author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT BOYD, Defendant-Appellant.
    First District (4th Division)
    No. 1—90—1400
    Opinion filed June 13, 1991.

      Edward M. Genson, of Genson, Steinback & Gillespie, of Chicago, for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Michael Brychel, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The defendant Robert Boyd was charged with possession of cannabis with intent to deliver in violation of section 5(e) of the Cannabis Control Act. (Ill. Rev. Stat. 1987, ch. 56V2, par. 705(e)). He unsuccessfully moved to suppress evidence seized from his luggage after exposure to a narcotics detector dog. He was then convicted as charged after a stipulated bench trial and sentenced to a prison term of three years. The issue on appeal is whether the police had a reasonable, articulable suspicion that the defendant’s luggage contained contraband.

Chicago police detectives George Graham and George Mays learned from a passenger manifest that the defendant would arrive at Union Station in Chicago on April 4, 1989, on Amtrak train No. 4, which originated in Los Angeles, California. They learned further that the defendant had paid $446.50 cash for a one-way ticket from Flagstaff, Arizona, to New York City, via Chicago, and that he had occupied a sleeper compartment on car 431 of the train. They knew that the length of the trip from Flagstaff to Chicago was two days. They were aware that Flagstaff was a source city for marijuana for Chicago and the east coast. They were aware that drug couriers frequently used sleeper cars to conceal contraband from the other passengers and paid cash for their tickets to avoid being traced. However, they were also aware that ordinary passengers also used sleeper cars and could pay for their tickets with cash.

The detectives initiated their surveillance about 3:30 p.m. on April 4, 1989, and they asked the conductor to notify them when the defendant was about to leave the train. They then watched the other passengers leave car 431 of the train, but the defendant was not among them. Graham therefore boarded the train and asked an attendant whether the defendant had exited. The defendant then walked past Graham and exited the train several minutes after the other passengers had left. The attendant nodded toward him, and the detectives followed him.

The defendant had two suitcases. He walked down a ramp toward the main station. After he had walked about 75 feet, he looked over his shoulder and made eye contact with the detectives. Pulling the suitcases, he then quickened his pace and entered the terminal. He walked a short distance and again looked over his shoulder and made eye contact with the detectives. He appeared to be nervous.

He entered a washroom, where he remained several minutes. The two detectives waited outside the washroom, directly across the concourse. When the defendant emerged from the washroom, he looked directly at the detectives. He then quickly turned to his right and quickly walked about 25 feet toward the north track. The two detectives then both approached him on the left and displayed their identification. The encounter occurred about 3:40 p.m. on the main concourse when many people were present.

Graham asked whether he could speak with the defendant, and the defendant responded, “[S]ure.” The defendant then stopped, and he and Graham turned toward each other. When Graham asked the defendant his name, the defendant answered truthfully. Graham then asked the defendant where he had come from, and the defendant answered that he had come from Los Angeles, California.

Graham next asked the defendant for identification, and the defendant produced a New York driver’s license which contained his name and photograph. Graham glanced at it, returned it to him and asked to see his train ticket. The defendant became nervous, hesitated, stammered, felt around his body and stated that he did not have it and that he thought he had lost it.

Graham asked the defendant whether the suitcases were his, and he replied that they were. Graham also asked the defendant whether he had packed them himself and whether he had maintained control over them since that time. The defendant answered in the affirmative. The defendant became more nervous and asked Graham, “[W]hy are you talking to me?” Graham explained that they were conducting a narcotics investigation and he asked the defendant whether his luggage contained narcotics. The defendant responded that it did not. Graham then informed the defendant that he was not under arrest and that he was free to leave. Graham also asked whether he could search the defendant’s luggage, and he explained that he could not search it without the defendant’s permission unless he had a search warrant, which he did not have. The defendant stated, “[N]o, you can’t search the bag.” Graham then informed the defendant that he would detain the luggage for about 10 minutes for inspection by a dog trained to detect drugs. Graham stated that the defendant could remain with the luggage or could leave, in which case Graham would give him a receipt for the luggage and return it to him later. The defendant remained, and Graham repeated the choices again.

The entire preceding conversation occurred in the middle of the concourse. People passed by on both sides. Graham stood 12 to 18 inches from the defendant, and Mays stood slightly to Graham’s rear and left. They never touched the defendant, nor did they display their weapons or raise their voices, but they were both large men. During the conversation, the defendant stated that he was a self-employed landscaper.

They then proceeded upstairs one level to an Amtrak office. Graham took one suitcase and Mays took the other one. The defendant followed behind them. They did not force him to follow. When they reached the office, Graham went to his car to get his dog, Mays concealed the luggage in the office, and the defendant stood in the hall outside the office.

When Graham returned with the dog, he commanded the dog to “fetch dope.” The dog sniffed around the office and began to bite, scratch and paw the larger suitcase. The dog’s reaction was a positive alert for marijuana or narcotics. Graham then told the defendant, who was still outside the office, that the dog had reacted positively and that the suitcase would be detained pending procurement of a search warrant. Graham repeated that the defendant was free to leave and asked the defendant for identification so that he could prepare a receipt for the defendant. The defendant, however, refused to produce any identification or to answer questions about his age, residence, address or telephone number.

After obtaining a search warrant for the larger suitcase, the detectives discovered marijuana in it and arrested the defendant. They then opened the second suitcase and found marijuana in it, too. (The parties stipulated at trial that a police chemist would testify that the marijuana weighed 13,915.08 grams, which we believe is approximately 37 pounds.) The detectives also recovered the defendant’s travel agency voucher, but not his Amtrak train ticket, from his luggage.

At the conclusion of the suppression hearing, the trial court ruled that the detectives were credible, and it denied the motion to suppress. On appeal, the defendant contends that the detectives seized his luggage without the requisite reasonable belief or suspicion, based upon specific and articulable facts, that the luggage contained contraband. The State contends that the detectives reasonably suspected that the defendant’s luggage contained contraband and justifiably subjected it to a canine sniff test.

Although the initial encounter between the defendant and the detectives was consensual (see, e.g., People v. Gentile (1990), 205 Ill. App. 3d 952, 958, 563 N.E.2d 926; People v. Ward (1990), 205 Ill. App. 3d 439, 441, 562 N.E.2d 1167; People v. Price (1990), 195 Ill. App. 3d 701, 707-08, 552 N.E.2d 1200; People v. Jones (1989), 190 Ill. App. 3d 416, 421-23, 545 N.E.2d 1332), the defendant explicitly refused to consent to any search of his luggage. Therefore, we must determine whether the detectives’ investigatory detention of the defendant’s luggage for the purpose of a canine sniff test was based upon a reasonable, articulable suspicion that the luggage contained contraband. (See United States v. Place (1983), 462 U.S. 696, 702, 77 L. Ed. 2d 110, 117-18, 103 S. Ct. 2637, 2642.) A court must examine the totality of the circumstances to determine whether a brief, investigatory detention of luggage was justified by a reasonable, articulable suspicion that it contained contraband. (See People v. Statham (1991), 209 Ill. App. 3d 352, 360-61.) A court of review will not reverse a trial court’s ruling on a motion to suppress evidence unless it was manifestly erroneous. People v. Reynolds (1983), 94 Ill. 2d 160, 165, 445 N.E.2d 766.

