author: JUSTICE MURRAY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DERRICK PORTER, Defendant-Appellee.
    First District (5th Division)
    No. 1—92—1388
    Opinion filed October 9, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Michele I. Lavin, Special Assistant State’s Attorney, and Renee Goldfarb and Theodore F. Burtzos, Assistant State’s Attorneys, of counsel), for the People.
    Geary W. Kull and Daniel T. Coyne, both of Chicago, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

On February 20, 1992, the trial court allowed the defendant’s motion to dismiss based upon double jeopardy grounds. The State filed a motion to reconsider, and that motion was subsequently denied. The State filed this timely appeal. The facts are as follows.

On October 18, 1988, the defendant, Derrick Porter (Porter) was convicted of the murder of Willie Bibbs by a jury requested by the State. On June 6, 1990, this court reversed the conviction following the State’s confession of error pursuant to the Illinois Supreme Court’s decision in People ex rel. Daley v. Joyce (1988), 126 Ill. 2d 209, 533 N.E.2d 873.

On October 26, 1989, while in Federal custody pursuant to a Federal passport violation, defendant was indicted along with 37 other alleged members and associates of the El Rukn organization. Defendant was charged with racketeering conspiracy (count I), substantive racketeering (count II), narcotics conspiracy (count III), and obstruction of justice (count XVI). In the substantive racketeering count alleged in count II of the Federal indictment, defendant was charged with the commission of eight separate predicate racketeering acts, which included five separate conspiracies to commit murder, one murder, obstruction of justice, and conspiracy to distribute narcotics. The one predicate act involving murder charged the murder of Willie Bibbs, which is the subject of the State-court murder charges at issue in this case.

As alleged in the Federal indictment, the murder of Willie Bibbs as well as the five murder conspiracies all were committed between August 1977 and June 1983. The obstruction of justice was alleged to have occurred in 1988. The narcotics conspiracy was alleged to have continued into 1989.

At trial on the Federal charges, the defendant brought a motion for a directed verdict under Rule 29 of the Federal Rules of Criminal Procedure. With respect to counts I and II, the defendant raised a statute of limitations issue. The trial court stated, “Under the law, specifically Title 18 United States Code, Section 3282, the statute of limitations bars prosecution for any offense that occurred more than five years before the date of the return of the indictment.” The court dismissed the obstruction of justice and narcotics conspiracy charges finding that there was insufficient evidence that Porter was a member of the narcotics conspiracy within five years of the date of the return of the indictment. On August 22, 1991, the Federal district court entered an order finding defendant not guilty on counts I, II, III, and XVI.

On February 20, 1992, the trial court allowed defendant’s motion to dismiss the State murder charges based upon double jeopardy. The State filed a motion to reconsider which was subsequently denied.

The sole issue on appeal is whether the trial court erred in dismissing the State murder charges against defendant on double jeopardy grounds.

The State maintains that the trial court erred in dismissing the State murder charges, because the question as to whether two offenses are the same for the purposes of double jeopardy is a question of legislative intent, and the Federal courts have found that the legislature clearly intended that there be prosecutions for both Federal RICO charges and the predicate offenses. In addition, the State maintains that defendant was not “acquitted” for the murder of Willie Bibbs for purposes of double jeopardy. Conversely, Porter argues that the Federal case and the State case both prosecuted the same offense as defined for the purposes of double jeopardy analysis, and that the defendant was “acquitted” within the meaning of the term “acquittal” as defined by the United States Supreme Court. Accordingly, Porter maintains that the trial court properly dismissed the indictment pending against the defendant. For the following reasons, we affirm the decision of the trial court.

The fifth amendment guarantee against double jeopardy (U.S. Const., amend. V), enforceable against the States under the fourteenth amendment (U.S. Const., amend. XIV), affords individuals three types of protection: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072; People v. Stefan (1992), 146 Ill. 2d 324, 586 N.E.2d 1239.) The Illinois Constitution provides that “[n]o person shall be compelled in a criminal case to *** be twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I, §10.

Federal prosecution of a defendant does not necessarily bar a subsequent State prosecution of a defendant. (Bartkus v. Illinois (1959), 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676.) However, section 3 — 4 of the Illinois Criminal Code of 1961 prohibits such successive prosecutions “unless each prosecution requires proof of a fact not required in the other prosecution.” (Ill. Rev. Stat. 1991, ch. 38, par. 3—4(c)(1); People v. Covelli (1989), 184 Ill. App. 3d 114, 540 N.E.2d 569.) Section 3—4 of the Illinois Criminal Code of 1961 provides in relevant part:

“(c) A prosecution is barred if the defendant was formerly prosecuted in a District Court of the United States or in a sister State for an offense which is within the concurrent jurisdiction of this State, if such former prosecution:
(1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the offense was not consummated when the former trial began; or
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the prosecution in this State.” Ill. Rev. Stat. 1991, ch. 38, par. 3—4(c).

SAME OFFENSE

To give rise to a valid claim of double jeopardy, be it based on constitutional or statutory grounds, it must be shown that the two offenses charged are the “same offense.” (People v. Johnson (1978), 63 Ill. App. 3d 248, 250, 380 N.E.2d 461, 463.) The test for determining whether two offenses are the same for double jeopardy purposes has been set forth in Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182, wherein the court stated:

“[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

In 1990 the Supreme Court held in Grady v. Corbin (1990), 495 U.S. 508, 520, 109 L. Ed. 2d 548, 564, 110 S. Ct. 2084, 2093, that a technical comparison of the elements of the two offenses as required by the Bloekburger test does not provide sufficient protection for defendants from the burden of multiple trials. The Grady court held that the Bloekburger test provides the initial analysis for double jeopardy purposes and if the test’s application reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. (Grady, 495 U.S. at 516, 109 L. Ed. 2d at 561, 110 S. Ct. at 2090.) The critical inquiry in determining whether the government will prove conduct in the subsequent prosecution that constitutes an offense for which the defendant has already been prosecuted is what conduct the State will prove, not the evidence the State will use to prove it. (Grady, 495 U.S. at 521-22, 109 L. Ed. 2d at 564-65, 110 S. Ct. at 2093.) Although the presentation of specific evidence in one trial does not forever prevent the government from introducing the same evidence in a subsequent proceeding, a State cannot avoid double jeopardy merely by altering in successive prosecutions the evidence offered to prove the same conduct. Grady, 495 U.S. 508,109 L. Ed. 2d 548,110 S. Ct. 2084.

