.

The threats defendant made while in L.D.’s house were also relevant. They made more probable L.D.’s testimony that she did not consent to intercourse. Additionally, the fact that defendant threatened to kill L.D. was relevant to the use of force in the commission of the aggravated sexual assault and tended to establish that his entry into the home was not authorized.

Defendant contends the order of protection and threat were evidence of uncharged offenses. Defendant argues this evidence was highly prejudicial.- Evidence of crimes for which the defendant is not on trial is not admissible if relevant merely to show defendant’s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) However, evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500.

The fact that L.D. sought an order of protection does not indicate defendant committed a crime. The statement did not indicate the court had issued the order nor did it indicate defendant had violated it. Defendant’s threat to kill L.D. may indicate an uncharged offense. However, it is relevant to show the lack of consent to sexual intercourse and indicates defendant’s intent was to harm his victim. Evidence tending to show intent or motive is admissible even though it implicates defendant in an uncharged offense. Phillips, 127 Ill. 2d 499, 538 N.E.2d 500.

The rebuttal testimony from Eric Rhein, L.D.’s attorney in the custody case, was relevant. Defendant’s defense was that the charge had been fabricated to gain an advantage in the custody action. Rhein’s testimony that L.D. had not introduced the criminal charges in the custody proceedings tended to make the fabrication defense less credible. It was, therefore, relevant.

Finally, defendant argues the note found in his green bag was irrelevant because it was written in the spring of 1988 and defendant had an innocent explanation for the references within it. The list corresponded exactly to the order of events which occurred at L.D.’s home. Ushman found the note in the duffle bag which defendant was carrying the night he was arrested. Physical evidence is relevant if connected to the defendant and the offense. (Free, 94 Ill. 2d 378, 447 N.E.2d 218.) The relevancy of the note is not diminished by defendant’s innocent explanation of its contents.

Closing Argument

Defendant argues the prosecutor’s closing argument was prejudicial error because it diminished the presumption of innocence. Defendant did not raise this issue in his post-trial motion. He has, therefore, waived review of the question. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) On the merits, no error occurred. The prosecutor may state his conclusion that defendant or a defense witness is lying, if the statement is based upon the evidence or a reasonable inference from it. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174; People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357.) Here, the prosecutor stated either defendant or L.D. was lying, the jury had to decide a credibility question and, in his opinion, defendant had the better motive to lie. The presumption of innocence was not diminished by this argument.

Instructions

Defendant next argues the trial court erred in denying his issues instruction on home invasion. Defendant’s instruction is not a part of the record on appeal. Therefore, we cannot review the propriety of denying the instruction. Defendant has waived this issue. People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397.

Defendant next argues giving the circumstantial evidence instruction constituted reversible error. Defendant contends all the evidence in the case was direct evidence. Therefore, the instruction allowed the jury to speculate on matters not in evidence. Circumstantial evidence is proof of certain facts from which the jury may infer other connected facts, which usually follow from the established fact. (People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605.) Several items pf evidence in the instant case were circumstantial in nature. Therefore, giving the instruction was not error.

During deliberations, the jurors sent a question to the court. They asked whether any police reports supported L.D.’s testimony that her porch light was out and had been loosened in its socket. Defendant argues this indicates the jury was confused by the circumstantial evidence instruction. On the contrary, we find the question indicates the jury was considering an item of circumstantial evidence which could indicate an unauthorized entry into the home. No error occurred in instructing the jury.

Place Of Trial

Defendant next argues the trial court erred in failing to change the place of trial. Defendant contends media coverage made it impossible to obtain an impartial jury. On April 18, 1989, defendant filed a motion to change the place of trial due to newspaper publicity. Attached to the motion was a copy of an April 13, 1989, newspaper article. The article noted defendant, who was awaiting trial for the instant offenses, had been arrested for harassing L.D. On August 3, 1989, defendant filed a second motion for a change of venue. This motion alleged extensive media coverage necessitated a change in the place of trial.

Defendant attached computer-generated copies of 11 articles from the State-Journal Register to this motion. None of the articles had run on the front page. Generally, they reported the incident, defendant’s subsequent arrest for violations of the order of protection, contempt findings in the dissolution matter, and the progress of the lawsuit. Two articles dealt with Clinton County officials’ reactions to the case and defendant’s resignation as sheriff. The trial court denied the motion but stated defendant could renew it if the jury selection process indicated an inability to obtain an untainted jury.

Jury selection occurred on November 27, 1989. Twenty-seven potential jurors were examined prior to selection of 12 panel members and 2 alternates. The alternates did not sit on the jury. Five of the twelve jurors had heard or read something about the case before trial. Juror Jack Bricker stated he vaguely remembered seeing something in the paper about the case. However, he could not recall any details, and the article would not influence him. Fannie Heninger stated she had read about the case in the paper. However, the articles would not influence her. Gretchen Leming stated she heard a little about the case on the news the night before jury selection. She had also heard a radio report on the case. However, nothing she had heard would influence her decision. Jurors Merwyn Nelson and Janice Rutledge stated they had read about the case in the paper. However, both jurors said the articles would not influence their decision. Defense counsel utilized 7 out of his 10 peremptory challenges. He did not renew his motion for a change of venue prior to trial or during the jury selection process.

In Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755, 81 S. Ct. 1639, 1642, the Supreme Court, quoting In re Murchison (1955), 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625, held that “ ‘[a] fair trial in a fair tribunal is a basic requirement of due process.’ ” However, the Irvin court also held that jurors need not be totally unaware of a case for a defendant to receive a fair trial. The Irvin court stated: “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Irvin, 366 U.S. at 723, 6 L. Ed. 2d at 756, 81 S. Ct. at 1643; see also People v. Britz (1988), 123 Ill. 2d 446, 528 N.E.2d 703.) Determining whether defendant received a fair trial by an impartial jury necessitates an independent examination of the record. (People v. Taylor (1984), 101 Ill. 2d 377, 391, 462 N.E.2d 478, 484.) The reviewing court must evaluate the voir dire of the jurors. (Britz, 123 Ill. 2d 446, 528 N.E.2d 703; People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.) The record as a whole must establish more than a potential for bias. (Taylor, 101 Ill. 2d 377, 462 N.E.2d 478.) The court may also consider that defendant did not exhaust his peremptory challenges. Although this factor is not conclusive, it rebuts an allegation of bias. Sanchez, 115 Ill. 2d 238, 503 N.E.2d 277.