Turning to the case at bar, we believe that People v. Nelson (1989), 188 Ill. App. 3d 619, 544 N.E.2d 1111, is controlling. In Nelson, the police knew that the defendant had used his own name and had paid cash for a one-way Amtrak ticket from Florida, a source State for drugs; that he had occupied a roomette (a sleeping compartment); and that he had cancelled or changed his reservations several times without providing a call-back number. The defendant also scanned the area when he left the train, appeared to be nervous when the police questioned him, and allegedly lied about his point of origin. We held that the police lacked the requisite reasonable, articulable suspicion that the defendant’s luggage contained contraband. Similarly, in this case, the detectives knew that the defendant had purchased a one-way cash ticket but had used his own name, that he had boarded the train in Flagstaff, a source city for marijuana, that the length of the trip from Flagstaff to Chicago was two days, and that he had occupied a sleeping compartment. Moreover, he appeared to be nervous when they questioned him. In our view, these circumstances are virtually identical to the circumstances in Nelson, and we therefore reach the same conclusion that the detectives lacked the required reasonable, articulable suspicion that the defendant’s luggage contained contraband.

The State contends, however, that certain additional circumstances here rendered Nelson factually distinguishable and established the requisite reasonable, articulable suspicion in this case. We disagree. For example, the State asserts that the defendant lied about his point of origin because he boarded the train in Flagstaff but told the detectives that he had come from Los Angeles. Contrary to the State’s assertion, these facts are not necessarily inconsistent and do not necessarily show that the defendant lied about his point of origin.

The State similarly contends that the defendant dishonestly tried to conceal his destination by claiming that he had lost his train ticket when he was actually scheduled to proceed to New York. The detectives, however, admitted that they failed to find the defendant’s train ticket even after having searched him and his suitcases.

We also reject the State’s other efforts to distinguish this case from Nelson. The State suggests that the defendant stayed on his car of the train several minutes longer than the other passengers in order “to avoid surveillance.” However, the State’s suggestion is pure speculation; very little imagination is required to realize that there are many other equally plausible but perfectly innocent explanations for the defendant’s slightly tardy departure from the train.

Finally, the defendant’s nervousness, his quickened pace, his glances toward the detectives, who were following him, and his use of the washroom, also can all be innocently explained. He was in an unfamiliar environment and was being followed by two large men. We conclude that the totality of the facts and circumstances did not provide the detectives with a reasonable suspicion that the defendant’s luggage contained contraband. Therefore, the motion to suppress should be allowed.

For the foregoing reasons, the judgment of the circuit court is reversed and the matter is remanded for a new trial.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.

       In his brief, the defendant has explicitly based his argument solely upon the testimony of the police detectives. Given these circumstances, we will limit our discussion to their version of the incident.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    CARMEN H. PEREZ, Plaintiff-Appellee, v. DAVID P. LEIBOWITZ, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—3538
    Opinion filed June 14, 1991.

      Donald A. Tedeschi, of James M. Hoffman & Associates, of Schaumburg, for appellant.
    Fred I. Benjamin and Laurence M. Landsman, both of Benjamin & Shapiro, Ltd., of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant David R Leibowitz (Leibowitz) appeals from an order of the circuit court, granting plaintiff Carmen H. Perez (Perez) a voluntary dismissal. The issue on appeal is one of first impression, i.e., whether a voluntary dismissal may be granted, as of right, pursuant to section 2 — 1009(a) of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009(a)), after the parties have participated in mandatory arbitration proceedings as provided for in section 2 — 1001A et seq. of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001A et seq.) and Supreme Court Rules 86 through 95 (134 Ill. 2d Rules 86 through 95).

A brief overview of the pertinent facts of the case follows.

Perez and Nina Petersen each filed separate complaints against Leibowitz to recover for injuries allegedly sustained in conjunction with an automobile accident that occurred on July 16, 1983. The two causes of action were then consolidated on December 12, 1985. After several years of discovery and pretrial activity, the cases were transferred to the mandatory arbitration calendar by an order dated April 24, 1990. On July 12, 1990, the consolidated matters proceeded to an award after proceedings were held before three arbitrators, as provided by the mandatory arbitration procedures adopted in Cook County. On August 10, 1990, a notice of rejection of the arbitration award was filed by defendant Petersen, and on November 19, 1990, Perez was granted a voluntary dismissal or nonsuit.

The portion of section 2 — 1009(a) of the Illinois Code of Civil Procedure relevant to this case provides:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof.” Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1009(a).

Although it is not completely clear how or why Leibowitz was injured by the dismissal granted to Perez, there is no doubt that he has the right to appeal such an order (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787) and he does so now, contending that Perez was not entitled to an unconditional, voluntary dismissal because arbitration proceedings had already taken place in conjunction with the matter. He contends that compulsory arbitration proceedings should be construed as “a trial or hearing” within the meaning of the cited statute.

The question of whether compulsory arbitration proceedings constitute “a trial or hearing” as contemplated by section 2 — 1009 of the Code has never been addressed by an Illinois appellate court, although “a considerable diversity of analysis exists on the question of when ‘trial or hearing begins’ for the purposes of this section.” See Ill. Ann. Stat., ch. 110, par. 2 — 1009, Historical and Practice Notes, at 416-18 (Smith-Hurd 1983).

At common law and under section 70 of the Practice Act of 1907 (Ill. Rev. Stat. 1931, ch. 110, par. 70), a plaintiff had an absolute right of dismissal without prejudice (or nonsuit) any time before judgment was returned. The legislature, attempting to discourage vexatious lawsuits, enacted section 52 of the Civil Practice Act (Ill. Rev. Stat. 1935, ch. 110, par. 180), predecessor of the present section 2 — 1009 of the Code of Civil Procedure, limiting plaintiff’s freedom by preventing automatic dismissal without prejudice once trial or hearing began. See Kahle v. John Deere Co., 104 Ill. 2d at 307-08; In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 415 N.E.2d 1196.

In Kahle v. John Deere, the court had an opportunity to consider the meaning of “trial or hearing” as used in section 2 — 1009. It cited a number of court opinions on the issue and concluded that the terms, “trial” and “hearing,” referred to judicial proceedings, whether it be at law or in equity, wherein the merits of the conflict are ultimately determined. (104 Ill. 2d at 308-10.) The Kahle court also held that “[a]ny further limits on the plaintiff’s common law rights should be enacted by the legislature, not declared by this court.” 104 Ill. 2d at 308.

Arbitration is a substitute for a court proceeding and a form of settlement for litigation, but not a trial. In fact, errors of judgment in law are not even grounds for vacating an arbitrator’s award. (Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 427 N.E.2d 1199.) The purpose of arbitration is the disposition of litigation in an easier, quicker, and more economical manner than by litigation. (Kalish v. Illinois Education Association (1988), 166 Ill. App. 3d 406, 519 N.E.2d 1031.) To hold that arbitration, especially the nonbinding arbitration instituted pursuant to supreme court rule, was equivalent to a “trial or hearing,” would, we believe, extend the meaning of those terms beyond what was contemplated by the drafters of the statute. We also believe that it would be contrary to the purpose of arbitration. For this reason, we find that participation in mandatory arbitration proceedings does not preclude a plaintiff from seeking a voluntary dismissal without prejudice. Arbitration proceedings are not the same as a trial and, since a plaintiff is entitled to a voluntary dismissal at any time prior to the time that trial begins, trial has not “begun,” for the purposes of section 2— 1009 of the Code, when the parties enter into settlement negotiations in the form of mandatory arbitration pursuant to court rule.

As stated in Kdhle, it is up to the legislature, not the courts, to further limit the plaintiff’s common law right to dismissal.

Affirmed.

GORDON and McNULTY, JJ., concur.


author: PRESIDING JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES JONES, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0955
    Opinion filed June 14, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Timothy Deeming, As- I sistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Robyn Berman, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder, armed robbery and unlawful restraint. He was sentenced to 30 years for murder, seven years for armed robbery and three years for unlawful restraint, the sentences to run concurrently. The issues on appeal are: (1) whether defendant’s conviction for felony murder was improper and should be reversed; (2) whether defendant was denied a fair trial by the admission of “other crimes” evidence which impermissibly established defendant’s propensity to commit the charged offense; and (3) whether defendant was denied a fair trial where the State, contrary to its purported pretrial representations, failed to introduce evidence of defendant’s homosexuality. We affirm.

