author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN CATHERS, Defendant-Appellant.
    Fourth District
    No. 4—89—0270
    Opinion filed December 21, 1989.
    Modified on denial of rehearing March 12, 1990.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Norbert J. Goetten, State’s Attorney, of Carrollton (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Kevin Cathers was charged by information with residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3) and theft under $300 (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(a)(1)) of a video cassette recorder (VCR) from the home of Vincent Edwards on April 26, 1988. Defendant’s brother Michael was separately charged by information with the same offenses. Separate counsel were appointed by the court for each defendant, they waived trial by jury and were tried in a bench trial simultaneously. On August 23, 1988, the circuit court of Greene County convicted defendant on both counts and sentenced him on September 23, 1988, to 14 years’ imprisonment for residential burglary and 364 days’ imprisonment for theft, the sentences to run concurrently. Defendant was also ordered to pay $3,000 as reimbursement for court-appointed counsel. Defendant’s motion for a new trial was denied, and the defendant filed a timely notice of appeal on September 23,1988.

On appeal, defendant contests the admission into evidence of his brother’s statement and asserts ineffective assistance of counsel because of the failure of his attorney to object to the admission on Bruton grounds. (Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) Defendant also challenges the order requiring reimbursement of attorney fees.

The facts will be reviewed only as they are necessary to this disposition.

The defendants were charged with the burglary of Vincent Edwards’ home in Roodhouse, Illinois, and with the theft of a VCR from Vincent Edwards. The record does not reflect any motion for the joinder of the prosecution by either the State or the defendants, but likewise there was no objection by either defendant when the cases were called for bench trial. Michael made a statement to police immediately after his arrest implicating the defendant. In substance, Michael indicated that he was driving his own car, he let the defendant out to do something, he didn’t know what, and about 10 or 15 minutes later, the defendant got back into the car with a VCR in his possession. He then took the defendant to their home, where the defendant got out of his car, and into his own car, and the two met a few blocks from their residence. The defendant took the VCR out of Michael’s car and put it into his car. Michael then took his car home and got into Kevin’s car. The brothers went to Granite City on April 27, 1988, and to Alpine Cleaners in Madison, Illinois, where they sold the VCR to a Frank Marsala for $65.

Michael had made a motion in the trial court to suppress the statement as being involuntary. The record does not reflect any objection by defendant’s counsel asserting a Bruton violation. The trial court found that the statement was voluntary and denied Michael’s motion to suppress. The record does not reflect any indication by the trial court that this statement would be considered only as evidence against Michael. The defendant in his motion for new trial does not assert that the trial court used the statement of Michael in determining the guilt of the defendant. The State argues that the defendant has waived any error concerning the statement made by Michael. We find the State’s position is well taken but, even on the merits, the defendant’s assertion that there was a Bruton violation is without merit.

The supreme court has recently considered the issue raised by the defendant in this case. In People v. Schmitt (1989), 131 Ill. 2d 128, 545 N.E.2d 665, a codefendant, Nielsen, moved for a severance of his case from that of Schmitt, alleging that Schmitt had given written and oral statements implicating Nielson and that their theories of defense were antagonistic. No ruling was procured on this motion prior to the commencement of the trial, but by agreement of the parties, the court proceeded as if the cases had been severed, conducting simultaneous but separate bench trials. During the course of the trial, Nielsen’s attorney repeatedly objected to the testimony regarding Schmitt’s statements implicating Nielsen. The court time and again sustained counsel’s objections and assured Nielsen’s attorney that “ ‘[throughout, the Court is not considering statements made by Schmitt with regard to Nielsen.’ ” (Schmitt, 131 Ill. 2d at 132, 545 N.E.2d at 666.) In approving the joint trial of defendants in Schmitt, the supreme court stated:

“We do not mean to imply that the procedure employed in the instant case is without its pitfalls — there are many. Any court employing such a procedure would do well to exercise the utmost caution to recite for the record its findings in each case and the reasons for its rulings. That said, we do not find the task beyond the abilities of circuit court judges or one to be undertaken only by the offspring of Zeus. (Schmitt, 131 Ill. 2d at 137-38, 545 N.E.2d at 669.)

The supreme court emphasized that there was nothing in the record to indicate the court relied upon the post-arrest statements of Sch-mitt where he named defendant Nielson as his drug source. Further the court stated:

“We must presume the trial court considered only competent evidence unless the contrary affirmatively appears of record or the trial court, confronted with serious improprieties in a case where a defendant’s guilt is not manifest, fails to comment on the irregularities or even indicate an awareness thereof.” Schmitt, 131 Ill. 2d at 138-39, 545 N.E.2d at 669.

The trial court “would do well to” have recited for the record its findings in this case insofar as the statement of Michael was concerned and whether the statement would be considered in determining the guilt of defendant. (Schmitt, 131 Ill. 2d 128, 545 N.E.2d 665.) However, there is nothing in this record to indicate that the trial judge considered matters other than competent evidence in finding the defendant guilty. No error.

The record in this case shows that the defendant’s guilt was manifest and proved beyond a reasonable doubt. Frank Marsala, the owner of Alpine Cleaners in Madison, Illinois, testified that the last time he had occasion to see the defendant and Michael was at his place of business, where they came to him to sell him a VCR. He testified he believed defendant was driving the car and Michael was sitting on the passenger side. When they discussed the purchase of the VCR, he asked them if it was stolen and “they told me no.” Marsala purchased the VCR from the defendant and Michael for $65. The VCR was recovered, was properly identified and admitted into evidence against the defendant and Michael. The trip to Madison by the defendants with the VCR occurred within 24 hours after the burglary. There was also testimony that the defendant was acquainted with the victim’s house and had been in the house several times before. With respect to the testimony concerning entry into the victim’s house, there was testimony of the victim, his wife and the police officer investigating the incident that there was no forced entry. There was testimony concerning the victim’s wife losing a set of keys to the house, but that is not important to the disposition of this case. Terry Osborne, a neighbor of the Edwards, was also a witness presented by the State. During the evening hours of April 26, 1988, he noticed a car suspiciously driving up and down the streets by the witness’ house. He identified the car as having a white vinyl top but could not tell the color of the bottom of the car except that it was a dark color. Osborne called the police, and, subsequently, the police picked up Mr. Osborne and went to the defendant’s home. Osborne identified the car in the driveway of the defendant’s home as similar to the ear he had seen driving up and down the street. The policeman also testified that the hood of the car was warm to the touch.

The testimony of Marsala concerning the possession of the fruits of the burglary was proper for the trier of fact to consider in determining the guilt of the defendant. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) Even in the absence of the statement made by Michael, the defendant’s guilt was proved beyond a reasonable doubt.

Defendant argues Lee v. Illinois (1986), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056, supports reversal of defendant’s conviction and sentence. In Lee, the Supreme Court discussed the use of codefendants’ statements and confessions. The Supreme Court acknowledged the precedent of Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531. Per Roberts, the statement of Michael would be admissible even though he is unavailable as a witness if the “statement bears sufficient ‘indicia of reliability’ to rebut the presumption of unreliability that attaches to codefendants’ confessions.” The hearsay evidence must fall within a firmly rooted hearsay exception. The Supreme Court clearly pointed out in Lee those matters which indicated the statement of the codefendant, Thomas, did not have sufficient indicia of reliability. It found that the confession was elicited only after Thomas was told that Lee implicated him in the criminal offense, Lee implored Thomas to share the responsibility, police had already interrogated Lee and knew what they were looking for and Thomas had contemplated becoming a witness against Lee. The majority in Lee, following Roberts, found on the facts there was no showing of reliability.

In determining whether the statement is trustworthy, Cleary refers to tests for trustworthiness:

“(1) Does the trier of fact have ‘a satisfactory basis for evaluating the truth of the prior statement?’ (2) How ‘real’ is the possibility that cross-examination ‘could conceivably have shown the jury that the statement, though made, might have been unreliable?’ (3) What ‘indicia of reliability’ were present *** although there was not confrontation of the declarant?” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §807.1, at 616 (4th ed. 1984), quoting Park v. Huff (5th Cir. 1974), 493 F.2d 923, 931, remanded, after en banc rehearing (5th Cir.1975), 506 F.2d 849.)

Cleary refers to People v. Craven (1973), 54 Ill. 2d 419, 299 N.E.2d 1, where the supreme court cited the indicia of reliability concerning hearsay testimony of defense witnesses. Elements showing reliability were that the statement was secured shortly after the crime, the crime was corroborated by other evidence, the statement was self-incriminating and a declaration against interest, and there was an opportunity for cross-examination. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §804.7, at 607 (4th ed. 1984).

