author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY S. LEVIN, Defendant-Appellant.
    Second District
    No. 2—89—0933
    Opinion filed January 25, 1991.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Michael J. Waller, State’s Attorney, or Waukegan (William L. Browers and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, Jeffrey S. Levin, was convicted of the offense of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)) and was sentenced to 20 years’ imprisonment.

Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the trial court committed reversible error by allowing testimony describing a jacket which defendant was wearing during a traffic stop several months after the offense; (3) whether the trial court committed reversible error in barring a defense witness from testifying as a sanction for a discovery violation; and (4) whether defendant’s 20-year sentence was properly imposed.

The incident giving rise to the charges against defendant took place on January 3, 1989, at a residential subdivision in Deer Park, Illinois. Several items of jewelry were taken from the home of Joann Daddono after the home was entered by force. Several weeks later, a neighbor, Ronald Ezsak, identified defendant from an array of police photographs as the man he saw at the home at approximately the time the burglary occurred. Defendant was arrested and subsequently indicted for the offenses. of residential burglary and theft, although the State later proceeded to trial on the residential burglary charge only. Defendant filed a motion to suppress the identification made of him by Ezsak because it was allegedly influenced by suggestive police procedures. Among the statements made by Ezsak in his testimony at the hearing on defendant’s motion was his testimony that he had observed defendant from a distance of approximately 75 feet. The trial court denied defendant’s motion to suppress Ezsak’s identification.

Before opening arguments in defendant’s jury trial, defendant made a motion in limine to exclude testimony from an Arlington Heights police officer regarding the type of jacket defendant was wearing when he was stopped for a traffic violation on April 11, 1989. Defendant contended that there was no specific identification linking his jacket and the one worn by the man Ezsak observed approximately four months earlier. Defendant contended that the testimony regarding the jacket would be unduly prejudicial. The trial court denied the motion, finding that the probative value of the evidence outweighed its potential prejudicial effect.

At trial, Joann Daddono testified that she lived at 226 Court La-Grove in Deer Park, Illinois. On January 3, 1989, she left her home at approximately noon to take her daughter to preschool. When Daddono returned home at approximately 1:20 p.m., she saw a police car in her driveway. The burglar alarm in her house was ringing loudly, and the back door was broken. She noticed footprints in the snow which went between the front and back of her house and between the back of the house and Long Grove Road. Upon inspection, she discovered that several thousand dollars worth of jewelry normally kept in her bedroom was missing.

Ronald Ezsak testified that he lived next to Daddono on Court LaGrove, which he described as a cul-de-sac. As he was working in the second-floor office of his home on January 3, 1989, he faced out of a window from which he could see Daddono’s home. At approximately 12:45 p.m., he saw a man drive into Daddono’s driveway and approach the front door, where he rang the doorbell a number of times. The man then ran or walked quickly around to the back of Daddono’s house where Ezsak could no longer see him. The man returned a few minutes later holding his coat over his left arm. He described the coat as a dark gray or green waist-length ski jacket with a white band running horizontally across the back at shoulder level. The man then got back into his car and drove away.

He further stated that the car he saw drive into Daddono’s driveway was a white, full-size, two-door Buick LeSabre with tinted windows and gray velour interior. Ezsak identified a white, two-door automobile with tinted windows depicted in two photographs, People’s exhibits Nos. 5 and 6, as a full-size, two-door Buick LeSabre of the same type as the vehicle he saw. The parties stipulated that the automobile depicted in the photographs was a 1980 Buick Electra two-door coupe registered to defendant on January 3,1989.

Ezsak testified that, later in the day as he was retrieving mail from his mailbox, he saw a policeman walking around Daddono’s house. Ezsak related to the officer what he had seen. Subsequently, on January 26, 1989, Ezsak identified from an array of six photographs a photograph of defendant as the man he had seen at Daddono’s house. He also identified defendant in court as the man he saw at Daddono’s home.

Ezsak also testified that he never heard a burglar alarm and that, although the automobile depicted in People’s exhibits Nos. 5 and 6 was of the same type as the one he had seen, he could not positively identify it as the same car. When asked by defense counsel how close his home is to Daddono’s home at their closest point, Ezsak responded:

“A. 60, 70, 80 feet, perhaps a little more.

Q. And where you were seated in that window, that is another 10, 20 feet further?

A. Perhaps.

Q. So when you saw this gentleman out in the the driveway, he could have possibly been at least 100 feet away from you; is that correct?

A. Possibly.”

Ezsak indicated on defendant’s exhibit No. 4, a photograph showing the two houses, the distance between him and the man observed. Ezsak testified that he has 20/20 vision and does not wear corrective lenses.

Officer Richard Mulder of the Lake County sheriff’s office testified that he was dispatched to Daddono’s residence in response to the burglar alarm on January 3, 1989, and he arrived there at approximately 1:15 p.m. Upon arriving at the house, he heard the burglar alarm ringing and found the rear service door of the home “kicked in.” He observed footprints in the snow between the front and back of the house which appeared to have been made by a tennis shoe. Mulder stated that he also found a set of footprints between the back door of the home and Long Grove Road near the house.

Arlington Heights police officer Thomas Seleski testified that on April 11, 1989, he stopped defendant for a traffic violation. The jacket worn by defendant on this date was a lightweight, waist-length, greenish or light blue jacket with a horizontal gray or silver stripe. The stripe was on both the front and back sides of the jacket at approximately chest height. On cross-examination, Seleski testified that “greenish, light blue” is equivalent to aqua colored, and he pointed to a juror’s shirt which he characterized as “a darker color but a hue of that.” Defense counsel noted that the color of the juror’s shirt was “a dark to medium green.”

Deputy Paul Krawezuk of the Lake County sheriff’s department, an evidence technician, testified that he was unable to find any latent fingerprints at Daddono’s residence. He stated that he did not test for fingerprints on the rear door of the house.

Before the defendant presented evidence, the State made a motion to exclude the testimony of two defense witnesses who had not been disclosed to the State until that morning. Of importance here is the testimony of John Price, a private investigator, who would have testified that he visited the scene of the offense the prior afternoon and measured the distance from which Ezsak identified defendant to be 217 feet. Defendant indicated that Price’s testimony was important because this distance was more than twice that estimated by Ezsak in his testimony. Price would also testify that the distance between the Daddono house and the location at which defendant’s alibi witness would place him at the time of the offense was approximately 38 miles. The prosecutor objected to Price’s testimony on this point, however, because she had not been informed of it beforehand. Under such circumstances, the prosecutor stated, she could not independently investigate Price’s measurements to insure that they were accurate.

The trial court ruled that Price could not testify regarding his measurement of the distance between the two houses, but Price would be allowed to use a tape measure to demonstrate to the jury what a distance of 100 feet looks like. The court also ruled that Price could testify regarding the mileage between Daddono’s home and the restaurant where defendant was purportedly located when the offense was committed.

David Karczewski, an alibi witness, testified that he owned a commercial cleaning company and had employed defendant as a window washer on occasion in the past. He had lunch with defendant on January 3, 1989, at an International House of Pancakes restaurant in Chicago. Karczewski testified that he met defendant at Karczewski’s office at approximately noon or shortly thereafter, and, after a 40-minute lunch, Karczewski returned to his office at about 1 p.m. Karczewski stated that he noted this date in his log book, which he neglected to bring to court with him, but he did not note this date on his desk calendar.

Defendant’s girlfriend, Rhonda Barad, testified that defendant’s Buick automobile had a white leather interior.

Price, the private investigator, testified that he measured the distance from the restaurant to Daddono’s home to be 38 miles. Price also utilized a 100-foot tape measure to demonstrate to the jury what a distance of 100 feet looks like.

The jury found defendant guilty of residential burglary. At defendant’s sentencing hearing, a presentence report contained the following information about defendant’s past criminal convictions:

Offense Arrested Sentence Imposed
Burglary and Theft 11/28/75 Probation 12/17/75
Grand Theft Auto 12/15/75 Probation 12/29/75
Theft 9/10/76 Four Months 6/08/77
Burglary 10/26/76 Year & 1 day 10/18/77
Attempted Burglary 1/06/77 Year & 1 day 7/20/77
Burglary 4/07/78 Four years & six months 9/18/78
Burglary 9/18/78 Four years & six months 9/25/78
Burglary 12/05/80 Nine years 3/16/81
Burglary 12/08/80 Six years 3/10/81

The State recommended that defendant be sentenced as a Class X offender under section 5 — 5—3(c)(8) of the Unified Code of Corrections (Code of Corrections) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3(c)(8)). Defendant did not contest his eligibility for sentencing as a Class X offender under section 5 — 5—3(c)(8) of the Code of Corrections. Instead, defense counsel urged the court to impose a lesser sentence due to defendant’s lack of a violent criminal history, his relatively young age, and his past problems with cocaine dependency.

The court noted that it had considered the statutory factors in aggravation and mitigation, and it specifically referred to the criminal convictions listed in the presentence report. The court stated that defendant clearly qualified for the “extended term” without specifying the statutory provision upon which it was relying. The court sentenced defendant to 20 years’ imprisonment for residential burglary.