Officer John O’Brien testified that at around 3 a.m. on August 30, 1988, he responded to a call on his radio and proceeded to 79th Street and St. Lawrence, where he spoke with Lloyd Valentine. Valentine informed him that a man’s body was located at 425 East 75th Street. When O’Brien entered the premises he found the body of the victim, Lawrence Taylor, on a bed. O’Brien also noted that there was an empty television stand, an extension cord which had been cut into smaller pieces and a butcher knife. According to O’Brien’s testimony, defendant arrived on the scene around 5 a.m. and spoke with detectives.

Lloyd Valentine testified that on the evening of August 29, 1988, he went to an apartment at 7959 St. Lawrence in Chicago. The apartment was owned by Cornelius Mosley (Straw) and was frequented by friends of Valentine. There were six men in the apartment when Valentine arrived. Valentine testified that defendant arrived later and asked if anyone wanted to purchase a 19-inch color television for $100. Valentine recognized defendant as a classmate from high school, and Valentine and his cousin decided to purchase the television. Valentine stated that he drove defendant to the store where it was located. Defendant then entered the building and returned with the television. According to Valentine, defendant stated that he lived in the back of the store with the victim, and that the victim passed out earlier that day from smoking “crack.” Valentine then told defendant that if the “old man” (victim) was dead, defendant had killed him. Valentine drove defendant back to the location where he had gotten the television and ordered him out of the car. Valentine then contacted the police.

On cross-examination, Valentine stated that he spoke with the police for four hours regarding the incident with defendant and the television. He denied that Straw’s apartment was a “base house” for illegal drugs or that he saw anyone getting high on the premises. When asked if he was using cocaine on the night of the incident, he replied, “Yes sir. No sir.”

Deputy Medical Examiner Mitra Kaleikar testified that the victim had been 5 feet 9 inches in height, weighed 118 pounds and was 63 years of age when he died. The victim had puncture marks on both arms, scratches and bruises on the right side of his neck, his upper arms and wrists. She stated that the scratches and bruises on the victim’s body appeared to be from the telephone wire and extension cord used to restrain him. Kaleikar further testified that at the time of his death, the victim’s lungs were diseased from emphysema, he had severe coronary artery disease and his circulatory system was “atherosclerotic.” She also stated that the victim had suffered a heart attack approximately seven days prior to the incident and that there was evidence of scarring. The aorta of the victim’s heart was calcified and very brittle. Kaleikar added that because the heart attack had been substantial, any minor stresses such as walking up stairs or being angry or anxious could have caused his death. Kaleiker then testified that, in her opinion, the cause of the victim’s death was the stress of his being tied up.

Dorothea Lyles testified that she was with the victim when he purchased the television and video recorder and had the receipts of purchase in her possession.

Kenneth Simpson testified that he was at Straw’s apartment at 5 p.m. on August 29, 1988. Defendant arrived, spoke briefly to Straw, and they left the apartment together. Four and one half hours later, Simpson saw defendant outside the apartment. Defendant told him that he had tied up an old man and asked Simpson to go with him to get the man’s television. He also showed Simpson a gun and asked if Simpson wanted to help rob someone. When Simpson declined defendant walked away. Simpson was in Straw’s apartment at 3 a.m. on August 30, 1988, when defendant arrived with a television and asked if anyone wanted to buy it. According to Simpson, defendant stated that the old man that he had tied to a chair had died, and that defendant had untied him and placed him on the bed.

Detective Thomas Krippel testified that he investigated the death of the victim on August 30, 1988. On his arrival at the victim’s apartment, he found the victim lying facedown on a bed. He also found telephone wire and an extension cord. Krippel stated that while he was at the victim’s apartment, Valentine and Simpson arrived. During his conversation with Valentine, he was told that Straw’s apartment was a “base house” and that Valentine had seen people using cocaine.

Mark Sledge testified that at 6 p.m. on August 29, 1988, he saw defendant at Straw’s apartment and went with defendant to an “Arab” store. Defendant claimed that the owners of the store owed him money. However, defendant left the store a few minutes later without collecting any money. Sledge then testified that he and defendant walked to a nearby furniture store. Before they entered the store, defendant pointed to scars on his face and told Sledge that he owed a guy some money. He then told Sledge that he knew the woman in the store and that she had a purse full of money. He then added that she had a friend with her who also had money. Sledge testified that defendant then pulled out a gun which he claimed was not real, but at that point Sledge refused to help defendant and walked away. Sledge stated that he returned to Straw’s apartment several hours later, and while he was there, defendant arrived with a video recorder and asked about getting rid of it. Sledge also stated that defendant returned several hours later with a television which was subsequently removed from the apartment.

Assistant State’s Attorney Catherine Quattrocchi testified that she spoke with defendant at 3 p.m. on August 30, 1988. At that time she wrote defendant’s statement, read it back to him and obtained his signature. At the trial, the statement was read to the jury and into the record. In the statement defendant acknowledged that he went to the victim’s residence to obtain money for drugs. He tied the victim to a chair with an electrical cord but took the bindings off his wrist to make him more comfortable. He then left with the video recorder but returned sometime later and found the victim dead. He untied him, placed him on the bed and left with the victim’s television.

Defendant contends that he was improperly convicted of murder under the felony murder statute because the victim’s death from a heart attack was not a foreseeable consequence of defendant’s felonious conduct. The felony murder statute provides:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
* * *
(3) He is attempting or committing a forcible felony other than second degree murder.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(3).)

Defendant cites People v. Jenkins (1989), 190 Ill. App. 3d 115, 126, 545 N.E.2d 986, for the proposition that the felony murder doctrine holds a person responsible for deaths which occur as a direct foreseeable consequence of a felony committed by that person. In Jenkins, as well as People v. Hickman (1974), 59 Ill. 2d 89, 319 N.E.2d 511, which was cited by Jenkins, a police officer’s death from the accidental discharge of a fellow officer’s gun during that officer’s struggle with the defendant was held to be a foreseeable consequence of defendant’s felonious acts. (Hickman, 59 Ill. 2d at 94; Jenkins, 190 Ill. App. 3d at 127.) The Hickman court also stated that the fact that the defendant did not anticipate the precise sequence of events was unimportant. Where his unlawful acts precipitated the events leading to the victim’s death, he was responsible for the consequences. (Hickman, 59 Ill. 2d at 94, citing People v. Smith (1974), 56 Ill. 2d 328, 307 N.E.2d 353.) In Smith the victim jumped through a third-story window when defendant, in the process of committing a burglary, broke into her apartment and threatened to kill her. The court rejected defendant’s argument that his conduct did not provoke the victim’s death and held that it might reasonably be anticipated that when defendant broke into the victim’s apartment and threatened to kill her, his unlawful conduct might precipitate the sequence of events which resulted in the victim’s death. Smith, 56 Ill. 2d at 333, citing People v. Payne (1935), 359 Ill. 246.

The issue of foreseeability in connection with the offense of felony murder was addressed by the Illinois Supreme Court in People v. Brackett (1987), 117 Ill. 2d 170, 180, 510 N.E.2d 877. In Brackett, the defendant beat and sexually assaulted a woman who was 85 years of age. She became severely depressed, refused to eat and was admitted to a nursing home. Shortly thereafter, she died. Medical testimony established that the victim died of asphyxiation which occurred when the victim’s deep breathing was inhibited due to the pain of her injuries. On appeal to the supreme court, defendant contended that asphyxiation was not a foreseeable consequence of his felonious acts. The court held that even in cases where the precise manner of death was not foreseeable to the defendant while he was committing the felony, he was not relieved of responsibility for his conduct. The court then cited cases where the immediate cause of death was meningitis, pneumonia or a heart condition. (See People v. Fuller (1986), 141 Ill. App. 3d 737, 490 N.E.2d 977.) The court in Brackett stated:

“In each of these cases the defendant’s felonious acts contributed to the victim’s demise, and in each of these cases the defendant could not foresee the exact manner in which the victim would die. We hold here that the defendant did not have to foresee that this victim would die from asphyxiation in order to be guilty of felony murder.” (Brackett, 117 Ill. 2d at 180-81.)