Although here there was no opportunity for cross-examination, the statement of Michael occurred shortly after the crime, the statement was voluntary, the statement was self-incriminating and a declaration against interest, and the statement was corroborated by direct evidence given by other witnesses.

As stated in Roberts:

“In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.

Likewise, there is no Bruton problem. Bruton involved a jury trial and limiting instructions. The Lee Court stated:

“[TJhis is not strictly speaking a Bruton case because we are not here concerned with the effectiveness of limiting instructions in preventing spill-over prejudice to a defendant when his codefendant’s confession is admitted against the codefendant at a joint trial.” (Lee, 476 U.S. at 542, 90 L. Ed. 2d at 527, 106 S. Ct. at 2063.)
“We based our decision in Bruton on the fact that a confession that incriminates an accomplice is so ‘inevitably suspect’ and ‘devastating’ that the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied.” Lee, 476 U.S. at 542, 90 L. Ed. 2d at 527, 106 S. Ct. at 2063.

The Lee Court remanded the case for a determination whether the error was harmless. Here, the record does not show the trial court considered the codefendant’s confession. There was sufficient evidence to find defendant guilty beyond a reasonable doubt excluding the confession. Any asserted Lee error, if meritorious, would be harmless.

With respect to the assertion of error on the part of the trial court in ordering the defendant to pay $3,000 as reimbursement for court-appointed counsel, the State concedes the order was erroneous as the defendant could not comply -with the restitution order. That portion of the sentence is reversed.

The defendant’s conviction and sentence are affirmed, and the order for reimbursement for court-appointed counsel is set aside.

Affirmed in part; reversed in part.

KNECHT, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    NELLIE BAUSBACK, Plaintiff-Appellee, v. K MART CORPORATION, Defendant-Appellant (Heinz Bausback, Plaintiff; Billy Williams et al., Defendants).
    Second District
    No. 2—89—0389
    Opinion filed February 16, 1990.

      Ridge & Lawler, of Waukegan (James S. Tukesbrey, of counsel), for appellant.
    James J. DeSanto, of DeSanto & Bonamarte, P.C., of Waukegan (Michael F. Bonamarte III, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, K mart Corporation, appeals from judgments entered on jury verdicts against it and in favor of plaintiff, Nellie Baus-back, for $10,000 in compensatory damages and $40,000 in punitive damages upon her complaint charging it with battery, false imprisonment, intentional infliction of emotional distress and wilful and wanton misconduct. The jury found in favor of the individual defendants, who were all K mart employees at the Mundelein store, and against plaintiff Nellie Bausback on her complaint against Billy Williams, the loss prevention manager, for battery and false imprisonment, and her complaint for false imprisonment against defendants Freida Teeter, the personnel manager; David Fisher, a security assistant; and Timothy Scully, co-manager of the store. Plaintiff has not appealed from the judgments in favor of the individual defendants. The jury also found against Heinz Bausback, plaintiffs husband and coplaintiff, on his complaint against K mart and the individual defendants for loss of consortium, and no appeal was taken from that verdict. K mart’s post-trial motion for judgment notwithstanding the verdict or, alternatively, a new trial was denied.

K mart contends the court erred in denying its motion for judgment notwithstanding the verdict or for new trial where: (a) its liability to the plaintiff was premised on the theory of respondeat superior and the jury found none of its employees liable for the acts upon which its vicarious liability was based; and (b) evidence of plaintiffs convictions for battery and disorderly conduct arising out of the same incident was improperly excluded.

Kmart’s motion to strike certain portions of the plaintiff’s statement of facts and argument is well taken. The portions of plaintiff’s statement of facts noted by K mart are either improperly argumentative, unsupported by record references, or misstate the evidence, and a portion of its argument refers to matters which are dehors the record. K mart’s motion to strike those portions is granted. 113 Ill. 2d Rules 341(e)(6), (e)(7); see also Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App. 3d 637.

The events which gave rise to the instant cause all occurred during the afternoon hours of Saturday, October 6, 1984, at the K mart store in Mundelein, Illinois. The record shows that since an operation in 1982, plaintiff suffered partial paralysis in her left leg and used a cane to help her walk. When she arrived at the K mart on October 6, she placed her cane on her shopping cart and used the cart for support as she went to get a carton of cigarettes.

According to plaintiff’s testimony, when she went to the layaway department to make a $2 payment on a blazer for her daughter, Tracy, she was informed the blazer had been returned to the sales racks due to payments being late. Timothy Scully, the store co-manager, tried to help her find the blazer, and plaintiff called her daughter at one point during this search to check on the color and size. The blazer could not be found, and plaintiff went back to the layaway and got in line with several other customers. Plaintiff testified there had been some yelling and fighting previously but that “the couple” had left, and she didn’t pay any attention to it. Then, “all of a sudden, they came after [her]” and were yelling at her saying she was being too loud and was using vulgar language. They wanted her to sign her name on the layaway card and then give her the money, but she told them Tracy would come back and pick out what she wanted and so she refused to sign the card. Plaintiff identified Billy Williams, Timothy Scully and David Fisher as the “they.” She told them to “[t]ake the carton of cigarettes. Do what you want with it because I don’t care *** I’m leaving.” Plaintiff testified that when she turned around to get her cane and purse, they were gone, and she was suddenly grabbed in the back. They took her out “like an animal” to a room, put her on the ground, tied her hands and feet with belts, hit her in the face, and sat on her back.

According to the testimony of the K mart employees, plaintiff was first observed by Williams and Fisher at the service desk, where she was demanding and insisting in a “very loud and outspoken” manner that she wanted her coat out of layaway. Timothy Scully tried unsuccessfully to help the plaintiff find the coat and apologized to her for having to refuse to take the payment for the layaway since the item was no longer in layaway. The plaintiff remained in a rage, however, stating that the layaway department was to blame and that they had the coat and were keeping it from her. Plaintiff then headed back to the layaway department and got in line.

Fisher stated he warned the two girls in the layaway department that plaintiff was coming back to the department and that they should just be polite and listen to her. He then positioned himself about 10 feet away from the layaway department in an aisle in order to observe the plaintiff. Williams asked Teeter to stand with him in the paint aisle to observe the plaintiff in the layaway department, and Scully joined them. They observed plaintiff screaming loudly about what “dummies” they all were and that none of them knew what was going on and that they were trying to steal the blazer. Scully told plaintiff that they would try to get her another blazer from another store but that it would take two or three days. Plaintiff kept talking louder, and Williams asked her to quiet down. Plaintiff did not quiet down, and Williams said she would have to leave the store or he would call the police.

When Williams motioned to plaintiff to leave the store, plaintiff poked Williams in the chest and grabbed her cane and swung it at Williams, striking him as he blocked the blow and knocked the cane away. Fisher picked up the cane while Williams picked plaintiff up in a “bear hug” hold and, carrying plaintiff, followed Fisher about 70 or 80 feet to the security office. Williams told Fisher to call the police, and Fisher did so after Scully and Teeter also entered the security office. Still holding plaintiff in a bear hug in front of himself, Williams asked her several times to sit down and calm down. When she did sit down, and he felt she seemed to relax, he released his grip on her arms. At that point, Williams testified, plaintiff grabbed her right wrist with her left hand and came straight back with her arm into his groin area causing him to double over. Williams testified that while he was doubled over, plaintiff gritted her teeth at him and came at him with both hands and her long fingernails. He grabbed her hands, and when she jerked away, he lost his balance and fell down onto the chair, forcing plaintiff over onto the chair beside it. Facing each other, plaintiff and Williams scuffled, and Williams called to Fisher for help. At that point, plaintiff kicked off from the wall with her feet, and Williams and plaintiff both fell to the floor. At Williams’ direction, Fisher took off his belt and secured plaintiff’s hands behind her back, and Williams stood up, holding plaintiff. According to Scully, plaintiff then “snarled” at him, stating repeatedly, “You’re going to pay for this” and “You’ll be the first.” Plaintiff then kicked out hard at Scully, striking him below the groin and to the side. The force of the kick caused Williams to lose his balance, and he and the plaintiff fell to the floor again. Plaintiff continued to kick and holler and swear while on the floor, and Williams told Teeter to take his belt off him and tie plaintiff’s feet together, which Teeter did. They then sat plaintiff up in a chair. Scully stated the plaintiff seemed to have calmed down, and he said to take the belt off her legs. This was done, and the police arrived shortly thereafter.

