source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE WALTON, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 89—3181
    Opinion filed December 4, 1992.

      Michael J. Pelletier and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Theodore F. Burtzos, and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant Johnnie Walton was tried before the bench and found guilty of possession with the intent to deliver and delivery of a controlled substance pursuant to section 401(a)(10) of the Illinois Controlled Substance Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1401(a)(10)). He was then sentenced to life imprisonment under the Habitual Criminal Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 33B— 1). Defendant now appeals, raising the following issues: (1) whether the trial court erred in not making any inquiry into defendant’s complaints regarding evidence defense counsel failed to present at the trial; (2) whether the State’s failure to file a verified petition prior to the sentencing of defendant as an habitual criminal rendered the proceedings null and void; (3) whether the State failed to prove beyond a reasonable doubt that defendant was an habitual criminal where it offered no evidence at the sentencing hearing to establish that defendant’s second conviction was for an offense occurring after conviction for the first offense; (4) whether this case should be remanded to determine whether defendant waived any constitutional rights in contemplation of accepting a plea agreement and whether he was “punished” for exercising his right to stand trial; and (5) whether the Act is unconstitutional because it violates provisions of the Illinois and United States Constitutions. We affirm.

At defendant’s trial, Alfred Pappalito, a Chicago police officer, testified that in May 1987, he had been operating undercover when an informant or “cooperative individual” named Mark identified a man sitting in a car as the defendant. Pappalito stated that he approached the vehicle and purchased some marijuana cigarettes laced with phenocyclidine (PCP) from defendant. At that time defendant gave Pappalito a “beeper number” to call in the event that Pappalito wanted to contact him regarding additional purchases. Pappalito subsequently made four more purchases of PCP. However, it was the events of June 18, 1987, which were the basis for defendant’s current conviction.

Pursuant to a prior arrangement, Officer Pappalito met defendant in a parking lot at 3536 West Division Street in Chicago at around 1:10 p.m. on June 18, 1987. Defendant asked Pappalito if he had the money, and when Pappalito replied in the affirmative, defendant went to the southern part of the parking lot, retrieved something, and returned to Pappalito’s vehicle. Defendant dropped a glass bottle through the window of the vehicle which, upon inspection by Pappalito, contained a yellow-colored liquid with the odor of PCP. Immediately after this delivery, Pappalito got out of his vehicle, which was a prearranged signal to the surveillance team. Defendant was then apprehended and arrested. One of the officers also recovered a second glass bottle with a yellow-colored liquid in the same area of the parking lot where defendant had gone before he delivered the first bottle to Pappalito.

The two bottles were delivered to the crime lab for analysis of their contents. The first bottle was found to contain 195 grams of PCP and the second bottle contained 189 grams of PCP.

In support of the affirmative defense of entrapment, defendant testified that he met Mark, the informant, in March 1987, and on that occasion he helped Mark obtain some PCP-laced marijuana or “happy sticks” which they smoked together. Sometime around April or May Mark introduced defendant to Pappalito and told him that Pappalito had lots of money to buy PCP. Although defendant testified that he did not know where to obtain PCP, he admitted that after Pappalito contacted him several times, he agreed to be the courier for certain PCP transactions between Pappalito and a “supplier” he referred to as Lee Pass’ son.

In rebuttal, the State entered into the record certified copies of defendant’s 1977 convictions for armed robbery and unlawful use of a weapon. Following closing argument, the court found defendant guilty as charged.

Prior to sentencing, the State filed a petition to have defendant sentenced as an habitual criminal. In support of its petition, the State presented two witnesses who testified that defendant was the person who had been convicted of attempted murder in 1970 and armed robbery in 1977. The trial court found that defendant was eligible to be sentenced as an habitual criminal.

On appeal, defendant first contends that it was error for the trial court not to inquire into defendant’s complaints regarding evidence defense counsel failed to present at trial. In making a determination as to whether a defendant has received effective assistance of counsel, the Illinois Supreme Court has adopted the two-part test set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Under Strickland, a defendant must show that counsel’s representation fell below an objective standard of reasonableness such that the trial results were unreliable and that but for the attorney’s unprofessional errors, the results of the trial would have been different. (People v. Albanese (1988), 125 Ill. 2d 100, 106, 531 N.E.2d 17.) Furthermore, without deciding whether the error was serious enough to constitute less than reasonable representation, a court can move to the second part of the two-prong test to determine if defendant has shown that he was prejudiced by the claimed errors and that, but for these errors, there is a probability that the results of the proceeding would have been different. People v. Caballero (1989), 126 Ill. 2d 248, 260, 533 N.E.2d 1089.

Although he did not claim that he had received ineffective assistance of counsel, he did complain that pertinent evidence had not been presented to the court. Specifically, defendant stated that his mental health history should have been made an issue and that certain photographs of the crime scene should have been entered into evidence. Defendant claims that these photographs showed the presence of other people such as Lee Pass’ son at the scene of the delivery and also depicted defendant wearihg a beeper which was contrary to Pappalito’s testimony. Finally, defendant complains that Mark should have been called as a witness to bolster defendant’s entrapment defense.

Assuming, arguendo, that counsel’s performance was deficient, defendant was required to show that the evidence not presented was probative of his guilt or innocence. Thus if the defense counsel’s alleged omissions would not have affected the outcome of this case, defendant could not have been prejudiced. Caballero, 126 Ill. 2d at 260.

In this case, defendant first claims that the issue of his mental health should have been considered by the court. The record indicates that defendant was examined by three psychiatrists prior to trial and found fit to stand trial by two of them. In addition, the pretrial and presentence investigation reports included information regarding defendant’s prior mental health history. Therefore, the court was apprised of defendant’s condition.

Defendant next claims that trial counsel failed to introduce pictures showing defendant wearing a beeper at the time of his arrest, which would have impeached the testimony of Pappalito that defendant did not have a beeper when he was arrested. However, .any impeachment of the officer’s testimony on this collateral issue would have little impact on the outcome of the case where defendant corroborated the critical testimony of Pappalito. Defendant acknowledged that he was introduced to Pappalito by Mark, that he delivered PCP to Pappalito on four occasions, including the day of arrest and that he received money and additional PCP as part of these transactions.

Defendant’s final allegation is that Mark should have been called as a witness to bolster defendant’s entrapment defense. However, defendant testified that on several occasions he sold PCP to Pappalito in exchange for money at prearranged times and locations which were negotiated by Pappalito and defendant outside the presence of Mark. Thus, counsel’s failure to call Mark as a witness did not result in any prejudice to defendant.

Defendant cites People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, for the proposition that, where a defendant makes post-trial allegations that he received ineffective assistance of counsel at trial, the court should appoint new counsel to undertake an independent evaluation of defendant’s claim or, at a minimum, question defendant’s counsel regarding the factual matters underlying defendant’s complaints. (Jackson, 131 Ill. App. 3d at 139.) Because the trial court in this case only listened to defendant’s complaints but took no further action, defendant claims that the trial court failed to determine the merits of his allegations.

However, the trial court has no duty to interrogate counsel regarding a defendant’s allegations of ineffective representation where the court could assess a defendant’s claim from its observations during trial. See People v. Miles (1988), 176 Ill. App. 3d 758, 773, 531 N.E.2d 891.

In the present case, the trial court was aware of defendant’s mental health history as documented in the pretrial and presentence investigation report, and of the probative significance of the beeper defendant was wearing as well as the presence of others at the crime scene. The trial court was also aware of the significance of Mark’s testimony compared to that of Pappalito and defendant himself that he was an active participant in the sale of PCP to Pappalito. Because none of the evidence alluded to by defendant could have altered the outcome of his trial, it was not error for the trial court to have rejected defendant’s complaints without further investigation.

Defendant next contends that the State’s failure to file a verified petition regarding its request to have defendant sentenced under the Act renders the sentencing proceeding null and void. Following defendant’s conviction, the State filed an unverified petition requesting that defendant be sentenced as an habitual criminal pursuant to section 33B — 1(a) of the Criminal Code of 1961, which provides:

“Every person who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class X felony, criminal sexual assault or first degree murder, and is thereafter convicted of a Class X felony, criminal sexual assault or first degree murder, committed after the 2 prior convictions, shall be adjudged an habitual criminal.” (Ill. Rev. Stat. 1989, ch. 38, par. 33B — 1(a).)

Section 33B — 2(a) of the Act defines the procedure to be followed when petitioning the court under the Act. It states in relevant part:

“After a plea or verdict or finding of guilty and before sentence is imposed, the prosecutor may file with the court a verified written statement signed by the State’s Attorney concerning any former conviction of an offense set forth in Section 33B — 1 rendered against the defendant. The court shall then cause the defendant to be brought before it; shall inform him of the allegations of the statement so filed, and of his right to a hearing before the court on the issue of such former conviction and of his right to counsel at such hearing; and unless the defendant admits such conviction, the court shall hear and determine such issue, and shall make a written finding thereon.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 33B — 2(a).

Defendant contends that the State’s failure to file a verified petition renders the subsequent proceeding and life sentence null and void. In support of his position, defendant cites People v. Davis (1990), 205 Ill. App. 3d 865, 870-71, 563 N.E.2d 869. This court in Davis addressed the effect of the State’s unverified petition on the sentencing proceeding in the context of its ruling on defendant’s double jeopardy claim. At the sentencing hearing, defense counsel argued that the State had failed to file a verified petition as required under the Act. The trial judge subsequently struck the sentencing proceeding and allowed the State to file a properly verified petition. On appeal to this court defendant claimed that striking the first hearing and allowing the State to start over with a properly verified petition constituted a double jeopardy violation. This court held:

“There is no substantial difference between the defective indictment in Somerville [Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066] and the defective petition in this case. *** There was no overreaching by the prosecutor, and the judge recognized that proceeding further under a defective petition would be futile in that any finding against the defendant might be reversed on appeal. Under the circumstances, the judge exercised sound discretion; and defendant’s constitutional protection against double jeopardy was not violated.” (Davis, 205 Ill. App. 3d at 871.)