Similarly, in People v. Davis (1988), 173 Ill. App. 3d 300, 527 N.E.2d 552, the court addressed the issue of foreseeability in reference to a jury instruction on felony murder. The court stated that although the victim’s death in People v. Hickman was held to be a foreseeable consequence of defendant’s conduct, foreseeability was only a factual observation rather than a pronouncement of what was an essential element of the felony murder offense. Davis, 173 Ill. App. 3d at 309.

In this case, the evidence at the trial established that defendant went to the victim’s home and, prior to robbing him, defendant restrained him to a chair by tying him with an extension cord and telephone wire. Defendant then left with the victim’s video recorder. Although defendant argues that the victim’s death from a heart attack was not a foreseeable consequence of his conduct, we conclude that where his felonious acts of restraining the victim and robbing him precipitated the victim’s heart attack and subsequent death, defendant is responsible for the consequences of his unlawful conduct. We also conclude that even if defendant did not have knowledge of the victim’s preexisting heart and lung disease, as he alleges, the victim’s age and apparent underweight condition (5 feet 9 inches, 118 pounds) were known to defendant. According to Kenneth Simpson’s trial testimony, defendant also knew of the victim’s cocaine use. Thus, it could have reasonably been anticipated that tying him to a chair in such a manner that his body was bruised and scratched and leaving him in this condition for several hours could be stressful enough to cause some form of severe reaction that could result in the victim’s death. We, therefore, conclude that defendant was properly found guilty of felony murder.

Defendant attempts to distinguish Brackett (117 Ill. 2d 170) and Fuller (141 Ill. App. 3d 737) from the instant case by focusing on the difference in the amount of force used on both victims, claiming that the victim’s death from a heart attack was not foreseeable because he only tied the victim to a chair and did not hit him. However, the felony murder statute only requires that the unlawful conduct be a forcible felony. Pursuant to section 2 — 8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 8), the robbery defendant committed was a forcible felony.

Defendant next contends that it was error to admit the testimony of Kenneth Simpson and Mark Sledge regarding defendant’s solicitations to commit robberies because the evidence did not establish his intent to commit the offense charged.

At the trial Kenneth Simpson testified that, at approximately 10:30 p.m. on August 29, 1988, he was standing outside Straw’s apartment when defendant approached him. According to Simpson, defendant made the statement that he left an old man tied up and had taken his video recorder. Defendant asked Simpson to go with him to the old man’s apartment to get a television. When Simpson declined his offer, defendant pulled out a gun and asked Simpson to go with him to rob someone. Defendant claimed the gun was not real and he walked away.

Mark Sledge testified that he accompanied defendant to a furniture store where defendant made the statement, “See these scars on my face, I owe some guy money. I got to get money.” Defendant then stated that he knew the lady who owned the store and that she had a purse full of money. He also added that the owner had a friend inside the store with her who also had money. Defendant then pulled out a gun which he said was not real, but at that point Sledge walked away.

Evidence of other crimes or wrongful conduct is not admissible to show a defendant’s character or propensity to commit the crime charged. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484-85, 485 N.E.2d 1292.) However, evidence of other crimes is admissible where relevant to show modus operandi, intent, identity, motive or absence of mistake or for any relevant purpose other than the propensity to commit the charged offense. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821; People v. Baptist (1979), 76 Ill. 2d 19, 27, 389 N.E.2d 1200.) Where the “other crimes” evidence is being presented to show intent, an additional requirement for the evidence to be admissible is that there be some similarity between the “other crime” and the crime charged. (People v. Bartall (1983), 98 Ill. 2d 294, 310, 456 N.E.2d 59.) In establishing a common design or plan, a high degree of similarity between the other crime and the charged offense must be present because the evidence of the other offense is being offered to prove defendant’s involvement in the charged offense. However, the same degree of similarity is not required where the evidence of the other offense is only being offered to prove defendant’s criminal intent or absence of an innocent frame of mind. McKibbins, 96 Ill. 2d at 185-86.

In this case defendant’s solicitation of Kenneth Simpson to return to the victim’s apartment with him to get the victim’s television was one of the charged offenses rather than “other crimes” evidence. His solicitation of Simpson and Sledge to commit other robberies was admissible to show defendant’s criminal intent to commit a robbery. In addition, defendant’s statement to Sledge that he owed some guy money in the context of the same conversation in which defendant was trying to solicit Sledge’s assistance to participate in a robbery with him was also evidence of defendant’s motive to commit the robberies with which he was charged.

Defendant raises two arguments regarding the admissibility of the evidence of his conversations with Simpson and Sledge. The first argument is that the evidence of “other crimes” was not properly admitted to show defendant’s intent where defendant’s attempted solicitation of Simpson and Sledge to assist him with the robberies occurred after the charged offense. However, evidence of other crimes to show defendant’s criminal intent may be prior or subsequent to the charged offense. See McKibbins, 96 Ill. 2d at 186.

Defendant’s second argument is that there was no similarity between the charged offense and the robberies defendant mentioned in his conversations with Simpson and Sledge. Defendant distinguishes the charged offense from the other robbery based on the fact that defendant did not use a weapon or have an accomplice with the charged offense but solicited Simpson and Sledge as accomplices and indicated that he planned to use an allegedly “toy” gun in the commission of the other robberies. However, because the evidence of the other robberies was only being admitted to show defendant’s criminal intent or absence of an innocent state of mind, only a general similarity to the charged offense was required. (See McKibbins, 96 Ill. 2d at 185-86.) We conclude that there was sufficient similarity between the robbery of the victim and the other robberies to which defendant referred to meet this requirement.

Finally, we also conclude that even if the admission of this evidence was error, it was harmless where there was other properly admitted evidence that defendant committed the forcible felony of robbery. People v. Bacon (1980), 91 Ill. App. 3d 673, 681, 415 N.E.2d 678.

Defendant’s final contention was that he was denied a fair trial because defense counsel, in reliance on the State’s representations, alluded to defendant’s homosexuality during voir dire, his opening statement and cross-examination of the medical examiner. Defendant claims that the State’s misrepresentations corrupted the proceeding, denied him his right to due process, effective assistance of counsel and an impartial jury.

Prior to the trial, defense counsel moved for the exclusion of any evidence regarding defendant’s homosexuality. The State objected and indicated that it might want to introduce one of the statements defendant made to the police to the effect that he tied the victim to a chair because the victim became upset when defendant said he was ending their homosexual relationship. The State argued that it might want to use the evidence to show that defendant offered different explanations regarding the incident which was evidence of defendant’s guilt.

Initially, we note that, contrary to defendant’s argument, the State did not make any definite representations regarding its use of this evidence. Rather, the State indicated that it was undecided as to whether it would use the evidence of defendant’s homosexuality as indicated by the following statements:

“I don’t know, Judge, right now how we’re going to proceed as far as statements.
* * *
*** No Judge, it depends I think in large part on how the evidence comes out through civilian witnesses and whether or not the defendant himself intends to testify. I mean, I think there is [sic] a lot of variables.”