There was testimony that K mart had no policy concerning or a training program for dealing with customers who are making a disturbance or are unruly whereas it does have set policies with regard to shoplifters. There was no evidence that plaintiff was suspected of shoplifting. Williams denied he told the plaintiff she could not leave the security office until she signed a general release form or that he sat on her. According to the K mart employees’ testimony, plaintiff did not seem to be suffering from any disability on October 6.

Darlene Saam, a store customer who was present along with her two-year-old son in the layaway department when the incident occurred, testified she heard the plaintiff screaming and yelling and saw her swing her cane back and forth. Saam’s first thought was that the plaintiff was inebriated. She testified that the K mart employees who approached the plaintiff talked to her calmly and quietly and did nothing to provoke her. She saw plaintiff raise her cane and saw it intercepted by the man who put the plaintiff in a “bear hug.”

Mundelein police officer Cimaglio testified he was dispatched to K mart about 5:18 p.m. on October 6. Plaintiff was sitting calmly in a chair; she was pale and had dark circles under her eyes. He did not notice any bumps, bruises, contusions or bleeding on the plaintiff. She was happy-go-lucky and laughing when she arrived at the police station. At no time did she claim to have been beaten, tied or mistreated by K mart.

Mundelein patrolman Roy McCommons, whom plaintiff's counsel encountered by chance in the courthouse, was called in rebuttal. He testified he arrived at K mart about the same time as Officer Cimag-110. To the best of his recollection, plaintiff was bound hand and foot and on the floor when he arrived. McCommons testified plaintiff had a noticeable limp of her left leg when he walked with her that day.

Plaintiff submitted into evidence several photos of herself taken the next day, October 7, which depicted a bruise on her upper left arm, a damaged dental plate and a swollen, discolored left eye. Plaintiffs husband, Heinz Bausback, testified plaintiff was a happy-go-lucky person before the incident. About 9:30 p.m. on October 6, he got a call from her to pick her up at Condell Hospital. He testified he didn’t “see so much” about her physical condition at the hospital until he brought her home, and then he noticed “bruises all over the place, and starting on her face and started puffing out on the eye.” The next morning her eye was black and blue and the bruises were yellow and black and blue. One tooth was knocked out of her dental plate. He testified that since the incident, plaintiff does not go to the store very frequently she limps more, she is fearful that somebody is after her and she does not sleep well. Plaintiffs daughter, Tracy Ann Matt, corroborated the plaintiff’s appearance the morning after the incident, and she stated her mother was very nervous and upset. Matt testified her mother used to be very outgoing and friendly but is much more “withheld” now.

Plaintiff’s regular physician, Dr. Gonzales, reviewed the emergency room report from Condell Hospital, where plaintiff was examined on the night of the incident. He testified there was no mention of any dental damage or an examination of her mouth, nor any notation regarding any bleeding, bumps or bruises.

K mart argues it cannot be held liable for the plaintiff’s injuries where her causes of action against it were all based on the theory of respondeat superior and all the named individual defendant employees were exonerated by the jury of the actions alleged against them. We agree.

It is well settled that an employer may be held liable for the negligent, wilful, malicious or criminal acts of its employees where such acts are committed in the course of employment and in furtherance of the business of the employer. (Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964; Rubin v. Yellow Cab Co. (1987), 154 111. App. 3d 336, 338.) The rule has also been established that “[w]hen an action is brought against a master based on the alleged negligent acts of his servant, and no independent wrong is charged on behalf of the master, his liability is entirely derivative, being founded upon the doctrine of respondeat superior.” (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 123-24.) The Towns court explained:

“As such, any legal claim against the master must be said to be identical to that which the plaintiff may have asserted against the servant. The operative facts which comprise the alleged bases for liability of the master are identical to those which would prove the servant liable. Indeed, if the agency relationship is not in dispute, any act of the servant which renders the master liable also renders the servant liable. A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable.” (Emphasis added.) Towns, 73 Ill. 2d at 124.

By the same reasoning, where the servant is exonerated, it necessarily follows that the party for whom he acted, the master, cannot be held liable but must also be exonerated. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 532-33; Boston v. Lake Shore Mutual Insurance Co. (1973), 10 Ill. App. 3d 137, 139; Rogina v. Midwest Flying Service, Inc. (1945), 325 Ill. App. 588, 592-93.) A corollary to this rule of exoneration is the principle “that if an action against the employer is based on other than the exonerated employee’s act or omission, it is possible to render a verdict against the employer and, at the same time, free the named employee.” (Emphasis added.) Boston, 10 Ill. App. 3d at 139. See also Rice v. Gulf, Mobile & Ohio R.R. Co. (1967), 84 Ill. App. 2d 163, 171-72.

In support of the court’s judgment denying judgment notwithstanding the verdict, the plaintiff relies on Devore, Bunyan, and Rice in arguing that the exoneration of the individual employees here for false imprisonment and battery (as to Williams) does not serve to exonerate K mart. She notes the allegations of her complaint charged K mart not only with false imprisonment and battery, but also with intentional infliction of emotional distress and wilful and wanton misconduct. Further, as to battery, she contends the actions of any of the employees other than Williams were a sufficient basis for a finding of liability against K mart.

K mart argues in response that it is clear that the employer’s liability in Devore, Bunyan and Rice was based on evidence which showed either conduct of the employer itself or of employees other than the exonerated named employees upon which the employer’s liability was sustained. In the instant cause, K mart contends, there was no evidence of conduct of itself or of any employees other than the named, exonerated employees which would sustain the jury’s verdict against it.

We believe K mart has correctly distinguished Devore, Bunyan and Rice from the instant cause and that the court should have granted its motion for judgment notwithstanding the verdict.

In Bunyan, the plaintiff charged the employer and one of its employees, Charles Townsend, with negligence for leaving used cans of nitroglycerine in places of easy access to the public, including near a school. One of the used cans came into the hands of some of the school pupils and it exploded, causing deaths and property damage. The trial court entered a judgment against the employer, but entered a not guilty judgment in favor of Townsend, and no appeal was taken from that latter judgment. On the corporation’s appeal, the court affirmed, not because the employer was charged with different theories of recovery, but because the evidence at trial showed that the employer had employees other than Townsend whose negligence caused the complained of injury to the plaintiff. (Bunyan, 230 Ill. App. at 355-56.) The court noted that under her complaint, plaintiff was at liberty to prove that some agent other than Townsend was also guilty of the negligence charged against the defendant corporation, and it found that she did so.

Devore involved a railroad crossing accident where the railroad and an engineer and a fireman were named defendants. The engineer and fireman were alleged to have been negligent in speeding and in failing to ring a bell and blow a whistle. In addition to these same allegations of negligence in the count against the railroad, it was alleged that the railroad was negligent in that it failed (1) to adequately mark and protect the crossing by warning devices and signals, (2) to operate its cars and train by qualified and experienced employees, and (3) to maintain the crossing properly. The jury trial resulted in a judgment against the employer railroad and judgments in favor of the two named employees. No appeal was taken from the judgments in favor of the employees. The railroad appealed, and, although the court found the exoneration of the engineer and fireman for the acts of negligence alleged also exonerated the railroad, its review of the evidence showed the jury could well have found that the railroad was further negligent in failing to protect the crossing with adequate safety devices. (Devore, 30 Ill. App. 2d at 414-15.) The court went on to find that the plaintiff was contributorily negligent, however, and that the railroad’s motion for judgment notwithstanding the verdict should have been sustained.

Rice involved a railroad accident, where the railroad and one of its engineers were named defendants. A negligence verdict against the railroad was upheld even though the engineer was exonerated. The railroad sought reversal because the engineer was exonerated. The court affirmed the verdict, however, because the evidence at trial demonstrated that employees other than the engineer were involved in the incident.

“[T]he proof showed that the conductor, who was not named as a defendant, was the person in charge of the train. *** It is clear from the evidence that the defendant engineer was not the person responsible for control of the train, for keeping a proper lookout for pedestrians, or for obstructing the highway. The jury could and did find other employees of the railroad negligent and the railroad is responsible for their conduct.” Rice, 84 Ill. App. 2d at 172.