We first address defendant’s contention that the trial court erroneously denied his motion in limine to exclude the testimony of Arlington Heights police officer Thomas Seleski regarding the type of jacket defendant was wearing during a traffic stop more than four months after the date of the offense. Defendant contends that the probative value of this evidence was far outweighed by its prejudicial effect.

We note that, although defendant’s motion for a new trial generally argued that the trial court erred by admitting certain irrelevant and immaterial evidence which was prejudicial to defendant, the motion did not specifically mention the jacket or the prior motion in limine. Moreover, defendant did not discuss this testimony in the hearing on his motion. Generally, the failure to raise an issue in a post-trial motion waives its consideration on appellate review. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) Thus, defendant has waived any objection to this testimony.

However, even if we were to address defendant’s contention under the plain error doctrine (107 Ill. 2d R. 615(a)), we would conclude that the testimony was relevant and properly admitted. Relevant evidence is that having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without such evidence. (People v. Johnson (1986), 114 Ill. 2d 170, 193, 499 N.E.2d 1355.) The admission of evidence is within the sound discretion of the trial court, and its ruling should not be reversed absent a clear showing of abuse. (Johnson, 114 Ill. 2d at 193, 499 N.E.2d at 1365.) Here, evidence that defendant owned the same jacket worn by the man seen at Daddono’s house would be relevant to proving identity. See People v. Warmack (1980), 83 Ill. 2d 112, 125-27, 413 N.E.2d 1254.

Defendant argues, however, that Officer Seleski’s testimony does not establish that the jacket worn by defendant was the same as the one worn by the man observed at Daddono’s house. However, the similarities in the jackets described by Ezsak and Seleski are substantial. Ezsak testified that he saw a man wearing a dark grey or green waist-length ski jacket with a white band running horizontally across the back at shoulder level. Seleski testified that, during the April traffic stop, defendant was wearing a lightweight, waist-length, greenish or light blue jacket with a horizontal gray or silver stripe. His comparison of the jacket’s color with the color of a juror’s dark to medium green shirt coincides with the description given by Ezsak. Any discrepancies in the description would merely affect the weight to be given the identification testimony. See People v. Slim (1989), 127 Ill. 2d 302, 308, 537 N.E.2d 317.

Even relevant evidence, however, may be excluded if its prejudicial effect substantially outweighs its probative value. In this context, prejudice is defined as an undue tendency to suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred, contempt or horror. (People v. Eyler (1989), 133 Ill. 2d 173, 218, 549 N.E.2d 268.) Here, defendant does not demonstrate how the admission of Officer Seleski’s testimony regarding defendant’s jacket might have led to a decision on such a basis. We believe that the trial court did not abuse its discretion in determining that the probative value of Seleski’s testimony outweighed its potential prejudicial effect.

Defendant next contends that the trial court’s decision not to allow defense witness Price to testify as to the distance from which Ezsak identified defendant was too severe a sanction for defendant’s failure to inform the State that such testimony would be offered.

Section 114 — 13 of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1989, ch. 39, par. 114 — 13) provides that discovery in criminal cases is to be governed in accordance with the supreme court rules. Supreme Court Rule 413(d) requires a defendant’s attorney to furnish the State with a list of persons who may be called to testify at trial. (107 Ill. 2d R. 413(d).) The committee comments to Supreme Court Rule 413(d) recite the rationale behind this provision:

“[Discovery eliminates unfair surprise and allows the opposing party to establish the truth or falsity of the defense. In addition, discovery against the defense eliminates the argument that criminal discovery is a one-way street.” 107 Ill. 2d R. 413(d), Committee Comments.

There is no question in the instant case that defense counsel was obligated to disclose Price as a potential witness. Counsel knew that Ezsak’s identification was crucial. Moreover, Ezsak’s testimony at trial revealed nothing more about the distance from which he identified defendant than was already made known at the hearing on defendant’s motion to suppress the identification. The question is whether the trial court’s sanction for the failure to do so, i.e., exclusion of a major portion of Price’s testimony, was warranted under these circumstances.

Supreme Court Rule 415(g) (107 Ill. 2d R. 415(g)) provides for the impositions of sanctions for failure to comply with discovery rules in a criminal proceeding. The rule states, in pertinent part, as follows:

"(g) Sanctions.
(i) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.” (107 Ill. 2d R. 415(g).)

The committee comments state:

“If justified under the circumstances, the court may exclude evidence which a party has failed to disclose under applicable discovery rules. The committee felt that such a device is a useful sanction, and that even though some problems may arise in applying it against the accused, the sanction can be applied in some situations.” 107 Ill. 2d R. 415(g), Committee Comments.

Supreme Court Rule 415 provides the trial court with an array of sanctions for violation of a discovery rule, including disclosure of the material, granting a continuance, or excluding the evidence. (People v. Morgan (1986), 112 Ill. 2d 111, 135, 492 N.E.2d 1303.) The correct sanction to be applied is left to the trial court’s discretion, and the trial court’s judgment on this matter is given great weight. (Morgan, 112 Ill. 2d at 135, 492 N.E.2d at 1312.) Sanctions imposed for discovery violations should be fashioned to meet the circumstances of the particular case with the ultimate objective of compelling compliance, not punishing a party for the oversight or errors of his attorney. (People v. Anderson (1980), 80 Ill. App. 3d 1018, 1019, 400 N.E.2d 675.) In Illinois, the sanction of preclusion is limited to only the most extreme cases of discovery violations. People v. Shriner (1990), 198 Ill. App. 3d 748, 753, 555 N.E.2d 1257.

Though a trial court may impose sanctions for failure to comply with discovery rules, courts cannot ignore the fundamental character of a defendant’s right under the compulsory process clause of the sixth amendment (U.S. Const., amend. VI) to offer the testimony of witnesses in his favor. (Taylor v. Illinois (1988), 484 U.S. 400, 414, 98 L. Ed. 2d 798, 814, 108 S. Ct. 646, 655.) Where a party’s explanation for failure to disclose a witness reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the compulsory process clause to exclude the witness’ testimony. (Taylor, 484 U.S. at 415, 98 L. Ed. 2d at 814, 108 S. Ct. at 655-56.) Regardless of whether the discovery violation causes prejudice to the prosecution, willful and blatant violations merit the most severe sanctions. Taylor, 484 U.S. at 416-17, 98 L. Ed. 2d at 815, 108 S. Ct. at 656.

In the instant case, the trial court excluded Price’s testimony-regarding his measurement of the distance from which Ezsak identified defendant even though a much less severe sanction could have cured any possible prejudice to the State. Price was not an occurrence witness or an expert witness for whom the State would have needed significant time to prepare. His testimony regarding the measurement would have been simple and straightforward, and the only prejudice suffered by the State because of defendant’s failure to disclose this testimony was the State’s inability to test the accuracy of Price’s measurements. The trial court could have continued the proceedings to allow the State to conduct its own measurements and allowed the State to call a rebuttal witness on that issue, if necessary, later in the proceedings.

The trial court’s failure to consider less severe sanctions and the ease with which any prejudice could have been cured are factors to be weighed in determining whether the court abused its discretion. (See Shriner, 198 Ill. App. 3d at 754, 555 N.E.2d at 1262.) Price’s testimony would not have required the State to change the theory of its case, nor would it have undercut the State’s prior trial strategy in any way. We find an abuse of discretion under these circumstances, and we hold that the severe sanction imposed by the trial court was unwarranted.

Having determined that it was error for the trial court to have excluded the testimony in question, we now examine whether such error was harmless. We note that the error here involves defendant’s Federal constitutional right to present witnesses on his behalf. Before a Federal constitutional error can be held harmless, a reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. (People v. Titone (1986), 115 Ill. 2d 413, 425, 505 N.E.2d 300; see also Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) Thus, in order to find the error harmless, we must find beyond a reasonable doubt that the jury’s verdict would not have been different had Price been allowed to testify as to his measurement of the distance from which Ezsak identified defendant.

We begin our analysis with the critical observation that the issue here is not the accuracy of Ezsak’s estimate of the distance from which he made the identification; the issue is whether he was too far away to make a reliable identification. When asked by defendant’s counsel whether his vantage point was “at least 100 feet” from the man he identified as defendant, Ezsak responded, “[p]possibly.” We are cautious to avoid focusing on the mathematical precision of Ezsak’s estimate when he himself spoke in inexact terms. The fact remains that Ezsak positively and unequivocally identified defendant as the man he saw at Daddono’s house. Furthermore, his identification was substantially corroborated by other evidence. Ezsak’s description of the perpetrator’s car and jacket was substantially similar to defendant’s car and jacket.

We also note that other evidence made it possible for the jury to assess the distance between the two houses and the accuracy of an identification made at such a distance. While several photographs admitted into evidence showing the two houses did not reveal a precise measurement of the distance between them, such photos did allow jurors to comprehend the more directly relevant question of whether the houses were too far apart to permit a reliable identification. Price was also allowed to utilize a tape measure to show the jury what a distance of 100 feet looked like. Jurors were further aware that Ezsak did not hear the burglar alarm ringing, which suggested that he may have underestimated the distance from which he observed defendant. Finally, in closing argument, defense counsel contended, based on the evidence admitted, that Ezsak may have been as far as 300 to 400 feet away when he identified defendant. This makes it more likely that the exclusion of Price’s measurement was harmless. (See People v. Bartall (1983), 98 Ill. 2d 294, 319-20, 456 N.E.2d 59.) Thus, there was sufficient evidence in the record for the jurors to determine adequately the accuracy of Ezsak’s identification of defendant.