Additionally, if defense counsel chooses to refer to evidence that will be introduced in his opening statement, he should be prepared to present the evidence at trial. It is not the responsibility of the State to present defendant’s case nor can it be held accountable for defense counsel’s choice of trial strategy. Finally, we note that defendant was unable to cite any authority in support of this contention. We, therefore, conclude that it was proper for the trial court to deny defendant’s motion to compel the State to present evidence of defendant’s statements regarding his homosexual relationship with the victim.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL DIGUIDA, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1364
    Opinion filed June 14, 1991.

      James H. Reddy, Public Defender, of Chicago (James W. Younger, Jr., Assistant Public Defender, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Defendant was charged with the misdemeanor offense of criminal trespass to land. Following a jury waiver, defendant was tried by the court, found guilty, sentenced to supervision and ordered to perform 20 hours of community service. Notice of appeal was timely filed.

The question presented for review is whether the criminal trespass to land statute (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 3(a)) as applied in this case violated defendant’s rights to speak, write, and publish freely and to participate in a free and equal election as guaranteed by article I, sections 2 and 4, and article III, section 3, of the Illinois Constitution of 1970.

On December 12, 1987, defendant Paul Diguida stood inside the cart control area of Dominick’s Finer Food store at 525 East Chicago Avenue, Evanston, Illinois, and asked shoppers to sign a political nominating petition for a candidate for commissioner of the Cook County Board of Tax Appeals. The cart control area is outside the store building, but is covered by the building’s overhang and is bounded by a railing which prevents shopping carts from passing into the parking lot. At that location, Dominick’s is bordered by public sidewalks and an adjacent parking lot. Defendant was about 25 feet away from the store’s entrance and did not prevent anyone from entering the store.

Ted Scanlon, one of Dominick’s managers, saw defendant asking people to sign the petition and requested him to leave. When this manager asked defendant to leave and told him that the police would be called if he did not comply, defendant replied that he was not doing anything wrong. The police were called, but when they arrived, defendant had left the premises.

Shortly thereafter, Mr. Scanlon learned that defendant had returned and was asking people to sign the nominating petition. The police were again summoned. Officer Ralph Mier arrived and saw defendant holding a clipboard with petitions outside the store. The officer told defendant he was on private property and that Dominick’s management wanted him to leave. When defendant did not comply, he was arrested and charged in a misdemeanor complaint with criminal trespass to land.

At trial Mr. Scanlon testified that Dominick’s maintained a policy against solicitation on its property. But on cross-examination he stated that the store allowed solicitation with permission. Moreover, there were no signs outside saying “No Soliciting.” Mr. Scanlon further stated that although Dominick’s did not allow people to solicit signatures, it did allow political candidates to walk through the store and shake hands with shoppers. He also testified that Dominick’s provided a bulletin board located inside the store where people could leave messages.

Defendant called Andrea Raila to testify in his defense. Ms. Raila was a campaign manager who collected signatures for political candidates and directed others in the collection of signatures. She stated that solicitors went to Dominick’s stores and that she had personally collected signatures there. During the past four years, she had collected signatures at Dominick’s 20 to 25 times and was never asked to leave or threatened with arrest. She further testified that she had been permitted to engage in that activity in the store when the weather was inclement. This testimony was unrefuted.

At the conclusion of trial, the court found defendant guilty as charged and sentenced him as set forth above. This appeal followed.

As a prelude to the analysis of the instant case, a synopsis of Federal constitutional law on the exercise of first amendment rights on privately owned property is necessary.

In Marsh v. Alabama (1946), 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276, Marsh, a member of Jehovah’s Witnesses, was convicted under Alabama’s criminal trespass statute for distributing religious literature on a company-owned sidewalk in a company-owned town. The State contended that since the defendant engaged in these activities upon private, company-owned property, the landowner had the right to bar any activities it considered offensive. In reversing the conviction, the Supreme Court stated:

“The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. ***
*** The *** corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.” Marsh, 326 U.S. at 506-08, 90 L. Ed. at 268-69, 66 S. Ct. at 278-80.

In Marsh, the corporation, by establishing the town, providing streets, sidewalks, commercial establishments and other municipal accoutrements, had, in fact, taken over functions normally carried out by government. Under these conditions, the Court observed:

“[T]he circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the state’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. In so far as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand.” 326 U.S. at 509, 90 L. Ed. at 270, 66 S. Ct. at 280.

The holding of Marsh was extended in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968), 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601, the first of the “shopping center” cases. Logan Valley Plaza, Inc. (Logan), owned a large, newly developed shopping center complex known as Logan Valley Mall. At the time the events in question occurred, the mall was occupied by two businesses, Weis Markets, Inc. (Weis), and Sears Roebuck & Co. (Sears). Weis’ property consisted of an enclosed supermarket building, an open porch along the front of the building, and a five-foot-wide parcel pick-up zone running 30 to 40 feet along the porch. There were also extensive macadam parking lots serving the entire mall.

When Weis opened for business, it employed a wholly nonunion staff of employees. A few days after opening, Weis posted a sign on the exterior of its building prohibiting trespassing or soliciting by anyone other than its employees on its porch or parking lot. A few days thereafter, members of Amalgamated Food Employees Union, Local 590, began picketing Weis. The pickets were not employees of Weis, but rather, were all employees of competitors of Weis. This activity went on for about 10 days, was carried out almost entirely in the parcel pick-up area and that portion of the parking lot immediately adjacent thereto. The picketing was peaceful.

Weis and Logan instituted court action, and an order issued enjoining the union from, inter alia, picketing and trespassing upon Weis’ storerodh, porch, parcel pick-up area, and the Logan parking area. The effect of this order was to require that all picketing be carried on along the berms beside the public roads outside the shopping center.

The Supreme Court had to decide whether the first amendment protects peaceful picketing of a business enterprise located within a shopping center from being enjoined as an unconsented invasion of the property rights of the shopping center landowners. It was undisputed that if the peaceful picketing had been on public property, the first amendment would not permit it to be barred.

The Court noted that there were striking similarities between the business block in Marsh and the shopping center in the Logan Valley Mall. The fact that the general public had unrestricted access to the mall made the shopping center the functional equivalent of the business district in Marsh. Moreover, the fact that the shopping center owners could not totally bar the union’s access to the community, as the company could in Marsh, was not determinative.

Conceding that the shopping center owners’ property rights may, under State law, entitle them to limit the use of that property by members of the public in a manner not permissible were the property owned by a municipality, it found the union’s activity in this case to be within the protection of the first amendment. It stated:

“All we decide here is that because the shopping center serves as the community business block ‘and is freely accessible and open to the people in the area and those passing through,’ [citation] the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” Amalgamated, 391 U.S. at 319-20, 20 L. Ed. 2d at 612-13, 88 S. Ct. at 1609.

The following factors were deemed important by the Court in extending the Marsh rationale to the facts of Logan Valley:

First, the picketing was directed solely at one business within the shopping center. To require the pickets to display their placards on the berms surrounding the shopping center, 350 to 500 feet away from the business, would render them indecipherable to Weis’ customers to whom the communication was directed.

Second, unlike a situation involving a person’s home, no meaningful claim to protection of a right to privacy can be raised by the shopping center owners, nor any significant claim to protection of the normal business operation of the property.

Third, because of the large scale population movement from the cities to the suburbs accompanied by the advent of the suburban shopping center, the latter does or will account for a significant amount of the country’s commerce. This will mean substantial consequences forum-wise for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies. As the Court succinctly stated:

“Business enterprises located in downtown areas would be subject to on-the-spot public criticism for their practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores. Neither precedent nor policy compels a result so at variance with the goal of free expression and communication that is the heart of the First Amendment.” Amalgamated, 391 U.S. at 324-35, 20 L. Ed. 2d at 615-16, 88 S. Ct. at 1612.

