author: JUSTICE JOHNSON

text:
    SHEILA BYRNE, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—0967
    Opinion filed May 2, 1991.
    Rehearing denied August 13, 1991.

      Vincent J. Samar, of Chicago, for appellant.

      Kelly R Welsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

This matter comes before this court on appeal from the circuit court of Cook County. Plaintiff, Sheila Byrne, brought an action in the circuit court of Cook County to recover damages from defendant, the City of Chicago, occasioned by defendant’s tow and subsequent destruction of plaintiff’s automobile and its contents. After a jury trial, the trial judge directed a verdict in favor of defendant. Plaintiff prays for a reversal of the motion court’s decision.

On appeal, the following issues are presented for review: (1) whether plaintiff has provided an adequate record for this court to review the instant case; (2) whether the motion court erred when it granted defendant’s motion to dismiss the second count of plaintiff’s second amended complaint which alleged violations of sections 4 — 205 and 4 — 209 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, pars. 4 — 205, 4 — 209); and (3) whether the motion court erred when it granted defendant’s motion to dismiss the portion of the third count of plaintiff’s second amended complaint which alleged negligence in the performance of duties required by the Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 1 — 101 et seq.), and which plaintiff alleges was not subject to sections 2 — 106, 2 — 107, 2 — 109, 2 — 202, and 2 — 210 of the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, pars. 2— 106, 2-107, 2-109, 2-202, 2-210).

We affirm.

Background

Plaintiff was the owner of a 1980, four-door, burgundy and cream-colored Chevrolet Chevette (hereinafter automobile or vehicle). Plaintiff’s mother, Ms. Barbara Byrne, was the original owner of the vehicle; she subsequently transferred title in the automobile to plaintiff. At the time of the transfer of title, Barbara Byrne obtained a $3,000 lien on the automobile. At the time of the accident, the vehicle’s certificate of title showed that Sheila Byrne was the owner of the vehicle, and that her mother was the lienholder. When the automobile was purchased, plaintiff resided with her mother. However, at the time this incident occurred, she no longer resided with her mother, and she failed to update her address on the certificate of title.

On February 11, 1988, at approximately 8:30 p.m., plaintiff parked her automobile on the south side of Hawthorne Street in Chicago, Illinois. The parked car was located in front of snowbanks and approximately 56 feet from the intersection of Hawthorne Street and North Lake Shore Drive. Plaintiff’s automobile was towed from this location by defendant, its employees, or its agents sometime after 9 p.m., and before 7:30 a.m. the next day. Thereafter and until the time of its destruction, plaintiff’s automobile was held by defendant, its employees, or its agents at automobile pound No. 6. Plaintiff called pound No. 6 and was told that she would have to pay $50 in order to retrieve her vehicle, in addition to $5 for each subsequent day that the vehicle remained in the pound. Defendant or its agents refused to return the vehicle despite plaintiff’s numerous demands and requests that they do so.

The contents of the vehicle included several books, a leather briefcase, an antique doll, a leather portfolio, original copies of several unpublished training manuals written by plaintiff, plaintiff’s business records, and various personal items, all of which were seized and detained by defendant, its employees, or its agents. Plaintiff alleged that these items were worth at least $4,915. Defendant, its employees, or its agents refused to return these items unless plaintiff paid the $50 fee (and any amount due for the additional days which the vehicle remained in the pound) despite plaintiff’s demands and requests.

On February 15, 1988, defendant mailed a towing notice to Barbara Byrne’s residence. The notice stated that plaintiff’s vehicle was located at pound No. 6 and would cost approximately $50 to retrieve. The notice also stated that the automobile would be disposed of in 15 days if plaintiff failed to retrieve it. Plaintiff claimed that she had no knowledge of the notice which her mother received.

Plaintiff continued to call the pound to inquire about her automobile, but she never inquired about whether it would be destroyed. Plaintiff alleges that during a telephone conversation with a police officer, the officer endorsed her effort to recover the vehicle without “putting out $50.” Plaintiff alleged that the officer urged her to wait for a court date. In addition, plaintiff stated in her deposition that she had no means of getting to the pound.

On or before March 7, 1988, plaintiff’s automobile and all of its contents were transferred from pound No. 6 to Pielot Brothers Scrap and Iron, in Summit, Illinois, where the automobile, along with all of its contents, was destroyed by “shredding.”

On May 31, 1988, plaintiff filed a three-count complaint against defendant for conversion, statutory violations, and negligence. Plaintiff alleged that defendant negligently performed the following acts which it was required to perform by law:

“k) Failed to provide the plaintiff with adequate means by which to secure return of her automobile;
l) Failed to make an adequate investigation of the records of the Secretary of State or any other relevant public agency in order to determine the plaintiff’s correct address for purposes of sending out notice of the tow, storage and potential destruction of plaintiff’s automobile;
m) Failed to mail any notice that the plaintiff’s automobile had been towed, stored, or would be destroyed to plaintiff’s correct address, despite the fact that the plaintiff had prior to the date of the tow updated her registration and license to reflect her new address with the Secretary of State;
n) Failed to make an adequate investigation of the records of the Secretary of State in order to determine that there was a registered lien on the automobile;
o) Failed to send out any notice to the registered lienholder of the tow, storage or potential destruction of the vehicle;
p) Failed to give the plaintiff adequate notice that the automobile would be destroyed;
q) Failed to give the plaintiff adequate notice of what actions she could take to prevent her automobile from being destroyed; [and]
r) Failed to make available to the plaintiff an adequate means to insure that she would be able to obtain a hearing to determine the legality of the tow.”

In count III of the complaint, plaintiff alleged that defendant performed the following acts of negligence:

“b) Allowed itself or one of its employees or agents to tow plaintiff’s automobile from the place where it was legally parked;
c) Allowed itself or its employees or agents to seize possession of plaintiff’s automobile despite the fact that it knew or should have known that it had no legal right to seize the vehicle;
* * *
g) Allowed its employees and agents to continue to hold possession of the automobile after it was towed despite the fact that it knew or should have known that it had no legal right to hold possession of the vehicle;
h) Failed to protect the plaintiff’s automobile and its contents from being illegally transferred from Pound No. 6 to PIELOT Brothers Scrap and Iron in Summit, Illinois;
i) Failed to protect automobile from being shredded and destroyed at PIELOT Brothers Scrap and Iron; [and]
j) Failed to protect the contents of plaintiff’s automobile from being shredded and destroyed at PIELOT Brothers Scrap and Iron ***.”

On May 31, 1988, plaintiff also filed a motion for a default judgment that was deemed moot and a motion for summary judgment that the trial court denied.

On December 2, 1988, plaintiff filed her second amended complaint. The second amended complaint contained the original three counts for conversion, statutory violations, and negligence, in addition to a claim based upon willful and wanton misconduct, and a claim of the violation of due process pursuant to the Public Health and Welfare Act (42 U.S.C. §1983 (1989)). The aforementioned claims constituted counts I through V, respectively.

On January 9, 1989, defendant filed a motion to dismiss all claims except for the conversion claim, or count II. Defendant argued that count II should be dismissed because sections 4 — 205 and 4 — 209 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95x/2, pars. 4 — 205, 4 — 209) did not give rise to a private right of action against defendant, and, even if there were a private right of action, defendant was immune to prosecution pursuant to the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.).

On January 25, 1989, plaintiff filed her response to defendant’s motion. Plaintiff specifically refuted defendant’s contentions regarding counts II and III of the second amended complaint. In particular, plaintiff argued that sections 4 — 205 and 4 — 209 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, pars. 4 — 205, 4 — 209) gave rise to a private right of action and that defendant was not immune from prosecution. Plaintiff also argued that the Tort Immunity Act did not apply to the taking of possession and towing of vehicles, the supervision of employees, or to the fate of the automobile after it was brought to the pound.

On February 8, 1989, the court dismissed counts II, III, and V for statutory violations, negligence and due process. Plaintiff was also given leave to file a third amended complaint.

On February 14, 1989, plaintiff filed her third amended complaint. The third amended complaint contained the two remaining common law counts for conversion and willful and wanton misconduct.

On February 15, 1989, plaintiff sought leave to file a fourth amended complaint limited to the same two counts contained in the third amended complaint. This request was allowed, and the case was tried. After a jury trial, the court directed a verdict in favor of defendant.