Based upon our review of the record, the jury voir dire, and the articles, we conclude the level of awareness of the case by the jurors did not deny defendant a fair trial. None of the jurors recalled specific details of the case. All said they could decide based upon the evidence at trial. Additionally, the articles were not as extensive or prejudicial as those appearing in other cases. See Taylor, 101 Ill. 2d 377, 462 N.E.2d 478.

No error occurred in denying the motion for a change in venue.

Conflict Of Interest

Defendant next argues that a potential conflict of interest existed between L.D. and the State’s Attorney’s office which denied him a fair trial. Defendant contends that if the sexual abuse allegations against L.D. had been true, the State’s Attorney would have had to prosecute its own witness. He maintains this conflict would have caused the State’s Attorney to protect L.D.’s reputation. A representative of DCFS testified during the hearing on defendant’s post-trial motion. She and a Springfield police officer investigated the sexual abuse allegation against L.D. She and the officer concluded the allegation was unfounded and not credible. Section 6 of “An Act in regard to attorneys general” provides when a State’s Attorney is “interested” in any cause or proceeding which he will prosecute, the court may appoint a special prosecutor. (Ill. Rev. Stat. 1989, ch. 14, par. 6.) A prosecutor is “interested” for purposes of the statute if he is interested as a private individual or his office is a-party to the action. (Baxter v. Peterlin (1987), 156 Ill. App. 3d 564, 509 N.E.2d 156.) Performance of one’s official functions will not create a conflict of interest. See generally Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50.

In the instant case, the sexual abuse allegations had been determined to be unfounded. Even if the allegations were credible, the State’s Attorney would not have been presented with a legal conflict of interest. He would not have been personally interested in the matter. The State's Attorney’s office would be carrying out its official duties in pursuing any action against L.D. We note also that defendant did not file a motion for a special prosecutor based upon any conflict of interest. The issue, on appeal, has little merit.

Sentencing

Defendant argues the trial court abused its discretion in sentencing him to two concurrent terms of nine years’ imprisonment. Defendant contends the trial court failed to give adequate consideration to his lack of a prior criminal record and rehabilitative potential. A reviewing court will not overturn a trial court’s sentencing determination unless there is an abuse of discretion. (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) The trial court is in the best position to assess the various matters which influence a sentencing determination. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Contrary to defendant’s assertions, the record shows the sentencing court carefully considered his past, his potential for rehabilitation, and the nature of the offenses. We cannot say the court abused its discretion in sentencing. Therefore, we affirm the trial court.

Affirmed.

LUND, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
    ANDREW E. THOMPSON, Plaintiff, v. JOSEPH WALTERS et al., Defendants and Respondents and Third-Party Plaintiffs-Appellees (Sears, Roebuck and Company, Petitioner and Third-Party Defendant-Appellant).
    Fourth District
    No. 4—90—0486
    Opinion filed January 17, 1991.

      Williams & Montgomery, Ltd., of Chicago (James K. Horstman, Barry L. Kroll, Daniel K. Cray, and Lloyd E. Williams, Jr., of counsel), for appellant.
    Edward T. Graham, Jr., of Hershey, Beavers, Periard & Graham, of Taylorville, for appellees.
   JUSTICE SPITZ

delivered the opinion of the court:

This appeal involves the question of whether the statute of repose contained in section 13 — 213 of the Code of Civil Procedure (Code) concerning products liability actions applies to actions for contribution. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213.) We find that it does and reverse.

On June 30, 1987, plaintiff brought suit against defendants for injuries sustained in defendants’ swimming pool. Plaintiff alleged that he was injured on July 8, 1985, due to the defective condition of the pool. Defendants purchased the pool from Sears and had it installed on their premises prior to 1964. Sears had not performed any material alteration or modification on the pool since the time the pool was installed. Defendants, as third-party plaintiffs, brought their contribution claim against Sears, based upon the doctrine of strict liability in tort, on December 26,1989.

On May 29, 1990, Sears, as third-party defendant, filed a motion to dismiss based on the statute of repose contained in section 13 — 213 of the Code. The trial court denied Sears’ motion to dismiss, and Sears filed a motion for a finding pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308). The trial court found pursuant to Rule 308 that an appeal from the order might materially advance the ultimate termination of the litigation, and we allowed the application for leave to appeal.

On appeal, Sears argues that the trial court erred in denying its May 29, 1990, motion to dismiss because the statute of repose governing product liability actions applies to a contribution action based upon the doctrine of strict liability in tort. Defendants disagree, and argue that their claim for contribution is not barred by the strict product liability statute of repose.

Initially, we note that defendants have attempted to rephrase the issue on appeal:

“The question pressed on this appeal is then: Which statute controls the disposition of Walters’ contribution action? Does the plaintiff’s bar, expressed in the product liability statute of repose, extend to bar contribution actions also; or, does the limitation period expressed in the contribution act control the time during which such an action can be brought, even though the right to such action does not accrue prior to the expiration of the product liability statute of repose?”

The question certified to this court, however, is:

“Where a tort plaintiff is barred from bringing a direct product liability action against a product supplier because of the statute of repose for product liability actions (Ill. Rev. Stat., Ch. 110, par. 13 — 213 (1982)), may a defendant nevertheless maintain a contribution product liability action against the supplier?”

Defendants’ attempt to rephrase the issue certified for appeal pursuant to Supreme Court Rule 308 is procedurally improper. Review by the appellate court pursuant to Supreme Court Rule 308 is limited to those questions certified by the trial court. (Getto v. City of Chicago (1981), 92 Ill. App. 3d 1045, 416 N.E.2d 1110.) We will restrict our review to the question certified by the trial court. We note, however, that defendants’ rephrasing of the issue is fallacious, since it falsely assumes that the alternative propositions are mutually exclusive. They are not. The statute of repose and the statute of limitations are not alternatives; they are independent and cumulative requirements.

Section 13-213, "Product liability," states in pertinent part:

"(a)
(3) `product liability action' means any action based on the doctrine of strict liability in tort brought against the seller of a product on account of personal injury * *
(b) Subject to * * `K subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease -or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.
(f) Nothing in this Section shall be construed to create a cause of action or to affect the right of any person to seek and obtain indemnity or contribution." Ill. Rev. Stat. 1987;~ ch. 110, pars. 13-213(a)(3), (b), (f).