It is this language which defendant cites in support of his claim that the sentencing hearing was null and void, and that this cause should be remanded for resentencing.

The State relies on People v. Withers (1983), 115 Ill. App. 3d 1077, 1088, 450 N.E.2d 1323, for the proposition that the use of the term “may” in section 33B — -2(a) of the Act indicates that the reference to a written statement by the State’s Attorney as being “verified” is directory rather than mandatory because it can be read as prescribing one of the ways the prosecutor brings to the court’s attention a defendant’s prior convictions. (Withers, 115 Ill. App. 3d at 1088. See also People v. Tobias (1984), 125 Ill. App. 3d 234, 240, 465 N.E.2d 608.) The courts in Withers and Tobias address this section in their discussions of the constitutionality of the Act and whether it violates article VI, section 1, of the Illinois Constitution and as well as the eighth and fourteenth amendments of the United States Constitution. The State argues that based on the reasoning in Withers, its failure to verify its petition was not fatal to the sentencing hearing. However, we disagree. Even if the interpretation of the Act set forth in Withers and Tobias is adopted, where a petition is filed by the State requesting that defendant be sentenced as an habitual criminal, the Act requires that the petition be verified. Therefore, contrary to the State’s argument, we conclude that the requirement of verification is mandatory rather than directory. However, we also note that, unlike the Davis case, the defendant in this case did not object to the defective petition at the hearing, and he is raising this issue for the first time on appeal. We further note that defendant was not prejudiced by the State’s failure to verify its petition where a written copy of the petition signed by the assistant State’s Attorney was submitted to defendant which gave him notice of the State’s intent to request that defendant be sentenced under the Act. He was also given an opportunity to cross-examine the witnesses and challenge the evidence of his prior convictions which he did not do. Therefore, although we conclude that the State’s petition should have been verified, we see no reason to remand this cause for further proceedings, where the State complied with the other provisions of the statute and defendant’s substantial rights were not jeopardized.

The next issue raised by defendant is that the State did not prove beyond a reasonable doubt that he was an habitual criminal because the State presented no evidence at the sentencing hearing to establish the dates when the underlying offenses in the two prior convictions were committed. The Act applies only if the following requirements are met: (1) the third offense was committed after the effective date of the Act; (2) the third offense was committed within 20 years of the date judgment was entered on the first conviction; (3) the third offense was committed after conviction on the second offense; and (4) the second offense was committed after conviction on the first offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 33B— 1(d)(1), (d)(2), (d)(3), (d)(4).) The date that an offense was committed may be established by circumstantial evidence such as a certified copy of the conviction and the presentence investigation report. People v. Williams (1990), 201 Ill. App. 3d 434, 438, 559 N.E.2d 96, aff’d (1992), 149 Ill. 2d 467, 599 N.E.2d 913.

At the sentencing hearing, the State established the date of defendant’s first conviction through a certified copy which stated that judgment was entered against defendant for armed robbery and attempted murder on May 18, 1971. A certified copy of defendant’s second conviction for armed robbery was also admitted which established that he was indicted for this offense on October 19, 1977, and sentenced on April 28, 1980. Also admitted into evidence was the presentence investigation report which contained defendant’s criminal history. In addition, although the State was not required to prove the date that the first offense was committed, the record contains a copy of the indictment issued against defendant for attempted murder committed on September 2,1970.

The record also contains evidence that the third felony offense was committed after conviction on the second offense. The indictment for the delivery of a controlled substance gives the date of the commission of this offense as on or around June 18, 1987. This date was well beyond April 28, 1980, which was the conviction date for the second offense. There was also testimony at defendant’s trial establishing June 18,1987, as the date of the third offense.

The fourth requirement of the Act is that the second felony be committed after conviction for the first felony. As previously stated, the record contains a certified copy of the first felony conviction which occurred in 1971, but there is no direct evidence of when the second felony offense was committed. However there is evidence in the record that defendant was arrested for this offense on October 2, 1977, and that he was indicted on October 12, 1977.

The State argues that the date when the second felony offense was committed was proved by circumstantial evidence. The State relies on People v. Kennard (1990), 204 Ill. App. 3d 641, 561 N.E.2d 1188, People v. Stewart (1989), 186 Ill. App. 3d 833, 542 N.E.2d 915, and People v. Harris (1987), 157 Ill. App. 3d 70, 510 N.E.2d 107, for its position that circumstantial evidence can be used to establish the dates when defendant’s prior offenses were committed. However, the circumstantial evidence in the State’s cases consisted of such documents as the presentence investigation report, dates of arrest and conviction for the prior offenses, as well as certified copies of the defendant’s prior convictions. What the State considers as circumstantial evidence in this case is the statute of limitations for felonies, section 3 — 5(b) of the Criminal Code of 1961, which provides:

“Unless the statute describing the offense provides otherwise, or the period of limitation is extended by Section 3 — 6, a prosecution for any offense not designated in Subsection (a) must be commenced within 3 years after the commission of the offense if it is a felony, or within one year and 6 months after its commission if it is a misdemeanor.” (Ill. Rev. Stat. 1985, ch. 38, par. 3-5(b).)

The State claims that because the first felony conviction occurred in 1971, and his second conviction did not occur until 1977, the six-year period between the two prior felonies exceeded the three-year statute of limitations. The State, thus, reasons that if the felony for which defendant was indicted in 1977 had been committed before the first felony conviction in 1971, the statute of limitations would have precluded prosecution.

One of the flaws in the State’s reasoning is that it does not allow for instances when the statute could be tolled. However, before we can determine whether the State has met its burden of proof under the Act, the proper standard of proof must be determined.

Defendant claims that the State must prove the prerequisites of the Act beyond a reasonable doubt. The Illinois Supreme Court reached a contrary conclusion regarding the Class X sentencing statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—3(c)(8)) in People v. Williams (1992), 149 Ill. 2d 467, 599 N.E.2d 913, but distinguished the Class X provision from the Act. Citing People v. Stewart (1961), 23 Ill. 2d 161, 177 N.E.2d 237, the Williams court noted that the circumstances of the Act are dissimilar to the circumstances surrounding the Class X provision. The Williams court further stated that the Act has been construed as requiring the reasonable doubt standard to prove a defendant’s prior convictions, and when the legislature revised the Act it made no attempt to alter the higher standard of proof. The supreme court has not previously construed the Class X provision to mean that the State is required to prove a defendant’s prior convictions beyond a reasonable doubt. (Williams, 149 Ill. 2d at 478-79.) The supreme court further distinguished the Class X provision from the Act based on the fact that the Act consists of evidentiary procedures which the State is required to follow when it seeks to have the court sentence a defendant as an habitual criminal. (See Ill. Rev. Stat. 1985, ch. 38, par. 33B — 2; Williams, 149 Ill. 2d at 480.) We, thus, conclude that the State is required to prove defendant’s prior felony convictions beyond a reasonable doubt when seeking the imposition of a life sentence under the Act.

However, any allegation that the State has not proved a defendant’s prior convictions with sufficient competent evidence must be brought to the attention of the sentencing court, and a failure to do so results in a waiver of the issue on appeal. (People v. Poole (1988), 167 Ill. App. 3d 7, 18, 520 N.E.2d 1017; People v. Jaffe (1986), 145 Ill. App. 3d 840, 859, 493 N.E.2d 600.) Because defendant in the case sub judiee failed to raise the issue at the sentencing hearing that the State failed to meet its burden of proof regarding when the second felony was committed, this issue is waived.

Because of our conclusions on this issue, we need not address defendant’s contention that he could not be resentenced on remand due to the attachment of double jeopardy.

Defendant next contends that the trial court erred in failing to hold an evidentiary hearing regarding whether defendant waived rights in contemplation of a plea agreement, and whether defendant was penalized for exercising his right to stand trial. This issue arises from the fact that defendant alluded to the State’s offer of a plea agreement whereby defendant’s sentence would be reduced to six or seven years in exchange for his cooperation.

While defendant acknowledges that he did not accept the alleged plea offer by the State, he argues that he “had, to some extent, cooperated with the prosecution in an effort to satisfy the proposed agreement.” Because defendant made remarks regarding this cooperation at the time of allocution, he claims that due process questions were raised as to whether he waived any constitutional rights in anticipation of the plea agreement and whether he was punished for exercising his right to stand trial. For this reason, defendant claims that the circuit court should have made further inquiry into the nature of the State’s offer and the actions defendant took to satisfy his part of the agreement. However, defendant failed to submit a sworn affidavit to support his allegations, which is a requirement where facts asserted are outside the record. (People v. Brandon (1987), 157 Ill. App. 3d 835, 844-45, 510 N.E.2d 1005; People v. Boyce (1977), 51 Ill. App. 3d 549, 562-63, 366 N.E.2d 914.) Therefore, defendant’s allegations are insufficient and may be denied without a hearing. Boyce, 51 Ill. App. 3d at 563.

We also conclude that defendant’s alleged “cooperation” with the State did not result in a waiver of any constitutional rights where any alleged offer by the State was never accepted by defendant and thus had no constitutional significance. (See Mabry v. Johnson (1984), 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543.) Also without merit is defendant’s argument that because he received a life sentence under the Act, he was being penalized for asserting his right to stand trial. The court in People v. Sanders (1990), 198 Ill. App. 3d 178, 555 N.E.2d 812, noted that it was not improper or evidence of prosecutorial vindictiveness to offer a defendant a reduced sentence as an incentive to plead guilty as part of a plea agreement but to recommend a greater sentence when the State’s offer was refused. (Sanders, 198 Ill. App. 3d at 187-88.) In this case, there was no evidence that defendant was penalized for exercising his right to stand trial where he failed to prove that a plea offer with a reduced sentence was ever made, and where the life sentence imposed was in compliance with the statutory guidelines.