Opinion

I

First, defendant alleges that plaintiff has failed to provide a record sufficient for this court to review the instant case. Defendant maintains that although a hearing was held before the trial court on the sufficiency of counts II and III, plaintiff failed to provide transcripts of oral arguments or the court’s ruling, and the written order itself does not supply the court’s reason for dismissing plaintiff’s negligence claim.

“[The] failure to present a report of proceedings does not require automatic dismissal or affirmance where issues can be resolved on the record as it stands.” (Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 90.) In addition, where the “issue involves a question of law, the absence of the [record of proceedings] or its substitute does not bar this court’s review.” (Department of Revenue v. Anderson (1985), 131 Ill. App. 3d 486, 488.) At the hearing on defendant’s motion to dismiss, only questions of law were considered, none of fact. The issues had been fully briefed prior to that oral argument and are a part of this record. No witnesses testified, nor was any evidence considered. It is only out of the issues raised and fully briefed at the motion court hearing that this appeal is taken. Therefore, we will not dismiss this appeal for failure to file a report of proceedings. We find that the record is sufficient for us to review the instant case.

II

Next, plaintiff alleges that the motion court erred when it granted defendant’s motion to dismiss the second count of plaintiff’s second amended complaint, which alleged that defendant violated sections 4— 205 and 4 — 209 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95^2, pars. 4 — 205, 4 — 209), by making an inadequate investigation of the Secretary of State’s records to determine the owner and lienholder of plaintiff’s car, and by failing to properly notify the owner and lien-holder. Plaintiff maintains that these sections of the statute were violated because defendant failed to give proper notice pursuant to sections 4 — 205 and 4 — 209 of the Vehicle Code. Ill. Rev. Stat. 1989, ch. 951/2, pars. 4 — 205, 4 — 209.

Defendant maintains that the motion court properly dismissed the claims for statutory violations because plaintiff failed to state a cause of action, and, even if there were a cause of action, defendant is immune from tort liability pursuant to the Tort Immunity Act.

Plaintiff counterargues that her claim is not subject to the Tort Immunity Act for the following reasons: (1) sections 4 — 205 and 4— 209 waive any immunity defendant had under the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 95V2, pars. 4 — 205, 4 — 209); and (2) sections 4 — 205 and 4 — 209 (Ill. Rev. Stat. 1989, ch. 95^2, pars. 4 — 205, 4 — 209) cannot be limited by provisions of the Tort Immunity Act since they are both more specific and were enacted subsequent to the Tort Immunity Act.

Section 4 — 205 of the Vehicle Code provides as follows:

“Record Searches, (a) When a law enforcement agency authorizing the impounding of a vehicle does not know the identity of the registered owner, lienholder or other legally entitled person, that law enforcement agency will cause the vehicle registration records of the State of Illinois to be searched by the Secretary of State for the purpose of obtaining the required ownership information.
(b) The law enforcement agency authorizing the impounding of a vehicle will cause the stolen motor vehicle files of the State Police to be searched by a directed communication to the State Police for stolen or wanted information on the vehicle. When the State Police files are searched with negative results, the information contained in the National Crime Information Center (NCIC) files will be searched by the State Police. The information determined from these record searches will be returned to the requesting law enforcement agency for that agency’s use in sending notification by certified mail to the registered owner, lienholder and other legally entitled persons advising where the vehicle is held, requesting a disposition be made and setting forth public sale information. Notification shall be sent no later than 10 days after the date the law enforcement agency impounds or authorizes the impounding of a vehicle, provided that if the law enforcement agency is unable to determine the identity of the registered owner, lienholder or other person legally entitled to ownership of the impounded vehicle within a 10 day period after impoundment, then notification shall be sent no later than 2 days after the date the identity of the registered owner, lienholder or other person legally entitled to ownership of the impounded vehicle is determined. Exceptions to a notification by certified mail to the registered owner, lienholder and other legally entitled persons are set forth in Section 4 — 209 of this Code.” Ill. Rev. Stat. 1989, ch. 95%, par. 4 — 205.

In addition, section 4 — 209 of the Vehicle Code makes the following relevant provisions:

“Disposal of unclaimed vehicles without notice, (a) When the identity of the registered owner, lienholder and other person legally entitled to the possession of an abandoned, lost, or unclaimed vehicle of 7 years of age or newer cannot be determined by any means provided for in this Chapter, the vehicle may be sold as provided in Section 4 — 208 without notice to any person whose identity cannot be determined.
(b) When an abandoned vehicle of more than 7 years of age is impounded as specified by this Chapter, it will be kept in custody for a minimum of 10 days for the purpose of determining the identity of the registered owner and lienholder and contracting [sic] the registered owner and lienholder by the U.S. Mail, public service or in person for a determination of disposition; and, an examination of the State Police stolen vehicle files for theft and wanted information. At the expiration of the 10 day period, without the benefit of disposition information being received from the registered owner or the lienholder, the law enforcement agency having jurisdiction will authorize the disposal of the vehicle as junk.” Ill. Rev. Stat. 1989, ch. 95%, par. 4-209.

We will now turn our attention to the common law. A motion to dismiss should only be granted when “it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187; see also Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 260-61.

In determining whether a statutory violation gives an injured party a private right of action, “the crucial question is whether it was intended that [the plaintiff] should come within the scope of the protection afforded by the statute or ordinance.” (Dini v. Naiditch (1960), 20 Ill. 2d 406, 418.) “It is a primary rule of statutory construction that the intention of the legislature should be ascertained and given effect. In so doing, courts look first to the terms of the statute. [Citations.] The statutory language itself is the best indication of the intent of the drafters.” (People v. Robinson (1982), 89 Ill. 2d 469, 475.) Statutory language should be construed pursuant to its plain, ordinary meaning. (Potts v. Industrial Comm’n (1980), 83 Ill. 2d 48, 51.) Where statutory intent may be ascertained from the language of the statute, it must be given effect, and the court should not resort to any other means of construction. Robinson, 89 Ill. 2d at 475-76.

Plaintiff maintains that it is clear from the language of sections 4 — 205 and 4 — 209 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, pars. 4 — 205, 4 — 209) that these laws create a private right of action because both of the provisions are geared toward protecting the rights of automobile owners and lienholders who have had their vehicles impounded, and because these provisions evidence a legislative intent to protect the specific individuals who are likely to be injured by a statutory violation. In addition, plaintiff maintains that section 4— 213 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 4 — 213) evidences a legislative intent to create a private right of action. Section 4 — 213 makes the following provision:

“Liability. A law enforcement officer or agency, a towing service owner, operator or employee shall not be held to answer or be liable for damages in any action brought by the registered owner, former registered owner, or his legal representative, lienholder or any other person legally entitled to the possession of a vehicle when the vehicle was processed and sold or disposed of as provided by this Chapter.” Ill. Rev. Stat. 1989, ch. 95V2, par. 4-213.

We find that sections 4 — 205, 4 — 209 and 4 — 213 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95^2, pars. 4-205, 4-209, 4-213) do not create a private right of action. This is evident in the plain meaning of these provisions. There is no indication that the legislature intended for plaintiff to come within the scope of the protection afforded by these laws.

Plaintiff further maintains that defendant may not invoke the Tort Immunity Act to bar plaintiff’s claims under the Vehicle Code. Plaintiff relies upon article 13, section 4, of the Illinois Constitution (Ill. Const. 1970, art. XIII, §4), and First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 11.

Article XIII, section 4, of the Illinois Constitution makes the following provision: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.” (Ill. Const. 1970, art. XIII, §4.) Plaintiff maintains that the aforementioned constitutional provision manifests legislative disapproval of sovereign immunity. Plaintiff goes on to state that cases decided subsequent to the adoption of the constitution have strictly construed this provision against local public entities and manifest judicial disapproval of sovereign immunity. Plaintiff cites Williams v. Board of Education of Clinton Community Unit School District No. 15 (1977), 52 Ill. App. 3d 328, in support of this assertion.

Section 2 — 202 of the Tort Immunity Act provides as follows: “§2 — 202. 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. 1989, ch. 85, par. 2 — 202.)