In the case at bar, count I against K mart for battery alleged that while the plaintiff was in the store on October 6, 1984, “defendant, the CORPORATION, by its officers, agents and employees, unlawfully struck, battered and assaulted the plaintiff.” Count II against ,K mart for false imprisonment alleged that at approximately 4:30 p.m. on October 6 “the defendant, CORPORATION, through its agents and employees with force and in the presence and in view of many persons, pulled, dragged, carried and otherwise took the plaintiff through various aisles in the store to a closed room in the rear of the store and there, forcibly, maliciously, and unlawfully held and tied the plaintiff against her will and *** that the defendant, CORPORATION, through its officers, agents and employees, tethered the plaintiff, sat upon her and otherwise deprived her of her liberty, all against her will.”

Count III against K mart for intentional infliction of emotional distress alleged that on October 6 about 4:30 p.m., “[plaintiff] was advised by the store’s manager that her lay-a-way item was returned to stock because she had missed making payments. She was told she could not argue about the situation with the manager of lay-a-way. She was threatened by the security agent with criminal arrest. Her walking cane was forcibly taken from her. She was dragged and carried to the security office in the full view of numerous persons. She was tied with a belt and sat upon in the security office. She demanded that she be released. She was told that she could not leave the store until she signed a release of liability against the defendant, CORPORATION. She demanded that the police be called throughout the time she was detained, but the security agent refused to call the police until the plaintiff signed a release. As she struggled to be free of her bonds, she was beaten about her face and arms.”

Count IV against K mart for wilful and wanton misconduct alleged that on October 6 about 4:30 p.m. “various officers, agents and employees of the defendant, CORPORATION, in wanton and wilful disregard of the rights and safety of the plaintiff, forcibly and against her will removed her from the retail and public area of the store and brought her to a security room. Thereupon, the officers, agents and employees of the defendant, CORPORATION, attempted to coerce the plaintiff to sign a release against liability for their conduct; they bound and tied her to a chair; they took her cane away from her to prevent her from walking; they struck her.”

Count VI against Billy Williams for battery alleged that on October 6, he “unlawfully struck, battered and assaulted the plaintiff causing her harm and injury as hereinafter set forth.” Count VII alleged that on October 6 at approximately 4:30 to 5:15, “the defendant, FREIDA TEETER, assisted and facilitated co-defendants, K-MART CORPORATION, BILLY WILLIAMS, DAVID FISHER and TIMOTHY J. SCULLY, in their efforts to confine the plaintiff against her will within the K-mart store * * * physically and directly tied the plaintiff’s legs forcibly, maliciously, and unlawfully, with a belt belonging to one of the co-defendants *** [and thereby] deprived *** the plaintiff, NELLIE BAUSBACK, of her liberty all against her will.”

Count VIII alleged that on the same date and time as above “the defendant, DAVID FISHER, assisted and facilitated co-defendants, KMART CORPORATION, BILLY WILLIAMS, FREIDA TEETER and TIMOTHY J. SCULLY, in their efforts to confine the plaintiff against her will within a K-Mart store *** physically and directly tied the plaintiffs hands behind her back forcibly, maliciously and unlawfully, with a belt belonging to one of the co-defendants *** [and thereby] deprived the plaintiff, NELLIE BAUSBACK, of her liberty all against her will.”

Count IX alleged that at the same time and date as above “the defendant, TIMOTHY J. SCULLY, assisted and facilitated co-defendants, K-MART CORPORATION, BILLY WILLIAMS, FREIDA TEETER, and DAVID FISHER, in their efforts to confine the plaintiff against her will within the K-Mart store *** assisted in physically and directly tying the plaintiffs hands behind her back and her legs forcibly, maliciously and unlawfully, with a belt belonging to one of the co-defendants *** [and thereby] deprived the plaintiff, NELLIE BAUS-BACK, of her liberty, all against her will.”

Count XI alleged that on October 6 “the defendant, BILLY WILLIAMS, assisted by co-defendants, K-MART CORPORATION, FREIDA TEETER, DAVID FISHER and TIM SCULLY, restrained and detained the plaintiff against her will by forcibly dragging and carrying her to a security office, whereupon he, or at his direction, physically and forcibly tied and tethered the plaintiff’s hands and feet with belts *** [and in so doing] deprived the plaintiff of her liberty and freedom against her will.”

It is evident from these allegations that the plaintiff’s claims of liability against K mart, including those charged only against K mart (wilful and wanton misconduct and intentional infliction of emotional distress), were not based on any independent wrong committed by it. Rather, they were derivative of her claims against the individual employees under the doctrine of respondeat superior. The operative facts comprising the alleged bases for K mart’s liability are identical to those necessary to prove the individual employees liable. Where those employees have been exonerated by the jury, it necessarily follows that the party for whom the employees acted, the master, cannot be held liable but must also be exonerated. (Kirk, 117 Ill. 2d at 532-33; Boston, 10 Ill. App. 3d at 139; Rogina, 325 Ill. App. at 592-93.) The jury’s verdicts in favor of the individual employees must be viewed as findings that the employees either did not commit the acts alleged or that they were privileged in so committing them and, thus, were not liable to the plaintiff for them. The jury’s absolution for those acts extends to all manner of other claims plaintiff may have fashioned from such acts, including those formulated under the doctrine of respondeat superior. Further, as K mart argues, the plaintiff’s complaint did not allege anything about K mart’s lack of policies or procedures to train its employees to cope with disruptive behavior by customers like plaintiff. Consequently, that evidence cannot sustain the jury’s verdict. “It is a basic principle that the issues in a case are framed by the pleadings and a party may not prevail where the proof does not follow the allegations made therein. [Citations.] ‘[T]o have evidence without pleading an issue is as fatal as pleading an issue and not supporting it with evidence.’ [Citations.]” Ambroiggio v. Board of Education of School District No. 44 (1981), 101 Ill. App. 3d 187, 190.

The denial of a motion for judgment notwithstanding the verdict made pursuant to section 2 — 1202 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1202) will be reversed when the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Runimas v. Howe (1981), 94 Ill. App. 3d 357; Thorne v. Elmore (1979), 79 Ill. App. 3d 333.) With the jury’s exoneration of the named individual employees, the record is devoid of evidence of any conduct of the corporation itself or of any other employees not named as defendants which could sustain plaintiff’s claims against K mart. Consequently, it may be said no contrary verdict for the plaintiff could ever stand.

We conclude the trial court erred in denying K mart’s motion for judgment notwithstanding the verdict. We reverse the trial court’s judgment and remand for entry of judgment notwithstanding the verdict in K mart’s favor and against the plaintiff, Nellie Bausback.

In light of our disposition of this case it is unnecessary to address K mart’s alternate contention that a new trial should have been granted.

K mart’s motion to strike certain portions of the plaintiff’s statement of facts and argument are granted.

The judgment of the circuit court of Lake County is reversed. The cause is remanded for entry of judgment notwithstanding the verdict in favor of K mart.

Motion to strike granted; judgment is reversed and cause remanded with directions.

DUNN and McLAREN, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RONALD COLEMAN, Defendant-Appellee.
    Second District
    No. 2—89—0109
    Opinion filed February 15, 1990.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    John L. Sullivan, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Ronald M. Coleman, was indicted in the circuit court of Lake County on one count of unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1987, ch. bQVz, par. 1401(a)(2)). The State appeals, pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) from the order of the circuit court granting defendant’s motion to suppress evidence and quash his arrest.

Defendant filed a motion to quash arrest and suppress evidence and supporting memoranda of law, contending that the police search of his apartment between 2:48 and 3:59 p.m. on September 8, 1988, was made without authority of a valid search or arrest warrant and was otherwise unlawful. He asserted that the police unlawfully remained in his apartment. He further alleged that the seizure of his person and the white paper bag in his hand, the search of the bag and his person, and his arrest were without the authority of a valid search or arrest warrant and were without probable cause.

The record reveals the following facts were adduced at the hearing on the motion to suppress. On September 6, 1988, an individual filed with the Libertyville police department a complaint for assault against defendant’s roommate, Joseph Gradzik. The complainant indicated defendant and Gradzik were home at their apartment located at 835C Country Club Drive, Libertyville, Illinois, on this date.

Officer Gallina of the Libertyville police department obtained an arrest warrant for Gradzik for the misdemeanor offense of aggravated assault. On September 8, 1988, Officer Gallina, accompanied by Officer Koval, an agent with the Metropolitan Enforcement Group (MEG) of Lake County, went to 835C Country Club Drive, Liber-tyville, to arrest Gradzik. They knew defendant resided at this address with Gradzik because they had prior contact with both persons and had received anonymous telephone reports from neighbors of suspected narcotics trafficking from the residence.