Defendant’s final contention is that the Act is unconstitutional because it violates due process of law, the prohibition against ex post facto laws, and the separation of powers doctrine. However, this court has previously addressed and rejected these constitutional challenges in People v. Morissette (1986), 150 Ill. App. 3d 431, 501 N.E.2d 781. See also Davis, 205 Ill. App. 3d 873.

For the aforementioned reasons, the judgment of the circuit court is affirmed.

Affirmed.

EGAN, P.J., and McNAMARA, J., concur.


author: JUSTICE McMORROW PRESIDING JUSTICE JIGANTI,

text:
    MOREY FISH COMPANY, Plaintiff-Appellant, v. RYMER FOODS, INC., Defendant-Appellee.
    First District (4th Division)
    No. 1—91—2630
    Opinion filed December 4, 1992.
    Rehearing denied January 8,1993.

      JIGANTI, P.J., dissenting.
    Michael T. Hannafan and William E. Blais, both of Michael T. Hannafan & Associates, of Chicago, and Wayne G. Popham and Robert K. Shelquist, both of Popham, Haik, Schnobrich & Kaufman, Ltd., of Minneapolis, Minnesota, for appellant.
    Kwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckman, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Morey Fish Company appeals from the trial court’s dismissal of its complaint for injunctive relief against Rymer Foods, Inc. (Rymer Foods). In its suit, Morey Fish Company sought to enjoin enforcement of a Federal district court decision that had been entered against it and in favor of Rymer Foods. On appeal, Morey Fish Company argues that the Federal district court’s judgment was void for lack of personal jurisdiction over it, because Morey Fish Company was never served with summons in the Federal district court proceeding and did not participate in that litigation.

Our review of the Federal district court’s memorandum decisions indicates that the Federal district court determined that it could enter judgment against Morey Fish Company, because that corporate entity was, as a practical matter, the functional equivalent of the named defendant in the Federal district court’s proceedings, i.e., Morey’s Fish House. Because we conclude that the Federal district court’s determination on this point is not subject to collateral attack and is entitled to full faith and credit in this State, we affirm the trial court’s dismissal of Morey Fish Company’s complaint.

The pertinent facts of record are as follows. In June 1988, Rymer Foods filed" suit in the United States District Court for the Northern District of Illinois against W.J.F. International, Inc., and against William J. Frank and Stephen W. Frank, doing business as Morey’s Fish House. The suit sought damages for breach of contract, inter alia, relating to the sale of fish products by Rymer Foods to the named defendants, W.J.F. International and William and Stephen Frank, d/b/a Morey’s Fish House.

Following a bench trial, the Federal district court entered judgment against Morey’s Fish House and in favor of Rymer Foods. (Rymer Foods, Inc. v. W.J.F. International, Inc. (N.D. Ill. Jan. 14, 1991), No. 88—C—5082 (memorandum opinion and order).) In its memorandum opinion, the court found that both Rymer Foods and W.J.F. International are engaged in the business of distributing, importing and selling various seafood products, and that “[defendant Morey’s Fish Company *** processes, exports and sells seafood products.” (Emphasis added.) (Mem. op. at 2-3.) According to the Federal district court’s decision, William Frank is the president of “Morey’s Fish Company,” while Stephen Frank serves as vice-president and also handles sales. (Mem. op. at 3.) The Federal district court also found that both William and Stephen Frank, as well as Mr. and Mrs. Loren Morey, are shareholders of “Morey’s Fish House.” (Mem. op. at 12.) William, Stephen and Gregory Frank are shareholders of W.J.F. International; William is president, and Stephen vice-president, of W.J.F. International. Mem. op. at 12.

The Federal district court made specific factual findings, not pertinent here, regarding various business transactions during 1986, 1987, and 1988 that pertained to orders to purchase fish products. (Mem. op. at 3-8.) With respect to orders placed in March 1988, the court observed:

“9. The court notes that the March 1988 purchases which are also in dispute occurred while an April 1987 consent decree was in effect. In that decree Bailin [the vice-president in charge of sales at Rymer Foods] agreed that he would not contact or solicit business from W.J.F., a customer of his former employer ***. Stephen Frank had received a copy of the injunction in the mail. In order to avoid problems with the injunction, Bailin and Frank decided to bill the five invoices for the [March 1988] purchases to Morey’s Fish House. The testimony indicated that it was clearly understood by both Bailin and Frank that the purchases were made by Morey’s on behalf of W.J.F.; William Frank also understood that the fish was sold to W.J.F., but billed to Morey’s Fish House.” Mem. op. at 11.

The court further determined that Rymer Foods had established that the defendants had breached their contract to purchase the fish for which orders had been filled by Rymer Foods. (Mem. op. at 19-20.) The court explicitly found “the corporate entity Morey’s Fish House liable for the breach.” (Mem. op. at 20.) The court then stated:

“The court specifically finds that the argument that Morey’s Fish House is not a proper party to this suit is unpersuasive. Morey’s was the entity that actually bargained for and contracted for the fish in the March and April of 1988 orders, and is therefore liable for its failure to pay for those orders. The court further notes that it cannot find corporate officers Stephen Frank and William Frank, or sister corporation W.J.F., liable for Morey’s breach of contract "without piercing the corporate veil, an action which the court feels would be inappropriate without hearing argument on this point by the parties.” Mem. op. at 20.

On March 29, 1991, the Federal district court modified its prior decision and entered judgment against Morey Fish Company. The Federal district court noted and rejected the claim of the defendants, William and Stephen Frank, that judgment should not be entered against Morey Fish Company. Specifically, the Federal district court reasoned as follows:

“[0]n January 14, 1991, this court entered judgment against Morey’s Fish House, and in favor of the plaintiff. On August 11, 1989, pursuant to Fed. R. Civ. P. 15(b), plaintiff filed a motion to amend its complaint to conform the pleadings to the evidence. In that motion the plaintiff requested that Morey Fish Co., the actual owners of Morey’s Fish House, be held liable ***. The defendants object to the motion on the ground that ‘Morey’s Fish Co. was never named in the complaint, and was never served with a summons,’ and that ‘plaintiff took no action to join Morey Fish Co. as a defendant.’
The court finds that defendant’s objections are without merit. Under Rule 15(a) of the Federal Rules of Civil Procedure, the court is directed to grant leave to amend freely ‘where justice so requires,’ and the courts have consistently applied this liberal standard. [Citations.]
In the instant case, the court finds that leave to amend should be granted because throughout discovery, and the trial of this case, the parties recognized that the issue of Morey Fish Company’s liability was a crucial element in this case, which had to be resolved by the court. (See e.g., Final Pre-Trial Order, Defendant’s Findings of Fact and Conclusions of Law).
Further, the court notes that the case was ultimately ruled on with the implicit understanding that Morey Fish Company was a proper defendant in this action. However, the court did not explicitly rule on the motion to amend the complaint when it issued the memorandum opinion and order. The court now grants plaintiff’s motion to amend pursuant to Fed. R Civ. P. 15(b) and 15(c). In addition to granting the motion to amend, the court finds that Morey Fish Company, the actual owners [sic] of Morey’s Fish House will be held liable ***.
The facts establishing liability are as follows: Morey’s Fish House is a trademark, which is owned by Morey Fish Company. Morey Fish Company conducts retail sales through two Morey Fish Company store facilities, each of which has a sign outside the store for ‘Morey’s Fish House.’ The court finds that in purchasing the cod fish order from Rymer, Morey Fish Company the actual owner of the trademark ‘Morey’s Fish House’, was doing business as Morey’s Fish House. Of course, a trademark cannot do business on its own behalf; the owner of the trademark, however, can carry out business under the trademark name. The court’s memorandum opinion and order will be modified to reflect these rulings.” Mod. mem. op. at 2-3.

In addition, the Federal district court rejected Rymer Foods’ argument that judgment should have been entered against W.J.F. International as well as Morey Fish Company. (Mod. mem. op. at 4-5.) The district court also rejected Rymer Foods’ request to modify the judgment so that it would hold liable “Stephen Frank and William Frank, doing business as Morey’s Fish House and/or Company, and W.J.F. International, Inc., jointly and severally.” (Mod. mem. op. at 5, 5-8.) On these bases, the Federal district court modified its prior decision and entered judgment against Morey Fish Company, doing business as Morey’s Fish House. (Mod. mem. op. at 8-9.) It is undisputed that Morey Fish Company filed no motion for reconsideration of, nor an appeal from, the Federal district court’s modified judgment.

Following the Federal district court’s entry of this modified judgment, Morey Fish Company filed suit for temporary and permanent injunctive relief in the circuit court of Cook County. Morey Fish Company sought to enjoin enforcement of the Federal district court judgment on the ground that the Federal district court never had personal jurisdiction over it and that as a result the judgment was void as against Morey Fish Company.

In response to Morey Fish Company’s complaint for injunctive relief, Rymer Foods filed a motion to dismiss based upon affirmative matter. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619(a)(9).) Referring to certified copies of the Federal district court’s memorandum opinions, which Rymer Foods included in its motion to dismiss, Rymer Foods claimed that the Federal district court judgment was not void for lack of personal jurisdiction over Morey Fish Company. Morey Fish Company filed a cross-motion for summary judgment with respect to its complaint. Following briefing and argument, the trial court in the circuit court of Cook County allowed the motion to dismiss filed by Rymer Foods and dismissed the complaint of Morey Fish Company. This appeal followed.