This provision indicates that a municipality would not be liable for the negligent acts of its employees in the execution or enforcement of any law.

In Williams, this court found that “governmental immunities have become the exception rather than the rule. Unless the defendant can demonstrate an applicable immunity under the statute, there is no immunity.” (Williams v. Board of Education of Clinton Community Unit School District No. 15 (1977), 52 Ill. App. 3d 328, 336.) In the instant case, defendant has demonstrated an applicable immunity under the Vehicle Code.

Next, plaintiff asserts that the Tort Immunity Act is not applicable because the statute was designed to protect property. In addition, plaintiff argues that her claims based upon sections 4 — 205 and 4 — 209 of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, pars. 4— 205, 4 — 209), may not be limited by provisions of the Tort Immunity Act because they were enacted before the Tort Immunity Act, and they are more specific than the Tort Immunity Act.

Plaintiff relies upon First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, in support of her contention that the Tort Immunity Act does not apply because it was designed to protect property. We find that First National Bank is distinguishable from the instant case because First National Bank concerned a plaintiff’s right to amend a complaint after the entry of a judgment, and the sufficiency of certain pleadings. First National Bank, 71 Ill. 2d at 8.

Plaintiff also relies upon People v. Maya (1983), 119 Ill. App. 3d 961, in support of her assertion that the Tort Immunity Act does not apply to her claim alleging violations of the Vehicle Code because the relevant provisions of the Vehicle Code were enacted after, and are more specific than, the Tort Immunity Act. Plaintiff correctly states that “[wjhere two statutes conflict, the more specific statute controls that which is more general.” (Maya, 119 Ill. App. 3d at 965.) In addition, plaintiff has correctly noted that “where two statutes conflict, the more recent is deemed to take precedence over the earlier.” (Maya, 119 Ill. App. 3d at 965.) However, sections 4 — 205 and 4 — 209 of the Vehicle Code do not contradict the Tort Immunity Act. Therefore, there is no reason to bar defendant from invoking the Tort Immunity Act.

Finally, defendant should prevail because the record indicates that defendant made an adequate investigation of the Secretary of State’s records to determine the owner and lienholder of plaintiff’s car, and properly notified the owner, who according to the certificate of title resided at the address where the notice was mailed. Plaintiff was given proper notice. Notice was mailed to the address listed as plaintiff’s address upon her certificate of title. Plaintiff failed to change her address on the certificate of title. Therefore, notice was mailed to plaintiff at her mother’s address. In addition, plaintiff’s mother, Barbara Byrne, who was the lienholder on the vehicle, was given notice at the address listed upon the certificate of title. Moreover, those allegations directly involve the enforcement and execution of the laws, and, thus, defendant may not be held liable for negligence with respect to these claims. Emulsicoat, Inc. v. City of Hoopeston (1981), 99 Ill. App. 3d 835, 839-41.

The motion court properly granted defendant’s motion to dismiss because plaintiff failed to state a cause of action. “[I]t clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187; see also Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 260-61.) Defendant was protected by the Tort Immunity Act. Therefore, plaintiff would not have been entitled to recover. Accordingly, we find that the motion court did not err when it granted defendant’s motion to dismiss the claims which alleged that it violated sections 4 — 205 and 4 — 209 of the Vehicle Code. Ill. Rev. Stat. 1989, ch. 95V2, pars. 4 — 205, 4 — 209.

Ill

Plaintiff’s third allegation is that the motion court erred when it granted defendant’s motion to dismiss the portion of the third count of plaintiff’s second amended complaint which alleged negligence which was not subject to sections 2 — 106, 2 — 107, 2 — 109, 2 — 202, and 2 — 210 of the Tort Immunity Act. Ill. Rev. Stat. 1989, ch. 85, pars. 2-106, 2-107, 2-109, 2-202, 2-210.

Plaintiff maintains that the Tort Immunity Act does not apply to her negligence allegations because (1) the alleged negligent acts constituted a proprietary function; (2) defendant did not undertake the acts in question in the course of the execution or enforcement of a law; (3) defendant owed a special duty to plaintiff; and (4) defendant was required by statute to perform the obligations alleged to have been negligent.

Defendant maintains that the motion court properly dismissed plaintiff’s complaint for negligence because it failed to state a cause of action pursuant to sections 2 — 109 and 2 — 202 of the Tort Immunity Act. Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 109, 2 — 202.

The purpose of the Tort Immunity Act “is to protect local public entities and public employees from liability arising from the operation of government.” (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1(a)) Moreover, any immunity or defense available to private persons is also available to local municipalities and their employees. Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1(b).

The Tort Immunity Act makes the following provisions:

“§2 — 106. A local public entity is not liable for any injury caused by an oral promise or misrepresentation of its employee, whether or not such promise or misrepresentation is negligent or intentional.
§2 — 107. A local public entity is not liable for injury caused by any action of its employees that is libelous or slanderous or for the provision of information either orally, in writing, in a book or other form of library material.
* * *
§2 — 109. A local public entity is not liable for any injury resulting from an act or omission of its employee where the employee is not liable.
* * *
§2 — 202. 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.
* * *
§2 — 210. A public employee acting in the scope of his employment is not liable for an injury caused by his negligent misrepresentation or the provision of information either orally, in writing, in a book or other form of library material.” Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 106 through 2 — 210.

We find that pursuant to the Tort Immunity Act, defendant would only be liable for willful and wanton misconduct of its employees enforcing the law, while defendant would not be liable for its employees’ negligence. (Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 109, 2 — 202.) Therefore, the trial court properly dismissed plaintiff’s count III for negligence.

We are not persuaded by plaintiff’s arguments. First, plaintiff argues that defendant was not acting in a governmental capacity, because the alleged negligent acts constituted a proprietary function and were thus unprotected by the Tort Immunity Act. Plaintiff relies upon Bedtke v. City of Chicago (1926), 240 Ill. App. 493, and Peterson v. City of Gibson (1944), 322 Ill. App. 97. These cases are distinguishable from the case at bar because in both cases the courts held that burning debris constituted a proprietary function. However, maintenance of the public streets and the execution of the law constitute governmental functions. Therefore, we find that defendant acted in a governmental capacity when it towed plaintiff’s car from a snow-filled public thoroughfare. Moreover, Bedtke and Peterson are old cases which were decided prior to the Tort Immunity Act, which mandates that municipalities including defendant are immune from liability for negligent enforcement of the law.

Second, plaintiff argues that the Tort Immunity Act is not applicable in the instant case because defendant did not undertake the acts in question in the course of the execution or enforcement of a law. Specifically, plaintiff identifies the allegations that defendant towed, seized, transferred and “shredded” her automobile as being beyond the scope of the Tort Immunity Act. However, these allegations constitute claims of negligence in enforcing and executing the law with respect to the towing, detaining, and destruction of automobiles. (See Ill. Rev. Stat. 1989, ch. 951/2, par. 4 — 201 et seq.) We stated above that the Tort Immunity Act immunizes municipalities from liability for the negligent enforcement of the law.

Third, plaintiff maintains that defendant owed plaintiff a special duty which would neutralize the Tort Immunity Act and recover against defendant for negligence. The following four requirements must be met in order for a claimant to invoke the special duty-exception: “(1) [T]he municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or willful in nature; and (4) the injury must occur while plaintiff is under the direct and immediate control of employees or agents of the municipality.” (Jackson v. Chicago Firefighters Union Local No. 2 (1987), 160 Ill. App. 3d 975, 980.) Plaintiff may not invoke the special duty exception because plaintiff failed to allege that she was under the immediate or direct control of defendant, its employees, or its agents.

Fourth, plaintiff maintains that the Tort Immunity Act does not apply because defendant was required by statute to perform obligations for which it is alleged to have executed in a negligent fashion. The Tort Immunity Act immunizes municipalities from liability for the negligent enforcement of the law. Therefore, defendant may not be held liable pursuant to this theory.

Again we find that the motion court properly granted defendant’s motion to dismiss because “it clearly appears that no set of facts can be proved which [would] entitle plaintiff[] to recover.” (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187; see Willard v. Northwest National Bank (1985), 137 Ill. App. 3d 255, 260-61.) Plaintiff’s claims were barred by the Tort Immunity Act. Therefore, plaintiff would not have been entitled to recover under any circumstances.