We conclude beyond a reasonable doubt that the jury’s verdict would not have changed had Price’s testimony regarding the distance of the identification been admitted. Therefore, we find the erroneous exclusion of this testimony to be harmless in this case. We also reject defendant’s alternative argument that he was denied effective assistance of counsel because of his attorney’s failure to disclose Price as a potential witness. Defendant would have to demonstrate a reasonable probability that his counsel’s alleged deficiencies affected the outcome of the trial to succeed on this claim. (People v. Weir (1986), 111 Ill. 2d 334, 338-39, 490 N.E.2d 1.) However, we have already determined that the exclusion of Price’s testimony did not affect the jury’s verdict, and so defendant’s ineffective assistance of counsel claim must fail.

Defendant next contends that the evidence presented at trial was insufficient to prove him guilty of residential burglary beyond a reasonable doubt.

In addressing this contention, the relevant question is, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. West (1990), 137 Ill. 2d 558, 584, 560 N.E.2d 594.) It is not the function of the reviewing court to retry the defendant. West, 137 Ill. 2d at 584, 560 N.E.2d at 606.

It is well established in Illinois that identification of the accused by a single eyewitness is sufficient to sustain a conviction, provided that the witness observed the accused under circumstances permitting a positive identification. (People v. Johnson (1986), 114 Ill. 2d 170, 189, 499 N.E.2d 1355.) This is true even in the presence of contradicting alibi testimony, provided that the witness had an adequate opportunity to view the accused and that the in-court identification is positive and credible. (People v. Slim (1989), 127 Ill. 2d 302, 307, 537 N.E.2d 317.) Defendant’s arguments on appeal focus on the issue of whether the circumstances under which Ezsak identified defendant were sufficient to permit a positive identification.

We conclude that the evidence, when viewed in the light most favorable to the prosecution, is sufficient to have permitted Ezsak to make a positive identification. The identification was made at midday by a man with 20/20 eyesight. Ezsak testified that he observed defendant as he walked toward the front door, waited at the door, walked behind the home, and walked back to his car; this provided ample opportunity to observe defendant. Although the identification was made at a distance of at least 100 feet, the distance was not such as to preclude a rational trier of fact from accepting the accuracy of the identification.

Defendant notes several discrepancies between Ezsak’s description of the offender’s car and jacket and defendant’s own car and jacket. While Ezsak described the offender’s car as a white, two-door Buick LeSabre with tinted windows and gray velour interior, the car owned by defendant on January 3, 1989, was a white Buick Electra, and defendant’s girlfriend testified that the interior of the car was white leather. Defendant also notes the discrepancies between the offender’s jacket as described by Ezsak and the jacket worn by defendant during a traffic stop some four months later as described by Officer Seleski. However, these minor discrepancies go only to the weight to be ascribed to Ezsak’s testimony by the trier of fact. (People v. Herrett (1990), 137 Ill. 2d 195, 205, 561 N.E.2d 1.) This court will not disregard the jury’s assessment of the evidence unless it is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (Johnson, 114 Ill. 2d at 190, 499 N.E.2d at 1363.) We believe that, in the instant case, the similarities between Ezsak’s testimony and the other evidence far outweigh the discrepancies. These similarities corroborate Ezsak’s identification of defendant. Herrett, 137 Ill. 2d at 206, 561 N.E.2d at 6.

Defendant also notes that there was evidence of two sets of footprints in the snow at Daddono’s home, implying that the man who Ezsak saw at the front door of the home may not be the same man who forcibly entered at the back door. Defendant essentially argues that another individual may have committed the crime. However, speculation that another person might have committed the offense does not necessarily raise a reasonable doubt as to the guilt of the accused. Herrett, 137 Ill. 2d at 206, 561 N.E.2d at 6.

We conclude that the evidence presented at trial, when viewed in the light most favorable to the prosecution, was not so unreasonable, improbable or unsatisfactory that no rational trier of fact could have found defendant guilty beyond a reasonable doubt.

Lastly, defendant raises several arguments pertaining to the 20-year sentence imposed by the trial court. Defendant first argues that the trial court erroneously sentenced him to an extended term under sections 5 — 5—3.2(b)(1) and 5 — 8—2 of the Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, pars. 1005-5-3.2(b)(l), 1005-8-2) even though there was no showing that defendant had previously been convicted of the same or greater class of felony.

Defendant correctly notes that the sentence for residential burglary, a Class 1 felony, is between 4 and 15 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 3(b), 1005 — 8—1(a)(4).) Defendant suggests that the trial court’s sentence of 20 years’ imprisonment may have been erroneously imposed pursuant to section 5 — 8—2 of the Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—2) based on the aggravating factors in section 5 — 5—3.2(b)(1) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.2(b)(l)). Section 5-5-3.2(b)(l) provides that a court may impose an extended term on a felony offender who has been convicted of the same or greater class felony within 10 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2(b)(1).) Defendant argues that here, however, there is no indication in the presentence report that any of defendant’s past convictions were of a Class 1 or greater class felony.

We reject this argument because the record makes it sufficiently clear that the trial court did not impose an extended term under sections 5 — 8—2 and 5 — 5—3.2(b)(1). Instead, it is evident that the court sentenced defendant as a Class X offender because of two prior Class 2 felony convictions pursuant to section 5 — 5—3(c)(8) of the Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(c)(8)). A Class X felony has an imprisonment sentence of not less than 6 years and not more than 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) The State specifically asked the court to sentence defendant as a Class X offender, and defense counsel’s arguments were directed toward the Class X sentencing provisions. There is simply nothing in the record to support defendant’s speculation to the contrary.

Defendant next argues that, even if he was sentenced as a Class X offender under section 5 — 5—3(c)(8) of the Code of Corrections, there was insufficient evidence to show that his prior convictions met the requirements of that provision. Specifically, defendant maintains that the record does not demonstrate the sequence of his past offenses and convictions required to establish his eligibility for sentencing as a Class X offender.

The State correctly notes that defendant did not raise this issue below and contends that the issue is, therefore, waived. However, the issue presented is one of the sufficiency of the evidence supporting the enhanced Class X sentence, and the waiver doctrine cannot be applied to relieve the State of its burden of proving defendant’s Class X eligibility. (People v. Kennard (1990), 204 Ill. App. 3d 641, 657, 561 N.E.2d 1188; People v. Brooks (1990), 202 Ill. App. 3d 164, 172, 559 N.E.2d 859.) Therefore, we conclude that defendant has not waived consideration of this issue.

We now address defendant’s contention that the sequence of convictions and offenses required by statute to support Class X eligibility cannot be inferred from the record. We undertake this inquiry accepting as true the contents of the presentence report. Defendant’s failure to object to the contents of the report waives any errors which could have been corrected by the sentencing court. (People v. Godinez (1982), 91 Ill. 2d 47, 57, 434 N.E.2d 1121.) The precise question presented is whether the contents of the presentence report, as relied on by the trial court, are sufficient to demonstrate that defendant is eligible for sentencing as a Class X offender.

Section 5 — 5—3(c)(8) of the Code of Corrections states:

“(8) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).

Here, the presentence report shows that defendant is over age 21; that he has been convicted of a Class 1 felony in the instant case; and that he has four prior convictions of burglary, a Class 2 felony. Moreover, the instant offense was committed on January 3, 1989, after defendant’s last burglary conviction on March 16, 1981. Two questions remain: (1) whether either of the burglaries giving rise to defendant’s 1978 convictions were committed after the 1977 effective date of the statute; and (2) whether one of the subsequent burglaries giving rise to the 1981 convictions was committed after the conviction of one of the other burglaries.

We believe that the record does not contain sufficient evidence to demonstrate these two factors. Neither the presentence report nor any other part of the record shows the date on which the offenses giving rise to defendant’s prior convictions occurred. The statute of limitations for commencing a criminal prosecution for burglary is three years from the date of the offense. (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 5(b).) Therefore, by measuring backward from the date of arrest, the two burglaries of which defendant was convicted in 1978 could have been committed as early as April and September 1975, before the effective date of this enhanced sentencing provision. Furthermore, even if these two offenses had been committed after the effective date of the statute, the two burglaries of which defendant was convicted in 1981 could have been committed as early as December 1977. This would have been before defendant’s 1978 convictions of burglary.

We conclude that it is impossible to infer the required sequence of convictions and offenses from this record. (Brooks, 202 Ill. App. 3d at 172, 559 N.E.2d at 863; People v. Hamilton (1990), 198 Ill. App. 3d 108, 111, 555 N.E.2d 785, appeal allowed (1990), 133 Ill. 2d 564; People v. Washington (1990), 195 Ill. App. 3d 520, 529, 552 N.E.2d 1067; People v. Pietruszynski (1989), 189 Ill. App. 3d 1071, 1081, 545 N.E.2d 942; People v. Parks (1988), 168 Ill. App. 3d 978, 987, 523 N.E.2d 130. Contra People v. Kennard (1990), 204 Ill. App. 3d 641, 661, 561 N.E.2d 1188; People v. Williams (1990), 201 Ill. App. 3d 434, 438, 559 N.E.2d 96, appeal allowed (1990), 133 Ill. 2d 570; People v. Stewart (1989), 186 Ill. App. 3d 833, 838, 542 N.E.2d 915, ap peal denied (1989), 128 Ill. 2d 670.) We therefore vacate defendant’s sentence and remand the cause for resentencing.