Lloyd Corp. v. Tanner (1972), 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219, ushered in the sunset for Logan Valley. Lloyd Corporation (Lloyd) was the owner of a shopping center containing parking facilities, malls, private sidewalks, stairways, escalators, gardens, an auditorium, skating rinks, and a single, large multilevel building complex with stores therein. Lloyd put notices on the sidewalk that areas in the shopping center used by the public were not public ways, but were for the use of center tenants and the public transacting business with them. The signs further stated that use of these facilities could be revoked at any time.

The shopping center owners had a policy, strictly enforced, against distribution of handbills within the building complex and malls. Political use was prohibited except that presidential candidates of both parties had been allowed to speak in the auditorium.

The Court held in Lloyd that there had been no dedication of the shopping center to public use entitling persons to first amendment protection who distributed handbill invitations to a meeting to protest the draft and the Vietnam War. The Court noted that Lloyd permitted very limited use of the premises for political purposes, the message sought to be conveyed was not related to shopping center commercial activities, and there were other reasonable and legal opportunities on public property to convey the protestors’ communication.

Logan Valley was limited to the particular facts involved therein, to wit: (1) the picketing was directly related in its purpose to the use to which the shopping center was being put, and (2) no other reasonable means were available for the pickets to convey their message to the intended audience.

Sundown for Logan Valley came in Hudgens v. NLRB (1976), 424 U.S. 507, 47 L. Ed. 2d 196, 96 S. Ct. 1029. Striking members of a union picketed in front of their employer’s leased store located in a privately owned shopping center. The shopping center’s general manager threatened them with arrest for criminal trespass if they did not leave, and they complied. The strikers in legal action subsequently claimed that they had a first amendment right to picket in the shopping center.

The Court applied the rationale of Lloyd in holding that the pickets did not have a first amendment right to enter a privately owned shopping center for the purpose of advertising their strike against their employers contrary to the wishes of the shopping center owners. The Court held that Logan Valley did not survive the rationale supporting the decision in Lloyd and overruled it.

The Court declared that the first amendment provides no protection or redress from the abridgement of free expression by a private corporation or person except under circumstances enumerated in Marsh. In Hudgens, the picketing was not desired by the private shopping center owner on his premises. Therefore, the first amendment affords no protection to that activity because the abridgement is due to the action of a private person and not that of a governmental entity.

People v. Sterling (1972), 52 Ill. 2d 287, 287 N.E.2d 711, is the only Illinois case involving first amendment free speech rights in a privately owned shopping center milieu. This case was decided after Lloyd, but prior to the interment of Logan Valley by Hudgens.

In Sterling, defendant and six others entered a shopping center to distribute leaflets. The leaflets contained the text of a letter directed to a local newspaper which the newspaper had refused to print. The letter dealt with the racial situation in Cairo, Illinois, and criticized the newspaper’s reporting of the incidents. The shopping center was controlled exclusively by the owners through the Eastland Merchants Association. Defendants were charged with and convicted of criminal trespass to land after being directed to leave the center by the president of the merchants’ association and refusing to do so.

Defendants claimed that their conviction under the trespass statute deprived them of their right to free speech under the first and fourteenth amendments. In rejecting defendants’ claim, the Illinois Supreme Court found defendants’ reliance on Logan Valley misplaced. Logan Valley involved picketing directly related in purpose to the commercial use of the shopping center property, the denial of which would effectively deprive the picketers of all reasonable opportunity to convey their message to the intended recipients.

The court in Sterling cited with approval the approach taken by the U.S. Supreme Court in Lloyd,, which rejected first amendment claims of persons barred from distributing anti-war literature in a privately owned shopping center where the literature was not related to the operation of the center or its businesses, and other opportunities to convey their message were available.

In the instant case, the State argues that Sterling is controlling because defendant’s free speech rights under the Illinois Constitution of 1970 should be interpreted no more broadly than the protections afforded under the first amendment. For the reasons set forth below, our analysis cannot end with Sterling nor is it dispositive of the instant case.

First, the constitutional claims advanced are different. In Sterling, the supreme court considered only defendant’s claims under the first amendment. Contrary to the instant case, the court was never presented with a claim that the activities engaged in were protected by the free speech provision of article I, section 4, of the 1970 Illinois Constitution or the due process protection of article I, section 2, of the 1970 Illinois Constitution. Additionally, the defendant in the instant case claims his activities were protected by article III, section 3, of the 1970 Illinois Constitution guaranteeing free and equal elections. This assertion could not have been advanced in Sterling due to the nature of the activities there involved.

Second, the facts of Sterling are materially different from those in the instant case. In Sterling the use of the shopping mall had always been related to the commercial business of the stores in the center for promotional activities such as fashion shows, automobile exhibits and by service groups with permission. (52 Ill. 2d at 289.) Therefore, the shopping center owners had never engaged in a pattern of activity or course of conduct leading defendants to believe that use of the mall for leaflet distribution was permitted.

In the instant case, political activity had been permitted in Dominick’s store and in its immediate vicinity. Mr. Scanlon testified that political candidates were permitted to enter the store and shake hands with customers. Further, a bulletin board for messages was provided by the store. No evidence was presented that Dominick’s prohibited the posting of political messages on this board.

Although Mr. Scanlon testified that solicitation of signatures on political nominating petitions was not permitted, Ms. Andrea Raila testified that she had sent signature solicitors to Dominick’s and personally had gone to the cart area of Dominick’s 20 to 24 times in the past four years to collect signatures on political nominating petitions without complaint or interference by Dominick’s personnel. She further testified that she had been permitted to engage in the activity in the store in inclement weather. This testimony was unrefuted.

Defendant in the instant case bases his entire constitutional argument on protections he claims under the Illinois Constitution. Defendant concedes that the activity in which he engaged in the cart area of Dominick’s store is not protected under the first amendment as set forth by the U.S. Supreme Court in Lloyd, and Hudgens. We agree with that analysis and further conclude that his constitutional position under the first amendment is not enhanced by the fact that he was collecting signatures on political nominating petitions rather than distributing leaflets or peacefully picketing. Therefore, the first amendment cases discussed above including Sterling are not dispositive.

We now determine whether the activity in which defendant engaged is protected under the free speech and/or free and equal elections provisions of the State Constitution. Since there are no Illinois cases on point, an appropriate introduction to this question can be found in the U.S. Supreme Court decision in Pruneyard Shopping Center v. Robins (1980), 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035.

Appellant (Pruneyard) was a privately owned California shopping center covering about 21 acres, five devoted to parking and 16 occupied by walkways, plazas, sidewalks and buildings containing more than 65 specialty shops, 10 restaurants and a movie theater. It was open to the public for the purpose of encouraging the patronizing of its commercial establishment. It had a policy prohibiting any visitor or tenant from engaging in any publicly expressive activity, including circulation of petitions, that was not directly related to its commercial purposes. This policy had been strictly enforced in a nondiscriminatory fashion.

Appellees were high school students who entered Pruneyard premises to solicit support for their opposition to a United Nations resolution against “Zionism.” They set up a card table in the courtyard, distributed pamphlets, and asked passersby to sign petitions to be sent to the President and members of Congress. There was no evidence in the record that these activities were objected to by Pruneyard’s patrons.

A security guard informed the students that they must leave because their activities violated Pruneyard’s regulations. He suggested that they move to the public sidewalk at Pruneyard’s perimeter. They left and subsequently filed suit in State court to enjoin Pruneyard from denying them access to the shopping center for the purpose of circulating their petitions. The California Supreme Court upheld appellees’ right of access, holding that the California Constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” Robins v. Pruneyard Shopping Center (1979), 23 Cal. 3d 899, 910, 592 P.2d 341, 347, 153 Cal. Rptr. 854, 860.