For the aforementioned reasons, we affirm the finding of the trial court.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL W. JOHNSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—1898
    Opinion filed May 2, 1991.
    Rehearing denied July 26, 1991.

      Joseph L. Fogel and David C. Bohan, both of Jenner & Block, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Bonnie Meyer Sloan, Special Assistant State’s Attorney, and Renee G. Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, defendant, Daniel W. Johnson, was found guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). Defendant was sentenced to a term of 80 years’ incarceration in the Illinois Department of Corrections.

The following issues are before this court for review: (1) whether the trial court abused its discretion by denying defendant’s challenges of four jurors for cause; (2) whether the trial court abused its discretion by refusing to charge the jury with defendant’s proposed jury instructions; (3) whether the trial court abused its discretion by denying defendant’s pretrial motions in limine; (4) whether the cumulative effect of the trial court’s errors deprived defendant of a fair trial.

We reverse and remand.

Background

On Sunday, November 21, 1987, defendant was arrested for the stabbing and subsequent death of Charles “Chuck” Meyer. Defendant was charged with two counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1), and one count each of armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1) and concealment of a homicidal death (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3.1). The People tried defendant for one count of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). All of the other charges were nol-prossed.

Prior to the trial, the trial court conducted voir dire of several veniremen. One of the veniremen was Mr. Michael Milkovich. Mr. Milkovich told the court that his family had been victims of a robbery committed by his cousin, and that his sister was involved in an armed robbery. When asked by the trial court whether those incidents would affect his ability to be an impartial juror, Mr. Milkovich answered, “I hope not.” Mr. Milkovich added, “You[ ] know, *** my sister was involved in armed robbery, in robbery, [and] drugs in Hammond.” Defendant challenged Mr. Milkovich for cause, but the trial court rejected the challenge.

The trial court also questioned Mr. Richard Welch. Mr. Welch testified that he and his close friends and relatives had all been the victims of violent crimes. Mr. Welch also stated that he had been robbed at knife point, that his mother had been struck by a hit-and-run driver, that his friends had been burglarized, and that one of his friends had been beaten by an assailant. The trial court asked Mr. Welch if the crimes inflicted upon him, his family, and his friends would affect his ability to be a fair and impartial juror. Mr. Welch responded, “Not really.” Defendant challenged Mr. Welch for cause on the grounds that his friends and members of his family had been the victims of violent crimes. The trial court denied defendant’s challenge.

Another venireman, Mr. Raymond Swope, testified during voir dire that he had been robbed, that his car had been stolen, and that both his wife and his mother had been raped. Mr. Swope further testified that while he was working in a mental institution, one of his patients confessed to him that he had murdered an elderly woman. When the trial court asked Mr. Swope whether those incidents would affect his ability to be a fair and impartial juror, Mr. Swope hesitated and replied, “I don’t think so.” Defendant responded by challenging Mr. Swope for cause. Defendant argued that Mr. Swope’s hesitancy in stating that he could be impartial rendered his ability to be fair and impartial suspect. The trial court denied defendant’s challenge.

Defendant also challenged Ms. Katherine Dollear for cause. Ms. Dollear was a probation officer who worked in the same building where defendant was being tried. Defendant challenged Ms. Dollear for cause on the basis that her intimacy with the criminal justice system, and, more specifically, that the administration of criminal justice in the criminal court facility rendered her less able to be an impartial juror. The trial court denied defendant’s challenge of Ms. Dollear. The trial judge reasoned: “There’s nothing I know of that would disqualify her for cause.” Defendant exercised his final peremptory challenge against Ms. Dollear.

Prior to the trial, defendant also filed two motions in limine. Defendant filed a motion in limine seeking to preclude the People from eliciting testimony concerning a small specimen of semen obtained from the victim’s mouth during the coroner’s examination of the victim’s body. Defendant made this motion on the grounds that the People could not produce any evidence, scientific or otherwise, linking the trace of semen to defendant, and that any testimony concerning the specimen was irrelevant with respect to the issue of whether defendant was guilty of murder. Defendant argued in the alternative that even if the evidence was relevant, its probative value was outweighed by its potential to unfairly prejudice defendant. The People argued that such circumstantial evidence was relevant to defendant’s identity and motive, and that such information would be relevant if the act was committed by a homosexual. The trial court denied defendant’s motion and later admitted the evidence over defendant’s objection.

Defendant also filed a motion in limine seeking to preclude the People from offering the testimony of a juvenile named James McNamara. The State informed the court that it intended to call James McNamara to testify that defendant had once confessed a desire to “torture” and “kill” someone, and that defendant told him that defendant and the victim were bisexuals. Defendant maintained that James McNamara’s testimony would be irrelevant and that it constituted inadmissible character evidence. Defendant also argued that evidence of his alleged bisexuality was immaterial and highly inflammatory. The trial court denied defendant’s motion and later allowed James McNamara to testify with respect to these subjects. The court found that such statements made two days before the decedent was found were relevant.

Several witnesses testified for the People, including James McNamara, Ms. Sandra Hernandez, Mr. Alan Johnson, Ms. Debbie Johnson, Officer Michael Alexander, Officer William Barron, Mr. Emory Cox, Dr. Barry Lifschultz, Mr. Mark Baldwin, Mr. James Houlihan, and Mr. Rodney Anderson. When James McNamara testified at trial, he stated that he observed defendant and the victim together in September of 1987. James testified that on the night of October 31, 1987, defendant told him that “he could put boiling water on somebody’s stomach[,]” and that defendant and the victim were bisexuals.

Ms. Sandra Hernandez testified that she often rode in defendant’s car, and that while riding in his car, she observed a dark pink blanket. She also stated that every time she saw defendant, he was carrying two or more knives.

Ms. Hernandez also testified that she, the victim, who was her boyfriend, and defendant went to Jacksonville, Florida, in November of 1987. Their trip lasted from November 13 through November 17, 1987. Ms. Hernandez testified that during the trip, defendant and the victim were often together, and it appeared that defendant and the victim wanted time together without her. She also testified that defendant made sexual advances toward her in front of the victim, whereupon the two men had an argument and began to wrestle with each other.

Later, Mr. Alan Johnson testified for the People. Mr. Johnson was defendant’s neighbor, and he leased a mobile home to defendant. Mr. Johnson stated that on November 19, 1987, defendant asked to borrow his handcuffs. Mr. Johnson also testified that defendant told him that “he wanted to get this guy drunk, get him high, handcuff him and then hold a knife to his throat *** to teach him a lesson.” Mr. Johnson further testified that defendant said that “he wanted him to admit why he had done wrong and then kill him *** strangle him so there wouldn’t be any blood.”

Mr. Johnson stated that on November 21, 1987, he was awakened at 6:30 a.m. by a telephone call from defendant. Mr. Johnson stated that defendant made the following statement during their telephone conversation: “ ‘Al, I screwed up. I got blood all over the place. I need to know if your lawn mower work[s] ***. I need to cut the grass.’ ”

Mr. Johnson also testified that later, around 8 a.m., he observed defendant cleaning the back of his car, and that there was a bucket in the driveway which appeared to contain blood. Mr. Johnson also stated that he saw some cushions from the trailer which defendant was renting lying outside. Mr. Johnson testified that when he asked defendant what happened, defendant told him that the victim “hinged” at him, and that he could not stop stabbing the victim. Then, Mr. Johnson stated that defendant told him that he was thinking about keeping a pair of trousers because he thought they might fit, but defendant changed his mind and said, “[N]o. I better not. I better burn them.” Mr. Johnson then told the court that he asked defendant whose pants they were and defendant said, “ ‘[Tjhey were Chuck’s.’ ” Mr. Johnson then stated that he asked defendant, “You killed Chuck?” and defendant answered, “ ‘Yes, I did.’ ” Mr. Johnson then told the court that he ignited a fire in the fire pit and he watched defendant burn the trousers. He also testified that he used his lawn mower to cut his grass over the blood spots on the lawn in order to “conceal that there was blood on the lawn.”