Defendant next relies on this court’s opinion in Hamilton for the proposition that, upon remand for resentencing, defendant’s right to be protected against double jeopardy precludes the State from attempting to establish his eligibility for sentencing as a Class X offender. Hamilton held that the State’s failure to demonstrate the defendant’s eligibility as a Class X offender at his first sentencing hearing precluded, under principles of double jeopardy, resentencing the defendant as a Class X offender upon remand. Hamilton, 198 Ill. App. 3d at 114, 555 N.E.2d at 788. Contra Brooks, 202 Ill. App. 3d at 178, 559 N.E.2d at 866; Washington, 195 Ill. App. 3d at 530-31, 552 N.E.2d at 1073-74.

The State urges this court to abandon Hamilton by holding that the double jeopardy clause does not prevent the State from attempting to prove defendant’s eligibility for Class X sentencing even if it failed to do so initially. We note that our supreme court has granted leave to appeal in Hamilton (133 Ill. 2d 564), which indicates that the supreme court will shortly resolve the issues raised in that case. Under such circumstances, we consider it inappropriate to reconsider the correctness of our prior decision in Hamilton and feel constrained by stare decisis to abide by the holding in that case. Therefore, we conclude that, upon remand for resentencing, the State is precluded from attempting to establish defendant’s eligibility for sentencing as a Class X offender.

Accordingly, the defendant’s conviction of residential burglary is affirmed; the sentenced imposed is vacated; and the cause is remanded for resentencing in accordance with this opinion.

Affirmed in part; vacated in part and remanded.

INGLIS and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    KARLA E. HEISE, Plaintiff-Appellant, v. DANIEL J. MITTEN, Defendant-Appellee.
    Second District
    No. 2—90—0336
    Opinion filed January 25, 1991.

      John E Garrow and Henry J. Burt, Jr., both of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner and Jane Hird Mittor, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Karla E. Heise, appeals from an order entered in the circuit court of Du Page County granting the motion of defendant, Daniel J. Mitten, to dismiss plaintiff’s action pursuant to section 2— 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)). The issue raised on appeal is whether the trial court erred in granting defendant’s motion to dismiss based on plaintiff’s failure to give notice under section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102), which was in effect at the time of plaintiff’s accident but was subsequently repealed before plaintiff filed suit. We affirm.

This cause arose out of an automobile accident which occurred on March 12, 1986, in Wheaton, Illinois. Defendant was apparently an employee of Du Page County; therefore, in filing suit, plaintiff was required to follow the statute of limitations set out in section 8 — 101 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8-101).

At the time the accident occurred, the statute of limitations prescribed in section 8 — 101 of the Tort Immunity Act was two years from the date the injury was inflicted or the cause of action accrued. In addition, under section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102), a plaintiff was required to serve, within one year of the injury or the accrual of the cause of action, a written notice, either by personal service or registered or certified mail, upon the secretary or clerk of the entity of which the defendant was an employee. If this required notice was not given within the specified one-year time limitation, then under section 8— 103 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8— 103), the plaintiff was forever barred from bringing suit.

In 1986, section 8 — 101 was amended, and section 8 — 102 was repealed by “An Act in relation to the insurance crisis” (Insurance Crisis Act) (Pub. Act 84 — 1431, eff. Nov. 25, 1986 (amending Ill. Rev. Stat. 1985, ch. 85, par. 8 — 101, and repealing Ill. Rev. Stat. 1985, ch. 85, par. 8 — 102)). The statute of limitations requirement in section 8 — 101 was shortened to one year, and the notice under section 8 — 102 was no longer required. However, section 8 — 103 was left unchanged.

Plaintiff, whose accident occurred before section 8 — 102 was repealed but who filed suit after the effective date of Public Act 84— 1431, admits she did not give the notice required under section 8— 102 in effect at the time of plaintiff’s accident. However, by filing suit on March 9, 1988, plaintiff still intended to comply with or fall within the two-year statute of limitations under section 8 — 101 in effect at the time of plaintiff’s accident. Defendant filed a motion to dismiss pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure, claiming that plaintiff failed to give the required notice within the one-year time requirement of section 8 — 102 in effect at the time of plaintiff’s accident.

The court granted defendant’s motion to dismiss under section 2 — 619(a)(9), and plaintiff filed a motion to reconsider. The court denied plaintiff’s motion to reconsider, and plaintiff appeals.

Plaintiff, while claiming that the two-year statute of limitations under section 8 — 101 in effect at the time of the accident applies to her cause of action, argues that the notice requirement under section 8 — 102 was repealed both prospectively and retrospectively. Therefore, according to plaintiff, the notice requirement is to be treated as though it never existed, and she was under no requirement to make the requisite filing of notice.

Generally, courts do not favor the retroactive application of statutes. (Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 75.) This policy is based on the fundamental principle that retroactive application of revised laws is generally unfair. (Moshe v. Anchor Organization for Health Maintenance (1990), 199 Ill. App. 3d 585, 598.) “However, in the absence of a saving clause, an amendatory act may be retroactively applied where the legislature so intended and where the statute affects the remedy or matters of procedure” (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390), unless such a result would deprive a litigant of a vested, constitutionally protected right (Moshe, 199 Ill. App. 3d at 598). Again, without a saving clause, the repeal of a statute destroys the effectiveness of the repealed act both to incidents occurring after repeal and to incidents occurring before repeal if they have not been brought to final judgment. In other words, it is as if the statute never existed. Isenstein v. Rosewell (1985), 106 Ill. 2d 301, 310.

Whether a statute embodies a vested, substantive right or a procedural device is sometimes difficult to determine. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 310. ) Procedure concerns rules which involve pleading, evidence and practice. Specifically, practice comprises the legal rules which control how parties are brought into court and the course of the trial once the parties are involved. (Rivard, 122 Ill. 2d at 310-11.) In the present case, the notice requirement of section 8 — 102 is a procedural rule, and subsequent repeal of that section changes the procedural rules under the Tort Immunity Act. The repeal of section 8— 102 does not modify who may be sued, which would involve a substantive right, but, instead, is part of the process of obtaining jurisdiction over the party to be sued. See Rivard, 122 Ill. 2d at 311.

Here, however, we need not delve into a more detailed discussion as to whether the repealed law was procedural or substantive or whether the law deprived the litigant of a vested right, for the legislature, when it enacted the Insurance Crisis Act, included a saving clause which applies to section 8 — 102 and, thus, “saves” section 8 — 102 so that it applies to plaintiff’s cause of action.

The saving clause appears in article 27 of the Insurance Crisis Act. (Ill. Rev. Stat. 1987, ch. 34, par. 429.7 note.) The saving clause states: “This Act takes effect 60 days after becoming a law and Articles 1 and 3 through 6 apply only to causes of action accruing on or after such effective date, except that Article 10 takes effect 120 days after becoming law.” (Pub. Act 84 — 1431, art. 27, §1, eff. Nov. 25, 1986; Ill. Rev. Stat. 1987, ch. 34, par. 429.7.) Section 8— was revised, and section 8 — 102 was repealed under article 1 of the Insurance Crisis Act. Therefore, article 27 provides that the repeal of section 8 — 102 does not take effect until the effective date of the Insurance Crisis Act. In other words, the repeal of section 8 — 102 is not to be given retroactive application.

This question, whether the notice set forth in section 8 — 102 is required for claims arising out of incidents occurring prior to the enactment of the Insurance Crisis Act, was decided recently by the United States District Court for the Northern District of Illinois. (Turner v. Green (N.D. Ill. 1988), 704 F. Supp. 139.) In Turner, the plaintiff also claimed the repeal of the notice requirement under section 8 — 102 should be retroactively applied. The court declined to accept this reasoning and stated article 27 of the Insurance Crisis Act made it clear that the repeal of section 8 — 102 applied only to causes of action occurring after the effective date of the Insurance Crisis Act. (Turner, 704 F. Supp. at 142.) We note that Federal court decisions interpreting Illinois law are not binding on Illinois’ courts; however, these decisions are persuasive authority. Huck v. Northern Indiana Public Service Co. (1983), 117 Ill. App. 3d 837, 840.

In the present case, we agree with the Federal court’s resolution of this issue. Article 27 of the Insurance Crisis Act acts as a saving clause which prevents retroactive application of the repeal of section 8 — 102. Therefore, plaintiff was required to comply with the provisions of section 8 — 102, and plaintiff’s failure to comply brought into play the provisions of section 8 — 103 of the Tort Immunity Act which barred plaintiff from forever suing.

Plaintiff argues the saving clause in article 27 of the Insurance Crisis Act cannot apply to section 8 — 102 of the Tort Immunity Act because it is general in nature and should be applied only to new enactments of the Insurance Crisis Act. There are two problems with this reasoning. First, the saving clause is not general. It refers only to articles 1, 3 through 6, and 10 in an act that contains 27 articles.