Recently, in People v. Stefan (1992), 146 Ill. 2d 324, 336, 586 N.E.2d 1239, the Illinois Supreme Court indicated that Grady sets forth the proper double jeopardy test. In Stefan, the Illinois Supreme Court, on an interlocutory appeal brought by the defendant, reversed the trial court’s denial of a motion to dismiss indictments for criminal and reckless disposal of hazardous waste into a local sanitary sewer system in violation of the Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 1111/2, par. 1001 et seq.). These indictments followed previous charges brought by the Village of Addison in a municipal prosecution and pleas of guilty in those cases. The issue presented was whether the prior prosecutions for knowingly discharging certain chemicals into the public sewer system in violation of the Addison ordinance acted as a bar under constitutional double jeopardy provisions of the subsequent prosecution for criminal and reckless disposal of hazardous waste in violation of the Environmental Protection Act. After applying both the Bloekburger and Grady tests, the court concluded that while different prosecuting authorities were involved, the same conduct was being prosecuted in each case and hence violated the constitutional prohibitions against double jeopardy.

One of the predicate acts of the Federal racketeering charge against Porter was the murder of Willie Bibbs. Count II, paragraph (10), of the Federal indictment alleges:

“(10) Racketeering Act No. 10
The Murder of Willie Bibbs
On or about June 15, 1981, at Chicago, in the Northern District of Illinois, defendants WILLIAM DOYLE, DERRICK KEES, EARL HAWKINS, DERRICK PORTER, ANTHONY SUMNER, and others known and unknown to the Grand Jury, including Jeff Fort and Ray Ferguson, did commit the crime of murder in that the defendants did knowingly and intentionally kill and cause to be killed Willie Bibbs, a member of the Titanic Stones also known as ‘Dollar Bill’, without lawful justification, in violation of Illinois Revised Statutes, Chapter 38, Section 9—1.”

In the Federal case the government submitted a jury instruction which states:

“Under Illinois law, a person who kills without lawful justification commits murder, if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another.” (See Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. 1989 Supp.).)

The government also submitted Illinois Pattern Jury Instruction No. 7.02, which provides:

“To sustain the charge of murder under Illinois law, the government must prove the following propositions:
First, that the defendant performed the acts which caused the death of another person; and
Second, that when the defendant did so, he intended to kill or do great bodily harm to that other person, or that he knew that his acts created a strong probability of death or great bodily harm to that other person.
In order for you to find that a particular defendant committed murder under Illinois law as charged in Racketeering Act Nos. 6, 10, 13(b), and 18(b), the government must prove these two propositions beyond a reasonable doubt as to that particular defendant.” See Illinois Pattern Jury Instructions, Criminal, No. 7.02 (2d ed. 1989 Supp.).

Count I of the State case alleged that Porter, “without lawful justification, intentionally and knowingly shot and killed Willie Bibbs, with a gun, in violation of chapter 38, section 9 — 1 — A(l) of the Illinois Revised Statutes 1980 as amended.” Count II of the State case alleged that Porter, “without lawful justification, shot and killed Willie Bibbs, with a gun, knowing that such a shooting with a gun, created a strong probability of death or great bodily harm to said Willie Bibbs, in violation of chapter 38, section 9—1—A(2) of the Illinois Revised Statutes 1980 as amended.”

The question presented, then, is whether Porter’s impending prosecution in Illinois for murder is barred because it amounts to a prosecution of the same offense for which he was acquitted in Federal court. More specifically the question is whether the RICO offense and the murder charge each requires an element of proof which the other offense does not include.

The defendant first looks toward the Blockburger test, arguing that it is clear that while the Federal case required numerous additional elements to be proven, the State case required no elements in addition to those attempted to be proven in the Federal case. The State is only required to prove that the defendant committed the offense of murder as set forth in the indictment. To prove that offense the State must prove that the defendant intentionally and knowingly shot and killed Willie Bibbs (count I) or that the defendant shot Willie Bibbs knowing that such shooting created a strong probability of death or great bodily harm to Willie Bibbs (count II). In the Federal case, the defendant was charged with the killing of Willie Bibbs as a predicate act to a RICO count. The defendant maintains that in an attempt to sustain their burden with regard to the killing of Willie Bibbs, the government utilized the Illinois Pattern Jury Instructions defining murder and outlining the issues in murder for both of the aforementioned forms of murder in instructing the jury. Defendant submits that it is clear that the charges were the same in both the State case and the predicate act of the Federal case. We agree.

Defendant next looks to the Grady test. Defendant argues that the only conduct involved in the State case is the shooting of Willie Bibbs and this is the identical conduct that formed the basis for a predicate act in the Federal case. Once again, we agree.

Third, the defendant addresses the protection extended by section 3 — 4(c)(1) of the Criminal Code. Section 3—4(c)(1) requires a review of the statutory elements of the offense in order to conduct the same offense analysis. (People v. Kaye (1987), 154 Ill. App. 3d 562, 507 N.E.2d 12.) Defendant submits that the statutory elements are identical both in the State case and the Willie Bibbs predicate act in the Federal case thereby making them the same offense under the statutory analysis. We agree.