The California Supreme Court observed:

“It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations would not markedly dilute defendants’ property rights.” 23 Cal. 3d at 910-11, 592 P.2d at 347-48, 153 Cal. Rptr. at 860-61.

In reaching this conclusion, the California Supreme Court overruled its earlier decision to the contrary. See Diamond v. Bland (1974), 11 Cal. 3d 331, 521 P.2d 460, 113 Cal. Rptr. 468.

On appeal to the U.S. Supreme Court, Pruneyard contended that its fourteenth amendment right to exclude appellees from the adverse use of its private property could not be denied by invocation of a State constitutional provision or by judicial reconstruction of a State’s laws of private property.

In rejecting Pruneyard’s argument, the Court held that its decision in Lloyd does not “ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” (Pruneyard, 447 U.S. at 81, 64 L. Ed. 2d at 752, 100 S. Ct. at 2040.) A State in the exercise of its police power may adopt reasonable restrictions on private property as long as the restrictions do not amount to a taking without just compensation or contravene any other Federal constitutional provision.

In response to Pruneyard’s contention that its right to exclude others is guaranteed by the fifth amendment prohibition against the taking of property without just compensation and the fourteenth amendment guarantee against deprivation of property without due process of law, the Court observed that not every destruction or injury to property by governmental action is a “taking” in the constitutional sense. That determination requires an examination of the character of the government action, its economic impact, and its interference with reasonable investment backed expectations. The Court found Pruneyard had failed to demonstrate that prohibiting it from barring the activities engaged in by appellees would impair the value or use of its property as a shopping center.

In examining the California Supreme Court’s decision in Prune-yard, the U.S. Supreme Court applied the rational relation test, determining the due process guaranty demands only that the law shall not be unreasonable, arbitrary or capricious, and the means selected shall have a real and substantial relation to the objective sought to be attained. (Nebbia v. New York (1934), 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505.) Here, this test was satisfied by the State’s asserted interest in promoting more expansive rights of free speech and petition than those conferred by the Federal Constitution. The holding in Pruneyard therefore permits State courts some latitude in interpreting State constitutional free speech protections more generously than those provided by the first amendment of the Federal Constitution.

Although the Illinois Supreme Court to date has been unwilling to construe protections against self-incrimination and unreasonable search and seizure in the 1970 Illinois Constitution more broadly than those afforded by the Federal Constitution, this approach has not been free of criticism and was not followed on the issue of the State’s right to jury trial in criminal cases.

In People v. Hoskins (1984), 101 Ill. 2d 209, 461 N.E.2d 941, Justice Simon wrote in dissent:

“The time has come for the Illinois Supreme Court to recognize its independent obligation to interpret the bill of rights contained in the Illinois Constitution, and to make its own assessment of the appropriate balance between the privacy rights of our citizens and the legitimate requirements of law enforcement.” 101 Ill. 2d at 236 (Simon, J., dissenting).

See also People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 461 N.E.2d 410.

In People v. Tisler (1984), 103 Ill. 2d 226, 469 N.E.2d 147, the supreme court again employed the “lock step” approach in determining State search and seizure protections to be no greater than those offered by the Federal constitution. However, Justice Ryan, writing for the majority, stated that for greater State constitutional protections to be granted, “[w]e must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal Constitution, after which they are patterned.” 103 Ill. 2d at 245.

The court found such a case in People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873. The State argued that it had a right to demand a jury trial after defendant had waived it. The United States Supreme Court declared in Singer v. United States (1965), 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783, that the Federal Constitution did not prohibit the government from demanding a jury trial after waiver by the defendant. For the first time, the Illinois Supreme Court declared that comparable provisions of the Federal and State Constitutions had in this instance independent meanings.

The language of the Illinois Constitution of 1970, as well as the drafters’ debates, convinced the court that the difference between the jury trial provisions of the State Constitution and that of the Federal Constitution was “one of substance and not merely one of form.” {Joyce, 126 Ill. 2d at 214.) The court found that Illinois law viewed the waiver of a jury as a constitutionally protected personal right of the defendant. (126 Ill. 2d at 222.) The court’s approach in this case was approved by Justices Simon and Clark, who concluded it to be more consistent with the Founding Fathers’ vision of the State’s important role in protecting individual liberties.

The instant case is one of first impression in Illinois. The question of whether or not the Illinois Constitution grants greater rights of free speech than the Federal Constitution has been infrequently addressed by Illinois courts. However, in Village of South Holland v. Stein (1940), 373 Ill. 472, 26 N.E.2d 868, the Illinois Supreme Court observed for the first time that “[t]he constitution of Illinois is even more far-reaching than that of the constitution of the United States in providing that every person may speak freely, write and publish on all subjects, being responsible for the abuse of that liberty.” 373 Ill. at 479. Accord City of Blue Island, v. Kozul (1942), 379 Ill. 511, 41 N.E.2d 515; Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees of America, C.I.O. (1948), 400 Ill. 38, 79 N.E.2d 46.

The debates connected with the adoption of the 1970 Illinois Constitution clearly show that the delegates intended article I, section 4, to be independent of the Federal Constitution. (See J. Cornelius, Constitution Making in Illinois 1818-1970 (1972); Seng, Freedom of Speech, Press and Assembly, and Freedom of Religion Under the Illinois Constitution, _ Loy. U. Chi. L.J.__) Although the delegates acknowledged the Federal Constitution’s supremacy in the event of conflict, they also recognized that the Illinois speech and press provisions could be interpreted more expansively than their Federal counterparts.

Other States have recognized that their State constitutions afford greater protection to the exercise of free speech rights by individuals on privately owned property than does the United States Constitution. See Alderwood Associates v. Washington Environmental Council (1981), 96 Wash. 2d 230, 635 P.2d 108 (environmentalists soliciting signatures and peacefully demonstrating in a privately owned shopping center were engaged in constitutionally protected activities); Pruneyard, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854; State v. Schmid (1980), 84 N.J. 535, 423 A.2d 615 (leaflet distribution on the campus of Princeton university was constitutionally protected, but the university could subject the distributor to reasonable regulations to prevent disruption of campus activities); Batchelder v. Allied Stores International, Inc. (1983), 388 Mass. 83, 445 N.E.2d 590. Contra Bock v. Westminster Mall Co. (Colo. App. 1990), 797 P.2d 797; Cologne v. West Farms Associates (1984), 192 Conn. 48, 469 A.2d 1201; Woodland v. Michigan Citizens Lobby (1985), 423 Mich. 188, 378 N.W.2d 337.

The cases referred to above also dealt with the issue of whether the State constitution required State action to bring free speech activity within its protection, as the Federal Constitution requires. In Alderwood, the Washington Supreme Court compared the language of the First Amendment (“Congress shall make no law *** abridging the freedom of speech”) with that of its State constitution (“Every person may freely speak, write and publish in all subjects, being responsible for the abuse of that right”) and concluded that State action was not required. Accord Pruneyard, 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854; State v. Schmid, 84 N.J. 535, 423 A.2d 615; Batchelder (1983), 388 Mass. 83, 445 N.E.2d 590. Contra Bock v. Westminster Mall Co. (Colo. App. 1990), 797 P.2d 797; Cologne v. West Farms Associates, 192 Conn. 48, 469 A.2d 1201; Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337.

The free speech provisions of the Illinois Constitution are also different from the provisions of the first amendment and almost identical to those of the Washington and California constitutions. Alder-wood, Robins, Schmid and Batchelder found the free speech guarantees under their respective State constitutions were not limited by their terms to deprivation by governmental action, but also to deprivation by private parties under appropriate circumstances. This conclusion is also permitted under free speech provisions of the Illinois Constitution.