Second, the plaintiff relies on this saving clause to preserve the two-year statute of limitations under section 8 — 101 of the Tort Immunity Act in effect at the time of plaintiff’s accident in order that she may still bring suit. Statutes of limitation are generally considered procedural (Moshe, 199 Ill. App. 3d at 599), and, again, when changes in a law affect procedural matters, without a saving clause, they are generally applied retroactively whether or not the litigation has been instituted. Matter, 82 Ill. 2d at 390.

Under this reasoning, without the saving clause, plaintiff would still have been barred from filing suit since she would have been required to use the new procedure under the amended section 8 — 101, i.e., applied retroactively the statute of limitations would be only one year. We find incongruous plaintiff’s argument that the saving clause of article 27 is specific enough to refer to section 8— 101 but too general to apply to section 8 — 102. We, therefore, do not find merit in plaintiff’s argument.

Plaintiff also includes, in the record, a copy of the legislative debate concerning the proposed changes to the Insurance Crisis Act. (84th Ill. Gen. Assem., Senate Bill 1200, 1985 Sess.) Plaintiff argues that because a specific saving clause was not discussed during this debate, the court should not recognize a saving clause here. However, in construing a statute, its plain meaning must be given effect. Where the language of the statute is unambiguous, there is no reason to examine other sources of information such as legislative debates. People v. Boykin (1983), 94 Ill. 2d 138, 141.

In the present case, article 27 of the Insurance Crisis Act articulates a clear and unambiguous statement that the changes stated in article 1 of the Insurance Crisis Act are not to be given effect until the effective date of the legislation. There is no need to refer to the legislative debate to determine what the legislature intended.

Finally, we note that, in his opinion letter, the trial judge stated simply the repeal of section 8 — 102 of the Tort Immunity Act did not operate retroactively. Since the saving clause was not discussed during the proceedings below, the trial court may have based its decision on incomplete information. However, we are not bound by the reasons given by the trial court for its decision. Rather, we may affirm on any ground warranted regardless of the basis relied upon by the trial court. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) Clearly, article 27 of the Insurance Crisis Act acts as a saving clause which preserved the notice required under section 8 — 102 of the Tort Immunity Act until the effective date of the Insurance Crisis Act. Therefore, since plaintiff failed to serve notice to defendant as required under section 8 — 102, she was subject to the dictates of section 8 — 103 of the Tort Immunity Act, and her suit was forever barred.

We therefore affirm the judgment of the circuit court of Du Page County.

Affirmed.

REINHARD, P.J., and DUNN, J., concur.


author: JUSTICE DUNN PRESIDING JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MERCEDES CRESPO, Defendant-Appellee.
    Second District
    No. 2—89—1106
    Opinion filed January 24, 1991.
    — Rehearing denied March 4, 1991.

      REINHARD, P.J., dissenting.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The defendant, Mercedes Crespo, was indicted for unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver. The trial court granted her motion to suppress evidence seized by a police officer pursuant to a warrantless stop of the car that she was driving, and the State appeals. Because we cannot say that the trial court’s finding of no probable cause to arrest was manifestly erroneous, we affirm.

The sole witness at the suppression hearing was Nikos Eliopoulos (the witness), a police officer with the City of Lake Forest. At the time of the hearing, the witness had been assigned to the Lake County Metropolitan Enforcement Group for two years. He testified that the organization’s primary purpose was to investigate and arrest drug traffickers and that in his two years’ work he had dealt with informants over a hundred times. The witness testified that at about 8:10 p.m. on June 30, 1989, he and other officers met with an informant at the old Belvidere Mall parking lot. The informant had charges pending against him in the Lake County circuit court and was working off those charges in his capacity as an informant. On cross-examination the witness stated that this was the first time the informant had been used “[a]s far as acting on information,” but added on redirect that he had received intelligence from the informant before, though not for warrants or arrests. On recross the witness specified that he had received information from the informant five times before the present case but had never used that information to obtain a search warrant. Intelligence previously supplied by this informant did result in the arrest of one individual, but the informant had never before supplied information about a specific transaction that later resulted in an arrest.

The witness testified that at the June 30 meeting the informant stated that at 9 p.m. that evening a cocaine transaction would take place in the apartment building at the far west end of the left side of Ridge Road. The informant said that he had arranged to purchase a kilo of cocaine from a Latino named John and that either John or one of John’s people would pick up the cocaine at the apartment building. The informant told the witness that at 9 p.m. a car would pull up in the parking lot on the west side of the building and that a Hispanic would exit the building and come out to the car with a packet of cocaine.

The informant did not know John’s last name and could not otherwise identify him. He did not say whether he had had any previous transactions with John. John had told the informant that there was cocaine in the apartment complex, but the informant did not know how John knew this. The informant could not specify the apartment that had the cocaine or who lived in that apartment and did not tell the witness how he found out that John would pick up the cocaine at that location. The police did identify the apartment complex as 2855 Ridge Road and had previously received intelligence that there was a large stash of cocaine in one of the apartments at that address.

At about 8:40 p.m., the police initiated surveillance of the apartment complex. The witness parked east of the building, and Agent Soltwisch and the informant sat in a car about 60 feet northwest of the parking lot. Between 8:40 and 9 p.m., the witness observed that two cars went west on Ridge Road toward the building and that neither entered the parking lot. At 9 p.m., he observed a maroon Nissan Sentra going west on Ridge Road. Shortly thereafter he heard from Soltwisch that this car pulled into the parking lot and parked there, facing west, and that a male subject exited the apartment building and approached the driver’s door of the car. The witness drove west, turned around in the area of the car, and observed a male, apparently Hispanic, walking to the passenger side of the car while carrying a gray bag. After this man entered the car, the witness left the area and parked east of the apartment complex. About two or three minutes later, the witness heard from Soltwisch that the man had left the car and entered the building, that Soltwisch had not seen the gray bag, and that the car was going east on Ridge Road.

The witness then started to follow the car. While doing so, he heard from Soltwisch that the informant believed the car might be involved in a drug transaction but was unsure and that the informant could not say that the male Hispanic was the man who was to deliver the cocaine. The witness stopped the car, believing that the driver (who turned out to be the defendant) had just been involved in a drug transaction. After he stopped the car, he searched the interior and found a gray plastic bag containing cocaine. The witness testified at the hearing that nobody stopped or searched the male Hispanic who went from the apartment to the car and back again.

The trial judge granted the motion to suppress, explaining’ that the evidence failed to establish the informant’s credibility and emphasizing that the informant himself could not say if the drug deal he had predicted had taken place. The State, certifying that the suppression order would substantially impair its ability to prosecute this case, has appealed.

The State argues that the trial court erred in holding that the totality of the circumstances failed to establish that there was probable cause to arrest the defendant. The State also argues that the warrantless stop and search of the car driven by the defendant were proper under Terry v. Ohio (1968), 392 U.S.l, 20 L. Ed. 2d 889, 88 S. Ct. 1868. However, the prosecution never raised the latter theory at trial, arguing only that the evidence at the hearing established probable cause for the warrantless arrest. We therefore do not consider the Terry argument here. See People v. Adams (1989), 131 Ill. 2d 387, 394-96.

In determining whether there was probable cause for a warrantless arrest, a trial court is to apply standards at least as stringent as those that guide a magistrate in deciding whether to issue a warrant. Probable cause requires facts and circumstances within the arresting officer’s knowledge sufficient to warrant a person of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. The probability of criminal activity, not evidence beyond a reasonable doubt, is required. (People v. Tisler (1984), 103 Ill. 2d 226, 236-37; People v. LeCour (1988), 172 Ill. App. 3d 878, 887.) A reviewing court will not disturb a trial court’s finding on a motion to suppress unless that finding is manifestly erroneous. People v. Adams, 131 Ill. 2d at 400.

Whether an informant’s tip supplies the police with probable cause is to be determined under the totality of the circumstances. (Illinois v. Gates (1983), 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S. Ct. 2317, 2332; People v. Tisler, 103 Ill. 2d at 238.) As a result of Gates, it is no longer required that the facts establish both the informant’s “basis of knowledge” and his “veracity,” and a deficiency with respect to one of these elements may be overcome by a strong showing as to the other, or by other indicia of reliability such as corroboration of the details of the informant’s story by independent police work. The informant’s veracity and basis of knowledge are nonetheless still highly relevant to a determination of probable cause under the “totality-of-the-circumstances.” Gates, 462 U.S. at 230-31, 76 L. Ed. 2d at 543-44, 103 S. Ct. at 2328; Tisler, 103 Ill. 2d at 240; People v. Beck (1988), 167 Ill. App. 3d 412, 417.

Although the State here provided some evidence that the informant was reliable and that his tip was corroborated, there were also considerable weaknesses in both regards. In assessing the informant’s credibility, the trial court could properly take into account that the police had never before used him to obtain information to be acted upon and that information he had previously supplied had been of value on only one of several occasions. Further impinging on the informant’s credibility was the fact that he was supplying information in return for lessened punishment. (People v. James (1987), 118 Ill. 2d 214, 224, cert, denied (1988), 484 U.S. 1045, 98 L. Ed. 2d 866, 108 S. Ct. 780.) The informant was unable to provide specifics about any of the parties involved in the transaction that he told police that he had arranged.