Statutes should be construed to give effect to the true intent and meaning of the legislature. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 557 N.E.2d 873.) A court's int~r-. pretation should not render any word, clause or sentence superfluous or meaningless. (Peacock v. Judges Retirement System (1957), 10 Ill. 2d 498, 501, 140 N.E.2d 684, 686.) Unambiguous terms, when not specifically defined, should be given their plain and ordinary meaning. (Hayes, 136 Ill. 2d at 455, 557 N.E.2d at 875.) Where the language and meaning of the statute is clear, a court is prohibited from restricting or enlarging upon that meaning. (Heneghan v. Sekula (1989), 181 Ill. App. 3d 238, 242, 536 N.E.2d 963, 966.) The statute of repose contained in section 13-213 applies to "any action based on the doctrine of strict liability in tort." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13-213(a)(3).) The language of section 13-213 is clear and unambiguous. The ordinary and popular meaning of the word "action"• includes "all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court." (Black's Law Dictionary 26 (5th ed.

1979).) A third-party action for contribution clearly falls within this ordinary and popular meaning.

Defendants argue, however, that the statute of repose contained in section 13 — 213 of the Code does not include actions for contribution because the term “product liability action” is specifically defined in section 13 — 213(a)(3) to include only actions against a seller for personal injuries and property damage. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(a)(3).) Defendants assert that an action for contribution among joint tortfeasors is not an action to recover for injury to the person or property and that the purpose of contribution is only to apportion liability for tortious conduct among those responsible for an injury to another. Antunes v. Sookhakitch (1989), 181 Ill. App. 3d 621, 627, 537 N.E.2d 333, 337; see also Hayes, 136 Ill. 2d at 476-77, 557 N.E.2d at 885 (Calvo, J., dissenting, joined by .Ward and Clark, JJ.).

Defendants’ argument is based on a misstatement of the statute. Section 13 — 213(a)(3) of the Code defines product liability action as including only actions against a seller “on account of personal injury.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13— 213(a)(3).) Thus, section 13 — 213’s statute of repose bars any untimely action based on the doctrine of strict liability brought “on account of personal injury,” such as defendants’ action in the present case.

Moreover, the supreme court in Hayes rejected the argument that an action for contribution is not an action for damages under the medical malpractice statute of repose. (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212.) There the court stated:

“The action for contribution apportions the damages among the parties responsible for the original plaintiff’s injury, and the contributor is obligated for the damages directly created by the contributor’s negligent actions. The third-party plaintiff, therefore, is seeking from the third-party defendant those damages proximately caused by the negligent acts of the third-party defendant which the third-party plaintiff may be obligated to pay in the underlying suit. This leads us to conclude that an action for contribution is an ‘action for damages’ under the medical malpractice statute of repose.” (Hayes, 136 Ill. 2d at 457, 557 N.E.2d at 876.)

We find the same reasoning applicable here.

Defendants also argue that section 13 — 213’s statute of repose does not include actions for contribution because sections 13 — 213(f) and 2 — 621(d) (products liability actions) of the Code both mandate that nothing contained in their respective sections “shall be construed *** to affect the right of any person to seek and obtain indemnity or contribution.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621(d).) Defendants believe this language specifically recognizes the right of a contribution claimant to pursue his action even though his right to recovery did not accrue during the repose period.

We disagree. A statute of repose is a substantive statute and extinguishes any right of bringing the cause of action regardless of whether it has accrued. (Highland v. Bracken (1990), 202 Ill. App. 3d 625, 560 N.E.2d 406.) The language cited by defendants does not change this. First, section 2 — 621 of the Code has no application to the present case. Further, section 13 — 213(f) does not provide that the statute of repose does not apply to an action for contribution. Instead, it states that the section shall not “affect the right of any person to seek and obtain indemnity or contribution.” While this language is ambiguous and open to interpretation, we disagree with defendants’ interpretation.

Defendants’ interpretation of section 13 — 213(f) is incorrect because it directly contradicts the statute of repose contained in section 13 — 213(b) and the definition of product liability action in section 13 — 213(a)(3), which provides that the statute of repose applies to “any action” based upon the doctrine of strict liability. Sections in pari materia should be considered with reference to one another so that both sections may be given harmonious effect. Galvin v. Galvin (1978), 72 Ill. 2d 113, 378 N.E.2d 510.

Defendants’ interpretation of section 13 — 213(f) is also incorrect because defendants actually have no cause of action against Sears for contribution. Thus, section 13 — 213 of the Code is inapplicable here. A contribution action cannot be maintained against a party who is not subject to liability in tort. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a); Jodelis v. Harris (1987), 118 Ill. 2d 482, 517 N.E.2d 1055.) Sears is not liable to plaintiff under a strict liability theory because the statute of repose contained in section 13 — 213 extinguished the right of the plaintiff to bring such a suit against Sears. (Highland, 202 Ill. App. 3d 625, 560 N.E.2d 406.) Because of this, defendants have no claim against Sears for contribution under a strict liability theory. To allow such an action would allow a plaintiff to accomplish indirectly what he is unable to do directly. See Harris, 118 Ill. 2d 482, 517 N.E.2d 1055 (where the Illinois Supreme Court disallowed a complaint for contribution based upon the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 135) because liability under the Dramshop Act is not based on tort).

Moreover, defendant’s interpretation of section 13 — 213(f) defeats the primary purpose of the legislation. The judicial role in construing a statute is to ascertain and give effect to the legislative intent. (City of Decatur v. AFSCME, Local 268 (1988), 122 Ill. 2d 353, 364, 522 N.E.2d 1219, 1223.) In construing statutory provisions, the court should consider not only the language of the statute but also the purposes to be attained by the law. (Canteen Corp. v. Department of Revenue (1988), 123 Ill. 2d 95, 104, 525 N.E.2d 73, 77.) The legislative debates from both the Illinois House and Senate show that section 13 — 213 was proposed to deal with the perceived crisis involving rapidly increasing premiums for product liability insurance. The legislature believed that a statute- of repose would have a favorable effect on insurance premiums. (80th Ill. Gen. Assem., House Proceedings, May 25, 1978, at 118-31 (debates on House Bill 1333); 80th Ill. Gen. Assem., Senate Proceedings, June 24, 1978, at 49-58 (debates on House Bill 1333); 80th Ill. Gen. Assem., Senate Proceedings, May 26, 1978, at 174-76 (debates on Senate Bill 1847).) Defendants’ interpretation would defeat the purpose of the legislation because a suit for contribution exposes insurance companies to the same liability as a direct action.