Gallina and Koval arrived at approximately 2:48 p.m. and knocked on the back door, which was opened by Gradzik. Pursuant to the arrest warrant, the officers entered the apartment, and, after some initial resistance, Gradzik submitted to the arrest and was handcuffed. Officer Gallina asked Gradzik whether he had any weapons in the apartment, and Gradzik replied that he had a gun in a cabinet over the television set across the room. Officer Koval approached the cabinet, opened it and found an automatic handgun inside. At this time, Officer Koval noticed a glass vial with white residue on a small stand to the right of the television and a similar vial with similar residue on a glass top table to the left of the television. Koval also saw a playing card, a razor blade, and additional white residue on the glass top table. From this vantage point, Officer Koval could see into the kitchen, where he observed more white residue on the counter and the floor. He further noted another razor blade, a glass pipe and an open can containing screens. These items indicated cocaine usage to Officer Koval, an experienced narcotics enforcement officer.

Koval then retrieved a field test kit from his automobile and performed a field test on the residue on the glass vials, the playing card, the first razor blade and the table top, and noted a positive reaction for the presumptive presence of cocaine. The white powder in the kitchen tested negative. Gallina made a quick search of the apartment to see if anyone else was there but found no one.

Officer Gallina contacted the Libertyville police department and arranged to transport Gradzik back to police headquarters. When questioned about his roommate’s whereabouts, Gradzik responded that defendant would return in approximately an hour. According to Gallina, about 15 to 20 minutes elapsed between the initial entry and Gradzik’s removal. Officer Koval conferred by telephone with an assistant State’s Attorney and then called for additional MEG agents to assist in a search of the premises. Following these conversations and the arrival of MEG agents Hunter and Eliopoulos at about 3:20 to 3:25 p.m., Koval and the other MEG agents searched the entire residence, including upstairs rooms and the basement, closets, cabinets, under beds, and in containers. Gallina followed with a camera, photographing various locations, beginning where they arrested Gradzik and continuing throughout the residence, and miscellaneous items recovered by the agents. During this time, the telephone rang and a voice, later identified as defendant’s, stated on the answering machine that he would be there in a little while. At the suppression hearing, Koval testified that he told agents Hunter and Eliopoulos to arrest defendant for possession of a controlled substance upon his return, if in fact he came back to the apartment. Koval’s testimony indicates that he had collected and inventoried the items found in plain view in the den and kitchen prior to the arrival of the additional MEG agents.

Defendant arrived at the apartment at approximately 3:59 p.m. Koval said defendant entered the apartment and asked the agents who they were and what they were doing. The agents asked him the same question, and defendant responded that he was Ronald Coleman and he lived in the apartment. Koval testified that Agent Hunter then told defendant, “We’re the police and you’re under arrest.”

When defendant entered the apartment, he was carrying a small white paper bag in his right hand. According to defendant, one of the officers grabbed the bag immediately after he entered the apartment. Koval testified that’ upon his arrest, the agents seized the bag and conducted a search of defendant’s person and the bag. The bag contained what appeared to be approximately two ounces of a white chunky substance later determined to be cocaine. Koval testified he then arrested defendant for the additional offense of unlawful possession of a controlled substance with intent to deliver. The MEG agents continued searching throughout the apartment until approximately 4:30 p.m. The search failed to reveal any further cocaine; however, the agents did find a scale with a white powdery residue and a plastic bag with a similar residue. Officer Koval testified that he did not perform a field test on either of these items. The agents also located $24 in cash inside an electronic game and some syringes, which were later determined to be for the purpose of insulin administration.

The trial court granted defendant’s motion to suppress, finding that although the officers observed, during the course of a search incident to Gradzik’s arrest, small quantities of cocaine in plain view, the officers lacked probable cause to believe defendant had been in the apartment simultaneous with the presence of cocaine. The order suppressed the cocaine seized from the paper bag defendant carried when he entered his residence.

The State contends on appeal that the trial court’s suppression of the cocaine in the paper bag taken from defendant is manifestly erroneous because the police had probable cause, arising out of the seizure of the cocaine residue in the apartment being occupied by defendant, to believe that defendant had committed the offense of unlawful possession of a controlled substance. According to the State, it was this probable cause which authorized them to arrest defendant and therefore the search of the bag was incident to a lawful arrest. Defendant initially responds that the trial court’s finding of no probable cause is supported by the evidence. Alternatively, he maintains that the police were not lawfully on the premises at the time of his arrest.

We believe the dispositive issue here is whether it was unreasonable under the fourth amendment for the police to remain in defendant’s apartment beyond the time necessary to effect the arrest of Gradzik and properly secure the evidence observed in plain view.

By its terms, the fourth amendment forbids only unreasonable searches and seizures. (Segura v. United States (1984), 468 U.S. 796, 806, 82 L. Ed. 2d 599, 609, 104 S. Ct. 3380, 3386.) The fourth amendment’s protection of a person’s privacy is no more clearly defined than when bounded by the unambiguous physical dimensions of a person’s home. (Payton v. New York (1980), 445 U.S. 573, 589, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1381.) In terms that apply equally to seizures of property and to seizures of persons, the fourth amendment has drawn a firm line at the entrance to the home. (Payton, 445 U.S. at 590, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382.) Consequently, absent exigent circumstances, the police must have an arrest warrant to enter a home for the purpose of making a routine felony arrest. Payton, 445 U.S. at 590-91, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382.

Before proceeding with our analysis, we find it essential to note that in this case we are not dealing with an unlawful entry, but rather, are concerned with the question of the police remaining within a home beyond the time necessary to carry out their original lawful purpose which rendered their initial entry reasonable. We believe the same privacy interests implicated by an unlawful entry are also at stake when the police unlawfully remain within a home after an initial lawful- entrance. (See People v. Boehm (1980), 89 Ill. App. 3d 176, 179, 411 N.E.2d 1192; see also 2 W. LaFave, Search & Seizure §6.1(c), at 585 (2d ed. 1987).) Just as a seizure reasonable at its inception may become unreasonable as a result of its duration or for other reasons (Segura, 468 U.S. at 812, 82 L. Ed. 2d at 613, 104 S. Ct. at 3389), so may a lawful entry become an unlawful intrusion if the police remain beyond a time reasonably necessary to complete the purpose of their original lawful entry or engage in other unlawful conduct that would render the intrusion unreasonable. The sooner the police complete their lawful duties within the residence, the less will be their subsequent interference with the privacy interests of the occupants. See Michigan v. Tyler (1978), 436 U.S. 499, 510, 56 L. Ed. 2d 486, 499, 98 S. Ct. 1942, 1950.

In this case, there is no question that the police lawfully entered defendant’s residence based on the arrest warrant for Gradzik. We also believe that entry for purposes of executing a valid arrest warrant necessarily entails remaining within the residence for a reasonable amount of time to carry out the purpose of the warrant. For example, it may be necessary to conduct a search for the subject of the warrant (Steagald v. United States (1981), 451 U.S. 204, 214 n.7, 68 L. Ed. 2d 38, 46 n.7, 101 S. Ct. 1642, 1648 n.7), perform a protective sweep (People v. Free (1983), 94 Ill. 2d 378, 394-95, 447 N.E.2d 218), or conduct a search incident to a valid arrest for protection of the police and preservation of the evidence (Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034). Here, Gradzik was arrested pursuant to a valid arrest warrant, and it was not unreasonable for the police to have conducted a protective sweep as was done or to conduct a search incident to Gradzik’s arrest. Nor was it unreasonable for the police to wait inside the apartment for a unit to arrive to transport Gradzik to the station house.

Additionally, Koval observed in plain view what he reasonably believed to be residue and paraphernalia related to cocaine use. It was not unreasonable for the officers to seize that evidence and to take the steps necessary to properly secure it. The fact that the officers continued to remain inside defendant’s residence for a sufficient amount of time necessary to carry out those lawful purposes does not constitute an unreasonable intrusion into defendant’s fourth amendment privacy. In this regard, the State argues that the police properly remained in the premises for a reasonable amount of time to photograph and catalog the items found in plain view.