Upon review, Morey Fish Company argues that the record does not establish that the Federal district court had personal jurisdiction over it when the court’s modified judgment was entered. On this basis, Morey Fish Company claims that Rymer Foods should be enjoined from enforcing the Federal district court’s judgment in this State.

The question of whether a judgment rendered in a jurisdiction other than the State of Illinois should be enforced in this State is usually governed by the Uniform Enforcement of Foreign Judgments Act (Act) (Ill. Rev. Stat. 1991, ch. 110, par. 12 — 627 et seq.). Under the Act, the ultimate inquiry is whether the foreign judgment should be accorded full faith and credit in this State. (Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 89, 468 N.E.2d 459.) Traditionally, a foreign judgment is given full faith and credit, unless the judgment was either procured through extrinsic fraud or was rendered in the absence of in personam or subject matter jurisdiction. (Falcon v. Faulkner (1991), 209 Ill. App. 3d 1, 13, 567 N.E.2d 686.) This is in accord with the general rule that a judgment rendered by a court that does not have jurisdiction over the party may be attacked at any time or in any court, either directly or collaterally. State Bank v. Thill (1986), 113 Ill. 2d 294, 309, 497 N.E.2d 1156.

In determining whether the foreign judgment should be accorded full faith and credit, there is a strong legal presumption that the foreign court did have jurisdiction over the person against whom the court’s judgment was entered. (Evans v. Advance Schools, Inc. (1979), 70 Ill. App. 3d 947, 950-51, 388 N.E.2d 1003.) This is so because, as a general rule, each court has the power to determine its own jurisdiction over the subject matter and the persons before it, and the court’s determination as to its own jurisdiction is not generally open to collateral attack. (See, e.g., Roth v. Northern Assurance Co. (1964), 32 Ill. 2d 40, 45, 203 N.E.2d 415.) Where the record is silent as to the court’s determination of its own jurisdiction, the presumption favoring personal jurisdiction will be overcome only by an affirmative showing in the record that the court lacked such jurisdiction. (Paine, Webber, 127 Ill. App. 3d at 90; Evans, 70 Ill. App. 3d at 951.) Where the foreign court has considered and rejected the claim that it lacked personal jurisdiction over the defendant, the court’s determination is usually res judicata as to that issue and is no longer open to collateral attack. Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 518, 452 N.E.2d 1383; see also Kansas City Southern Ry. Co. v. Great Lakes Carbon Corp. (8th Cir. 1980), 624 E2d 822, 825.

Morey Fish Company argues that the Federal district court’s judgment was obtained without personal jurisdiction over it because Morey Fish Company was never given notice that its rights were to be adjudicated in the Federal litigation instituted by Rymer Foods. It has been held that the “[failure to give notice violates ‘the most rudimentary demands of due process of law.’ ” (Peralta v. Heights Medical Center, Inc. (1988), 485 U.S. 80, 84, 99 L. Ed. 2d 75, 81, 108 S. Ct. 896, 899, quoting Armstrong v. Manzo (1965), 380 U.S. 545, 550, 14 L. Ed. 2d 62, 65, 85 S. Ct. 1187, 1190; see also Martin v. Wilks (1989), 490 U.S. 755, 761-62, 104 L. Ed. 2d 835, 844-45, 109 S. Ct. 2180, 2184-85.) Generally, adequate constitutional notice conferring a court’s jurisdiction over the person is obtained by service of process, whether by summons or by publication and mailing. (State Bank, 113 Ill. 2d at 308.) Jurisdiction over the person may also be obtained where the party, although not served, nevertheless participates in the court’s proceedings; such participation constitutes a submission to the court’s jurisdiction and waives the right to later contest the court’s personal jurisdiction over the party. See, e.g., In re Marriage of Verdung (1989), 126 Ill. 2d 542, 535 N.E.2d 818.

Morey Fish Company contends that it was never served with process and did not voluntarily appear in the Federal district court’s proceedings. However, it has been recognized that “[wjhere one corporation so controls another corporation that, as a practical matter, the two entities function as one, service of one corporation is effective as to both.” Bally Export Corp. v. Balicar, Ltd. (7th Cir. 1986), 804 F.2d 398, 405, citing I.A.M. National Pension Fund v. Wakefield Industries, Inc. (D.C. Cir. 1983), 699 F.2d 1254, 1259.

Morey Fish Company does not claim that service of process was never effected upon the named defendants in the Federal district court’s litigation, i.e., William Frank and Stephen Frank, d/b/a Morey’s Fish House. Consequently, we assume for the purpose of analysis herein that such service of process was properly had upon those named defendants. Based upon our review of the Federal district court’s modified memorandum opinion of March 29, 1991, we conclude that the Federal district court determined that it had jurisdiction to enter judgment against Morey Fish Company, because that corporate entity was, as a practical matter, the functional equivalent of Morey’s Fish House. As a result, service of process upon Morey’s Fish House constituted service of summons upon Morey Fish Company, and the Federal district court had in personam jurisdiction over Morey Fish Company.

We note that in its modified memorandum opinion, the Federal district court specifically noted and rejected the argument that modification of its judgment was improper on the theory that Morey Fish Company had not been named in the complaint, served with summons, or joined in the proceedings. In reaching this conclusion, the Federal district court observed that Morey’s Fish House was a trademark, owned by Morey Fish Company, and that Morey Fish Company conducted its retail business through stores bearing the name Morey’s Fish House. The court noted that although a trademark cannot do business on its own behalf, the owner of the trademark can carry out business under the trademark name. The court determined that Morey Fish Company, as the actual owner of the trademark Morey’s Fish House, was doing business as Morey’s Fish House when it purchased codfish from Rymer Foods. (Mod. mem. op. at 2-3.) The Federal district court further determined that the entry of judgment against Morey Fish Company would not unfairly surprise or prejudice Morey Fish Company’s interests, noting that “throughout discovery, and the trial ***, the parties recognized that the issue of Morey Fish Company’s liability was a crucial element in this case, which had to be resolved by the court,” and also observing that “the case was ultimately ruled on with the implicit understanding that Morey Fish Company was a proper defendant in this action.” Mod. mem. op at 2.

Morey Fish Company argues that the legal interests of Morey’s Fish House and Morey Fish Company in the Federal district court’s proceedings were not closely aligned. Morey Fish Company notes that in its original motion to amend the Federal district court’s judgment, Rymer Foods acknowledged that it had no business dealings with Morey Fish Company, but dealt instead with Morey’s Fish House. However, the question of whether the Federal district court’s ruling was accurate under Federal jurisprudence is not properly considered in this State court action. “While a court of one State may constitutionally inquire into the jurisdictional basis of a foreign court’s judgment, full faith and credit must be extended to that judgment when the inquiry discloses that the issue of jurisdiction has been litigated and decided in the rendering court. [Citations.]” Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 251, 364 N.E.2d 926; see also ETA Trust v. Recht (1991), 214 Ill. App. 3d 827, 835, 574 N.E.2d 4.

We note that the Federal district court’s decision was susceptible to direct review in the Federal courts and that Morey Fish Company could have adequately preserved its interests in the litigation had Morey Fish Company filed an appeal from the Federal district court’s decision. Morey Fish Company did not seek such review, however. In our opinion, Morey Fish Company’s “unwillingness to participate as a party in the [Federal district court] action should not now be the key to [its] success in avoiding registration of the foreign judgment in Illinois.” ETA Trust, 214 Ill. App. 3d at 836.

We further observe that the decisions upon which Morey Fish Company relies are inapposite to the case at bar, as in neither cause did the court find that the defendant business entity was sued under its trademark name that was, as a practical matter, the functional equivalent of the defendant business entity. See Zenith Radio Corp. v. Hazeltine Research, Inc. (1969), 395 U.S. 100, 23 L. Ed. 2d 129, 89 S. Ct. 1562 (parent corporation not bound by stipulation of subsidiary corporation to the effect that court had personal jurisdiction over parent corporation, where parent corporation not found to be alter ego of subsidiary corporation); Hoppa v. Schermerhorn (1989), 192 Ill. App. 3d 832, 549 N.E.2d 667 (successor corporation not bound by default judgment entered against predecessor corporation that was dissolved during pendency of proceedings in which default judgment was entered).

For these reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

LINN, J., concurs.

PRESIDING JUSTICE JIGANTI,

Jurisdiction is the issue. Morey Fish Company is a Minnesota corporation. It was never named a party to the Federal court action, either before or after the trial. Morey Fish Company contends that it has an absolute defense and that it has not had an opportunity to be heard. Because the only issue before us concerns jurisdiction, I will not discuss the many facts, however interesting, that do not bear on that issue.

The underlying lawsuit was filed in the United States District Court in the Northern District of Illinois on June 13, 1988, by Rymer Foods, Inc., against W.J.F. International, Inc., William J. Frank and Stephen W. Frank, d/b/a Morey’s Fish House. W.J.F. is owned by William Frank, Stephen Frank and Gregory Frank. William Frank’s affidavit stated that he was president and chief executive officer of Morey Fish Company. He attended the trial and was called as an adverse witness and also testified as a witness for W.J.F. According to the affidavit, William Frank had no idea that Rymer would seek a judgment against Morey Fish Company. Morey Fish Company has an absolute defense.

Stephen Frank’s affidavit stated that he is the president of W.J.F., which is totally independent from Morey Fish Company. Loren Morey’s affidavit stated that he is the chairman of the board and a shareholder of Morey Fish Company. The other shareholders are Kathryn Morey, William Frank and Stephen Frank. Loren Morey holds no office and no stock of W.J.F. The business of W.J.F. and Morey Fish Company are separate and distinct businesses.

At the conclusion of the trial in the United States District Court, a judgment was entered in favor of Rymer and against Morey’s Fish House. A judgment was also entered in favor of W.J.F., William Frank and Stephen Frank. Rymer moved to amend the judgment requesting that the district court enter a judgment against the individuals and also, most significantly for our appeal here, asking for judgment to be entered in favor of “Morey’s Fish House and/or Co.”