Illinois decisions discussing other statutes of repose support our view that the statute of repose contained in section 13 — 213 of the Code applies to actions for contribution. In Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515, 511 N.E.2d 706, the appellate court considered whether the statute of repose contained in section 13 — 214 of the Code (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214), concerning certain construction-related activity, applied to actions for contribution. The Hartford court first noted that while section 13 — 204 of the Code (contribution among tortfeasors) expressly bars contribution actions brought more than two years after payment by a joint tortfeasor, it does not provide that all contribution actions brought within two years are timely. (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 204.) The court then held that the language of section 13 — 214, as well as its legislative history, indicated that the statute of repose included actions for contribution. The court found the language in section 13 — 214(b), “No action based upon tort, contract or otherwise may be brought against any person for an act or omission *** after 12 years have elapsed” (emphasis added) (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214(b)), to include actions for contribution. The Hartford court concluded that to exclude contribution actions from the purview of the statute of repose would thwart the fundamental purposes of the legislation, the protection of those in the construction business from unlimited liability.

Another statute of repose, section 13 — 212 of the Code (physician or hospital), was found to bar untimely contribution actions just as it did plaintiffs untimely actions for medical negligence or malpractice. (Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill. App. 3d 441, 535 N.E.2d 1137, aff’d (1990), 136 Ill. 2d 450, 557 N.E.2d 873.) In Hayes, the appellate court explained that the statute of repose:

“[C]uts off the long tail of liability that the discovery rule had previously allowed and enables malpractice insurers to predict future liabilities' and alleviate their need to maintain loss reserves past the four-year period. [Citation.]
*** [I]t would be paradoxical to accept *** that the repose period in the building-construction statute bars contribution *** but that the repose period of the medical malpractice statute does not.” (Hayes, 180 Ill. App. 3d at 445, 535 N.E.2d at 1140.)

The Illinois Supreme Court agreed with the appellate court and noted that to achieve the fundamental purpose of section 13 — 212, the resolution of the medical malpractice insurance-premium" crisis, it was necessary to apply the statute of repose both to direct plaintiffs’ actions and to third-party actions brought under the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). The supreme court also rejected efforts to distinguish between direct actions and third-party actions with respect to a statute of repose:

“[A] suit for contribution against the insured for damages arising out of patient care exposes insurance companies to the same liability as if the patient were to have brought a direct action against the insured ***.” Hayes, 136 Ill. 2d at 458, 557 N.E.2d at 877.

Because the legislature enacted section 13 — 213 for the same reasons as sections 13 — 212 and-13 — 214, the statute of repose contained in section 13 — 213 should-be given the same treatment as those in the other two sections.. Defendants argue, however, that the statutes of repose contained in sections 13 — 212 and 13 — 214 are more general than the statute of repose contained in section 13 — 213, and that sections 13 — 212 and 13 — 214 do not exempt - actions for contribution from their respective statutes of repose. This argument is unpersuasive, especially, since section 13 — 213 also does not exempt actions for contribution from its statute of repose.

We conclude by noting that section 13 — 213(f) means that the statute of repose will not affect the right of any person named as a defendant in a timely filed strict products liability action to seek and obtain indemnity and contribution. If this were not the case, a product supplier sued on the last day of the period of repose would be precluded from obtaining indemnity or contribution from other responsible parties. Thus, while section 13 — 213 bars any person from commencing an action based on the doctrine of strict liability in tort outside the period of repose, subsection (f) clarifies that it will not otherwise cut off the contribution or indemnity rights of a person timely sued as a defendant on such theory of liability. To interpret subsection (f) as allowing a contribution action in strict liability against Sears even though the statute of repose clearly barred plaintiff from bringing a direct strict liability action against Sears would contradict the language of the statute and defeat the purpose of the legislation;

Accordingly, the trial court is reversed.

Reversed.

McCULLOUGH and KNECHT, JJ., concur.


author: PRESIDESÍG JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM L. MURPHY, Defendant-Appellant.
    Fourth District
    No. 4—90—0249
    Opinion filed January 17, 1991.

      Daniel D. Yuhas and Jon McPhee, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDESÍG JUSTICE LUND

delivered the opinion of the court:

Defendant William L. Murphy appeals from the order of the circuit court of McLean County certifying him as an habitual child sex offender. We affirm.

The defendant entered a negotiated guilty plea to one count of aggravated criminal sexual assault and two counts of forgery. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(b)(1), 17 — 3.) On February 10, 1989, the trial court sentenced the defendant to concurrent terms of imprisonment of 10 years for aggravated criminal sexual assault and 5 years for forgery. Defendant’s conviction for aggravated criminal sexual assault, together with prior convictions, qualified him as an habitual child sex offender as defined by the Habitual Child Sex Offender Registration Act (Act) (El. Rev. Stat. 1989, ch. 38, pars. 221 through 230). However, the trial court did not certify the defendant as an habitual child sex offender until April 5, 1990, more than one year after it had imposed sentence.

On appeal, defendant contends that the certification is void because the trial court lost jurisdiction 30 days after he was sentenced. Defendant also argues that the certification violates section 5 — 8—1(c) of the Unified Code of Corrections, which prohibits increasing a sentence once it has been imposed. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c).) Finally, defendant asserts that his plea was involuntary because the trial court did not admonish him prior to accepting his plea that he could be certified under the Act.

In People v. Taylor (1990), 203 Ill. App. 3d 636, 561 N.E.2d 393, this court addressed identical arguments raised by a defendant who had been certified under similar circumstances. In affirming the trial court’s order of certification, we found that the Act is ministerial rather than penal in nature and is thus separate and distinct from the sentencing procedure. Accordingly, we concluded that “a court which fails to do its administrative duty under the Act at the time of sentencing does not lose jurisdiction to perform the function in the future.” Taylor, 203 Ill. App. 3d at 638, 561 N.E.2d at 394.