However, under the circumstances present here, it is clear that the police remained within defendant’s residence beyond the time reasonably necessary to perform their lawful purpose there, to arrest Gradzik and secure the evidence in plain view. The police were in defendant’s home for 71 minutes before defendant arrived. We do not believe under these circumstances, where the subject of the warrant was readily arrested and the evidence observed was in plain view, that this was a reasonable amount of time for the police to carry out their duties. The police had collected and inventoried the evidence found in plain view at Gradzik’s arrest before commencing the search of the entire house some 30 or more minutes before defendant arrived. The record discloses that the purpose for remaining in the apartment for this length of time following the call to the State’s Attorney and the summoning of two MEG agents to assist in the search of the premises was to conduct an illegal, warrantless room-to-room search of the entire residence, including the taking of photographs and the seizing of numerous items found throughout the apartment, and not to process the evidence of cocaine residue initially found shortly after entering the apartment. Thus, we conclude that the lawful purpose terminated substantially before defendant’s arrival.

We note the absence of any exigent circumstances which might have rendered the intrusion reasonable. An otherwise unconstitutional warrantless seizure within a defendant’s home may be rendered reasonable if exigent circumstances exist which excuse the need for an arrest warrant. (Steagald v. United States (1981), 451 U.S. 204, 211, 68 L. Ed. 2d 38, 45, 101 S. Ct. 1642, 1647; Payton, 445 U.S. at 590, 63 L. Ed. 2d at 653, 100 S. Ct. at 1382.) Such circumstances might include hot pursuit, entry into a burning building, or preservation of evidence. (Tyler, 436 U.S. at 509, 56 L. Ed. 2d at 498, 98 S. Ct. at 1949-50.) None of those or similar circumstances are present in this case to justify the officers remaining in defendant’s residence.

In People v. Boehm (1980), 89 Ill. App. 3d 176, 411 N.E.2d 1192, this court held that a warrantless, nonexigent arrest of the defendant in his apartment following execution of a search warrant therein constituted an unreasonable seizure where the police had completed execution of the search warrant and remained in defendant’s apartment solely to arrest defendant upon his arrival. (89 Ill. App. 3d at 178-79, 411 N.E.2d at 1193.) Even assuming the police to have had reasonable grounds to arrest the defendant, the court found the authority to remain within the defendant’s apartment to be limited by the constitutional requirements set forth in Payton v. New York. (89 Ill. App. 3d at 178-79, 411 N.E.2d at 1193.) Additionally, the court was unpersuaded by the fact that the police expected the defendant to return soon because there was no indication as to why the police could not have waited in a place they were allowed to be rather than inside the apartment. (89 Ill. App. 3d at 178, 411 N.E.2d at 1193.) We find Boehm to be sufficiently analogous to the case at bar as to further support our position that it was unreasonable for the police, under these circumstances, to remain in defendant’s home after they concluded their lawful purpose there. See also New Hampshire v. Chaisson (1984), 125 N.H. 810, 486 A.2d 297.

Although neither party refers to Segura v. United States (1984), 468 U.S. 796, 82 L. Ed. 2d 599, 104 S. Ct. 3380, we are compelled to point out the distinctions between this case and Segura. In Segura, the Supreme Court held that it was not unreasonable for police who had unlawfully entered defendant’s residence to remain there for 19 hours awaiting a search warrant, which was based on information obtained by the police before the entry into the residence. We emphasize that in Segura, unlike here, the police did not exploit their presence or engage in any unlawful search of the residence. (Segura, 468 U.S. at 812, 82 L. Ed. 2d at 614, 104 S. Ct. at 3389.) Furthermore, in Se-gura the officers were waiting to obtain a search warrant, whereas here there is no such identifiable lawful basis for remaining on the premises after the police completed their arrest of Gradzik and processing of the evidence. Consequently, we believe the holding in Segura to be a narrow one that does not apply to the circumstances present here.

As we conclude that the conduct of the police in remaining in defendant’s residence after they analyzed and secured the cocaine residue and related paraphernalia observed in plain view constituted a violation of defendant’s fourth amendment rights, we heed not consider the question of whether the police had probable cause to arrest defendant based on the cocaine residue and paraphernalia found in a common area of the residence.

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

Affirmed.

UNVERZAGT, P.J., and McLAREN, J., concur.


author: JUSTICE GEIGER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG MITRAN, Defendant-Appellant.
    Second District
    No. 2—88—0586
    Opinion filed February 15, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli and Mark D. Fisher, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, John X. Breslin, and Vicki L. Seidl, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Craig Mitran, was charged on January 23, 1987, with aggravated assault, resisting a peace officer, and unlawful possession of cannabis. On May 12, 1988, a jury found the defendant guilty on all three counts, and he was sentenced to one-year’s probation, 60 days in the county jail, and a $300 fine. The defendant argues that the trial court erred (1) by denying his motion to quash his arrest alleging an illegal entry by the police, (2) by denying his motion to suppress cannabis found in the apartment, (3) by allowing his conviction for aggravated assault to stand, and (4) by allowing inadmissible hearsay testimony at trial.

The complaint alleged that the defendant committed an aggravated assault by placing Officer Michael Hutchens in reasonable apprehension of receiving a battery when the defendant reached for a .357 revolver. It further alleged that the defendant resisted a peace officer when the defendant pushed and shoved Officer Hutchens and resisted Officer Hutchens in the execution of his official duties, and that the defendant unlawfully possessed more than 2.5 but less than 10 grams of a substance containing cannabis.

Prior to trial, the defendant filed a motion to quash his arrest and suppress evidence, arguing that the police violated his fourth amendment rights by forcibly entering his apartment without a search or arrest warrant and without probable cause. At the hearing on that motion, the defendant testified that the police arrested him at approximately 1 a.m. on January 23, 1987, after they entered his apartment without a warrant and without his consent. He claimed that he asked to see a warrant and repeatedly asked the officers to leave, but they refused.

Officers James Maly and Michael Hutchens testified that they responded to a domestic disturbance call at the defendant’s apartment. Officer Maly arrived at the apartment first and could hear a man and woman arguing inside the apartment, but nothing he heard lead him to believe that he should break down the door and enter the apartment. Shortly after Officer Maly arrived, he was joined by Officer Hutchens and Sergeant Reinhart. They knocked on the defendant’s door and announced themselves. The defendant opened the door about 8 to 12 inches, and the officers asked the defendant if there was a problem. He answered that there was no trouble. The officers stated that they wanted to speak to the lady in the apartment to make sure that she was all right.

Officer Maly testified that the defendant turned away and ran back into the apartment and that the officers then pushed the door open for “safety reasons” and entered the apartment. Officer Hut-chens testified that the defendant walked quickly toward a chair in the middle of the living room and then stated that the officers had no right to come into his apartment.

Once inside the apartment, the officers saw a gun butt protruding from a seat cushion located on a chair in the middle of the room. Neither officer saw the gun when they first opened the door. The officers testified that they saw the defendant heading toward the chair where the gun was located. Officer Hutchens intercepted the defendant, and Officer Maly pushed the defendant against the wall. The defendant struggled with Officer Maly and became uncooperative and belligerent.

The trial court denied the motions to quash and suppress, and the case proceeded to trial. At trial, Officer Maly gave testimony similar to that at the pretrial suppression hearing. He added, however, that after arresting the defendant, he and Officer Hutchens searched the apartment and found 4.82 grams of cannabis in open, opaque film canisters located on the kitchen table.

Officer Hutchens testified over objection. He stated that he had spoken with the defendant’s cohabitant, Linda Kulakowski, who told him that the defendant had been drinking vodka and smoking marijuana.

The defendant testified that he and Kulakowski had had an argument which lasted approximately 15 to 20 minutes. He answered the door after hearing the officers’ knock. The officers asked to speak to the lady of the house, and Kulakowski came to the door and talked to the officers. The defendant testified that he turned around, and the officers pushed the door open and attacked him and knocked him to the ground. He denied using alcohol or drugs.

The jury returned guilty verdicts against the defendant on all counts. Following the trial, the defendant filed a post-trial motion claiming that the State did not prove him guilty beyond a reasonable doubt, and that the trial court erred in denying the motion to quash the arrest and suppress evidence. The trial court denied the post-trial motions.

The defendant first argues that the trial court erred in denying his motion to quash the arrest and suppress the evidence because the police officers illegally entered his apartment. The State contends that -the officers properly entered the apartment without a warrant since exigent circumstances existed.

Absent exigent circumstances or probable cause, warrantless felony arrests in the home are prohibited by the fourth amendment of the United States Constitution. (U.S. Const., amend. IV; see Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371.) The fourth amendment, however, “does not bar police officers from making warrantless entries and searches when they ‘reasonably believe that a person within is in need of immediate aid.’ ” People v. Koniecki (1985), 135 Ill. App. 3d 394, 398, quoting Mincey v. Arizona (1978), 437 U.S. 385, 392, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2413.