The district court did amend the judgment by naming Morey Fish Company, but did not accede to the request concerning the other defendants. In doing so, the court noted Rule 15(a) of the Federal Rules of Civil Procedure that directs courts to amend freely “where justice requires.” The court stated that the “parties recognized that the issue of Morey Fish Company was a crucial element” and that there was an “implicit understanding” that Morey Fish Company was a proper defendant.

I believe the majority’s statement of the law in citing Brownlee v. Western Chain Co. (1977), 49 Ill. App. 3d 247, 251, 364 N.E.2d 926, states the law of this case. There the court says that full faith and credit must be extended to a judgment where inquiry discloses that the issue of jurisdiction has been litigated and decided in the rendering court. For that proposition Brownlee cites the United States Supreme Court case of Baldwin v. Iowa State Traveling Men’s Association (1931), 283 U.S. 522, 75 L. Ed. 1244, 51 S. Ct. 517. In Baldwin the respondent in the United States District Court of Western Missouri appeared specially and moved to quash and dismiss for want of service. After a hearing on the motion, the motion was denied and leave was given to the respondent to plead within 30 days. The respondent did not do so and a judgment was entered for the petitioner and against the respondent in the amount claimed. Subsequently, there was an action in the district court for Southern Iowa on the judgment and a ruling in favor of the petitioner. The defense of the petitioner in Iowa was the same as in Missouri, that is lack of jurisdiction. The defense was that the respondent was an Iowa corporation and that it was never present in Missouri. In the United States District Court in Iowa, the petitioner asserted that this was a collateral attack and a retrial of an issue settled in the first suit.

The Baldwin court commented that the special appearance of the respondent in Missouri showed that it entered the Missouri court for the very purpose of litigating the question of jurisdiction over its person. It noted that it had an election not to appear at all, and if in fact it had not done so and the court had proceeded to judgment, the respondent could have raised and tried the issue in this present action because it would never have had its day in court with respect to jurisdiction. The Baldwin court explained its rationale as follows:

“Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.” Baldwin v. Iowa State Traveling Men’s Association (1931), 283 U.S. 522, 525-26, 75 L. Ed. 1244, 1247, 51 S. Ct. 517, 518.

Applying the law to the facts of this case, I come to the conclusion that the question of jurisdiction has not been litigated in the United States District Court. Morey Fish Company has never had an opportunity to voluntarily appear, present its case and be fully heard. Morey Fish Company to this day has never been made a party to the lawsuit in that court, nor has it ever been heard on any defenses it has to that lawsuit. The fact that two officers of Morey Fish Company were parties to the lawsuit does not militate against that finding. Those two shareholders were also shareholders of a named defendant, W.J.F. International. The fact that the rules concerning amendments are to be liberally applied does not mean that notice and service of process on a party may be disregarded. The district court’s comments that “the parties recognized” that Morey Fish Company’s liability was crucial and that there was an “implicit understanding” that Morey Fish Company was a proper defendant in this action is a bootstrap argument and begs the question. The “parties” to whom the United States District Court referred as having recognized the issue and had the implicit understanding did not include the plaintiff’s corporation in the instant lawsuit, Morey Fish Company. Before it can be said that a court has considered its jurisdiction, the party contesting jurisdiction must be brought before the court by process.

This matter comes here on a motion to dismiss pursuant to the Illinois Code of Civil Procedure, sections 2 — 601(a)(1) and (a)(9), asserting that the circuit court of Cook County has no jurisdiction. I believe that the circuit court did indeed have jurisdiction and that the dismissal should be reversed.


author: JUSTICE McCORMICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE COSTILLO, a/k/a Jose Costilla, Defendant-Appellant.
    First District (2nd Division)
    No. 1-90-3496
    Opinion filed December 8, 1992.

      Gary W. Adair, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Rebecca Davidson, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McCORMICK

delivered the opinion of the court:

Defendant was charged with first-degree murder. After a bench trial, defendant was found guilty of first-degree murder and sentenced to 40 years’ imprisonment. He appeals from the conviction and sentence imposed.

On appeal, defendant contends that (1) the trial court erred in denying his motion to suppress statements; (2) the trial court erred in denying his motion to suppress his lineup identification; (3) the trial court erred in refusing to admit evidence of the victim’s aggressiveness; (4) the evidence is insufficient to prove him guilty beyond a reasonable doubt of murder; and (5) the sentence of 40 years’ imprisonment is excessive. We affirm the decision of the trial court.

On August 3, 1989, Corey Davis was shot and killed in Chicago, Illinois. On August 17, 1989, defendant was charged with the murder of Davis. Prior to trial, defendant moved to suppress statements he made to the police and his lineup identification. At the hearing on defendant’s motions, Detective Lawrence Tuider testified that he separately advised defendant of his Miranda rights and that defendant appeared to understand these rights. Detective Maslanka also testified that his partner, Detective John Paladino, advised defendant of his Miranda rights and that defendant understood them. After the detectives told defendant certain facts about the investigation and the allegations against him, defendant agreed to give a statement. The conversation lasted about 15 minutes. After making his statement, defendant told the detectives that he wanted to speak to his lawyer. The detectives ended the conversation at that time. Detective Maslanka further testified that one of the two people who viewed the lineup identified defendant.

Defendant testified at the motion to suppress hearing on his own behalf. He stated that he was never read his Miranda rights. The police officers at Area 3 wanted him to give them a “little story” regarding Davis’ death, but defendant told them he had nothing to say and that he wanted to see his lawyer. The officers told defendant that attorney Gary Adair had called, but that he should not worry about it. Defendant stated that he never waived his rights in writing and that no lawyer ever entered the room while the police questioning was in progress.

Both sides stipulated to attorney Adair’s testimony that he was hired to represent defendant, and that prior to defendant’s arrest, he advised defendant not to make any statements to the police. It was also stipulated that attorney Adair spoke to Sergeant Byrnes and Detective Tuider prior to defendant’s arrest and told them that he would surrender defendant and that he advised his client not to talk to the police. After defendant was arrested, attorney Adair spoke with Detectives Holmgren and Paladino. He told them that he was defendant’s attorney and that he advised defendant to remain silent. Attorney Adair informed the police that he wanted to be present for any lineup proceedings.

After enumerating detailed findings, the trial court denied defendant’s motion to suppress his statement and his motion to suppress the lineup identification.

At trial, Lawrence Smith, the State’s only occurrence witness, testified to the following facts: On August 3, 1989, at approximately 3:30 p.m., Smith, his uncle Joseph Gales and Davis left a store and were walking east on the south side of 51st Street. Smith observed defendant sitting with three other males and two females on a porch. Defendant asked them what gang they belonged to and told them that they were in the wrong territory. All of the persons on the porch, including defendant, gathered around Smith and his two companions. As Smith and his companions attempted to push their way through, one of the females passed a .22 automatic weapon to defendant. Defendant stated that they (Smith and his companions) were not going to go anywhere. Defendant shot Davis, who was approximately eight feet from him. Smith, Gales and Davis ran in different directions. Defendant chased Davis and continued shooting at him. Smith did not see what else happened to Davis because Smith and Gales ran in another direction. Gales fell and was beaten on the head by the two men who had chased him.

Smith ran until he reached his mother’s house. There, he called the police. Next, Smith went to Davis’ house to tell Davis’ mother that her son had been shot. Smith returned to the scene and led the police and medical personnel to Davis’ body.

On that same day, Smith went to the gang crimes office at 35th and Lowe and identified defendant from a book of mug shots of gang members. About two weeks later, Smith identified defendant in a lineup as the person who shot Davis.

On cross-examination, Smith testified that he had known Davis for about three years. He did not know whether or not Davis was a gang member. He stated that Davis was not an aggressive person and did not own or possess a gun at the time of his death.

Detective Paladino testified that on August 3, 1989, he and his partner received an assignment that a man was shot at 1323 West 51st Street. When they arrived on the scene, they went straight to the empty lot. They spotted five casings and observed a small amount of blood at the location where Davis’ body was found. Detective Paladino interviewed several people including Smith and Gales regarding the homicide. Smith and Gales accompanied the detective to Area 3, where Smith identified defendant from a gang book. Paladino obtained a warrant for defendant’s arrest.

Detective Paladino testified that at the time of defendant’s arrest, he read defendant his rights. Defendant indicated that he understood these rights. Defendant gave the police his account of what happened on August 3, 1989. Defendant told the police that he was standing at 1319 West 51st Street when Davis walked by with his hat cocked to the right. This showed disrespect to defendant because he was a Latin King. Defendant told Davis to straighten his hat out, but Davis said no. Davis then pulled out a .38 revolver and fired one shot at defendant. Elizabeth Santoyo, who was present, handed defendant a .22 automatic. As Davis ran away, defendant fired one shot at him. Davis allegedly fired two more shots at defendant, but defendant did not return any shots because his gun jammed. Defendant then chased Gales down the street, caught him and with the help of two others “beat the shit out of him.” After beating Gales, defendant ran back to the scene and threw the gun away.

On cross-examination, Detective Paladino testified that defendant’s statement was oral and given in narrative form. He was aware that defendant had a lawyer, but was not aware that defendant did not wish to make a statement. Defendant did not have any problem understanding what the detective asked him and responding.

Detective Paladino was questioned about the police report which indicated that two guns were involved in the incident. Paladino testified that the evidence showed that at least one gun was involved. Some people who heard the shots thought that they came from two different calibers of guns.