Because certification is a collateral consequence of a defendant’s conviction for a sex offense against a child rather than a penalty or an enhancement of the sentence, courts are not prohibited from certifying a defendant after his sentence has been imposed. Further, courts are under no duty to admonish the defendant that he is eligible for certification prior to accepting his plea.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.


text:
    JAMES CAMPBELL et al., as Coadm’rs of the Estate of Ronald J. Campbell, Deceased, Plaintiffs-Appellants, v. COLIN F. WHITE, Defendant-Appellee.
    Fourth District
    No. 4—90—0413
    Opinion filed January 23, 1991.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Thorpe Facer, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Scott D. Spooner, Special Assistant Attorney General, of counsel), for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the plaintiffs, James and Lois Campbell, coadministrators of the estate of Ronald J. Campbell, deceased, from an order of the circuit court of Champaign County dismissing plaintiffs’ complaint against defendant Colin E White, an Illinois State Police officer. On appeal, the only issue is whether the trial court properly dismissed the complaint against a State trooper for the reason that proper subject-matter jurisdiction of this claim rests in the Court of Claims and not in the circuit court, or because defendant is immune under the theory of public-official immunity.

This is the second appeal in this matter. In the earlier appeal, this court set aside a default judgment against defendant. Campbell v. White (1989), 187 Ill. App. 3d 492, 543 N.E.2d 607.

In the earlier decision, this court recognized plaintiffs’ complaint is framed in two counts, negligence and wilful and wanton misconduct. The complaint sought damages for the wrongful death of plaintiffs’ son, allegedly resulting from a collision involving a police car operated by defendant. However, in the earlier appeal, a stipulation of facts offered by the parties in a companion Federal case was not properly before the trial court and, as a result, this court could not decide the question of subject-matter jurisdiction because of insufficient facts.

On remand, defendant filed a motion to dismiss pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Code), suggesting plaintiffs’ claim against defendant was barred by “affirmative matter avoiding the legal effect of or defeating the claim,” to wit: subject-matter jurisdiction was properly in the Court of Claims. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) Defendant also suggested the complaint is barred by public-official immunity. At the hearing on the motion to dismiss, defendant asked the trial court to take judicial notice of the stipulation, which states:

“On or about May 25, 1985, at approximately 11:35 p.m., plaintiffs’ decedent, Ronald J. Campbell, was eastbound on Interstate 72 in Piatt County, Illinois. At said time and place plaintiffs’ decedent was operating a 1981 Honda CB 900 F motorcycle. Plaintiffs’ decedent was accompanied by James Miller of Urbana, Illinois, who was also operating a motorcycle in an eastbound direction on Interstate 72.
At or around 11:37 p.m. on May 25, 1985, plaintiffs’ decedent lost control of his motorcycle causing him and his motorcycle to thereafter travel into the median .which separates the eastbound and westbound lanes of Interstate 72. Prior to losing control of his motorcycle, plaintiffs’ decedent and James Miller passed defendant, Trooper Colin F. White, whose vehicle was at the time positioned in a westward-facing direction in the median of Interstate 72. Trooper White was in the process of adjusting his vehicle’s stationary radar unit when plaintiffs’ decedent and James Miller passed him going eastward. After plaintiffs’ decedent and Mr. Miller passed defendant, Trooper White began to pursue them in an easterly direction along Interstate 72. At all times relevant to this lawsuit, Trooper White was acting in his capacityi [sic] as a duly-authorized patrol officer for the Illinois State Police, and was acting under color of state law.
As plaintiffs’ decedent and James Miller traveled eastward on Interstate 72, they did so at speeds well in excess of the established limit of fifty-five (55) miles per hour. Plaintiffs’ decedent was not wearing a helmet while operating his motorcycle and was clothed in blue jeans and a black leather jacket.
As plaintiffs’ decedent and James Miller travelled eastward along Interstate 72, they were pursued by Trooper White of the Illinois State Police. During the conduct of said pursuit, Trooper White chose not to operate his vehicle’s siren or oscillating lights. Trooper White was able to accelerate his vehicle to a speed of approximately one hundred and nine (109) miles per hour during the course of the subject pursuit.
Plaintiffs’ decedent eventually came to rest in the median between the eastbound and westbound lanes of Interstate 72. Thereafter, plaintiffs’ decedent stepped into the passing lane of eastbound Interstate 72 and was struck by defendant’s police vehicle and died.”

The record does not disclose whether or to what extent the trial court relied on the stipulation. However, the record also does not disclose that plaintiffs ever objected to a consideration of it by the trial court, and therefore the stipulation will be deemed a part of the record on appeal.

In addition, defendant’s brief refers to an affidavit filed by plaintiffs in the Federal case in which plaintiffs acknowledged they were seeking review of the Illinois State Police policy allowing for high-speed pursuit without flashing lights or sirens by seeking a monetary judgment against defendant. Defendant suggests that, because a certified copy of the affidavit was appended to his reply brief in the earlier appeal, that affidavit has become part of the record in this case. That is incorrect. A party cannot insert a matter into the record by appending it to a reply brief on appeal: First, briefs are arguments and are not part of the evidentiary or common law record; second, the reply brief cannot be used to bring to the attention of the reviewing court matters which were not raised in the party’s original brief (107 Ill. 2d R. 341(g)); and third, defendant does not indicate that this affidavit by plaintiffs was ever presented to the trial court, nor does the record on appeal demonstrate that it was. Therefore, the affidavit of plaintiffs filed in Federal court will not be considered in this appeal.

Attached to defendant’s motion to dismiss was the affidavit of Kathleen A. O’Bryen, a management operations analyst in the policy development section of the Illinois State Police Department’s division of administration. Her job entails maintaining department directives and operation manuals. The operations manual in effect on May 25, 1985, includes directive ENF 4, relating to emergency and pursuit driving. The directive, which was attached to O’Bryen’s affidavit, states in relevant part:

“ENF 4 EMERGENCY AND PURSUIT DRIVING
4-1 PURPOSE
This order establishes policy and procedure for emergency and pursuit driving.
4-2 DECLARATION
It is difficult to establish policy and procedure for emergency and pursuit driving that is specific enough to provide meaningful guidance, yet broad enough to allow the individual sufficient discretion to function effectively. The order is intended to balance the two objectives to assist the officer in making decisions. Each decision must of course be based upon the conditions and circumstances existing at that time. Ultimately, the test will be the ‘reasonableness’ of the course of action chosen. It. is no disgrace to terminate a pursuit because the conditions are considered hazardous- or unreasonable. It is good judgment.
4-3 POLICY
It is the policy of the Department to:
(a) Conform to statutes regulating the operation of authorized emergency vehicles;
(b) Respond to emergency calls rapidly but with due regard for the safety of life and property;
(c) Make every reasonable effort to apprehend a fleeing violator.
4-4 AUTHORITY
The authority to disregard certain provisions of the Illinois Vehicle Code while responding to an emergency call or when in the pursuit of an actual or suspected violator is derived from Section 11 — 205 of the Illinois Vehicle Code.
4-5 GUIDELINES-P URS UITS
(a) It is the position of the Department that law violators be apprehended whenever it is feasible under the existing conditions. It is not expected, however, that a person be pursued to the point where the life of the officer, the violator, or others is placed in unnecessary jeopardy.
(b) Officers should be prepared to discontinue the pursuit if it becomes unreasonable under the circumstances to continue the chase. Vehicle Marking is an important part of the circumstances. Pursuits should not normally be continued through areas of heavy traffic congestion, through school zones when children are going to and from school, or in other situations where there exists a high expectation of serious injury or death. When engaged in a pursuit, and when deciding whether the pursuit should be continued, officers should weigh the seriousness of the violator’s suspected crime against the potential for death or injury and the duration and overall distance that may be traveled if the pursuit continues.
* * *
4-6 PROCEDURE
* * *
(b) Use of Rotating/Flashing Red Light(s)
The rotating/flashing red light(s) will be lighted during pursuit or when disregarding any provision of the Illinois Vehicle Code when responding to an emergency call, except where a covert approach is necessary due to the nature of the crime.
(c) Use of Siren
The siren will be used as needed during response to emergency calls or during pursuit to warn pedestrians and other drivers of the approach thereof.
(d) UseofISPERN
Whenever possible, the ISPERN System will be used during pursuit in an effort to minimize the need for continued pursuit.”

On March 27, 1990, the trial court heard arguments of counsel regarding the- motion to dismiss, and took the matter under advisement. On May 29, 1990, the trial court dismissed the complaint with the following explanation:

“At the time of the incident, about which Plaintiffs complain in their complaint, Defendant was an Illinois State Police Officer, acting within the scope of his employment, and was engaged in an activity that is uniquely governmental, a high speed police pursuit. Although pleaded as cause of action against Defendant, as an individual, Plaintiff’s [sic] complaint is, in legal effect, a claim against the State of Illinois. The complaint must, therefore, be heard in the Court of Claims and not in the Circuit Court.”

Initially, the standard of review should be considered. Plaintiffs refer to Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504. Pedrick dealt with the standards for directing verdicts and entering judgments n.o.v. Pedrick had absolutely nothing to do with the dismissal of a complaint for lack of subject-matter jurisdiction. The case at bar presents a question relative to a stage in the proceedings quite distinct from that presented in Pedrick.

A section 2 — 619 motion to dismiss affords the parties and the court a means of disposing of issues of law or of easily proved facts at the onset of a case. If defects are not apparent on the face of the pleadings, affidavits may be employed to bring to light affirmative matters which would bar litigation (Cramsey v. Knoblock (1989), 191 Ill. App. 3d 756, 547 N.E.2d 1358). However, there are limitations to the use of such a motion. In Michel v. Gard (1989), 181 Ill. App. 3d 630, 636-37, 536 N.E.2d 1375, 1379-80, this court stated:

“A section 2 — 619 motion is not an appropriate method for a defendant to utilize merely to controvert the allegations of ultimate facts in the complaint. In deciding a section 2 — 619 motion, the trial court can decide conflicting claims on the basis of proper pleadings, supporting affidavits, counteraffidavits, and any evidence offered where no jury demand has been made or where no issue to be resolved by the jury is involved. After hearing the motion, the trial court may resolve genuine issues of material fact, rather than just determine their existence, but the trial court cannot weigh conflicting affidavits. (In re Marriage of Musa (1982), 103 Ill. App. 3d 189, 430 N.E.2d 727.) Where the matters claimed in the affidavit as a defense to the cause of action are nothing more than the evidence which defendant would expect to present in contesting facts alleged in the complaint, then the affidavits are insufficient to support a motion to dismiss based on ‘ “affirmative matter avoiding the legal effect of or defeating the claim.” ’ Venezky v. Central Illinois Light Co. (1988), 168 Ill. App. 3d 612, 613, 522 N.E.2d 901, 902; Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 373 N.E.2d 645.”

In reviewing the granting of a motion to dismiss, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiffs to recover from defendant. (Cramsey, 191 Ill. App. 3d 756, 547 N.E.2d 1358.) Conclusions unsupported by allegations of specific facts upon which the conclusion rests will not be considered. (Lowrie v. City of Evanston (1977), 50 Ill. App. 3d 376, 365 N.E.2d 923.) As a result, it has been said that a reviewing court, in construing the propriety of granting a motion to dismiss, is concerned only with questions of law presented by the pleadings. People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 370 N.E.2d 78; Lowrie, 50 Ill. App. 3d 376, 365 N.E.2d 923.

On the merits, the obvious place to start the analysis is with a review of what was said in the opinion for the earlier appeal. In that opinion, this court indicated defendant relied on language in Oppe v. State of Missouri (1988), 171 Ill. App. 3d 491,- 525 N.E.2d 1189, appeal denied (1988), 122 Ill. 2d 579, 530 N.E.2d 250, relating to public-official immunity and to subject-matter jurisdiction, two distinct and separate concepts. While no extended discussion of public-official immunity was presented, the earlier decision in this case did offer the following discussion regarding subject-matter jurisdiction:

“In Oppe, this court decided that a suit against the Illinois Department of Law Enforcement and individual State troopers to recover damages for injuries resulting from a collision following a high-speed chase of an escapee from a Missouri prison must be brought in the Court of Claims. The plaintiffs attempt to avoid the same result here by relying on Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 406 N.E.2d 207, and Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035.
Kaiser decided a suit against a police officer involved in an intersection collision while driving a patrol car could be brought in the circuit court. In another automobile accident case, the Bartholomew court, after determining the defendant was not an employee of the State of Illinois, discussed the Kaiser decision at length. The Bartholomew court indicated that the statute relied on in Kaiser (Ill. Rev. Stat. 1977, ch. 127, par. 35.9(m) (now Ill. Rev. Stat. 1987, ch. 127, par. 63b4(k))) was not intended to have a jurisdictional effect and noted that nongovernmental activities forming the basis of allegations of negligence need not be asserted in the Court of Claims. A police officer driving in hot pursuit of a violator of the law is clearly exercising a uniquely governmental function.
In Robb v. Sutton (1986), 147 Ill. App. 3d 710, 716, 498 N.E.2d 267, 270, this court discussed the standards for determining whether the circuit court had subject-matter jurisdiction of an action against a former program coordinator at Southern Illinois University or whether the cause must be heard in the Court of Claims:
‘To summarize, we believe that where, as here, there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involve matters ordinarily within that employee’s normal and official functions of the State, then the cause of action is only nominally against the employee. As such, the claim involves actions which may be attributed to the State.’
As the Robb opinion discussed, an action seeking monetary damages for a past harm which has the potential to control actions of the State or to subject the State to liability must be brought in the Court of Claims.
In the case at bar, even though it is not alleged defendant was acting beyond the scope of his authority, the record does not contain sufficient facts from which this court can determine whether defendant was, in fact, acting outside the scope of his authority or whether a policy exists within the Department of. Law Enforcement concerning high-speed pursuit without oscillating lights being activated, as defendant suggests, such that a policy of the State would be inhibited by an adverse ruling against defendant herein.” (Campbell v. White (1989), 187 Ill. App. 3d 492, 506-07, 543 N.E.2d 607, 616-17.)