Mr. Johnson’s wife, Debbie Johnson, testified that she went outside on that same morning to find her sons who were playing in the yard. At that time, she saw defendant, and defendant told her that he had cleaned his trailer and that he wanted to return her bucket. Around 10 a.m., Mrs. Johnson saw defendant and offered him a bottle of beer. Defendant was unable to open the bottle of beer. Defendant told Mrs. Johnson that his hands were lacerated, bruised, and swollen because he was injured while working. Mrs. Johnson told the court that while she was opening the beer bottle for defendant, defendant told her that he had killed someone. Defendant told Mrs. Johnson that the victim started the fight. Mrs. Johnson further testified that around 4:15 or 4:30 p.m., defendant told her that if the police questioned her, she should tell the police that he spent Friday night with her and her husband at their home.

The victim’s body was discovered on November 21, 1987. Markham police officer Michael Alexander discovered the body of a partially clothed man at 7 a.m. in the Lone Tree Park. The body was covered with a pink blanket. There was a gag in the victim’s mouth, and his throat was cut. Officer Alexander alerted the police detectives and summoned evidence technicians.

Markham police officer William Barron then arrived at Lone Tree Park and copied the decedent’s fingerprints, and checked the missing persons records. However, Officer Barron was unable to identify the body.

Later that day, Mr. Emory Cox, a police investigator, visited the scene of the crime. Mr. Cox photographed the body, which was covered by a dark pink blanket, and searched the area for physical evidence. Mr. Cox then removed the blanket from the decedent and observed that he was nude from the waist down. He also observed numerous abrasions on the decedent’s head and face, in addition to stab wounds in the decedent’s neck, near his nipple, and on the left side of the upper abdomen. When Mr. Cox turned the victim over, he observed numerous stab wounds on the decedent’s back and abrasions and bruises on his left wrist.

The court also heard the testimony of Dr. Barry Lifschultz, a certified forensic pathologist. Dr. Lifschultz observed that two of the decedent’s top front teeth were chipped, and that there were 11 stab wounds in the back of the body. Five of those wounds penetrated the chest cavity and two penetrated the heart. Dr. Lifschultz also observed a single wound on the front of the body which penetrated the heart, and a single wound across the front of the victim’s neck which penetrated the larynx. The victim’s clothing had multiple holes which were consistent with the wounds on the decedent’s body. Dr. Lifschultz testified that there were also 28 bruises or abrasions on the body. The abrasions and dirt on the victim’s heel were indicative of the body having been dragged on the ground. Dr. Lifschultz testified that the patterned bruises on the victim’s wrist were “consistent with handcuff injury.” Dr. Lifschultz concluded that the victim died of multiple stab wounds.

During the autopsy, Dr. Lifschultz took a tissue sample from the victim’s mouth on a cotton swab. This specimen was analyzed by Dr. Rodney Anderson, a licensed forensic serologist. Dr. Anderson testified that the specimen obtained from the victim’s mouth contained a trace of semen. However, on cross-examination, Dr. Anderson admitted that he did not conduct any tests to link the semen found in the victim’s mouth to defendant.

Officer Barron and Markham police sergeant Henry Wilson observed the autopsy of the victim’s body. During the autopsy, the officers learned that someone possibly connected to the case had arrived at the Markham police station. The officers left the autopsy and returned to the police station. When they arrived, they met defendant, and defendant agreed to speak to them in an office.

Defendant told the officers that he picked up the victim in Midlothian, Illinois, and dropped him off at a cross-walk in Markham, Illinois, so that the victim could purchase some marijuana. Defendant then asked the officers if the victim was in custody. Defendant then gave the officers a description of the victim, and they showed him a picture of the victim in the morgue. Defendant said that he did not recognize the victim in the picture. Defendant gave the officers his home address and telephone number, and he left the police station.

At 3:30 p.m. on that same day, defendant returned to the police station, where he inquired as to whether the body had been identified and whether there were any suspects. Officer Barron told defendant that the police department had no leads. Sergeant Wilson asked Officer Barron to tell him the color of the blanket which was wrapped around the victim. Defendant answered the question before Officer Barron could speak; he stated that the blanket was pink. Officer Barron then observed that defendant’s hands were swollen and scratched. Both officers excused themselves from the room, whereupon Officer Barron told Sergeant Wilson that the fact that the body was covered and the color of the blanket had purposefully been withheld from the public. Both officers became suspicious. The officers returned to the room where defendant was sitting and asked him what means of transportation he used to get to the police station. Defendant related that he arrived at the station in his car. Officer Barron then went outside and looked at defendant’s vehicle. He noticed traces of blood on the bumper of the automobile, and dark colored spots on the carpeting in the car. Officer Barron testified that upon returning to the office, Sergeant Wilson advised defendant of his constitutional rights and took him into custody.

Later, Mr. Cox searched defendant’s car. Mr. Cox testified that he observed an odor of blood, and bloodstains on the carpeting of the car. On November 23, 1987, Detective Mark Baldwin searched Mr. and Mrs. Johnson’s home and defendant’s trailer. Detective Baldwin also found the victim’s wallet, identification, and a knife in a garbage heap in the Fitzmor Landfill.

On December 30, 1987, a Cook County grand jury indicted defendant for first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1), concealment of a homicide (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3.1), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1).

At the close of the evidence, the trial court held an instruction conference before submitting instructions to the jury. During the conference, defendant proposed three Illinois Pattern Jury Instructions, two concerning second degree murder and one concerning the manner in which the jury should view the testimony of Mr. Alan Johnson. Defendant proposed the second degree murder instruction (Illinois Pattern Jury Instructions, Criminal, No. 7.04A (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d)), because there was evidence that defendant and the victim had a fight, the victim lunged at defendant, and the pattern nature of the wounds, which was consistent with second degree murder which is a killing that was provoked by a sudden and intense passion.

The trial court considered the aforementioned evidence and refused to instruct the jury on second degree murder on the grounds that there was insufficient evidence to warrant the requested instructions. Specifically, the court found that the evidence was insufficient for a jury to find that the killing was provoked by a sudden and intense passion. The trial court also noted that the evidence that the victim was subdued by a pair of handcuffs was inconsistent with the theory that the killing was provoked by a sudden and intense passion.

The State made its closing argument, which included the following statement:

“And you know from the evidence, ladies and gentlemen, that after [defendant] handcuffed [the victim] and before he stabbed him to death, something else happened. You know that there was semen found in Chuck Meyer’s mouth and you know that he was stripped of his clothing from the waist down and only God knows and only God can tell us right now exactly the torture that Chuck Meyer went through before he ended his life in that trailer that night.”

On May 18, 1989, the jury found defendant guilty of first degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1.) After having considered evidence in aggravation and mitigation, and thereafter finding that the murder was brutal and heinous, the trial court sentenced defendant to a term of 80 years’ incarceration in the Illinois Department of Corrections. Defendant now appeals.

Opinion

I

First, defendant alleges that the trial court abused its discretion by denying his challenges for cause of Mr. Michael Milkovich, Mr. Richard Welch, Ms. Katherine Dollear, and Mr. Raymond Swope.

The People maintain that the trial court did not abuse its discretion by denying defendant’s challenges because there is no encroachment upon a defendant’s fundamental right to an impartial jury where defendant exhausts his peremptory challenges and is forced to accept a juror whom defendant finds unacceptable.

“A criminal defendant’s right to trial by a fair and impartial jury is firmly rooted in our constitution.” (People v. Stone (1978), 61 Ill. App. 3d 654, 666.) We have found that “[t]his right is so basic that a violation thereof requires a reversal.” (Stone, 61 Ill. App. 3d at 666-67.) “This right should be guarded zealously ***.” (People v. Gaston (1984), 125 Ill. App. 3d 7, 11.) “[T]he purpose of voir dire examination is to filter out prospective jurors who are unable or unwilling to be impartial.” (People v. Washington (1982), 104 Ill. App. 3d 386, 390.) Our supreme court has found that “a person is not competent to sit as a juror if his state of mind is such that with him as a member of the jury a party will not receive a fair and impartial trial.” (People v. Cole (1973), 54 Ill. 2d 401, 413.) The determination of whether or not a prospective juror is impartial is within the sound discretion of the trial judge. (Cole, 54 Ill. 2d at 414.) A trial judge’s determination will be set aside if it is contrary to the manifest weight of the evidence. (Cole, 54 Ill. 2d at 414; Stone, 61 Ill. App. 3d at 667.) A court may reverse a defendant’s conviction where the juror expresses “self-doubt concerning [his] ability to be impartial.” Stone, 61 Ill. App. 3d at 667.