The parties entered into several stipulations. The first stipulation was that evidence technicians recovered five .22 caliber cartridge casings from the vacant lot. All of the casings came from the same gun. They further stipulated that the medical examiner’s testimony would be that Davis died of a gunshot wound to the abdomen with perforation of the aorta. It was also stipulated that one .22 caliber bullet was removed from Davis’ body. However, it was not established that it came from any of the casings that the police recovered.

Martha Reyes, Elizabeth “Lisa” Santoyo and Miguel Ruffin gave similar testimony: That on August 3, 1989, they were sitting on the porch with defendant when Davis approached the group wearing a hat that was tilted to the right. Defendant told Davis to fix his hat, and Davis replied that “gangsters rule the city.” Defendant told Davis to leave and defendant started walking away. Smith reached into a grocery bag, removed a black pouch and took a big gun out of the pouch. Davis took the gun and shot at the group. No one was hit.

The defendant got a gun and shot back once, but missed. Davis and his friends ran. Davis still held the gun. Reyes and Santoyo testified that they heard some more shots, and then they heard defendant say that his gun was jammed. Defendant and the other men on the porch chased Davis and his friends.

Ruffin testified that Davis ran through the alley while the other two men ran down the block. Davis fell in the street, then ran across the street shooting. He shot out a car window. Defendant was by the car on 51st Street.

Ruffin further testified that he, defendant and the other two males on the porch were Latin Kings. When the shooting occurred, they were all in Latin King territory.

Defendant called several witnesses for the purpose of establishing that Davis had a violent nature. The State objected to the proposed testimony of Officer Lawrence Heise. The trial court sustained the objection. Defendant was allowed to make an offer of proof by way of Officer Heise’s testimony. Officer Heise testified that on May 17, 1989, he arrested Davis for unlawful possession of a .32 caliber revolver. Davis was arrested on May 17, 1989, about six to eight blocks from where he was eventually killed.

Officer William Voight testified that on July 17, 1989, he arrested Davis for disorderly conduct because Davis refused to stop swinging his arms at two police dogs. He also testified that Davis was under the influence of alcohol.

Eighteen-year-old Cinetta Tate, mother of Davis’ two children, testified that on May 31, 1989, she had an argument with Davis. He smacked her and she smacked him back. She never called the police.

Jewel Owens testified that a television was thrown through her window on December 26, 1988. She suspected that Davis threw it, but stated that she did not see him do it. Davis was visiting her 13-year-old daughter, against Owens’ wishes.

Defendant claims that the trial court erred when it denied his motion to suppress the statement he made to the police. He contends that it was involuntary because (1) he did not waive his Miranda rights in writing; (2) the State failed to call a material witness at the hearing on his motions to suppress; (3) his statement was given after his right to counsel was invoked; and (4) he did not possess the requisite mental capacity necessary to waive his Miranda rights.

Whether a statement is voluntary depends on the totality of the circumstances. The test is whether the statement was made freely and without compulsion or inducement of any sort and whether the defendant’s will was overcome at the time he confessed. (People v. Hunley (1989), 189 Ill. App. 3d 24, 37, 545 N.E.2d 188.) The trial court does not have to be convinced beyond a reasonable doubt, and its decision will not be reversed unless it is against the manifest weight of the evidence. Hunley, 189 Ill. App. 3d at 38.

An express written waiver of fifth amendment rights is not necessary to establish waiver. (North Carolina v. Butler (1979), 441 U.S. 369, 373, 60 L. Ed. 2d 286, 292, 99 S. Ct. 1755, 1757.) The operative question is whether defendant knowingly and voluntarily waived his Miranda rights. The police testified that they read defendant his Miranda rights. Defendant indicated to the police that he understood these rights and agreed to waive them.

Defendant also argues that his confession was involuntary because the State failed to call Detective Paladino, a material witness, at the hearing on defendant’s motions to suppress. Under the material witness rule, the State must produce all material witnesses to an allegedly involuntary confession. (People v. Bell (1971), 50 Ill. App. 3d 82, 86, 365 N.E.2d 203.) In Bell, the prosecution called Sergeant Raymer, who took defendant’s confession. Raymer testified that he was with defendant 99% of the time. Raymer admitted that defendant originally did not want to make a statement. During Raymer’s absence, two other officers spoke with defendant and defendant subsequently gave a statement. The appellate court held that the material witness rule applied since Raymer could not testify as to what had occurred in his absence.

The instant case is distinguishable from the Bell case. Although Detective Paladino did not testify at the hearing, his partner, Detective Maslanka, testified. Maslanka testified that he was in the room with Detective Paladino and defendant from the time defendant was advised of his rights, until defendant requested that the interview be terminated. Defendant made no allegations that he and Detective Paladino were ever alone. In the instant case, there was no evidence that defendant was induced to make a statement or that his will was overcome when he confessed.

Defendant cites to Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, and Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, for the proposition that a confession is inadmissible if it is obtained after a defendant requests counsel. In the case at bar, defendant did not ask to see his lawyer until after he had given the police his statement.

Defendant refers this court to People v. Smith (1982), 93 Ill. 2d 179, 442 N.E.2d 1325, and People v. Visnack (1985), 135 Ill. App. 3d 113, 481 N.E.2d 744, and states that “there can be no knowing waiver of the right to counsel if the police prior to or during custodial interrogation refuse access to an attorney retained to assist the suspect and the suspect is not informed.” In the instant case, however, defendant’s attorney did not try to consult with defendant after the arrest.

Defendant maintains that his right to counsel attached when he was arrested because the State committed itself to his prosecution, and adversarial judicial proceedings had begun. A defendant’s sixth amendment right to counsel does not attach until after prosecution has begun, that is at or after the initiation of adversary judicial criminal proceedings have begun whether by way of formal charge, preliminary hearing, indictment or arraignment. (People v. Hayes (1990), 139 Ill. 2d 89, 123, 564 N.E.2d 803, citing Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877, and Brewer v. Williams (1977), 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232.) The fact that an arrest warrant was issued does not mean that the State is committed to prosecuting defendant. We shall return to this issue at a later time.

Defendant further argues that he did not possess the requisite level of comprehension to make a knowing and intelligent waiver because of his history of psychological and mental problems. He cites to People v. Bernasco (1990), 138 Ill. 2d 349, 562 N.E.2d 958, where the court held that Bernasco’s Miranda waiver was not knowing and intelligent because of his deficiencies. Bernasco had no prior criminal experience, he had a beginning fourth-grade reading and comprehension level, he was diagnosed as being in the bottom of the slow learner range and he was not capable of understanding the terminology of the Miranda warnings. In the instant case, defendant did have a prior criminal record. At the hearing on his motion to suppress, he did not appear to have any problems hearing, understanding or answering any of the questions asked of him. There is no evidence in the record that supports defendant’s argument that he lacked sufficient mental capacity to understand and waive his Miranda rights. The trial court’s finding that defendant voluntarily gave his statement is not against the manifest weight of evidence. There is no basis to disturb the trial court’s decision denying defendant’s motion to suppress statements made to the police.

Defendant also contends that the trial court erred in denying his motion to suppress his lineup identification. Defendant claims that the lineup violated his fifth amendment right to remain silent and his sixth amendment right to counsel.

The State argues that defendant waived this argument because he failed to raise this issue in his motion for a new trial. Generally, failure to raise an issue in a motion for a new trial results in waiver of that issue for purposes of appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) However this court will review this argument because it is a constitutional issue which defendant raised at trial. Enoch, 122 Ill. 2d at 190.

Initially, we note that in Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877, the Court held that the privilege against self-incrimination is not applicable to lineups. The Court cited to United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, where defendant claimed that his fifth amendment privilege against self incrimination was violated. The Wade Court stated:

“We have no doubt that compelling the accused merely to exhibit his person for observation by a prosecution witness prior to trial involves no compulsion of the accused to give evidence having testimonial significance. It is compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have.” (Wade, 388 U.S. at 222, 18 L. Ed. 2d at 1154-55, 87 S. Ct. at 1930.)

Therefore, the lineup did not violate defendant’s fifth amendment rights.

Defendant argues that his sixth amendment right to counsel was triggered when the police obtained the arrest warrant. A person’s sixth amendment right to counsel attaches at the commencement of adversarial judicial proceedings, whether by way of a formal charge, preliminary hearing, indictment, information or arraignment. Hayes, 139 Ill. 2d at 123.

In People v. Wilson (1987), 116 Ill. 2d 29, 50-51, 506 N.E.2d 571, a complaint for an arrest warrant was presented to a judge pursuant to statute. The complaint was presented to the judge ex parte, by a police officer rather than by an assistant State’s Attorney, and was not filed until after defendant appeared in a lineup. The court held that the procedure followed did not initiate adversarial proceedings against defendant. Defendant in People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38, was interrogated by police and eventually confessed to a murder. Defendant argued that police obtained his statement by violating his sixth amendment right to counsel, which attached at the time that the police interrogated him. The court held that his sixth amendment right to counsel had not attached at the time of his interrogation because formal adversary judicial proceedings had not commenced. Only a complaint for preliminary examination charging defendant with murder had been obtained.

In determining whether a defendant’s sixth amendment right to counsel attaches once a criminal complaint is filed, the degree of prosecutorial involvement must be considered. (Hayes, 139 Ill. 2d at 125.) In Hayes, the prosecutor reviewed the criminal complaint against that defendant before it was filed in the circuit court. The court determined that involvement was not significant enough to indicate a commitment by the State to prosecute defendant.

In the instant case, an assistant State’s Attorney approved the application for the issuance of an arrest warrant. No formal charge had been filed against defendant at the time he gave the statement or was placed in the lineup. Therefore, the giving of the voluntary statements or the lineup did not violate defendant’s sixth amendment rights. This was not significant prosecutorial involvement to invoke the sixth amendment right to counsel.