The State is correct that the informant’s story was corroborated in certain respects. The police did have some sort of information that cocaine was somewhere in the building. There was indeed a meeting, at the predicted time, between the driver of a car that entered the parking lot and a male Hispanic who exited the building. The trial judge quite reasonably found, however, that this corroboration was undermined by the informant’s own inability to state that this meeting was the predicted transaction. The informant’s uncertainty also cast doubt on his original basis for knowing that a drug transaction, as opposed to merely some sort of meeting, was to occur at that time and place. The general rule that an informant who is right about some things is more likely correct about other details, including the alleged illegal activity (Gates, 462 U.S. at 244, 76 L. Ed. 2d at 552, 103 S. Ct. at 2335; Tisler, 103 Ill. 2d at 238), is less compelling where the informant himself casts doubt on his correctness about the “other details.” The trial judge was also entitled to question why, if the police had probable cause to believe that they had witnessed an illegal transaction, they apparently made no attempt to arrest one of the participants.

We therefore conclude that the grant of the motion to suppress was not manifestly erroneous. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

BOWMAN, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I respectfully dissent. Applying the “totality-of-the-circumstances” analysis set forth in Illinois v. Gates (1983), 462 U.S. 213, 230-31, 76 L. Ed. 2d 527, 543-44, 103 S. Ct. 2317, 2328,1 would find sufficient corroboration of the informant’s information to justify probable cause to make a warrantless arrest.

First, I note that the informant had on one prior occasion provided information to the police which ultimately led to an arrest. While the information provided did not concern a specific transaction which resulted in an arrest, the informant demonstrated at least a slight degree of reliability in the past. Under Gates’ totality of the circumstances test, this is one factor to be considered in determining whether there was probable cause to arrest.

Second, the subsequent corroboration of the informant’s information provided reliability to the informant’s assertions. The informant told Officer Eliopoulos that a cocaine transaction would be conducted at a particular location, at a particular time, and in a particular way — a car would pull up to the west side of an apartment building in the parking lot; a Hispanic person would exit the building and come to the car with a packet of cocaine, and the cocaine would be given to a person, or his “mule,” from whom the informant would later purchase the cocaine.

These details were corroborated by the police investigation. The car came to the parking lot of the apartment building designated by the informant; it arrived at 9 p.m., the time designated by the informant; and a Hispanic person came out of the apartment building and entered the car. While the cocaine was not visible to the police, the Hispanic person carried a gray bag in his hand and, several minutes later, left the car without the gray bag. Further, the police had intelligence that cocaine was stashed in one of the apartments in the apartment building.

Further, the informant’s information contained many details relating not just to easily obtained facts and conditions existing at the time the information was given the police, but to future actions of third parties ordinarily not easily predicted. (See Gates, 462 U.S. at 245, 76 L. Ed. 2d at 552-53, 103 S. Ct. at 2335-36.) The accuracy of this information was such that it is likely the information was gained by the informant from someone familiar with the alleged illegal activities to provide an adequate “basis of knowledge.” In this regard, the informant stated he was to purchase the cocaine from a person named John, who would be obtaining that cocaine from a Hispanic person at the precise time and location later corroborated by the police. John would then deliver the cocaine to the informant.

Based upon this substantial corroboration of the informant’s detailed information, coupled with a degree of reliability in the informant, I would find, under Gates, sufficient veracity and a basis of knowledge to justify probable cause to arrest the defendant.

I note that two factors relied on by the majority to diminish the accuracy of the informant’s information are of no consequence. Whether the police arrested the other individual involved in the transaction is irrelevant to the question of whether there was probable cause to arrest defendant. Similarly, the fact that the informant was not sure that the transaction observed was the same one which he had predicted does not detract from the accuracy of the information provided. The informant’s information was not specific as to the precise identities of the parties to the transaction, so the informant’s inability to determine whether the transaction observed was the one predicted is not inconsistent with his tip. Regardless of the identities of the parties involved, the information provided was corroborated in every detail.


author: JUSTICE McCULLOUGH

text:
    NOMA WEST, Plaintiff-Appellant, v. PERRY M. KIRKHAM et al., Defendants-Appellees (The City of Urbana, Defendant).
    Fourth District
    No. 4—90—0539
    Opinion filed January 31, 1991.
    — Rehearing denied March 4, 1991.

      Andrew J. Kleczek, of Kelly & Kleczek, of Joliet, for appellant.
    James C. Kearns and Bradford J. Peterson, both of Heyl, Royster, Voelker & Allen, of Urbana, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Noma West appeals from an order granting summary-judgment to defendants Perry Kirkham, Wheels, Inc., and Pfizer, Inc. Plaintiff argues the trial court erred in finding, as a matter of law, that plaintiff’s contributory negligence exceeded 50% and, therefore, plaintiff was barred from recovering damages from the defendants. We reverse.

This action is based on an automobile collision on June 8, 1988, a sunny, dry day, between plaintiff’s car and the car defendant Kirkham was driving. The collision occurred at 2:16 p.m. at the intersection of Lincoln Avenue and Bradley Street in Urbana. Plaintiff was driving southbound on Lincoln Avenue; defendant was driving northbound. At the intersection of Lincoln and Bradley, plaintiff stopped to make a left turn onto Bradley. The intersection was regulated by traffic lights. The northbound lanes of Lincoln at this intersection have a left-turn lane and a left-turn arrow regulating traffic intending to travel westbound on Bradley. The southbound lanes do not have a left-turn lane or left arrow.

Immediately prior to the accident, the traffic on Lincoln was regulated by a green traffic signal. In a first affidavit filed September 1989 in response to a motion for summary judgment filed by another defendant, City of Urbana, plaintiff stated two vehicles were stopped at the intersection in the northbound lanes attempting to make a left turn onto Bradley westbound. Further, plaintiff stated in the affidavit that northbound traffic is not completely visible at the intersection due to a dip in the road approximately 200 feet south of the intersection. Plaintiff proceeded into the intersection while looking for northbound traffic. Plaintiff stated she “did not see the Kirkham vehicle until impact, even though she looked and attempted to observe northbound traffic on Lincoln.”

In a second affidavit filed in November 1989, in response to defendants’ motion for summary judgment, plaintiff again stated that the dip in the road partially or completely affected the visibility of automobiles driving through the dip. Plaintiff’s affidavit stated she “did not see the automobile being driven by the Defendant, Perry Kirkham, until immediately [sic] prior to and at the time of the impact, at which time he was traveling at a speed of at least 50 to 55 miles per hour.”

At the time of the accident, defendant was employed by Pfizer and driving a car leased by Pfizer from Wheels, Inc. In a deposition, defendant testified he was traveling 35 miles per hour when he approached the intersection. Defendant recalled two vehicles were in the northbound left-turn lane when he approached the intersection. Defendant did not slow down at the intersection. Defendant stated he never saw plaintiff’s car before the collision. Defendant did not recall applying his brakes before the collision. Defendant stated he may have seen plaintiff’s car 10 to 15 feet before the collision.

In her complaint, plaintiff alleged defendant was negligent in (1) traveling at an excessive speed; (2) disobeying traffic control signals; (3) driving with defective brakes; (4) failing to apply his brakes or otherwise control his vehicle to avoid the accident; and (5) failing to keep a proper look out for vehicles in the intersection. In their answer, the defendants asserted plaintiff’s own negligence exceeded 51% and that negligence was the proximate cause of plaintiff’s injuries.

In their motion for summary judgment, defendants alleged the following facts were undisputed: plaintiff entered the intersection when she was unable to observe the northbound traffic and defendant was traveling at the speed limit prior to the collision. Defendants asserted plaintiff could not prove she was less than 50% contributorily negligent in causing the accident. Therefore, they were entitled to judgment as a matter of law. By docket entry, the trial court granted defendants’ motion for summary judgment’ The trial judge stated the following in a letter to the parties:

“Upon the evidence adduced from the materials in support of and in opposition to the Motion, the Court is of the opinion that the trier of fact could not properly find that plaintiff was free from contributory negligence and the plaintiff was not more than 50% contributorily negligent in the premises.”

Plaintiff argues the trial court erred in entering summary judgment for defendants because the issues of negligence and comparative negligence are questions of fact for the trier of fact. Since these facts are disputed, summary judgment was improperly granted. Defendants rely principally on section 2 — 1116 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116), which bars a plaintiff who is more than 50% contributorily negligent from recovering damage from injuries.

Defendants assert the issue of plaintiff’s contributory negligence becomes a question of law when the evidence, viewed in the light most favorable to the plaintiff, cannot support a verdict for the plaintiff. Defendants contend that under section 2 — 1116, when presented with a motion for summary judgment on the issue of comparative negligence, a trial court should grant the motion where it finds the trier of fact could not find, from the evidence presented, that the plaintiff was less than 51% contributorily negligent. Defendants maintain such is the case presented and, therefore, summary judgment in their favor was proper. Alternatively, defendants argue the evidence does not support a finding that defendant Kirkham was negligent or the proximate cause of plaintiff’s injuries. Therefore, summary judgment for defendants was proper.