The State maintains that the proper analysis in this case must be conducted according to Garrett v. United States (1985), 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407. Defendant alleges that Stefan expressly rejected the reasoning in Garrett. (People v. Stefan (1992), 146 Ill. 2d 324, 586 N.E.2d 1239.) We disagree; the court in Stefan specifically found that the nature of the conduct and offenses charged in Garrett were distinguishable from the facts in that case. (Stefan, 146 Ill. 2d at 329.) Therefore, we need to determine whether Garrett is distinguishable from the present case.

The court in Garrett examined the double jeopardy implication of a prosecution for engaging in a “continuing criminal enterprise” (CCE), in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §848 (1988), when facts underlying a prior conviction are offered to prove one of three predicate offenses that must be shown to make out a CCE violation. (Garrett v. United States (1985), 471 U.S. 773, 85 L. Ed. 2d 764, 105 S. Ct. 2407.) The defendant was charged with several drug offenses in Washington during 1979 and 1980 and subsequently pleaded guilty to one count of importation of marijuana. Subsequently, the defendant was indicted in Florida on a CCE charge. Garrett, 471 U.S. at 776, 85 L. Ed. 2d at 769-70, 105 S. Ct. at 2410.

The CCE offense required proof that the defendant had committed a felony that was part of a series of three or more violations of the statute over a definite period of time with a substantially similar purpose. Additionally, a conviction would require a finding that the defendant acted in concert with five or more other persons; that the defendant acted in a supervisory position in the criminal operation; and that the defendant received substantial income from the operation. Garrett, 471 U.S. at 776, 85 L. Ed. 2d at 770, 105 S. Ct. at 2410.

The supreme court in Garrett examined the language of the CCE statute and the legislative history behind it and found that it was aimed at a special problem and was designed to reach the “top brass” in the drug rings and not the underlings. (Garrett, 471 U.S. at 781, 85 L. Ed. 2d at 773, 105 S. Ct. at 2413.) “Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature *** intended that each violation be a separate offense.” (Garrett, 471 U.S. at 778, 85 L. Ed. 2d at 771, 105 S. Ct. at 2411.) After the court determined that Congress intended CCE to be a separate offense and that it intended to permit prosecution for both the predicate offenses and the CCE offense, the court looked to the question of whether the prosecution for both the predicate offenses and the CCE offense is constitutional under the double jeopardy clause. (Garrett, 471 U.S. at 786, 85 L. Ed. 2d at 776, 105 S. Ct. at 2415.) The court stated, “The critical inquiry is whether a CCE offense is considered the ‘same offense’ as one or more of its predicate offenses within the meaning of the Double Jeopardy Clause.” (Garrett, 471 U.S. at 786, 85 L. Ed. 2d at 776, 105 S. Ct. at 2415.) To make this determination, the court discussed whether the predicate offense was a “lesser included offense” of CCE. (Garrett, 471 U.S. at 787-89, 85 L. Ed. 2d at 776-78, 105 S. Ct. at 2415-16.) The court referred to the conduct charged as “multilayered” both as to time and place. Finally, after finding that they had “serious doubts” as to whether the offense to which Garrett pleaded guilty in Washington was a lesser included offense, the court found that even if it was a lesser included offense, the double jeopardy claim was not sustainable, because the government’s evidence with respect to the CCE charge included acts which took place after March 1981, the date of the Washington indictment to which Garrett pleaded guilty. (Garrett, 471 U.S. at 790-93, 85 L. Ed. 2d at 779-81, 105 S. Ct. at 2417-18.) Thus, the CCE had not been completed by the time defendant was indicted in Washington, and under the Diaz rule of evidencé, the Washington offenses could be used to show one of the predicate offenses. (Garrett, 471 U.S. at 792-93, 85 L. Ed. 2d at 780, 105 S. Ct. at 2418, referring to Diaz v. United States (1912), 223 U.S. 442, 56 L. Ed. 500, 32 S. Ct. 250.) The court concluded that Congress intended CCE to be a separate offense and that it did not violate the double jeopardy clause under the facts of that case to prosecute the CCE offense after a prior conviction for one of the predicate offenses. Garrett, 471 U.S. at 793, 85 L. Ed. 2d at 780,105 S. Ct. at 2418.

The RICO statute requires that the government prove the existence of an enterprise and a pattern of racketeering, which requires the commission of at least two predicate acts. (United States v. Turkette (1981), 452 U.S. 576, 69 L. Ed. 2d.246, 101 S. Ct. 2524; see also 18 U.S.C. §1961 (Appendix F) (1988).) The government is bound by the Federal statute of limitations. 18 U.S.C. §3282 (1988).

The State argues, “because the legislature intended that there be prosecutions for both the RICO charges and the predicate offenses, because the offenses are sufficiently distinguishable as they are aimed at entirely different conduct, and because the RICO offenses involve the type of multilayered conduct not easily interpreted under the Blockburger test, they are not the ‘same offense’ for purposes of double jeopardy.” Thus, the State maintains that it should be permitted to prosecute defendant for the murder of Willie Bibbs.

The State points out that the purpose of the RICO statute was aimed at controlling a specific type of organized criminal behavior, whereas the Illinois murder statute is aimed at prohibiting the specific individual crime of killing an individual. The State maintains that we should follow the holding in Garrett because the RICO statute involves multilayered conduct as CCE did in Garrett. We agree with the State that violations of RICO and CCE involve multilayered conduct and as such are somewhat similar. Following the holding in Garrett, if Porter had been convicted of the murder of Willie Bibbs prior to the trial on the RICO charges, the government would have been able to utilize that conviction as the basis of one of the predicate acts for the RICO charge. However, that is not the factual scenario in the present case. We find the fact that Porter was charged with murder subsequent to an acquittal on the RICO charges distinguishes the present case from Garrett.