Defendant contends that the trial court erred by refusing to allow him to introduce testimony that 2% months prior to Davis’ death, Davis was arrested for unlawful possession of a weapon. Defendant argues that this evidence supported his theory that he acted in self-defense because it shows that Davis was a violent person, citing to People v. Lynch (1984), 104 Ill. 2d 194, 470 N.E.2d 1018, and People v. Keefe (1991), 209 Ill. App. 3d 744, 567 N.E.2d 1052.

In Lynch, defendant wanted to introduce evidence that the victim had three convictions for battery to support his claim that the victim was the aggressor and he shot the victim in self-defense. The trial court ruled that the prior convictions were irrelevant and inadmissible because defendant was unaware of the convictions when he shot the victim. Defendant was convicted of involuntary manslaughter. The Illinois Supreme Court reversed the judgment and remanded the case for retrial, holding that “when the theory of self-defense is raised, the victim’s aggressive and violent character is relevant to show who was the aggressor, and the defendant may show it by appropriate evidence, regardless of when he learned of it.” Lynch, 104 Ill. 2d at 200.

Defendant in Keefe was prohibited from questioning the victim and a witness about the victim’s character for violence. The two men were involved in an altercation where defendant stabbed Davis, but only after the victim had punched defendant twice. At trial, defendant argued that he acted in self-defense. On appeal, defendant contended that the trial court committed error by ruling that evidence of the victim’s violent character was inadmissible. The appellate court reversed defendant’s convictions and held that the exclusion of evidence of the victim’s propensity for violence was error. Keefe, 209 Ill. App. 3d at 756.

The instant case is distinguishable from Lynch and Keefe. The testimony regarding the unlawful possession of a weapon charge that the trial court ruled inadmissible does not show that Davis had a propensity for violence. In that incident, Davis (the victim in this case) was on the street when the police observed him. When the police stopped their vehicle, Davis ran. The police arrested Davis and found a loaded .32 caliber revolver on his person. There was no evidence in the record that Davis brandished the gun or used it in any way. As the trial court noted, mere possession of a gun does not indicate that Davis was violent. The victim in Lynch had prior battery convictions and the victim in Keefe fought with defendant prior to being stabbed and had been previously hospitalized for injuries sustained in fights. The trial court here admitted similar evidence of Davis’ violent acts from witnesses Tate and Owens. The refusal to admit evidence that the victim was arrested for -unlawful possession of a firearm was not error.

Defendant’s next contention is that the State failed to prove him guilty beyond a reasonable doubt of murder because the State’s eyewitness’ testimony was not clear and convincing and was contradicted.

The relevant question on review when faced with a challenge to the sufficiency of the proof “is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.

The evidence that the State presented showed that defendant shot and killed Davis. Defendant admitted in his statement that he fired at Davis. Defendant’s own witnesses testified that defendant was armed with a .22 automatic and shot Davis. The evidence established that Davis was killed with a bullet from a .22 caliber weapon and that five casings from a .22 caliber gun were recovered from the scene. Defendant claims that Davis shot first and that he shot back in self-defense. A police report indicated that persons at the scene thought they heard two different types of shots. However, Smith testified that Davis was unarmed. Furthermore, there was no physical evidence to support defendant’s claim. There were no bullets recovered from the porch where Davis allegedly shot into the group, and there were no bullets found near the car that Davis allegedly shot.

Defendant maintains that reasonable doubt was created because Smith’s testimony was not clear and convincing and was contradicted by defendant’s statement. “[T]he testimony of one identification witness, if positive and credible, is sufficient for a conviction.” (People v. Wehrwein (1989), 190 Ill. App. 3d 35, 39, 545 N.E.2d 1005.) “In a bench trial it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.” (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317, citing People v. Berland (1978), 74 Ill. 2d 286, 381 N.E.2d 254, and People v. Mendoza (1978), 62 Ill. App. 3d 609, 378 N.E.2d 1318.) The trial court’s judgment will only be set aside if the “proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant’s guilt.” (Slim, 127 Ill. 2d at 307.) In the instant case, the trial court heard the testimony of the State’s eyewitness and the contradictory testimony of the defense witnesses. The trial court found the State’s evidence to be sufficient to prove defendant guilty beyond a reasonable doubt. The evidence in the instant case is not so unsatisfactory, improbable or implausible as to justify a finding of reasonable doubt as to defendant’s guilt.

Defendant’s final contention is that his 40-year sentence was excessive. He argues that the trial court chose to ignore evidence that defendant was young, employed, and had speech and hearing problems. Additionally, he argues that the trial court disregarded evidence that Davis was an aggressive and combative person.

Under Illinois law, the entire spectrum of facts surrounding an incident must be analyzed and evaluated to determine whether a defendant’s sentence is excessive. Because the trial court is in a better position to consider the myriad of factors involved, the trial court’s sentence will not be disturbed on review absent an abuse of discretion. (People v. Bishop (1989), 179 Ill. App. 3d 99, 103, 534 N.E.2d 401.) In the instant case, the trial court considered the statutory factors in mitigation, it had a presentence report, it considered evidence offered by defendant and others, it heard counsel’s arguments on defendant’s behalf and gave defendant the opportunity to make a statement on his own behalf. The court also discussed deterrence. The trial court did not abuse its discretion in sentencing defendant.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.


text:
    CHARLES CHIAKULAS, Plaintiff-Appellant, v. THE DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, Defendant-Appellee.
    First District (2nd Division)
    No. 1 — 91—1296
    Opinion filed December 8, 1992,

      nunc pro tunc September 29, 1992.

      Edwin F. Mandel Legal Aid Clinic, of Chicago (Mark Heyrman, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff was committed to the Department of Mental Health and Developmental Disabilities (the Department) and placed at the Elgin Mental Health Center (Elgin Center). He was transferred from the Elgin Center to the Chester Mental Health Center (Chester Center). Plaintiff objected to the transfer and appealed the decision to the Director of the Department. The Director upheld the transfer. Plaintiff filed a complaint for administrative review, in the circuit court of Cook County. The court dismissed the complaint because plaintiff failed to name the Director as a party-defendant. This appeal followed.

On appeal, plaintiff contends that the trial court erred in dismissing his complaint for administrative review because of his failure to name the Director of the Department as a party-defendant.

We affirm the judgment of the circuit court finding that the Director of the Department was a necessary party to plaintiff’s lawsuit.

Plaintiff was committed to the custody of the Department on March 3, 1987. He was initially confined at the Elgin Center, but on April 26, 1990, plaintiff was transferred to the Chester Center. Plaintiff filed a written objection to his transfer on that same day.

On May 17, 1990, a utilization review committee (the committee) held a hearing on plaintiff’s objection to his transfer. On May 22, 1990, the committee recommended that the facility director affirm plaintiff’s transfer. The facility director agreed with the committee’s recommendation. Plaintiff filed an appeal with the Director of the Department. The Director affirmed the recommendation.

Plaintiff filed a complaint for administrative review naming the Department as the only defendant. The Department filed a motion to dismiss on January 29, 1991, arguing that the court lacked jurisdiction because plaintiff failed to name the Director of the Department as a party-defendant. After the hearing, the court granted defendant’s motion to dismiss. The court found that the Director was a necessary party to the suit because the Director made the final administrative decision which allowed plaintiff to seek administrative review in the circuit court.

Plaintiff contends that the trial court erred in dismissing his complaint because he named the only necessary party, the Department, as the party-defendant. Defendant argues that the Director was a necessary party and should have been named as a party-defendant pursuant to section 3 — 107 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 107), which provides:

“In any action to review any final decision of an administrative agency, the administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.”

“The requirement that all adverse parties of record to the administrative proceeding shall be made defendants on review is mandatory and specific, and admits of no modification.” (Winston v. Zoning Board of Appeals (1951), 407 Ill. 588, 595, 95 N.E.2d 864.) Plaintiff argues that the Director cannot be considered a party of record because he never contested or defended the decision to transfer plaintiff. He further argues that in performing his function as Director of the Department, the Director merely represented the Department in making the final decision under review.

It appears that plaintiff “improperly focuses on whether the Director is a ‘party of record’ to the administrative proceedings instead of whether [he] is the ‘administrative agency’ required to be made a defendant under section 3 — 107.” (Zientara v. Lottery Control Board (1991), 214 Ill. App. 3d 961, 966, 574 N.E.2d 747.) Administrative agency is defined in relevant part as “a person, body of persons, group, officer, board, bureau, *** of the State *** having power under law to make administrative decisions.” (Ill. Rev. Stat. 1989, ch. 110, par. 3—101.) An administrative decision

“means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.” (Ill. Rev. Stat. 1989, ch. 110, par. 3—101.)

“Inasmuch as the Director entered a decision in the administrative proceedings, in issue here is whether [he] is the ‘administrative agency’ contemplated in section 3 — 107.” Zientara, 214 Ill. App. 3d at 966.

Plaintiffs in Cuny v. Annunzio (1952), 411 Ill. 613, 104 N.E.2d 780, filed a complaint seeking administrative review of a decision of the Board of Review of the Department of Labor. The Board of Review was not named as a party-defendant, but plaintiffs did name the Director of the Department of Labor. The Director moved to dismiss the appeal due to the plaintiffs’ failure to join the Board of Review and an employee who initiated the proceedings as necessary parties. The supreme court found that the Board of Review was a necessary party, noting that the Board’s decision terminated the proceedings within the Department of Labor and was the party contemplated by section 8 (now section 3—107) of the Administrative Review Law. Cuny, 411 Ill. at 617.

Cuny was recently followed in Zientara, where plaintiff filed a complaint in administrative review against a decision from the Department of Lottery. The Department of Lottery was the only party named. The appellate court held that the Director was a necessary party because the Director’s decision was the final administrative decision reviewable under the Administrative Review Law and terminated the proceedings within the Department. Zientara, 214 Ill. App. 3d at 968.