When a plaintiff appeals from a trial court’s order granting summary judgment for a defendant, the only issue on appeal is whether “ ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005.)” (Wilmere v. Stibolt (1987), 152 Ill. App. 3d 642, 646, 504 N.E.2d 916, 918.) Where, as here, a defendant files a motion for summary judgment, the plaintiff must come forward with evidence of negligence on the part of defendant and with evidence that defendant’s negligence was the proximate cause of plaintiff’s injuries. (Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 336, 504 N.E.2d 243, 245.) Where the pleadings, depositions, and other evidence before the court in a motion for summary judgment show that at trial a verdict would have to be directed, entry of summary judgment is proper. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 272 N.E.2d 497.) The trial court must construe the pleadings, depositions, and affidavits in the light most favorable to the non-moving party. (Wilmere, 152 Ill. App. 3d at 646, 504 N.E.2d at 918.) Summary judgment will not be reversed absent an abuse of discretion by the trial court such that the plaintiff’s right to fundamental justice is violated. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 86, 508 N.E.2d 1201, 1208.

In the case presented, the trial judge found the trier of fact could not find plaintiff was free from contributory negligence or that plaintiff was not more than 50% contributorily negligent in causing the accident. Ordinarily, the question of contributory negligence is a question of fact for the jury, but it becomes a question of law when all reasonable minds would agree that the evidence and reasonable inferences therefrom, viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 281, 519 N.E.2d 963, 967, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) The trial court considered section 2 — 1116 of the Code, which sets forth a modified comparative negligence rule:

“In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-1116.)

Defendants urge the trial court properly considered section 2 — 1116 in deciding the summary judgment motion. Plaintiff relies principally on Johnson v. Colley (1986), 111 Ill. 2d 468, 490 N.E.2d 685, to support her claim that the issue of her contributory negligence is a question of fact for the trier of fact.

In Johnson, the jury returned a verdict for plaintiff in an automobile crash case but found the plaintiff driver was 60% contributorily negligent in causing his injuries. The appellate court reversed the contributory negligence finding, reasoning the evidence established the plaintiff driver was driving slowly prior to the collision and defendant failed to establish any contributory negligence on plaintiff’s part. Defendants appealed to the supreme court, which reversed the appellate court and affirmed the jury’s findings. The supreme court applied the rule announced in Pedriek concerning judgments n.o.v. and found the evidence of poor road conditions and visibility and the evidence suggesting plaintiff’s excessive speed for conditions supported the jury’s findings. The court also stated:

“Whether conduct was negligent or contributorily negligent is rarely decided as a matter of law. The determination of what conduct is negligent or contributorily negligent is a composite of the experiences of average people, and is left to the jury for evaluation.” Johnson, 111 Ill. 2d at 475, 490 N.E.2d at 688.

The evidence established the weather conditions on the day of the accident were good and both plaintiff and defendant had a green light. According to the'police report from the accident, plaintiff told the officer at the scene that her view of oncoming northbound traffic was obstructed by two vehicles stopped in the northbound left-turn lane. Plaintiff was issued a citation at the scene for failing to yield on making a left turn. In her first and second affidavit, plaintiff stated the dip in the road obstructed her view of oncoming northbound traffic. In her second affidavit, plaintiff stated defendant was speeding when he entered the intersection. Defendant denies he was speeding. Defendant did not specifically recall applying his brakes but opined he must have because his brake pedal was depressed to the floor of his car after the accident. Defendant did not recall the dip in the road in the north lane obstructing his view of the intersection. Defendant stated he would have seen plaintiff making a left turn if the two vehicles in the left turn lane had not been there. The officer at the scene testified the intersection at Lincoln and Bradley in Urbana is dangerous because it is hard to see the intersection from the north lanes when in the dip and the southbound traffic at the intersection cannot see northbound traffic in the dip. The officer testified he believed both plaintiff and defendant were traveling the speed limit at the time of the collision based on the position of both cars after the accident.

We cannot say from the evidence presented that there is no genuine issue of material fact. The parties dispute whether defendant was speeding and whether the dip in the northbound lanes of Lincoln obstructs a clear view of traffic in the intersection. These facts distinguish this case from Whitman and Wilmere, relied upon by defendants. Resolution of these disputed facts will necessarily involve a credibility determination by the trier of fact. Defendants argue plaintiff’s affidavit testimony regarding Kirkham speeding at the intersection should not be considered because it is contradictory to plaintiff’s prior sworn testimony. We disagree. In her first affidavit, plaintiff presented her evidence in opposition to a motion for summary judgment filed by the City of Urbana. The issues raised regarding the City’s negligence were different. The two affidavits are not clearly contradictory. The circumstances of the accident, what the plaintiff did and observed, the defendant’s actions and plaintiff’s right to recover are unresolved questions of fact. Construing, as we must, the evidence in the light most favorable to plaintiff, we conclude disputed facts remain to preclude summary judgment.

As stated, defendants urge the trial court can properly consider section 2 — 1116 of the Code in granting summary judgment. Without deciding the issue, the fact remains the case presented is not a proper one for summary judgment.

Defendants filed a motion to strike portions of the supplement to the record filed by plaintiff. The motion was ordered taken with the case by this court. Specifically, defendants urge that certain handwritten notes on a copy of a motion for summary judgment in the supplement should be stricken. The notes defendants refer to contain the words “untrue” and “improper evidence” and appear after two subparagraphs in the motion. The notes are not part of the trial record. Defendants’ motion to strike the notes is granted.

For the foregoing reasons, the order granting summary judgment to defendants is reversed.

Reversed.

SPITZ and KNECHT, JJ., concur.


author: JUSTICE KNECHT

text:
    STATE STREET BANK AND TRUST COMPANY OF QUINCY, ILLINOIS, Plaintiff-Appellant, v. INA INSURANCE COMPANY OF ILLINOIS, Defendant-Appellee.
    Fourth District
    No. 4—90—0245
    Opinion filed February 6, 1991.
    — Rehearing denied March 4, 1991.
    Keefe, Gorman & Brennan, of Quincy (Jerry L. Brennan, of counsel), for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria, and Heyl, Royster, Voelker & Allen, of Springfield (Karen L. Kendall, Frederick P. Velde, and Kurt M. Koepke, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

This is another in a series of appeals arising out of John O’Brien’s litigation against plaintiff State Street Bank and Trust Company (State Street). In this appeal, State Street seeks reversal of a circuit court order which, in effect, held defendant INA Insurance Company of Illinois (INA) did not have a duty to defend O’Brien’s lawsuit against State Street. We affirm.

O’Brien sued State Street in November 1975, alleging he was a business loan customer of State Street and that, on previous occasions, State Street had acquiesced in late payments on his loans. O’Brien further alleged that in November 1971, when one of O’Brien’s debts to State Street was past due, an officer of State Street advised O’Brien to enter a hospital for a rest and told him if necessary, he would assist and advise O’Brien’s employees during his absence. However, during O’Brien’s hospitalization, State Street allegedly (1) accelerated the due dates of all of O’Brien’s debts and obligations to it; (2) offset and seized various amounts which O’Brien had on deposit at State Street; (3) seized com from O’Brien’s business facilities and hogs from O’Brien’s farm; and (4) confessed judgment on various of O’Brien’s promissory notes which it held. O’Brien alleged these actions violated sections 1 — 103, 1— 201(19), 1 — 203, 1 — 208, 9 — 503, and 9 — 507 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1969, ch. 26, pars. 1 — 103, 1 — 201(19), 1— 203, 1 — 208, 9 — 503, 9 — 507). According to O’Brien’s complaint, these actions destroyed O’Brien’s financial standing, the goodwill of O’Brien’s businesses, and his ability to obtain credit. O’Brien further claimed State Street’s actions reduced his- net worth from approximately $100,000 to zero. O’Brien also alleged, as a result of a petition filed by State Street and other creditors, an involuntary adjudication of bankruptcy was entered against him on June 29,1972.

In count I of his complaint, O’Brien asserted State Street committed the violations of the UCC mentioned therein “willfully, wantonly, intentionally, maliciously, recklessly and in bad faith.” In count II, O’Brien alleged these actions were committed “negligently and carelessly and in bad faith.”

In 1980, this court held count I of O’Brien’s complaint stated a cause of action for intentional interference with O’Brien’s business relationships, while count II attempted to state a cause of action for negligent interference with O’Brien’s business relationships. This court reversed a portion of a circuit court order which dismissed count I and affirmed the portion of the same order which dismissed count II. O’Brien v. State Street Bank & Trust Co. (1980), 82 Ill. App. 3d 83, 401 N.E.2d 1356.

Following extensive discovery, the circuit court entered summary judgment in favor of State Street as to count I. This court affirmed that order on March 10, 1986 (O’Brien v. State Street Bank & Trust Co. (1986), 140 Ill. App. 3d 1151 (unpublished order under Supreme Court Rule 23)), and the supreme court denied O’Brien’s petition for leave to appeal (O’Brien v. State Street Bank & Trust Co. (1986), 112 Ill. 2d 579).

After the conclusion of the litigation involving O’Brien, State Street sought reimbursement from United States Fidelity and Guaranty Company (USF&G) of the expenses, costs, and attorney fees which it incurred in defending O’Brien’s suit, under terms of a banker’s fidelity bond which USF&G issued to State Street. In State Street Bank & Trust Co. v. United States Fidelity & Guaranty Co. (1989), 181 Ill. App. 3d 1081, 539 N.E.2d 779, this court affirmed a summary judgment order which the circuit court entered in USF&G’s favor.