In the instant case, we find that the trial judge’s determination with respect to the challenges against Mr. Michael Milkovich, Mr. Richard Welch, and Mr. Raymond Swope was against the manifest weight of the evidence. (See Cole, 54 Ill. 2d at 414; Stone, 61 Ill. App. 3d at 667.) Defendant’s right to a fair and impartial jury was violated. (See Stone, 61 Ill. App. 3d at 666-67.) These three jurors all equivocated when they were asked by the trial court whether they could be fair and impartial, and they testified that they had been victims of crimes, that their family members had been victims of crimes, or that their friends had been victims of crimes, some of which were violent crimes. Mr. Milkovich stated that his family members had been the victims of a robbery committed by one of his relatives and that his sister was involved in an armed robbery. When the trial court asked him if anything about those incidents would affect his ability to be fair, Mr. Milkovich answered, “I hope not.”

Like Mr. Milkovich, Mr. Welch had been the victim of a crime. Mr. Welch was robbed at knife point. In addition, his mother had been struck by a hit-and-run driver. Furthermore, his friends had been burglarized and one of his friends had been beaten in front of his home. Like Mr. Milkovich, Mr. Welch was unable to state unequivocally that he could be impartial. When the trial court asked whether the crimes perpetrated upon his family and friends would impair his ability to be impartial, Mr. Welch responded, “Not really.”

Finally, Mr. Swope testified that he had been robbed, that his car had been stolen, and that his mother and his wife had been raped. When the trial judge asked Mr. Swope whether those experiences would affect his ability to be fair, Mr. Swope replied, “I don’t think so.” The trial judge then attempted to obtain a more concrete answer, and he asked Mr. Swope again whether he could be impartial. Mr. Swope refused to give an affirmative answer. Instead, he repeated, “I don’t think so.” Only after further questioning by the trial court did Mr. Swope profess his ability to remain impartial.

Mr. Milkovich, Mr. Welch, and Mr. Swope were crime victims or they had close friends or relatives who were victims of violent crimes. In addition, they equivocated when first asked whether they could be fair and impartial. For these reasons, they should have been dismissed for cause. “[T]he purpose of voir dire examination is to filter out prospective jurors who are unable *** to be impartial.” (People v. Washington (1982), 104 Ill. App. 3d 386, 390.) Moreover, a venireman is incompetent to sit as a juror if he cannot be impartial. (See People v. Cole (1973), 54 Ill. 2d 401, 413.) A reviewing court may reverse a conviction where a juror expressed “self-doubt concerning [his] ability to be impartial.” (People v. Stone (1978), 61 Ill. App. 3d 654, 667.) The three aforementioned jurors expressed self-doubt with respect to their ability to be impartial. Therefore, we find that the trial judge’s determination with respect to Messrs. Milkovich, Welch, and Swope was against the manifest weight of the evidence. See Cole, 54 Ill. 2d at 414; Stone, 61 Ill. App. 3d at 667.

However, we find that the trial court’s decision with respect to Ms. Katherine Dollear was proper. We find that Ms. Dollear was not unfit to sit as a juror because she was a probation officer. There is no per se disqualification of jurors based upon an occupation as an officer of the court. (See People v. Gaston (1984), 125 Ill. App. 3d 7, 10-11.) Moreover, Ms. Dollear testified that she could be an impartial juror.

In addition, we agree with defendant that the People’s reliance upon People v. Johnson (1987), 162 Ill. App. 3d 952, is improper because Johnson is distinguishable from the case at bar. In Johnson, defendant challenged a venireman for cause after the venireman gave equivocal responses to the trial court’s questions. The trial court denied defendant’s challenge for cause, and the venireman sat on the jury because defendant had exercised all of his peremptory challenges. Johnson, 162 Ill. App. 3d at 953-54.

Defendant in the Johnson case appealed and argued that the challenged venireman should have been dismissed for cause. (Johnson, 162 Ill. App. 3d at 953.) Defendant also argued that another venireman, whom he eventually challenged peremptorily, also should have been dismissed for cause. (Johnson, 162 Ill. App. 3d at 954.) The appellate court held that the equivocal responses of the venireman who actually sat as a juror were “not such that it could be determined that she could not be impartial.” (Johnson, 162 Ill. App. 3d at 954.) As to the other venireman, the court found that “there can be no claim of prejudice” because the venireman in question did not sit on the jury. Johnson, 162 Ill. App. 3d at 955.

The People maintain that Johnson applies to defendant’s claim that the trial court improperly failed to dismiss Mr. Swope for cause. We find that Johnson does not apply to the trial court’s failure to dismiss Mr. Swope in this case. In Johnson, the trial judge assured himself that the venireman would try her best to be fair and impartial and obey the court’s instructions. Here, where the trial judge questioned Mr. Swope, Mr. Swope initially had an equivocal response, “I don’t think so.” The judge repeated his question, and Mr. Swope gave the same equivocal answer. It was not until the trial judge asked Mr. Swope a leading question that Mr. Swope testified that he could be an impartial juror. Having been put on notice twice that Mr. Swope could not unequivocally state that he would be an impartial juror, the trial judge should have dismissed Mr. Swope for cause.

In addition, the People maintain that Johnson applies to defendant’s allegation that the trial court failed to dismiss Messrs. Milkovich and Welch for cause, because defendant eventually used peremptory challenges to prevent those veniremen from becoming members of the jury. We are not persuaded by this argument because the Johnson court failed to acknowledge the possibility that prejudice may arise from a defendant’s having to use a peremptory challenge against a venireman who should have been dismissed for cause. Moreover, the court failed to cite any authority for its conclusion that “there can be no claim of prejudice” once a defendant removes a venireman from the panel by exercising a peremptory challenge. Johnson, 162 Ill. App. 3d at 955.

In conclusion, we find that defendant was denied his right to an impartial jury, the verdict should be reversed and the cause remanded for a new trial. See People v. Mitchell (1982), 121 Ill. App. 3d 193, 196.

II

A

Next, defendant alleges that the trial court abused its discretion by refusing to charge the jury with defendant’s proposed jury instruction for second degree murder and instructions with respect to the testimony of Mr. Alan Johnson.

The People maintain that the trial court properly refused defendant’s request for a second degree murder instruction because a “lunge” does not qualify as evidence of serious provocation or intense passion. The People also assert that the trial court properly refused defendant’s accomplice-witness instruction since the witness had no knowledge of a crime and made no affirmative act to conceal a crime.

Section 9 — 2 of the Criminal Code of 1961 makes the following relevant provisions:

“Second Degree Murder, (a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9 — 1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed ***;
(2) ***
(b) Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.
(c) When a defendant is on trial for first degree murder and evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented, the burden of proof is on the defendant to prove either mitigating factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder. However, the burden of proof remains on the State to prove beyond a reasonable doubt each of the elements of first degree murder and, when appropriately raised, the absence of circumstances at the time of the killing that would justify or exonerate the killing under the principles stated in Article 7 of this Code. In a jury trial for first degree murder in which evidence of either of the mitigating factors defined in subsection (a) of this Section has been presented and the defendant has requested that the jury be given the option of finding the defendant guilty of second degree murder, the jury must be instructed that it may not consider whether the defendant has met his burden of proof with regard to second degree murder until and unless it has first determined that the State has proven beyond a reasonable doubt each of the elements of first degree murder.” (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 2(a)(1), (b), (c).)

In 1987, the Illinois General Assembly amended the Criminal Code of 1961 and replaced voluntary manslaughter with second degree murder.

We will now turn our attention to the common law. Our supreme court has found that “ ‘if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, a manslaughter instruction tendered by defendant must be given.’ ” (People v. Leonard (1980), 83 Ill. 2d 411, 420-21, quoting People v. Handley (1972), 51 Ill. 2d 229, 235.) In addition, the Illinois Supreme Court has recognized mutual combat as serious provocation sufficient to reduce a homicide to voluntary manslaughter. (Leonard, 83 Ill. 2d at 420-21; People v. Healy (1988), 168 Ill. App. 3d 349, 353.) Mutual combat exists where the parties willingly enter into combat upon equal terms and in the heat of passion. (People v. Miller (1981), 96 Ill. App. 3d 212, 215.) Where there is sufficient evidence of mutual combat in the record, it is reversible error to refuse such an instruction. See Leonard, 83 Ill. 2d at 420-21; Healy, 168 Ill. App. 3d at 353.