The instant case is similar to Zientara because in this case, the Director’s decision, which was the final one, allowed plaintiff to seek administrative review in the circuit court. The Director of the Department in this case is the “administrative agency” contemplated by section 3—107 of the Administrative Review Law. Ill. Rev. Stat. 1989, ch. 110, par. 3—107.

Plaintiff argues in his reply brief that Zientara is not identical to the instant case because the regulations in Zientara specifically indicated that the Director should be considered the administrative agency for purposes of administrative review. Section 6—101 of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1989, ch. 911/2, par. 6—101), which is the applicable regulation in this case, does not state that the Director’s decision is reviewable. The statute states that the Department’s decision or the decision of the Board of Reimbursement Appeals is reviewable. However, plaintiff appears to overlook the relationship between section 3—107 and section 3—101 of the Administrative Review Law. An administrative agency can be a person who has the power to make administrative decisions. Administrative decisions are any decisions which affect the “legal rights, duties or privileges of parties and which terminates [sic] the proceedings before the administrative agency.” (Ill. Rev. Stat. 1989, ch. 110, par. 3—101.) In the case at bar, the Director made a decision that affected plaintiff and that also terminated the proceedings before the administrative agency. Consequently, the Director was a necessary party to the suit.

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

SCARIANO and DiVITO, JJ., concur.


text:
    DWAYNE ERIC DIGBY, Plaintiff-Appellant, v. CHICAGO PARK DISTRICT, Defendant-Appellee.
    First District (2nd Division)
    No. 1—91—1740
    Opinion filed December 8, 1992.

      Susan E. Loggans & Associates, of Chicago (Susan E. Loggans and David S. Adduce, of counsel), for appellant.
    Nelson A. Brown, Jr., of Chicago, for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff appeals from the entry of an order granting defendant’s motion to strike and dismiss plaintiff’s second-amended complaint.

On April 10, 1990, plaintiff filed a one-count complaint alleging that the City of Chicago was negligent and that he suffered injuries as a result. On June 22, 1990, plaintiff amended his complaint by adding count II wherein he alleged that the Chicago Park District was negligent. In count II, plaintiff alleged that on June 26, 1986, he was “electrocuted [received an electric shock and sustained nonfatal injuries]” by an unmarked exposed primary electrical cable owned and maintained by defendant. Plaintiff alleged that the accident occurred after he entered a manhole on Jackson Boulevard near the intersection of Jackson Boulevard and Throop Street in Chicago, Illinois.

On September 13, 1990, plaintiff informed defendant in his answers to defendant’s interrogatories that the precise location of the alleged occurrence was the manhole located at the northwest corner of the intersection of Jackson Boulevard and Laflin Street in Chicago, Illinois.

On September 20, 1990, plaintiff filed his one-count second-amended complaint alleging that the Park District alone had negligently caused his injury. In his second-amended complaint, plaintiff described the location of the occurrence as near the intersection of Jackson Boulevard and Laflin Street, rather than Throop Street. Laflin Street is a distance of two blocks from Throop Street.

On December 3, 1990, defendant filed a motion to strike and dismiss plaintiff’s second-amended complaint with prejudice pursuant to sections 2 — 616(b) and 2 — 619(a)(5) of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 616(b), 2 — 619(a)(5).) The second-amended complaint was filed after the one-year statute of limitations under section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) had expired. (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101.) Pursuant to defendant’s motion, the trial court dismissed the second-amended complaint with prejudice.

On appeal, plaintiff contends that (1) the precise location where he suffered an injury is not a material element in a cause of action for negligence; and (2) his second-amended complaint related back to the time of filing of his first-amended complaint in that both complaints described the same occurrence.

We affirm the decision of the trial court that the precise location of the occurrence is a material element in a cause of action for negligence and that plaintiff’s second-amended complaint described a different occurrence from that described in plaintiff’s first-amended complaint.

Plaintiff contends that the precise location of the manhole where the accident occurred is not material to his cause of action because the present case is not a slip-and-fall case. He claims that the Illinois Supreme Court has held that the precise location of an accident is a material element only in slip-and-fall cases, citing to Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44, 570 N.E.2d 327, and Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342. Wolf and Zeh were slip-and-fall cases where the courts held that the locations of the accidents were material to plaintiffs’ cause of action. The Zeh court stated that the importance of location as discussed in Gillmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596, “applies with equal force in a slip-and-fall case where the alleged negligence arises from the failure to maintain premises in a reasonably safe manner.” (Zeh, 111 Ill. 2d at 275.) In Gillmore, plaintiff stepped into a hole in the sidewalk. She did not slip and fall. Zeh does not expressly limit its holding to slip-and-fall cases. Plaintiff’s contention that the precise location where the accident occurred is not material to his cause of action is without merit. As plaintiff asserts, the court held in Wolf and Zeh that location is material to plaintiff’s cause of action in a slip-and-fall case. However, there is no basis to infer from these cases that in nonslip- and-fall cases, location is not material. Plaintiff’s contention is illogical, contrary to the pronouncements in the Gillmore case and unsupported by the citing of any authority whatsoever. The location where the accident occurred is material in cases where the alleged negligence arises from the failure to maintain premises in a reasonably safe manner. Plaintiff’s allegations fall squarely within this category and location is material. Defendant is entitled to a notice that affords an opportunity to investigate and defend.

Plaintiff’s next contention is that his second-amended complaint filed on September 20, 1990, relates back to the time of filing of his first-amended complaint, filed within the statutory statute of limitations. Section 2 — 616(b) of the Illinois Code of Civil Procedure permits the relation back of an amended pleading to avoid the impact of statutes of limitations if two requirements are met: (1) the original pleading was timely filed; and (2) the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. (Zeh, 111 Ill. 2d at 271.) “An amended pleading grows out of the original pleading if the latter provided defendant with all of the necessary information to prepare his defense to the subsequently asserted claim.” Cannon v. Bryant (1990), 196 Ill. App. 3d 891, 895, 554 N.E.2d 489.

There is no dispute that the first-amended complaint was timely filed. The conflict arises as to whether the second-amended complaint indicates a cause of action asserted in and growing out of the same occurrence as in the first-amended complaint. Defendant argues that plaintiff’s second-amended complaint does not relate back to his amended complaint because his second-amended complaint grew out of an occurrence different than that alleged in his first-amended complaint. The crucial question is whether the first-amended and the second-amended pleadings involved two descriptions of the same location or in fact describe separate and different locations. (Cannon, 196 Ill. App. 3d at 895.) “If the pleadings express two descriptions of the same location, the amended pleading relates back to the original.” (Cannon, 196 Ill. App. 3d at 895, citing Carlin v. City of Chicago (1914), 262 Ill. 564, 104 N.E. 905.) “If they describe two different locations, the amended complaint sets forth a new occurrence and does not relate back.” Cannon, 196 Ill. App. 3d at 895, citing Gillmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596.

Plaintiff in Gillmore sued to recover for injuries she sustained when she fell into a hole and alleged in her complaint that it happened at 38th and Princeton. After the statute of limitations had run, plaintiff was allowed to amend her complaint and changed the name of the street from “Princeton” to “Stewart.” Defendant pled the statute of limitations as a defense. The court held that the negligence cause of action in the amended complaint was different from that alleged in the original complaint. The Gillmore court went on to explain that the degree of care necessary for a city to keep its sidewalks in a reasonably safe condition differed based on location. Gillmore, 224 Ill. at 494.

Gillmore was recently applied in Zeh, where that plaintiff brought a negligence action against landlords for injuries she sustained while descending a stairway in an apartment building. The plaintiff claimed that the accident occurred at 4400 South Wallace in Chicago. After the statute of limitations ran, plaintiff amended her complaint and changed the location of the accident from 4400 South Wallace to 4400 South Lowe. Wallace and Lowe are two blocks apart. The court affirmed the trial court’s dismissal of plaintiff’s complaint in that the amended complaint changed the location of the accident and thereby described a different occurrence.

After the statute of limitations had run, plaintiffs in Cannon were allowed to amend their complaint to correct an erroneous address. The address was changed from 7127 East 70th Place, Chicago, to 7127 South Wabash, Chicago. Defendants filed a motion for summary judgment and relied on Zeh to argue that the change of address of the premises in the amended complaint set forth a new occurrence, and thus, plaintiff’s amended complaint did not relate back to the original complaint and was time barred. The trial court granted defendant’s motion, and the appellate court affirmed the trial court.

The facts in the present case are most analogous to Gillmore, Zeh and Cannon. Plaintiff described the location of the accident from near the intersection of Jackson Boulevard and Throop Street to near the intersection of Jackson Boulevard and Laflin Street. The first-amended complaint and the second-amended complaint did not give two descriptions of the same location, but respectively gave descriptions of different locations. The second-amended complaint does not relate back to the first-amended complaint and is time barred.

As his final argument, plaintiff contends that defendant had notice of the precise location of the occurrence prior to the running of the statute of limitations. Therefore, the requirement that defendant be informed of the precise location of the occurrence is satisfied. The instant case is unlike Wolf. In the Wolf case, the defendants were aware of the precise location of the accident site before the statute of limitations ran. Those defendants were given notice through (1) the deposition testimony of plaintiff; (2) the deposition testimony of a foreman involved in the accident site; (3) the deposition testimony of another worker at the accident site; and (4) documents regarding the construction project which referred to the correct location and which were produced pursuant to production requests.

There is nothing in the record in the present case to support a conclusion that defendant had notice of the precise location of the occurrence prior to the running of the statute of limitations. Plaintiff cites to statements allegedly made by two of his co-workers in support of his position. However, those statements are not part of the record, were not considered by the trial court and cannot be considered by us.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

HARTMAN, P.J., and SCARIANO, J., concur.