The State claims that the order of prosecution has no bearing on the issue of whether two crimes are considered the “same offense” and may both be prosecuted and punished. We disagree. RICO and CCE both involve multilayered conduct, and it is implicit in those offenses that the defendant has committed a number of predicate offenses. The prosecution may use prior convictions to prove a predicate act. We do not dispute the fact that RICO and murder are not the “same offense”; however, the predicate act of murder and the State charge of murder are the “same offense.” The State prosecution for murder does not require proof of a fact not required in the prosecution of the Willie Bibbs predicate act. We find that for the purposes of double jeopardy the predicate act of murder as used in the Federal indictment and the State charge of murder are the same offense.

ACQUITTAL

The State also argues that dismissal of the State murder charge is not warranted where there has been no acquittal in Federal court. The State maintains that Porter’s RICO charge was dismissed in Federal court based on a failure to prove the statute of limitations and dismissal on a statute of limitations is not an “acquittal,” for purposes of double jeopardy, because it is not a resolution of any factual issues. The order of dismissal in the Federal case states in relevant part:

“Trial held — jury. For the reasons stated in open court ***. Defendant Porter’s motion for directed verdict and for judgment of acquittal is granted. Defendant Porter is found not guilty on counts 1, 2, 3, 16. Defendant Porter is to be released from custody forthwith.”

The State cites United States v. Scott (1978), 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187, and United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349, to support its position. The defendant maintains that the aforementioned cases are distinguishable from the present case.

The United States Supreme Court stated in United States v. Scott, 437 U.S. at 97, 57 L. Ed. 2d at 78, 98 S. Ct. at 2197, “[A] defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ” United States v. Scott, 437 U.S. at 97, 57 L. Ed. 2d at 78, 98 S. Ct. at 2197, quoting United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1355; see also People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 311, 483 N.E.2d 1236, 1240-41.

In Scott the Court examined the relationship between the double jeopardy clause and reprosecution of a defendant who had successfully obtained a termination of his proceedings in his favor before any determination of factual guilt or innocence. (Scott, 437 U.S. at 94, 57 L. Ed. 2d at 76, 98 S. Ct. at 2195.) The Court explained that a termination of the proceedings based upon preindictment delay was not a factual resolution of any of the factual elements of the offense charged and, accordingly, was not an “acquittal” which would bar a subsequent prosecution.

In United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349, the trial court entered a judgment of acquittal after a deadlocked jury was discharged because it was unable to reach a verdict in the defendant’s criminal contempt trial. The motion was made pursuant to Rule 29(c) of the Federal Code of Criminal Procedure. The court of appeals held that the double jeopardy clause barred the government from appealing the judgment. The Supreme Court affirmed, holding that the normal policy granting the government the right to retry a defendant after mistrial does not apply where valid judgments of acquittal are entered by the trial court after jeopardy attaches and before a verdict is reached. The Court held that the double jeopardy clause barred the government’s appeal, because a “successful governmental appeal reversing the judgments of acquittal would necessitate another trial, or, at least, ‘further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.’ ” United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 570, 51 L. Ed. 2d 642, 650, 97 S. Ct. 1349, 1354, quoting United States v. Jenkins (1975), 420 U.S. 358, 370, 43 L. Ed. 2d 250, 259, 95 S. Ct. 1006, 1013.

Defendant maintains that it is necessary to conduct a review of the trial court’s ruling in the Federal case so as to determine whether the trial court made a determination as to the sufficiency of the evidence. Defendant cites to numerous excerpts from the Federal case. A review of the transcript discloses the following. The court made specific findings concerning count XVI and predicate act 28(b), which charged that Porter and Noah Robinson endeavored to impede the due administration of justice by planning to murder Henry Leon Harris in order to prevent him from cooperating with and providing information to law enforcement officials regarding the commission of Federal offenses. The court found that there had been a total failure of proof and that the only evidence supporting this count in this predicate act was the testimony of a witness who made materially conflicting statements under oath during his grand jury appearances and his two trial appearances. The court indicated that Porter’s motion for a directed verdict as to count XVI and predicate act 28(b) was granted.

Subsequently the court stated:

“With respect to Counts 1 and 2, Mr. Porter raises a statute of limitations issue. Under the law, specifically Title 18, United States Code, Section 3282, the statute of limitations bars prosecution for any offense that occurred more than five years before the date of the return of the indictment, which in this case was November of 1989.”

The court found that the testimony in the government’s own case established that Porter left the El Rukns in late 1983 or early 1984 and based on the evidence a reasonable jury “could not conclude beyond a reasonable doubt that either Mr. Porter never left the conspiracy or that he reentered the conspiracy.” The court also found that based upon the evidence a reasonable jury could not conclude beyond a reasonable doubt that Porter’s actions were part of an El Rukn narcotics conspiracy as charged in counts I and III. The Federal court concluded by stating:

“So based on these considerations, I find that there is insufficient evidence to establish that Mr. Porter either was a member of the conspiracy or of the racketeering organization as the El Rukns are defined in Count 2 during the period of the statute of limitations. That’s within the five years prior to indictment. So for those reasons, I’m granting the motion for judgment of acquittal on Counts 1, 2 and 3.”

The Federal court made numerous findings on the evidence; however, none of the findings related specifically to the murder of Willie Bibbs.