We find that the trial court erred when it failed to charge the jury with defendant’s proposed jury instruction for second degree murder. In the instant case, there was sufficient provocation to warrant the giving of a second degree murder instruction because there was substantial evidence of mutual combat. Mr. Alan Johnson testified that defendant told him that the victim “lunged” at him before he stabbed the victim. In addition, Mrs. Alan Johnson testified that defendant told her that the victim had started a fight which resulted in his death. Mrs. Johnson also testified that on the morning after the victim’s death, she noticed that defendant’s hands were “swollen and cut and bruised.”

Moreover, the instant case is analogous to People v. Leonard (1980), 83 Ill. 2d 411, People v. Craven (1973), 54 Ill. 2d 419, and People v. Healy (1988), 168 Ill. App. 3d 349. Each of these cases involves jury instructions with respect to voluntary manslaughter, which is now classified as second degree murder. In Leonard, the trial court denied the defendant’s request for a voluntary manslaughter instruction based upon serious provocation. At trial, the defendant had introduced evidence showing that he had suffered injuries consistent with those acquired during mutual combat, including lacerations on his right hand. (Leonard, 83 Ill. 2d at 416.) There was no evidence as to the circumstances under which the defendant’s injuries were sustained. The Illinois Supreme Court ruled that there was sufficient evidence of mutual combat to require a voluntary manslaughter instruction, and affirmed the appellate court’s reversal of the trial court’s refusal to give the requested instruction. Leonard, 83 Ill. 2d at 422-23.

Earlier, in People v. Craven (1973), 54 Ill. 2d 419, the Illinois Supreme Court recognized that testimony from witnesses for the People could provide the predicate for a voluntary manslaughter instruction. (Craven, 54 Ill. 2d at 425.) In this case, one of the State’s witnesses testified that prior to the victim’s death, the defendant and the victim were engaged in mutual combat. (Craven, 54 Ill. 2d at 425.) Additionally, there was evidence that the defendant’s arm was lacerated. (Craven, 54 Ill. 2d at 423-24.) The Illinois Supreme Court reversed the defendant’s conviction, holding that the mere presence of evidence that would reduce the offense to voluntary manslaughter necessitated the giving of the instruction. Craven, 54 Ill. 2d at 425-26.

Similarly, in People v. Healy (1988), 168 Ill. App. 3d 349, this court reversed and remanded a murder conviction on the ground that the trial court refused to instruct the jury on voluntary manslaughter. There, the evidence showed that the defendant sustained a laceration on his right hand during an altercation with the victim. (Healy, 168 Ill. App. 3d at 353.) There was no evidence as to how the altercation began or how the defendant sustained the injury. (Healy, 168 Ill. App. 3d at 353.) We found that “the jury *** should have been permitted to decide whether this homicide was murder or manslaughter,” because there was evidence from which the defendant could have argued that the combat was “mutually entered into.” Healy, 168 Ill. App. 3d at 354.

The instant case is analogous to the three aforementioned cases. In Craven, a witness for the People testified that the defendant and the victim were involved in mutual combat prior to the killing. (See People v. Craven (1973), 54 Ill. 2d 419, 425.) Similarly, in the case at bar, Mr. and Mrs. Johnson, who were witnesses for the People, testified that defendant and the victim were involved in mutual combat prior to the victim’s death. In addition, in both Leonard and Healy, the defendants sustained lacerations to their hands from combat with the respective victims. (See People v. Leonard (1980), 83 Ill. 2d 411, 416; Healy, 168 Ill. App. 3d at 353.) In the case at bar, defendant’s hands were bruised and lacerated in the course of his altercation with the victim.

For these reasons, the trial court’s refusal to charge the jury with defendant’s proposed second degree murder instruction constituted reversible error. In Illinois, where there is sufficient evidence of mutual combat in the record, it is reversible error to refuse such an instruction. See Leonard, 83 Ill. 2d at 420-21; Healy, 168 Ill. App. 3d at 353.

B

Next, defendant maintains that the trial court erred in refusing to instruct the jury that the testimony of Mr. Alan Johnson should be considered with caution. Defendant proffered a jury instruction (IPI Criminal 2d No. 3.17) concerning the testimony of an accomplice, based upon the testimony of Mr. Alan Johnson that he assisted defendant in concealing the murder of Charles Meyer.

“A person commits the offense of concealment of homicidal death when he conceals the death of any other person *** [who] has died by homicidal means.” Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3.1(a); see People v. Kirkman (1988), 170 Ill. App. 3d 106, 110.

A cautionary instruction should be given where there is probable cause to believe that the witness could be found guilty as an accomplice. (People v. Carreon (1987), 162 Ill. App. 3d 990, 995-96.) An accomplice is one who himself could be indicted for the offense either as a principal or as an accessory. (People v. Cobb (1982), 97 Ill. 2d 465, 476; People v. Nowak (1970), 45 Ill. 2d 158, 168.) Where there is sufficient evidence that the witness was an accomplice, the failure to give a cautionary instruction may constitute reversible error. See People v. Baker (1982), 110 Ill. App. 3d 1015, 1020.

In the case at bar, the trial court refused the instruction. However, the proffered instruction should have been given because at the time of Mr. Johnson’s testimony, defendant was also charged with concealment. Moreover, by Mr. Johnson’s own admission, he could have been indicted and found guilty of concealment. (See Cobb, 97 Ill. 2d at 476.) Mr. Johnson testified that he lit a fire on the morning after the victim’s death in which the victim’s trousers were burned. In addition, he testified that he mowed the lawn in order to “conceal that there was blood on the lawn.”

We are not persuaded by the People’s claim that the trial court properly refused defendant’s accomplice-witness instruction because Mr. Johnson had no knowledge of the crime and committed no affirmative act to conceal the crime. The record indicates that on November 21, 1987, defendant told Mr. Johnson that he had killed “Chuck.” On that same day, Mr. Johnson ignited the fire that defendant used to burn the victim’s trousers, and Mr. Johnson admits that he mowed the lawn over the blood spots on the grass in order to “conceal” the blood on the lawn.

Accordingly, we find that the trial court erred when it failed to instruct the jury to view Mr. Johnson’s testimony with caution. (See People v. Baker (1982), 110 Ill. App. 3d 1015, 1020.) The trial court’s failure to give the accomplice-witness instruction constitutes error which warrants a reversal.

Ill

Third, defendant contends that the trial court abused its discretion by denying his pretrial motions in limine. Specifically, defendant alleges that the trial court erred when it denied his motion to preclude evidence of a trace of semen found in the victim’s mouth because the trace of semen was never linked to defendant and was therefore irrelevant and, even if relevant, the probative value of the evidence was substantially outweighed by its prejudicial effect. Defendant also alleges that the trial court erred by denying his motion to preclude evidence of his alleged bisexuality and his alleged violent character. Defendant maintains that his alleged bisexuality was irrelevant to the offenses for which he was charged, and that the testimony concerning his alleged violent character constituted improper character evidence.

The People maintain, first, that the trace of semen, considered with other evidence, showed defendant’s motive and intent in this case. Second, the People maintain that statements of defendant alluding to his desire to torture and kill someone were not offered to show defendant’s propensity for violence or that defendant was of bad character, but were properly offered as relevant to defendant’s motive and intent.

In People v. Escobar (1988), 168 Ill. App. 3d 30, we made the following finding:

“A motion in limine is addressed to the trial court’s inherent power to admit or exclude evidence. If the rules of evidence do not require exclusion of the disputed material, then the trial judge must deny the motion. If the material should be excluded, *** the trial judge has the discretion to either grant or deny the motion. *** A court of review will not reverse a trial judge’s grant or denial of a motion in limine absent a manifest abuse of discretion.” Escobar, 168 Ill. App. 3d at 43.