Illinois has adopted the “exigent circumstances” exception allowing certain warrantless arrests and searches made on private property. (People v. Abney (1980), 81 Ill. 2d 159, 163.) Under this exception, the reasonableness of the officers’ belief that an emergency situation exists is determined by the totality of all circumstances known to the officers at the time of the entry. People v. Meddows (1981), 100 Ill. App. 3d 576, 580.

Here, the officers testified that, when they approached the defendant’s apartment after being alerted to a domestic altercation, they could hear male and female voices raised in argument. After the defendant answered the door and told the officers that there were no problems, the officers asked to speak to Kulakowski. The defendant stated that the officers spoke to Kulakowski; however, Officer Maly testified that after he asked to speak with Kulakowski, the defendant turned away and ran back into the apartment.

The trial court, after hearing the testimony at the hearing on the motion, determined that the officers’ reasons for entering the apartment were to see if Kulakowski needed assistance, and that the defendant made a quick movement towards the gun. The trial court found that those reasons justified entering and searching the premises without a warrant. Whether an officer reasonably believed that an emergency existed is a question of fact to be determined by the trial court. (People v. Elders (1978), 63 Ill. App. 3d 554, 557.) The trial court is to determine the credibility of the witnesses, the weight given their testimony, and any inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 298.) The trial court’s determination on the motion to quash or suppress will not be overturned unless it is manifestly erroneous. People v. Holloway (1981), 86 Ill. 2d 78, 91; People v. Williams (1974), 57 Ill. 2d 239, 246, cert. denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506.

The officers testified that they asked to see if Kulakowski was all right, yet the defendant denied the officers access to her. Based on that testimony, the trial court could properly conclude that exigent circumstances existed which justified the officers’ entry.

The defendant next argues that, even if the officers had authority to push the door open and enter the apartment, the cannabis which they later found should be suppressed because it was discovered incident to an illegal search. The officers arrested the defendant in his living room, yet the officers discovered the cannabis in the kitchen.

The State first contends that the defendant has waived this issue on appeal by failing to specifically allege that error in his post-trial motion. (See People v. Wade (1989), 131 Ill. 2d 370, 375; People v. Enoch (1988), 122 Ill. 2d 176, 186-87.) We find the defendant sufficiently preserved the issue by the renewal of his motion to suppress in paragraph 11 of his post-trial motion, which included the issue of whether the cannabis was illegally seized.

The State next argues that the defendant waived the issue of the suppression of the cannabis by failing to present evidence on that issue during the pretrial suppression hearing. However, a trial judge may consider and rule upon a motion to suppress evidence during trial (People v. Flatt (1980), 82 Ill. 2d 250, 255), and, in this case, the trial judge did consider and rule upon the defendant’s motion at trial.

The State finally argues that the defendant waived the issue of the suppression of the cannabis on appeal because the filing of the motion to suppress was untimely. The State relies on the case of People v. Malaszenko (1979), 76 Ill. App. 3d 1. In Malaszenko, the defendant filed a pretrial motion to suppress evidence which the trial court denied. Before trial, but after four jurors had been selected, the defendant made a “supplemental” motion to suppress evidence. The trial court denied that motion as untimely and did not allow a hearing.

In the present case, the trial court in the exercise of its discretion heard the defendant’s “supplemental” motion to suppress. The trial court may, in its discretion, allow the late filing of a motion to suppress. (See Flatt, 82 Ill. 2d at 255.) Since the trial court allowed the filing of what would otherwise have been a late motion, the defendant’s motion was timely.

The defendant next argues that the officers’ search and ultimate discovery of cannabis in the film canisters were illegal because the officers did not discover the cannabis incident to his arrest. It is well settled that an officer may search a suspect and the area in the suspect’s immediate control if the search is conducted incident to a lawful arrest. See, e.g., People v. Winters (1983), 97 Ill. 2d 151, 162, citing Chimel v. California (1969), 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034.

The State argues that the officers’ search and seizure were conducted in the area of the defendant’s immediate control. The defendant’s living room and kitchen were not separated. Moreover, Officer Maly testified that, upon entering the defendant’s residence, he was next to the table on which the cannabis was found. Officer Maly testified at trial that after the officers handcuffed and transported the defendant to the police department for booking procedures, the officers searched the apartment and discovered the cannabis. Officer Hutchens, however, testified that he searched the area around the kitchen and found the film canisters containing the cannabis while the defendant was in the apartment. Although the film canisters were opaque, he testified that the canisters were open and, therefore, the cannabis was in plain view.

The trial court found that the officers searched the areas in the immediate control of the defendant incident to his arrest and that the search was reasonable. Since there is evidence in the record to support the trial court’s finding that the search was incident to the defendant’s arrest, this court will not disturb the trial court’s decision to deny the defendant’s motion to suppress the cannabis.

The defendant next claims the trial court erred in allowing Officer Hutchens’ testimony that Kulakowski stated that the defendant had smoked marijuana and drank vodka. Hearsay is testimony of an out-of-court statement offered to establish the truth of the matter asserted therein. People v. Rogers (1980), 81 Ill. 2d 571, 577.

Officer Hutchens’ testimony clearly was hearsay and as such should not have been admitted. Since Kulakowski did not testify during the defendant’s trial, Officer Hutchens’ testimony that Kula-kowski allegedly stated that the defendant smoked the marijuana and drank vodka is inadmissible. The only purpose that the introduction of the hearsay testimony that the defendant smoked marijuana could serve was to convince the jury that the defendant must be guilty of possessing the marijuana he allegedly had smoked.

The State argues that the statement is not hearsay because it reflects an investigatory procedure entirely within the personal knowledge of the officer. (See People v. Young (1983), 115 Ill. App. 3d 455.) We disagree. Under this exception, the officer’s testimony must be limited to show how the investigation was conducted. His testimony cannot be used to place into evidence the substance of any out-of-court statements or conversations for the purpose of establishing the truth of their contents.

Officer Hutchens testified that Kulakowski told him that the defendant smoked marijuana and drank vodka. No attempt was made to limit the use of that testimony by the jury. Given the conflicts in the testimony in this case, the issue of credibility was crucial. The defendant denied the possession of the cannabis found in the apartment; therefore, his veracity is brought into issue. (People v. Sexton (1987), 162 Ill. App. 3d 607.) By the introduction of the improper hearsay testimony, the jury was asked to contrast the defendant’s .denial in court against the out-of-court statements of Kulakowski as related by Officer Hutchens. Since we cannot gauge the extent to which the jury was influenced by the inadmissible hearsay testimony, the conviction of the defendant must be reversed.

Following our finding of reversible error and in keeping with the mandate of People v. Taylor (1979), 76 Ill. 2d 289, we have reviewed the evidence and find that, if believed by the jury, it was sufficient to support the conclusion that the defendant was guilty beyond a reasonable doubt. This finding does not constitute any implication as to defendant’s guilt or innocence and is intended only to protect defendant from the risk of double jeopardy.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE SCOTT

text:
    BARBARA HANSEN, Plaintiff-Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY et al., Defendants-Appellees.
    Third District
    No. 3—89—0252
    Opinion filed February 8, 1990.
    Rehearing denied March 15, 1990.

      John M. Kovac, of Law Office of Louis Hilfman, Ltd., of Chicago (Robert L. Fogel, of counsel), for appellant.
    Harold L. Turner, of Street, Larson & Turner, of Rockford (Joseph G. McGraw, of counsel), for appellee City of Rock Falls.
    Patricia T. Bergeson and Stephen M. Naughton, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for appellee Goodyear Tire and Rubber Company.
    Karen L. Kendall, of Heyl, Royster, Voelker & Allen, of Peoria, and Douglas J. Pomatto and Kevin J. Luther, both of Heyl, Royster, Voelker & Allen, of Rockford, for appellee Montgomery Investment Company.
   JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff-appellant, Barbara Hansen, appeals from two orders entered by the trial court dated March 30, 1989, and April 27, 1989, respectively. In the March 30 order, the trial court granted summary judgment in favor of defendants-appellees, Goodyear Tire and Rubber Company, Montgomery Investment Company and City of Rock Falls. In the April 27 order, the trial court vacated its previous order of March 30, granted plaintiffs motion to file a third amended complaint, granted defendants’ respective oral motions to allow their prior motions for summary judgment to be directed towards plaintiffs third amended complaint and granted summary judgment in favor of all defendants against plaintiff for all relief sought in plaintiff’s third amended complaint.