The decision in Oppe also included the following discussion of the subject-matter jurisdiction of a case based on a claim of negligence arising out of an incident involving the high-speed chase of an escaped felon:

“Any suit sounding in tort against the State must be brought in the Court of Claims. (Ill. Rev. Stat. 1987, ch. 127, par. 801; ch. 37, par. 439.8(d).) A suit-against a State agency or its employees concerning matters in which the defendants represent the State in their actions and in liability is considered a suit against the State even though the State is not a formal party of record. (Betts v. Department of Revenue (1979), 78 Ill. App. 3d 102, 396 N.E.2d 1150.) In other words, the action is regarded as against the State if the State is really the party from which plaintiffs seek relief. (Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 372 N.E.2d 1131.) Where, as here, the State has the duty to defend and may have a duty to indemnify the employee for any judgment awarded (Ill. Rev. Stat. 1987, ch. 127, par. 1302), then the action must be considered to be against the State. For this reason, the Court of Claims is the court of proper jurisdiction and the counts against the Department of Law Enforcement and the State troopers were properly dismissed by the circuit court.” Oppe, 171 Ill. App. 3d at 493-94, 525 N.E.2d at 1191.

Plaintiffs contend the legislature, by reenacting the statute referred to in Kaiser v. Emrich (1980), 84 Ill. App. 3d 775, 406 N.E.2d 207 (Ill. Rev. Stat. 1977, ch. 127, par. 35.9(m)(3) (now Ill. Rev. Stat. 1989, ch.' 127, par. 63b4(k))), has adopted the interpretation placed on the statute by Kaiser. (See Hupp v. Gray (1978), 73 Ill. 2d 78, 382 N.E.2d 1211.) However, this court’s disagreement with plaintiffs’ position is with plaintiffs’ analysis of what Kaiser and Bartholomew v. Crockett (1985), 131 Ill. App. 3d 456, 475 N.E.2d 1035, actually decide. The presence of insurance need not be considered in this case. Kaiser and Bartholomew decide that when a police officer is driving a police vehicle under circumstances similar to those encountered by ordinary citizens driving their vehicles, the alleged negligence of the officer may support a cause of action filed in the circuit court. We do not agree with plaintiffs’ suggestion that there are two categories of cases against State employees, to wit: (1) automobile cases, all of which may be entertained in the circuit court, and (2) other cases involving tort actions to which the standards announced in Robb v. Sutton (1986), 147 Ill. App. 3d 710, 498 N.E.2d 267, apply. The position adopted by this court is supported by the fact that in Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240, the Illinois Supreme Court adopted and applied the legal principles applied in Robb and cited this court’s recent decision in Oppe without disapproving of it.

In the case at bar, the allegations that defendant acted beyond his scope of authority through wrongful acts have been found by the trial court to be refuted by the motion to dismiss. Plaintiffs allege defendant violated statutes relating to the use of oscillating lights and sirens in emergency situations. (See Ill. Rev. Stat. 1989, ch. 951/2, pars. 11 — 205, 12 — 215, 12 — 216.) However, the policy of the Illinois State Police promulgated pursuant to the statute directs that discretion in using these signals may be exercised in some situations. Therefore, we must conclude that it is the policy of the State which plaintiffs are actually challenging in this case. Even assuming plaintiff correctly alleges defendant’s acts violate the statute and regulations pertaining to the use of oscillating lights and sirens, defendant can act negligently or wilfully and wantonly without exceeding the scope of his authority. By analogy, we note that while proof of the violation of a statute relating to the operation of a motor vehicle on the highways of the State may be considered prima facie evidence of negligence (Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323), it would be illogical to decide such a violation is prima facie evidence the operator was acting outside the scope of his employment. To hold otherwise would drastically alter the application of the legal theory of respondeat superior as it pertains to automobile collision cases. When defendant has acted in such way as to take himself outside- the scope of his authority, as defined by the duties of his employment, then the circuit court would retain jurisdiction. This court need not now decide whether defendant’s acts were negligent, wilful and wanton, or the proximate cause of decedent’s death. However, it is clear that defendant was acting within the scope of his authority and not for some other purpose unrelated to his employment. The actions complained of are within defendant’s normal and official functions as an agent of the State. And, while defendant ordinarily would owe a duty to the general public not to drive negligently, the specific acts of negligence and wilful and wanton misconduct alleged revolve around the operation of a State Police vehicle in a manner uniquely related to his State employment and for which there are equally recognized exceptions to the normal rules of the road (which set out the recognized duties owed by a driver to the general public). Oppe similarly concluded that such an action is only nominally against the individual employee and must be brought in the Court of Claims. The same conclusion is warranted here.

Plaintiffs also argue this complaint should not be dismissed because they would be without a remedy for the wrongful death of their son. Plaintiffs fail to explain how an adverse decision in this appeal will impact their case in Federal court. Moreover, plaintiffs recognize the Hlinois Supreme Court has previously held that filing an action in the circuit court satisfied any statutory requirement of notice and filing in the Court of Claims. (Williams v. Medical Center Comm’n (1975), 60 Ill. 2d 389, 328 N.E.2d 1; Roth v. Northern Assurance Co. Ltd. (1964), 32 Ill. 2d 40, 203 N.E.2d 415.) However, plaintiffs ask this court to consider the impact of the Court of Claims decision of Gunderson v. Illinois (1980), 33 Ill. Ct. Cl. 297. Although Gunderson may seem to preclude plaintiffs from proceeding in the Court of Claims, that fact does not alter the subject-matter jurisdiction, or lack thereof, in the circuit court.