Even assuming, arguendo, that State action is required to trigger the free speech protections of the Illinois Constitution, that element exists in the instant action through use of the criminal trespass laws. Hudgens did not reject the function of criminal trespass laws in supplying the requisite State action as set forth in Marsh. The development of first amendment law from Marsh through Hudgens was principally concerned with the reach of substantive constitutional protection for expressive activity on privately owned premises, and not with the limits of the State action doctrine. Consequently, we conclude that the definition of common law property rights and their enforcement against the defendant in the instant case through criminal trespass laws constitute State action. (See New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710; Shelley v. Kraemer (1948), 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836.) The analysis set forth above supports the conclusion that defendant was engaged in free speech activities protected by the State Constitution. Therefore, the use of the State’s criminal trespass laws to punish them constitutes State action. Marsh v. Alabama (1946), 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276; see also Moose Lodge No. 107 v. Irvis (1972), 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (the use of a State licensing regulation to enforce a private club’s racially discriminatory bylaws was State action).

Finally, since defendant claims that his activities in the instant case were also protected by the free and equal elections provisions of the State Constitution, and there is no Illinois case on point, analysis of a Massachusetts and an Oregon case considering the issue under State constitutional provisions is appropriate.

In Batchelder v. Allied Stores International, Inc. (1983), 388 Mass. 83, 445 N.E.2d 590, Batchelder entered a privately owned shopping center for the purpose of obtaining signatures and distributing printed material in support of both his nomination for Congress and his party’s candidate for President. His solicitation was orderly and quiet. The shopping center was the largest retail shopping mall in Massachusetts. It had scheduled special events almost every week, some charitable, some civic, and some entertainment. The shopping center consistently applied a nondiscriminatory policy concerning political campaigning. No solicitation of signatures was permitted, but candidates already on the ballot might appear at the shopping center and shake hands with voters.

A security guard advised Batehelder that soliciting signatures and distributing political literature were not allowed at the shopping center. Batehelder objected, but left the premises. He subsequently sued to enjoin the shopping center owners from interfering with his ballot access activities under the freedom of speech and free elections provisions of the Massachusetts Constitution.

The Supreme Judicial Court of Massachusetts upheld Batchelder’s right to engage in the above-described activities under the free elections provision of the State constitution. The Massachusetts court noted that a majority of State courts that have considered protection under State constitutions of the right to engage in orderly free speech, free assembly, or electoral activity on private property held open to the public have recognized such rights, citing Pruneyard, Schmid, Commonwealth v. Tate (1981), 495 Pa. 158, 432 A.2d 1382, and Alderwood Associates v. Washington Environmental Council.

It then balanced the rights of the private property owner with the right of an individual to ballot access to determine whether Batchelder’s activities were protected under the Massachusetts Constitution. In concluding that they were, the court relied on the free elections provisions rather than the free speech provisions of that law. It noted that ballot access is of fundamental importance because it is through the ballot that people control their government. Batchelder, 388 Mass. at 92, 445 N.E.2d at 595.

“The difference between free speech and *** rights to free elections and to be a candidate equally with others is not purely theoretical. Ideas and views can be transmitted through the press, by door-to-door distributions, or through the mail, without personal contact. On the other hand, a person needing signatures for ballot access requires personal contact with voters ***. Reasonable access to the public is essential in ballot access matters.” 388 Mass. at 92, 445 N.E.2d at 595.

The fact that Batchelder’s activities took place on private property was given careful consideration by the Court. However, his activities were largely related to the basic right of a free election, which would be substantially impaired in the absence of access. The shopping center owner did not demonstrate that Batchelder’s solicitations had adversely affected its economic interests, or that his views could reasonably be attributed to the owner. Since the shopping center owner did permit political candidates already on the ballot to shake hands with patrons at the mall, the Court concluded that Batchelder’s activities were not a significant intrusion on the owner’s interests. Furthermore, the court did not consider significant the fact that Batchelder had managed to obtain the required signatures in other ways.

State v. Cargill (1989), 100 Or. App. 336, 786 P.2d 208, petition for review allowed (1990), 310 Or. 133, 794 P.2d 794, presented a fact pattern strikingly similar to the instant case. In Cargill, defendants stood on the sidewalk between the parking lot of a department store and its main entrance seeking signatures on several initiative petitions. Both the parking lot and the sidewalk were private property controlled by the department store. A store employee, pursuant to company policy, directed defendants to leave. They refused, were arrested and convicted under the Oregon criminal trespass to land statute. The Oregon Appellate Court held that the initiative and referendum provisions of the Oregon Constitution prohibited using criminal prosecution to prevent people from collecting signatures on initiative and referendum petitions in areas that have replaced traditional forums for the collection of signatures, so long as there is no interference with the owner’s use of the property for business or other purposes.

The court stated:

“When the people adopted the initiative and referendum, there were ample opportunities to collect signatures. Parks, town s(fuares and courthouses were common gathering places, and store entrances were usually directly off public sidewalks. *** Today, the situation has substantially changed. Parks and courthouses are not the only, or even primary, foci of modern life ***. Privately owned stores and shopping centers typically are connected to privately owned parking areas, and stores are constructed so that entrances open on private property rather than public sidewalks. Every part of a store or shopping center where it is feasible to seek signatures for initiative or referendum petitions is often privately owned.” 100 Or. App. at 343, 786 P.2d at 211.

The court further found that the changes referred to above have had a major effect on gathering signatures for initiative petitions, and that the department store at which defendants were arrested was a modern replacement for the town square or park. It was open to the public, citizens were invited to come and congregate on the premises with company benches and community bulletin boards provided for that purpose.

In summary, we hold that defendant’s activities, given the unique facts of this case, are protected by the free speech and free elections provisions of the Illinois Constitution. In so determining, we do not decide whether Dominick’s could have prohibited all political activity on its premises. Nor do we determine whether Dominick’s could have barred defendant’s particular activities by posting signs on its premises giving notice that such political activity was prohibited. In this case Dominick’s permitted political activity on its premises and there were no signs posted prohibiting such activity. Furthermore, there is unrefuted testimony in the record that Dominick’s, on numerous occasions, permitted the same political activity on its premises for which defendant was arrested and convicted. The store owner voluntarily and affirmatively created a public forum or accommodation for expressionist activity, by inviting or permitting members of the general public to engage in noncommercial expressive conduct of a civic or community nature in the common areas of the store. Under those circumstances, the owner cannot, at the same time, exclude particular expressionists upon purely discriminatory or arbitrary grounds. Dominick’s, by prosecuting defendant for engaging in political activities on its premises, while permitting others to engage in the same or similar activities thereon, suggests that it objected to the defendant and/or his candidate rather than political activity per se. This is precisely the type of censorship the constitutional provisions referred to above were intended to prevent. (See Shad Alliance v. Smith Haven Mall (1985), 66 N.Y.2d 496, 507, 488 N.E.2d 1211, 1218, 498 N.Y.S. 2d 99, 106 (Jasen, J., concurring).) Therefore, the use by Dominick’s of the Illinois criminal trespass statute to prosecute and punish defendant for his political activities constituted State action under Marsh. Furthermore, as applied to this defendant given the facts of this case, such action contravened article I, sections 2 and 4, and article III, section 3, of the Illinois Constitution of 1970. Ill. Const. 1970, art. I, §§2, 4; Ill. Const. 1970, art. Ill, §3.

For the reasons set forth above, the judgment of the circuit court of Cook County is reversed.

Reversed.

LORENZ, P.J., and GORDON, J., concur.

       Article 1, section 2, of the California Constitution provides:
      “Every person may fully speak, write and publish his or her sentiments on all subjects being responsible for the abuse of that right. A law may not restrain or abridge liberty of speech or press.”

       Declaration of Rights of the Constitution of the Commonwealth, Article 9:
      “All elections ought to be free; and all inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and/or be elected, for public employments.”