Montgomery Investment Company (Montgomery) owned warehouses on the north and south sides of West First Street in Rock Falls, Illinois. The warehouses were generally known as building 6, located on the south side of West First Street, and buildings 2 and 3, located on the north side of the street. These buildings were leased to Goodyear Tire and Rubber Company (Goodyear).

Permanent fire escape ladders leading to the rooftops were attached to the warehouses on both sides of the street. In 1982, the ladder rungs began one foot from the ground; however, prior to plaintiff’s incident, the lowest rungs had been cut off such that they started roughly eight feet from the ground. The warehouses were connected by an enclosed catwalk crossing West First Street in generally a north-south direction. The rooftop of the catwalk was accessible from the rooftops of the warehouses and was essentially flat.

Utility poles carrying three uninsulated electrical wires, owned and maintained by the City of Rock Falls (Rock Falls), were located on the south side of West First Street next to building 6 and ran in an east-west direction crossing the catwalk roof at a vertical height of five feet. The three wires carried 7,200 volts of electricity, having been increased from 2,400 volts in 1986. The wires crossing the catwalk were downstream from where they branched to service building 6.

On May 9, 1986, at approximately 10 p.m., Barbara Hansen, age 16 years and 8 months, and three other minors trespassed onto the land, climbing the ladders to the roof of the buildings. They walked in a southerly direction on the catwalk roof going from building 2 and 3 to building 6. Plaintiff bumped into the electrical wires while crossing the catwalk, causing serious personal injury.

The question to be decided is whether the trial court erred in granting defendants’ respective motions for summary judgment. The trial court granted defendants’ summary judgment motions after considering the recent decision of Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 522 N.E.2d 227, and In re Estate of Dickens (1987), 161 Ill. App. 3d 565, 515 N.E.2d 208, wherein the First District Appellate Court basically held that 14- and 15-year-old plaintiffs could be deemed to appreciate the dangers posed by electrical wires as a matter of law, and therefore, the defendants owed no duty to plaintiffs. Plaintiff herein argues that Bonder and Dickens do not apply for numerous reasons and that there are material questions of fact requiring resolution by trial.

Summary judgments are to be granted when
“the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).)

The trial court based its grant of summary judgment in favor of defendants on the notion that no defendant owed a duty to plaintiff because of obvious danger posed by the electrical lines. The question of. whether a duty exists is an issue of law to be determined by the court. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465; Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.) Generally speaking, the owner or occupier of premises has no duty to exercise ordinary care to prevent injury to a trespasser but has a duty to refrain from willful or wanton misconduct. (Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 920.) This rule applies equally to adults and infants with the exception of what is commonly referred to as the Kahn doctrine. In Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E. 2d 836, our supreme court discredited the attractive nuisance doctrine and determined that liability for a child’s injuries exists

“where the owner or person in possession [of the property] knows, or should know, that young children habitually frequent the vicinity of a defective structure or dangerous agency existing on the land, which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. In such cases there is a duty upon the owner or other person in possession and control of the premises to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it.” (Kahn, 5 Ill. 2d at 625.)

Under the Kahn doctrine, it seems the status of the minor as a guest or trespasser is irrelevant. Nonetheless:

“[I]t has been held that obvious risks which children of a similar age and experience would be expected to appreciate create no duty to remedy the dangerous condition.” (Bonder v. Commonwealth Edison Co. (1988), 168 Ill. App. 3d 80, 82, 522 N.E.2d 227.)

The apparent rationale is that

“the law does not require the landowner or possessor of land to protect against the omnipresent possibility that children will injure themselves on obvious or common conditions.” (Newby v. Lake Zurich Community Unit, District 95 (1985), 136 Ill. App. 3d 92, 98-99, 482 N.E.2d 1061.

A landowner simply cannot be an absolute insurer.

Plaintiff in this case distinguishes between the respective duties owed by Goodyear and Montgomery, as landowner or possessor of land, and Rock Falls, asserting that the Kahn doctrine does not apply to Rock Falls since it was not an owner or possessor of land. Thus, plaintiff alleges that Rock Falls owed merely a duty of ordinary care to plaintiff. This position is based, in part, on other portions of the Kahn decision wherein the court applied an ordinary negligence duty of care to a lumber company that delivered and piled lumber on land upon which a child was seriously injured. Plaintiff further cites Knyal v. Illinois Power Co. (1988), 169 Ill. App. 3d 440, 523 N.E.2d 639, in support of her position. In Knyal, the court interpreted section 386 of the Restatement (Second) of Torts (1977) and found that an electrical company maintaining wires across property is not protected by a landowner’s privilege against liability to trespassers for ordinary negligence unless the wires are on the premises for the purpose of supplying service to the occupier. Plaintiff herein basically alleges that the power lines owned by Rock Falls and causing injury to plaintiff were not supplying service to Goodyear as the location of these lines were “downstream” from where the lines branched off and supplied service to Goodyear. In essence, plaintiff asserts that if the injury occurs at a point prior to the line servicing the building, the owner of the power line may stand in the shoes of the occupier of the building, but if the injury occurs at a point after the lines have serviced the building, then the owner of the power line does not have the same protection. Such a distinction is without merit. Power lines generally enter property to service a building by branching off, but then must also exit the property to service other properties. To say that the power line owner could be protected on one side of the property but not the other is nonsensical. The power lines in this case provided service to the building and, therefore, Rock Falls has the same privilege against liability for ordinary negligence in the maintenance of those lines as do Montgomery and Goodyear. Thus, the questions are whether plaintiff is entitled to recovery under the Kahn doctrine or whether defendants committed willful or wanton misconduct resulting in injuries to plaintiff.

We concur with the trial court that Bonder and Dickens are dispositive and dictate that summary judgment be granted in favor of defendants. Bonder and Dickens both involve situations where 14- and 15-year-old children were injured by coming into contact with power lines and summary judgment was awarded to the defendants. Although Dickens was a strict liability case relying on the defendant manufacturer’s duty to warn, Bonder spoke directly to the Kahn doctrine and stated as a matter of law that 14-year-old children with plaintiff’s age and experience are deemed capable of understanding the dangers involved in contacting power lines. Bonder, however, cites Dickens as authority in granting summary judgment in favor of the defendant. There is no indication in this case that someone of plaintiff’s age and experience would not be capable of appreciating the danger posed by power lines, for example, if plaintiff suffered from some disability.

Plaintiff distinguishes Bonder and Dickens on the basis that here darkness concealed the power lines, and therefore, plaintiff had no opportunity to appreciate the danger posed by the power lines. We decline to accept this distinction. Numerous other cases have determined that an open and obvious danger concealed only by darkness does not create liability on the part of the landowner. (See Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 537 N.E.2d 738; Hessler v. Cole (1972), 7 Ill. App. 3d 902, 289 N.E.2d 204; Dent v. Great Atlantic & Pacific Tea Co. (1955), 4 Ill. App. 2d 500, 124 N.E.2d 360.) Although the theory of recovery in these cases was not under the Kahn doctrine, we still consider it applicable to the question in this case of whether darkness concealed the open and obvious danger of the power lines.

We also cannot ignore the fact that plaintiff chose to climb onto the rooftop at night intending to conceal her presence. Although using a light to view the area upon which she was proceeding would have given away her cover, the use of a light would likely have unveiled the power lines. In this sense, Hessler is persuasive. In Hessler, a woman was denied recovery on the basis that she should not have walked out onto an unfamiliar pier at night without the aid of a lighting device. Plaintiff is also not a “young child” as perceived by the Kahn doctrine, and even if these power lines were not clearly visible because of the darkness, plaintiff arguably is not a person whom the Kahn doctrine was designed to protect.

We also hold, as a matter of law, that defendants committed no willful or wanton acts entitling plaintiff to recovery. It is true that a prior incident occurred at a time when the ladders attached to the sides of the buildings extended to the ground. After that incident, however, defendant cut the ladders so that the lowest rung was roughly eight feet above the ground. Moreover, and as indicated earlier, the defective condition complained of was open and obvious. Plaintiff’s failure to avoid the condition, especially after she trespassed onto the property, cannot be considered willful or wanton conduct on the part of defendants.

For the reasons stated above, the decision of the trial court is affirmed.

Affirmed.

BARRY and HEIPLE, JJ., concur.