In Illinois, “[n]o evidence is admissible unless it is relevant. [Citation.] In order to be relevant, the offered evidence must have a tendency to make the existence or non-existence of a fact of consequence more probable or less probable than it would be without the offered evidence.” (People v. Linscott (1987), 159 Ill. App. 3d 71, 83.) “Evidence will be considered relevant where the circumstance or fact offered tends to prove or disprove a disputed fact or render the matter in issue more or less probable.” People v. Schultz (1987), 154 Ill. App. 3d 358, 366.

However, “evidence will be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” (Linscott, 159 Ill. App. 3d at 84.) Inconclusive evidence of semen taken from a victim’s body has no probative value on the issue of a murderer’s identity. (Linscott, 159 Ill. App. 3d at 85.) In addition, we have held that the probative value of evidence of a defendant’s alleged homosexuality is “outweighed by its inflammatory effect upon the jury.” People v. Reimnitz (1979), 72 Ill. App. 3d 761, 763, cert. denied (1982), 456 U.S. 906, 72 L. Ed. 2d 162, 102 S. Ct. 1751; see also People v. Sales (1986), 151 Ill. App. 3d 226, 233.

There are also limitations on the admissibility of character evidence. The admission of character evidence is restricted because “ ‘it [weighs] too much with the jury and [overpersuades] them as to prejudge one with a bad general record and deny him a fair opportunity to defend [himself] against a particular charge.’ ” (People v. Harbold (1984), 124 Ill. App. 3d 363, 384, quoting Michelson v. United States (1948), 335 U.S. 469, 476, 93 L. Ed. 168, 174, 69 S. Ct. 213, 218.) Accordingly, in People v. Randle (1986), 147 Ill. App. 3d 621, we made the following finding:

“When a theory of self-defense is raised in a *** homicide case, evidence of the peaceful or violent character of either party is relevant as circumstantial evidence to show whether the complainant or the accused was the initial aggressor. [Citation.] However, while such character evidence is always relevant, it may not always be admissible. Because of the inflammatory nature of such evidence, it must first be determined whether the danger of undue prejudice outweighs the relevance of the evidence.” Randle, 147 Ill. App. 3d at 625.

We find that the trial court abused its discretion by denying defendant’s pretrial motion in limine which sought to preclude the People from offering evidence of a trace of semen found in the victim’s mouth. Arguably, evidence of the semen was relevant. The evidence had a tendency to make the existence of a consequence more probable (see People v. Linscott (1987), 159 Ill. App. 3d 71, 83), and it renders murder of the victim by defendant more probable (see People v. Schulz (1987), 154 Ill. App. 3d 358, 366). However, the probative value of this evidence is substantially outweighed by the danger of unfair prejudice. The People failed to link the specimen to defendant, or to the crime. This court has found that inconclusive evidence of semen found in the body of a victim has no probative value with respect to the issue of a murderer’s identity. See Linscott, 159 Ill. App. 3d at 83-85; Schulz, 154 Ill. App. 3d at 366.

Moreover, as defendant has noted, Linscott and Schulz are analogous to the case at bar. Linscott was an appeal from a murder retrial. In Linscott, the court held that inconclusive evidence of semen taken from the body of a murder victim was irrelevant because it only proved that defendant was a member of a large group of persons to whom the semen could have belonged. (Linscott, 159 Ill. App. 3d at 75.) The test did not show when the victim had had sexual contact. (Linscott, 159 Ill. App. 3d at 75.) Moreover, the defendant was not being tried for rape in his retrial. (Linscott, 159 Ill. App. 3d at 73.) The court held that the evidence did not have a tendency to prove anything relevant to the issue of whether defendant murdered the victim. Linscott, 159 Ill. App. 3d at 84.

Similarly, in Schulz, the court reversed the defendant’s conviction where the People introduced testimony concerning blood samples that proved only that the defendant could not be excluded as a suspect. (People v. Schulz (1987), 154 Ill. App. 3d 358, 366.) The court found that the “testimony served no relevant purpose, was totally lacking in probative value, and thereby prejudiced defendant’s cause.” Schulz, 154 Ill. App. 3d at 366.

The case at bar is analogous to Linscott and Schulz because in all three cases the evidence was not linked to defendant, and defendant was not accused of a sexual offense. Therefore, we find that the trial court abused its discretion when it denied this motion. See People v. Escobar (1988), 168 Ill. App. 3d 30, 43.

In addition, we find that the trial court erred when it denied defendant’s motion in limine which sought to preclude the People from introducing testimony about defendant’s sexual orientation and his alleged violent character. Although, as the People argue, this evidence may be relevant with respect to defendant’s identity and motive, we find that this evidence was inadmissible. We have found that the probative value of evidence of a defendant’s alleged homosexuality is inflammatory and prejudicial. (See People v. Reimnitz (1979), 72 Ill. App. 3d 761, 763-64, cert. denied (1982), 456 U.S. 906, 72 L. Ed. 2d 162, 102 S. Ct. 1751; People v. Sales (1986), 151 Ill. App. 3d 226, 233.) Accordingly, in the case at bar, we find that the testimony of James McNamara about defendant’s alleged bisexuality is outweighed by the danger of unfair prejudice.

Moreover, the prejudicial effect of this admission was compounded when the People inferred before the jury, during its closing argument, that the semen found belonged to defendant. This argument was inappropriate because the People never linked the semen to defendant, and the People’s exploitation of this evidence prejudiced the defendant.

Moreover, the instant case is analogous to People v. Sales, (1986), 151 Ill. App. 3d 226. In Sales, this court reversed a conviction on the ground that defendant was deprived of a fair trial because the prosecutor referred to defendant’s homosexuality in order to suggest that he was immoral and therefore guilty of the crime for which he was charged. (Sales, 151 Ill. App. 3d at 231-33.) In the case at bar, the State’s inappropriate reference to defendant’s alleged sexual orientation during its closing argument in which it was suggested that there was homosexual contact between the victim and defendant was prejudicial, and it constitutes reversible error.

Finally, we find that the trial court abused its discretion by denying defendant’s motion in limine because the People should have been prohibited from offering the testimony of James McNamara concerning defendant’s alleged violent character. Although such character evidence may be relevant, it is inadmissible if it is inflammatory, or the danger of unfair prejudice outweighs the relevance of the evidence. (See People v. Randle (1986), 147 Ill. App. 3d 621, 625.) We find that James McNamara’s testimony was highly prejudicial and inflammatory, and that it invited the jury to conclude that defendant committed the crime because of his character. The admission of character evidence is restricted because it prejudices a jury against a defendant and deprives him of a fair opportunity to defend himself against the crime for which he was charged. (See People v. Harbold (1984), 124 Ill. App. 3d 363, 384, citing Michelson v. United States (1948), 335 U.S. 469, 476, 90 L. Ed. 168, 174, 69 S. Ct. 213, 218.) Again, we find that the trial court abused its discretion in denying defendant’s motion in limine. See People v. Escobar, 168 Ill. App. 3d at 43.

IV

Finally, defendant alleges that he was deprived of a fair trial because of the cumulative effect of the trial court’s errors of law. Defendant correctly notes that the trial court made the following errors of law: (1) failure to dismiss three biased jurors for cause; (2) failure to instruct the jury as requested by defendant; and (3) denied defendant’s motions in limine. Defendant maintains that each of these errors constitutes reversible error and merits the reversal of his conviction. However, defendant asserts that even if each of the errors is harmless individually, their cumulative effect requires reversal of his conviction.

The People maintain that the trial court did not err. In the alternative, the People maintain that if the trial court did err, all such errors were harmless both individually and in the aggregate.

This court has found that where individual errors made by a trial court would not merit reversal alone, the cumulative effect of the errors may deprive defendant of a fair trial. Under such circumstances, due process and fundamental fairness require that a cause be remanded for retrial. People v. Killian (1976), 42 Ill. App. 3d 596, 601; People v. Pendleton (1974), 24 Ill. App. 3d 385, 397.

We also find that the cumulative effect of the errors of the trial court deprived defendant of a fair trial and warrants reversal.

For the aforementioned reasons, we reverse the decision of the trial court and remand this cause for a new trial.

Reversed and remanded.

LINN and McMORROW, JJ., concur.