The State also cites to People v. Young (1983), 116 Ill. App. 3d 984, 452 N.E.2d 718, which states that the accused is acquitted only when the ruling of the judge, whatever its label, actually represents resolution in the accused’s favor, correct or not, of some or all of the factual elements of the offense charged. The word “acquittal” has no talismanic quality for purposes of the double jeopardy clause, and the trial judge’s characterization of his own action cannot control the classification of the action. (People v. Young (1983), 116 Ill. App. 3d 984, 452 N.E.2d 718.) However, in Young it was also stated: “A directed verdict of acquittal constitutes a final adjudication on the merits of those charges affected by the motion [citation] and the granting of a motion to direct a verdict is an acquittal sufficient even if a judgment of acquittal is not entered thereon.” Young, 116 Ill. App. 3d at 993.

The Federal court granted the acquittal pursuant to Rule 29 of the Federal Code of Criminal Procedure, which provides in relevant part:

“MOTION BEFORE SUBMISSION TO JURY. Motions for directed verdicts are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motions shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficent to sustain a convidan of such offense or offenses.” Fed. R. Crim. P. 29(a).

The Illinois Supreme Court has stated: “The Supreme Court has held that the primary purpose of the double jeopardy clause is to protect defendants from multiple trials for the same offense, rather than to shield every determination favorable to the defendant from appellate review.” (People v. Mink (1990), 141 Ill. 2d 163, 175, 565 N.E.2d 975, citing United States v. Wilson (1975), 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013.) “Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged.” Grady v. Corbin (1990), 495 U.S. 508, 518, 109 L. Ed. 2d 548, 562, 110 S. Ct. 2084, 2091-92; see, e.g., Tibbs v. Florida (1982), 457 U.S. 31, 41, 72 L. Ed. 2d 652, 661, 102 S. Ct. 2211, 2218 (noting that the double jeopardy clause “prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction”); Ashe v. Swenson (1970), 397 U.S. 436, 447, 25 L. Ed. 2d 469, 477, 90 S. Ct. 1189, 1196 (the State conceded that, after the defendant was acquitted in one trial, the prosecutor did, at a subsequent trial, “ ‘what every good attorney would do — he refined his presentation in light of the turn of events at the first trial’ ”).

Recently the Third District of the Illinois Appellate Court held that a criminal charge which was dismissed on double jeopardy grounds was an “acquittal” within the meaning of section 3—4(b) of the Illinois Criminal Code of 1961. (People v. Hiatt (1992), 229 Ill. App. 3d 1094, 1098, 595 N.E.2d 773.) The court stated:

“Section 2 — 1 of the Code defines an acquittal as ‘a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.’ (Ill. Rev. Stat. 1989, ch. 38, par. 2—1.) Criminal or penal statutes are to be strictly construed in favor of the accused and nothing is to be taken by intendment or implication against him beyond the literal and obvious meaning of the statute. [Citation.]
We find that the statutory definition of acquittal is broad enough to encompass a dismissal based on double jeopardy grounds. An acquittal may occur even though the question of guilt or innocence has never been submitted to the trier of fact such as when a defendant is discharged on speedy trial grounds.” Hiatt, 229 Ill. App. 3d at 1098, 595 N.E.2d at 773.

The Federal case was not dismissed at the pretrial stage, but rather the directed verdict was granted after the jury was empaneled and both the prosecution and the defense presented their respective case. Defendant’s counsel stated at oral argument that this was a six- or seven-week trial. The government, not the defendant, chose which acts were to be tried as predicate acts to the RICO charges. We find that the “acquittal” in Federal court bars subsequent prosecution of the defendant on the State murder charges.

Accordingly, for all the reasons set forth above, we affirm the decision of the trial court to dismiss the charges against defendant on the basis of double jeopardy.

Judgment affirmed.

LORENZ and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN BAILEY, Defendant-Appellee.
    Second District
    No. 2—91—0261
    Opinion filed July 23, 1993.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

In December 1989, defendant, Brian Bailey, was indicted for the offense of unlawful possession of a controlled substance, that is, less than 15 grams of a substance containing cocaine (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(b) (now 720 ILCS 570/402(c) (West 1992))). The trial court granted defendant’s motion to suppress evidence found during the search of the passenger compartment of his automobile subsequent to his custodial arrest for driving while his license was suspended; this latter offense is a Class A misdemeanor (Ill. Rev. Stat. 1987, ch. 95^2, par. 6-303(a) (now 625 ILCS 5/6—303(a) (West 1992))).

The State’s motion to reconsider the ruling was denied on February 8, 1991. On March 4, 1991, the State timely appealed and filed a certificate of impairment. (See People v. Young (1980), 82 Ill. 2d 234, 247; 134 Ill. 2d R. 604(a)(1).) The State contends that the trial court’s order granting defendant’s motion to suppress was manifestly erroneous (see People v. Redd (1990), 135 Ill. 2d 252, 289) because the search was constitutionally reasonable and needed no further justification as it was a search incident to a full custodial arrest under the broad rule of New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860. We agree, and we reverse.

The facts are essentially undisputed. At the suppression hearing, Officer James Nehls of the Village of Downers Grove testified that he stopped defendant’s vehicle on August 27, 1989, because there was no front license plate on the vehicle. Nehls observed no other criminal behavior and had no reason to believe defendant was armed and dangerous prior to stopping him. When Nehls asked defendant if he had a driver’s license, defendant produced only an identification card. At the scene, Nehls ran a computer check of defendant’s name and determined that his driving privilege was suspended. He informed defendant that he was under arrest for driving with a suspended license. Nehls handcuffed defendant, searched him, and placed him in the back of the squad car.

At this point, Nehls asked the four passengers to step out of the vehicle. He then briefly searched the interior of the vehicle, including the glove compartment, where he found a red plastic container in which there was a spoon, razor blades, and a scale. Nehls seized these items. He found no weapons. After checking the license of a passenger, Nehls permitted the passenger to drive defendant’s vehicle. Nehls took defendant to the police station where he was subsequently released on bond.