With regard to public-official immunity, such immunity might shield defendant from any claim by plaintiffs for damages. (See Fulk v. Roberts (1987), 164 Ill. App. 3d 194, 517 N.E.2d 1098.) In Oppe, this court had this to say about public-official immunity:

“As to the sheriff and his deputy, the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 101 et seq.) needs to be considered. Section 2 — 202 of that act specifically states, ‘A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.’ (Ill. Rev. Stat. 1987, ch. 85, par. 2 — 202.) This wilful and wanton requirement applies where police officers are involved in high-speed chase situations. (See Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88.)
However, section 9 — 103(c) of the Act provided:
‘Every policy for insurance coverage issued to a local public entity shall provide or be endorsed to provide that the company issuing such policy waives any right to refuse payment or to deny liability thereto within the limits of said policy by reason of the non-liability of the insured public entity for the wrongful or negligent acts of itself or its employees and its immunity from suit by reason of the defenses and immunities provided in this Act.’ (Emphasis added.) (Ill,. Rev. Stat. 1985, ch. 85, par. 9 — 103(c).)
Although this statute has since been amended (Pub. Act 84— 1431, art. 1, §2, eff. Nov. 25, 1986), at the time of the collision and at the time of the filing of the complaint, the law provided that, if the municipality secured insurance coverage against a particular liability, then the statutory immunity would be waived. (Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610.) Plaintiffs pleaded the existence of insurance, but wrongly rely on this argument in this case.
The statute does not affect the common law doctrine of public official immunity relied on here by defendants. The Act was created as a response to the decision in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89, cert, denied (1960), 362 U.S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955, which abolished the common law principle of governmental immunity. So the Act reinstated governmental or sovereign immunity to some extent.
*** The doctrine of public official immunity rests on the theory that government officials should not be impeded from acting in ways they perceive are in the public’s best interest because of fears of personal liability. Even after Molitor, the courts have recognized the doctrine of public officials immunity. (Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 246 N.E.2d 24.) So while the County of Livingston can be sued for the wilful and wanton acts of its employees under section 2 — 202, the individual employees cannot be held individually liable to the extent their conduct is protected by the immunity.
The policy annunciated by the courts has been to protect the public official where his or her conduct is a good-faith exercise of discretionary, rather than ministerial, duties. (Larson v. Darnell (1983), 113 Ill. App. 3d 975, 448 N.E.2d 249.) However, this standard has been stretched and pulled to fit individual cases to the point that the immunity applies to the exercise of any governmental function, rather than a discretionary, nongovernmental function such as a maintenance person deciding where to drive a nail. (Madden v. Kuehn (1978), 56 Ill. App.- 3d 997, 372 N.E.2d 1131.) And so the question to be asked is whether the activity of defendants was a uniquely governmental function.
In the case at bar, law enforcement officers attempting to apprehend an escaped criminal is a uniquely governmental function. Therefore, the public official immunity applies and the individual law enforcement officers cannot be personally liable to plaintiffs.
Plaintiffs argue that the granting of absolute immunity violates section 12 of article I of the Illinois Constitution of 1970, which states:
‘Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.’ (Ill. Const. 1970, art. I, §12.)
Plaintiffs’ remedy is against the State in the Court of Claims, and the municipality in the circuit court subject to the Local Governmental and Governmental Employees Tort Immunity Act. Plaintiffs can have but one recovery for damages anyway. The concept discussed herein merely restricts the pockets from which plaintiffs can seek recovery to those most suitable and the circumstances under which recovery is appropriate in light of the public policy of the State of Illinois.
Plaintiffs also argue the existence of insurance on behalf of State policemen should remove any immunity they have. (See Ill. Rev. Stat. 1987, ch. 121, par. 307.17a.) This argument of plaintiffs fails to recognize the distinction between the governmental or sovereign immunity and the public officials immunity already discussed. The argument also has already been considered and addressed in Mora v. State of Illinois (1977), 68 Ill. 2d 223, 369 N.E.2d 868, wherein it was pointed out that there is no statute which says the existence of- liability insurance in any way defeats a claim to public officials immunity.” Oppe, 171 Ill. App. 3d at 494-96, 525 N.E.2d at 1192-93.

Plaintiffs, in their reply brief, attempt to rely on a recent decision of the Third District Appellate Court, Currie v. Lao (1990), 198 Ill. App. 3d 625, 556 N.E.2d 318. The defendant in that case, also a State trooper, gratuitously responded to a nonemergency call in the City of Joliet. As he proceeded to the location, he missed a turn and drove the wrong way on a one-way street. In attempting to distinguish Oppe, the majority in Currie relies on the fact that, in Oppe, it was the felon’s car, not the officer’s car, that was involved in the collision. Justice Heiple’s specially concurring opinion seems to point out that in the ordinary operation of a motor vehicle, the negligent operation of that vehicle is not considered a unique governmental function which is afforded protection under the doctrine of public-official immunity. On the other hand, the enforcement of the criminal and traffic laws of this State by attempting to apprehend an offender by means of a high-speed chase is a uniquely governmental function. No one but an officer of the law has the legal authority to so proceed. The key to the case at bar is whether defendant was (or was not) properly following the directive concerning use of flashing lights during a pursuit. If the directive gives defendant the discretion to determine whether to use the flashing lights, then what plaintiffs really want to accomplish is to change the policy of the Illinois State Police regarding use of flashing lights in pursuit. If, as plaintiffs suggest, defendant had no discretion and was required by law to activate his oscillating lights and siren, the public-official immunity could not be invoked on his behalf.

However, having already decided that this case belongs in the Court of Claims, the issue of whether public-official immunity applies to defendant is left to the Court of Claims to decide, i.e., the forum with subject-matter jurisdiction and where the facts may be developed from which the issue may be decided. Defendant’s motion to vacate the default judgment states defendant exercised his discretion to not use the oscillating lights and siren because (1) the distance separating decedent’s motorcycle and defendant’s vehicle and the speed at which the motorcycle was traveling would have rendered such use ineffective with regard to plaintiffs’ decedent, and (2) the use of oscillating lights and the siren would have caused a danger and hazard to other traffic lawfully proceeding on the highway. However, the affidavit of defendant in support of this motion does not set forth the facts relied on by defendant in deciding not to use the oscillating lights and the siren.

For the foregoing reasons, the order of the circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.