On March 30, 1987, State Street commenced the present action by filing a complaint against INA. State Street’s amended complaint, filed July 8, 1987, alleges that on or about November 1, 1971, it was insured under an “Office Building Policy” issued by INA. The complaint further alleges State Street tendered the defense of O’Brien’s suit to INA, INA refused to defend the suit, and O’Brien’s claims were within or potentially within the coverage of the policy which INA issued to State Street. In count I, State Street requests (1) damages consisting of all amounts which it expended in the defense of O’Brien’s lawsuit, (2) prejudgment interest, and (3) costs incurred in the present action. In count II, State Street requests an award of taxable costs, as defined in section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 767), on the basis INA’s failure to defend was “vexatious and unreasonable,” and, thus, in violation of section 155.

On September 21, 1987, the circuit court denied INA’s motion to dismiss State Street’s amended complaint. State Street filed a motion for summary judgment on August 4, 1988, and INA filed a cross-motion for summary judgment on October 11,1989.

Attached to an affidavit filed in support of State Street’s motion for summary judgment is a copy of the terms of an “office building policy” which INA issued to State Street. The policy provides in pertinent part:

“The Company will pay on behalf of the Insured, except as hereafter provided, all sums which the Insured shall become legally obligated to pay as damages because of:
A-PERSONAL INJURY or B-PROPERTY DAMAGE
caused by an occurrence during the policy period and within the policy territory.
* * *
2. ‘Bodily injury’ means bodily injury, sickness or disease sustained by any person;
* * *
11. ‘Occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in personal injury or property damage neither expected nor intended from the standpoint of the insured;
12. ‘Personal injury’ means bodily injury or if arising out of bodily injury, mental anguish. It also includes injury arising out of one or more of the following offenses:
Group A — false arrest, detention or imprisonment, or malicious prosecution;
Group B — the publication or utterance of a libel or slander or of other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy; except publications or utterances in the course of or related to advertising, broadcasting, publishing, or telecasting activities conducted by or on behalf of the Named Insured;
Group C — wrongful entry or eviction, or other invasion of the right of private occupancy;
* * *
15. ‘Property damage’ means injury to or destruction of tangible property.”

The “exclusions” section of the policy applicable to liability insurance provides:

“[Ijnsurance shall not apply ***
1. With respect to:
* * *
n. personal injury or property damage due to:
(1) the rendering of or failure to render
(a) medical, surgical, dental, X-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith;
(b) any service or treatment conducive to health or of a professional nature;
(c) any cosmetic, tonsorial, massage, physiotherapy, chiropody, hearing aid, optical or optometrical services or treatments;
(d) any professional service ***.”

On March 15, 1990, the circuit court entered summary judgment in favor of INA. The court held O’Brien’s complaint did not contain allegations which brought his claims potentially within the coverage of the policy which INA issued to State Street. In the court’s view, “the inevitable result of the Bank’s purposeful actions [alleged in O’Brien’s complaint] was the harm which occurred to Mr. O’Brien.” Because, from State Street’s perspective, the damages which O’Brien allegedly sustained were “not unusual, unforeseen, or unexpected,” the court concluded State Street’s alleged actions and the consequences thereof were not an “occurrence” within the coverage of the policy.

In appealing this decision, State Street argues since O’Brien’s complaint alleged negligent acts which destroyed his businesses, and did not allege the resulting damages were intended or expected from State Street’s viewpoint, the circuit court erred in holding there was no “occurrence” within the meaning of the policy which INA issued to State Street. State Street points out O’Brien’s complaint did not allege State Street intended to destroy O’Brien’s businesses and bankrupt him. State Street suggests it is not inevitable that, every time a bank acts to protect its loans, the borrower’s businesses will be destroyed, and the borrower will be bankrupted. State Street contends the circuit court, in reaching its decision, did not consider whether there was a possibility State Street did not expect the damages its actions allegedly caused to O’Brien.

State Street further argues there is an incompatibility between the policy coverage for torts such as defamation, malicious prosecution, and wrongful entry, which involve malicious or intentional conduct, and the general exclusion of coverage for intended or expected damages contained in the definition of “occurrence.” State Street maintains either (1) with respect to the tortious actions specified under the definition of “personal injury,” the definition of “occurrence” must be ignored, or (2) there is no coverage for the torts specifically described under the definition of “personal injury.”

State Street further argues the damages allegedly sustained by O’Brien were potentially within the definition of “personal injury.” State Street maintains the alleged wrongful seizure of corn and hogs from real estate belonging to O’Brien potentially amounted to “wrongful entry” or “other invasion of the right of private occupancy” of O’Brien’s real estate by State Street.

INA asserts the circuit court correctly concluded O’Brien’s complaint did not even potentially allege an occurrence which would have been covered by the policy. INA states the damages which O’Brien allegedly sustained were not an “accident” for purposes of determining whether there was an “occurrence” within the meaning of the policy, but instead State Street reasonably should have anticipated O’Brien’s alleged damages would result from the allegedly wrongful acts it committed.

INA further asserts O’Brien’s complaint did not contain allegations of “personal injury” consisting of either wrongful entry or eviction. INA also argues O’Brien did not allege “property damage” within the meaning of the policy it issued to State Street, since liability coverage for property damage is clearly and unambiguously limited to “injury to or destruction of tangible property.” INA asserts “tangible property” does not include anticipated profits, financial interests in business ventures, or business relationships.

In Western Casualty & Surety Co. v. Adams County (1989), 179 Ill. App. 3d 752, 756-57, 534 N.E.2d 1066, 1068, this court recently summarized the principles applicable to determining whether an insurer has an obligation to defend a lawsuit brought against an insured:

“In Illinois, an insurer[’s] duty to defend an action against its insured is determined by the allegations of the complaint. An insurer may not justifiably refuse to defend an action against its insured unless it is clear from the face of the complaint that the allegations fail to state facts which bring the case within, or potentially within, the policy’s coverage. [Citation.] The duty to defend is much broader than the duty to indemnify. [Citations.] The duty to defend extends to cases .where the complaint alleges several causes of action or theories of recovery against an insured even if only one or some of them are within the policy coverage. [Citation.] Unless the complaint on its face clearly alleges facts which, if true, would exclude coverage, the potentiality of coverage is present and the insurer has a duty to defend. [Citation.] ‘Potentially covered’ means that the insurer’s duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the possibility of a recovery under the policy. There need not be a probability of recovery. [Citations.] The complaint need not allege or use language affirmatively bringing the claims within the scope of the policy, as the question of coverage should not hinge exclusively on the draftsmanship skills or whims of the plaintiff in the underlying action. [Citation.]
If the words of a policy can reasonably be given their plain, ordinary, and popular meaning, the provisions should be applied as written and the parties should be bound to the agreement they made. [Citation.] The complaint against the insured must be liberally construed. Any doubts about potential coverage are to be resolved in the insured’s favor.”

When the underlying complaint sets forth claims potentially within the coverage of an insurance policy, the insurer must either defend under a reservation of rights or seek a declaratory judgment that there is no coverage. Failure to do this estops the insurer from later raising policy defenses to coverage. (Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079.) When, however, a comparison of the insurance policy and the underlying complaint reveals there is clearly no coverage, and the claims in the underlying complaint thus are not potentially within the coverage of the policy, the insurer is never estopped from asserting policy defenses in an action seeking damages based on its alleged wrongful refusal to defend. Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613; La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 408 N.E.2d 928.

We hold the circuit court correctly entered summary judgment in favor of INA. However, we affirm the circuit court’s order on grounds different from those on which the court relied. See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9; Computer Teaching Corp. v. Courseware Applications, Inc. (1989), 191 Ill. App. 3d 203, 547 N.E.2d 718.

The insurance policy at issue is an “office building policy.” Insurance policies of this type are intended to cover losses arising out of building ownership or occupancy. (American Fellowship Mutual Insurance Co. v. Insurance Co. of North America (1979), 90 Mich. App. 633, 282 N.W.2d 425.) The policy at issue excludes liability coverage for personal injury or property damage due to the insured’s rendering of or failure to render “any professional service.” In construing exclusions such as this, courts have adopted an expansive definition of the term “professional service.” The term is not limited to services performed by persons who must be licensed by a governmental authority in order to practice their professions. Rather, it refers to any business activity conducted by the insured which involves specialized knowledge, labor, or skill, and is predominantly mental or intellectual as opposed to physical or manual in nature. American Fellowship Mutual Insurance, 90 Mich. App. 633, 282 N.W.2d 425; Multnomah County v. Oregon Automobile Insurance Co. (1970), 256 Or. 24, 470 P.2d 147.

O’Brien’s claims against State Street were not in any way directly related to its ownership or occupancy of the office building which was insured by the policy which INA issued to State Street. Instead, O’Brien’s claims arose from State Street’s exercise of its business judgment in conducting its principal business activity. O’Brien’s claims were thus premised on State Street’s rendering or failure to render a professional service, and there was no potential for coverage of his claims under the policy at issue. INA, therefore, had no duty to defend O’Brien’s lawsuit against State Street.

Because of our decision, we need not address the parties’ remaining contentions.

The circuit court order entering summary judgment in INA’s favor is affirmed.

Affirmed.

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