Defendant argued that the officer had no reasonable basis to search the vehicle after defendant was placed under arrest merely for a traffic violation. The State argued the Belton test permitted the search of the vehicle as an incident of a full, custodial arrest. The trial court found the initial stop and arrest of defendant lawful. These findings are not contested. However, the trial court also found that the search of the motor vehicle was improper where there was no search warrant. The court stated that there was “no factual basis to search the motor vehicle.” The court noted that there was no inventory search, a passenger was allowed to drive the vehicle, and no exigency existed. The court thereupon granted defendant’s motion to suppress.

On appeal, the State again argues that, since defendant was lawfully placed under custodial arrest, the officer was permitted to search the interior of defendant’s vehicle without further justification under the bright-line ruling of Belton. In addition to Belton, the State relies also on United States v. Robinson (1973), 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (where officer made lawful custodial arrest of defendant for driving while his license was revoked, full search of the person incident to the arrest requires no additional justification such as to disarm or discover evidence and is reasonable under the fourth amendment), and Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488 (result similar to Robinson).

In Belton, the United States Supreme Court held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. (Belton, 453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864.) In a custodial arrest situation for a traffic violation, at least two Illinois decisions have interpreted Belton to permit expressly the search of the automobile passenger compartment including the glove compartment and any containers found within the passenger compartment. People v. Kalivas (1991), 207 Ill. App. 3d 415, 417; People v. Grigsby (1982), 111 Ill. App. 3d 38, 43.

Our supreme court has observed that Belton extended Robinson when Belton held that, incident to a lawful custodial arrest, all containers within defendant’s immediate control could also be searched regardless of the likelihood that a weapon or evidence of criminal conduct would be found. (People v. Hoskins (1984), 101 Ill. 2d 209, 217.) In Kalivas, the court noted that it is of no importance that the container holds neither a weapon nor evidence of the criminal conduct for which the suspect was arrested. (Kalivas, 207 Ill. App. 3d at 417.) Neither is such a search impermissible merely because the defendant is handcuffed and placed in the backseat of a squad car and is no longer within reach of the interior of the vehicle being searched. (Kalivas, 207 Ill. App. 3d at 418; see People v. Loftus (1983), 111 Ill. App. 3d 978, 982-83.) Thus, Illinois decisions have established that, as a contemporaneous incident of a lawful custodial arrest, all containers within the area into which an arrestee might reach can be searched regardless of the likelihood that a weapon or evidence of criminal conduct will be found — even where the container has come into the exclusive control of the police. See People v. Perry (1990), 204 Ill. App. 3d 782, 788.

Citing People v. Penny (1989), 188 Ill. App. 3d 499, defendant argues that stopping a vehicle for a “minor” traffic violation does not, by itself, justify a search of the detainee’s person or vehicle and that, to justify the search, the officer must reasonably believe that he is confronting a situation more serious than a routine traffic violation. However, Penny did not involve a search following a full custodial arrest of the defendant and is therefore inapplicable. The principles discussed there apply to situations where the officer must have probable cause or a reasonable and articulable suspicion of criminal activity to conduct a warrantless search of a vehicle. (Penny, 188 Ill. App. 3d at 502.) Inapplicable too is defendant’s reliance on People v. Anderson (1988), 176 Ill. App. 3d 348, where this court affirmed the trial court’s ruling suppressing the results of a search of a vehicle and found the search unjustified because the officer had no reason to fear for his safety when he searched the vehicle after he issued a traffic citation but did not place the defendant in custodial arrest.

Although defendant argues in good faith that the broad Belton rule should not be applied to custodial arrests for “minor” traffic violations in Illinois, he cites no relevant and binding authority why this court should make such a ruling. Robinson, Kalivas, Perry, and Grigsby all appear to have concerned lawful custodial arrests for nonfelony traffic law violations. It is the fact of lawful arrest which establishes the authority to search, and not the nature of the offense itself. (See Robinson, 414 U.S. at 234-35, 38 L. Ed. 2d at 440-41, 94 S. Ct. at 476-77.) Although defendant argues that a narrower rule would prevent pretextual arrests resulting in unjustified searches, there is no support in the record that the arrest in this case was a pretext to support an unreasonable search. Neither has defendant argued that the Illinois Constitution should require a narrower rule.

Pursuant to our review of the applicable law as it now exists in Illinois, we conclude that the search of the interior of the defendant’s passenger compartment was permissible under the United States Constitution. The trial court’s order of suppression must therefore be reversed and the cause remanded for further proceedings.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and QUETSCH, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
      In re DAVID LA TOUCHE, Alleged to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. David La Touche, Respondent-Appellant).
    Second District
    No. 2—92—0282
    Opinion filed July 29, 1993.

      William E. Coffin, of Guardianship & Advocacy Commission, of Chicago, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

David La Touche, respondent, appeals after the trial court ordered that he is a person subject to involuntary admission and that he be hospitalized with the Department of Mental Health. He appeals contending that (1) the trial court erred in ordering involuntary admission because the petition was not filed in accordance with section 3— 611 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS 5/3-611 (West 1992)); (2) the State’s failure to follow the provisions of the Code deprived the trial court of jurisdiction, thereby rendering the court’s order void; and (3) the finding that respondent was reasonably expected to inflict serious physical harm upon himself or another in the near future was not clear and convincing. Because we find the first contention to be determinative, we reverse.

On February 7, 1992, the petition for involuntary admission of respondent was completed. Robert S. Riley, the signer of the petition and respondent’s former counselor, asserted that respondent was a person who is mentally ill and reasonably expected to seriously harm himself or others in the near future. He based this assertion on the following information:

“Increasing paranoia, last 2 months. Late December, loudly accused leader of Rockford Alano club of sex and violence against women, dismembering them, etc. Pulled a pen knife — but not any assault. Tonight, fearful that people were coming to get him in Chadwick, he stopped several motorists by stopping his car in the road or standing in the street, approaching them with a flashlight and club to demand identification. One motorist had to swerve to avoid him.”

Respondent was admitted into the Singer Mental Health Center on Saturday, February 8, 1992, and was given a copy of the petition and his statement of rights in accordance with section 3 — 609 of the Code. (405 ILCS 5/3 — 609 (West 1992).) The petition was filed in the circuit court of Winnebago County on Tuesday, February 11, 1992, apparently along with the section 3 — 602 examiner’s certificate. The second required examiner’s certificate was filed on February 13,1992.

At the hearing on February 19, two people whom respondent stopped on the evening of February 7, 1992, testified that they were approached by respondent, but were not harmed by him. Officer Michael Morgan of the Chadwick police department testified that he responded to “a problem over at the school” and found respondent in his car. Respondent told Officer Morgan that someone had punctured holes in the radiator of his other car, which was parked at his home, and that he wanted to settle the problem. Officer Morgan accompanied respondent home and found the car radiator was damp but had no puncture holes. Officer Morgan previously had responded to reported thefts at respondent’s home, and respondent had told him that demonic spirits may have been in the house.

Warren Lewis, a psychiatrist, testified that respondent had delusions of persecution and suffered from schizophrenia. He opined that respondent could reasonably be expected to harm himself or others in the near future.

After the arguments of counsel, the trial judge found that respondent was mentally ill and likely to harm others in the near future. He ordered that respondent remain involuntarily hospitalized at the Singer Mental Health Center. Thereafter, respondent filed a timely appeal.

Respondent first contends that the trial court’s order should be reversed because the petition for involuntary admission was not filed within 24 hours after his admission, excluding Saturdays, Sundays and holidays, as required under section 3 — 611 of the Code. (405 ILCS 5/3—611 (West 1992).) He claims that because he was admitted on a Saturday, the State had from 12:01 a.m. on Monday, February 10, 1992, until midnight to file the petition in the circuit court. The petition was filed sometime during business hours on Tuesday, February 11. Respondent also claims that he did not waive this argument by raising it after the hearing. He argues that under plain error analysis the trial court’s commitment order should be reversed.

The State contends that the petition was filed within the proper time period. Because respondent was admitted on a Saturday, the State claims that the 24-hour period ran from the opening of “regular business hours” on Monday, February 10, until the opening of “regular business hours” on Tuesday, February 11, the time at which the State implies the petition was filed. The State also claims that respondent has waived the issue and that, pursuant to supreme court precedent, its failure to comply strictly with the Code does not require reversal.

Involuntary commitment proceedings invade a patient’s liberty interests; thus, the statutory sections of the Code should be construed strictly in favor of the patient. (In re Houlihan (1992), 231 Ill. App. 3d 677, 681.) “Inherent in the civil commitment proceeding are the distinct interests of providing patients with necessary treatment as well as protecting society from dangerous conduct.” (In re Williams (1987), 151 Ill. App. 3d 911, 919.) Errors demonstrating noncompliance with the statutory provisions that appear on the face of the record may render a judgment erroneous even if not raised at trial. In re Clark (1991), 220 Ill. App. 3d 1024, 1027-28.

We reject the State’s claim that respondent has waived the issue whether the petition was filed within the time frame allowed under section 3—611 of the Code. The State relies on In re Nau (1992), 153 Ill. 2d 406, to support its waiver argument. However, we find Nau distinguishable on its facts. There, the respondent argued that he was not served with notice of his commitment hearing at the direction of the trial court, as required under section 3 — 611 of the Code. (Nau, 153 Ill. 2d at 416.) The respondent argued that he received notice of the hearing before the petition was filed and, technically, before the trial court could set a hearing date. (Nau, 153 Ill. 2d at 416.) The supreme court held that the respondent waived the notice issue because the respondent’s counsel stated to the trial court at the start of the hearing that the court file indicated that service was proper. Nau, 153 Ill. 2d at 419. See also In re Splett (1991), 143 Ill. 2d 225, 232.

Here, neither respondent nor his counsel has indicated previously that the petition was filed in a timely manner. In accordance with Clark, the State’s alleged failure to file timely the petition for involuntary admission is an error that appears on the face of the record and is not waived for failure to raise it at trial. (Clark, 220 Ill. App. 3d at 1027-28.) An error readily apparent on the face of the record may be considered under a doctrine analogous to plain error. (In re Whittenberg (1986), 143 Ill. App. 3d 836, 837-38.) We find no waiver by respondent.

We further reject the State’s contention that the petition was filed in a timely manner. Our reading of section 3 — 611 of the Code leads us to conclude that the 24-hour period in which to file the petition never allows more than one business day in which to comply. For example, if a respondent is involuntarily admitted at 6 p.m. on a Friday, under the plain meaning of the statute, the petition must be filed by 6 p.m. on Monday. Since regular business hours have already ended at 6 p.m. on a Friday, the petitioner will have one period of regular business hours to file. Even if a respondent is involuntarily admitted in the middle of a particular business day, the petitioner only will have the remainder of that business day and the first portion of the next business day to file. Under any possible scenario in which a respondent is involuntarily admitted on a regular business day, the petitioner is given only one full period of regular business hours to file.

The State attempts to earn more than one period of regular business hours to file the petition if the respondent is admitted on a Saturday, Sunday or holiday. However, in accordance with the plain meaning of section 3 — 611 of the Code, if a respondent is admitted on a Saturday, Sunday or holiday, the 24-hour period in which the petition must be filed begins at 12 a.m. of the next day that is not a Saturday, Sunday or holiday. The time period then expires on 12 a.m. of the following day. See In re Elkow (1988), 167 Ill. App. 3d 187, 193.

Here, respondent was involuntarily admitted on Saturday, February 8, 1992. Under the plain meaning of section 3 — 611, the 24-hour period began at 12 a.m. on Monday, February 10, 1992. The State had until 12 a.m. on Tuesday, February 11, 1992, in which to file the petition. Because the State filed the petition after the 24-hour period required by section 3 — 611 of the Code, the trial court’s order of involuntary admission should be reversed.

The State argues that the error in filing was harmless and should not result in a reversal. Again, the State relies on Nau (153 Ill. 2d 406), where the supreme court held that the respondent was not prejudiced when the State filed a petition for continued hospitalization under section 3 — 813 of the Code one day late. (Nau, 153 Ill. 2d at 423.) The supreme court noted that if the respondent had objected timely to the late filing and not waived the issue, the State simply would have withdrawn its section 3 — 813 petition for continued hospitalization and filed a section 3 — 601 petition for initial commitment. (Nau, 153 Ill. 2d at 421.) In concluding that the respondent waived the issue of the timeliness of the petition, the supreme court clarified that it was “not a case in which an involuntarily committed patient was neglected by the system.” Nau, 153 Ill. 2d at 423.

The Nau court, relying on People v. Lang (1989), 189 Ill. App. 3d 384, 388, treated the section 3 — 813 petitions for continued hospitalization as de facto initial petitions for involuntary commitment under section 3 — 601 of the Code. In both cases, the 24-hour filing provision under section 3 — 611 was implicitly satisfied as both petitions were filed one day after the initial period of hospitalization. (Nau, 153 Ill. 2d at 420; Lang, 189 Ill. App. 3d at 388.) Neither case stands for the proposition that filing an initial petition after the required 24-hour period in section 3 — 611 is harmless error.

We find a paragraph from People v. Valentine (1990), 201 Ill. App. 3d 10, particularly persuasive on the importance of following the statutory procedures of the Code. Although its discussion focuses on the 24-hour period from the time the patient is committed in which a psychiatric examination must be performed, it is equally applicable to the 24-hour period in which to file the petition:

“The legislature has created a bright line. The State has 24 hours. No doubt, the bright line was created as a prophylactic against deciding these kinds of cases on an ad hoc basis. When we recall that other governments have used involuntary commitment to a mental hospital as a ruse, as a device to silence critics, we feel that this bright line is but one brick in a wall against the evils of tyranny that we, in this country, have erected. One brief glance toward the recent history of Eastern Europe is persuasive of the wisdom of that wall, the wisdom of this rule.” Valentine, 201 Ill. App. 3d at 13.

We hold that the State failed to meet the statutory requirements of section 3 — 611 of the Code, for failure to file the petition within 24 hours of respondent’s admission. (See In re Johnson (1989), 191 Ill. App. 3d 93, 95; In re Riviere (1989), 183 Ill. App. 3d 456, 459; In re Elkow (1988), 167 Ill. App. 3d 187, 193.) Thus, the petition was untimely, and the court’s order of involuntary commitment is reversed.

Because we reverse based on respondent’s first contention of error, we need not address his remaining contentions.

Reversed.

UNVERZAGT and WOODWARD, JJ., concur.


text:
    TERRY REGAN et al., Plaintiffs-Appellants, v. GARFIELD RIDGE TRUST AND SAVINGS BANK, as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—92—0992
    Opinion filed July 29, 1993.
    William P. Ryan and Donald E. Schlyer, both of Schlyer & Associates, P.C., of Lemont, for appellants.
    Anthony F. Mannina, of Wheaton, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Terry Regan and Dennis Egan, appeal the Du Page County circuit court’s order quashing two separate citations to discover assets brought against the children of a judgment debtor. Plaintiffs assert that a judgment creditor may commence a citation proceeding against a third party based on a belief that the third party possesses property of the judgment debtor, that the debtor’s children were proper subjects of asset discovery citations, and that the trial court erred in quashing the initial citations to discover assets. Plaintiffs also argue that citations filed in the circuit court of Cook County could not be quashed by a circuit court judge of Du Page County. We reverse and remand.

On March 6, 1986, plaintiffs entered into a valid and enforceable contract for the purchase of property from Carl Ivanelli, Sr.’s adult children, the beneficiaries of a land trust. Prior to closing, the beneficiaries (Jerry Ivanelli, Carl Ivanelli, Jr., James Ivanelli, Jeanine Ivanelli, and Janice Ivanelli) breached the contract by assigning their rights in the trust to their father, Carl Ivanelli, Sr.

Plaintiffs filed a three-count complaint against Carl Ivanelli, Sr., and his children alleging breach of contract, seeking specific performance, and seeking damages for tortious interference with the contract. Following a jury trial, plaintiffs were granted specific performance of the contract, and a $400,000 judgment was entered against Carl Ivanelli, Sr., for tortious interference with the contract.

On April 15, 1992, plaintiffs filed citations to discover assets of Jerry Ivanelli and Carl Ivanelli, Jr., for the purpose of discovering whether they had in their possession or control assets belonging to Carl Ivanelli, Sr. This citation was filed with the circuit court of Du Page County. Plaintiffs filed similar citations in the circuit court of Cook County against James and Janice Ivanelli. In addition, plaintiffs filed citations against Carl Ivanelli, Sr., and Garfield Ridge Trust and Savings Bank, but these citations are not the subject of the instant appeal.

Carl, James, Gerald, Janice and Jeanine subsequently filed a single motion to quash the citation to discover assets in the circuit court of Du Page County. This motion asserted: that they are not judgment debtors and cannot, therefore, be subject to the citation to discover assets; that no affidavit was filed demonstrating the belief that they held property or assets of the judgment debtor, Carl Ivanelli, Sr.; and that the citation was intended to harass and cause inconvenience.

James, Gerald, Carl, Jr., Janice, and Jeanine also filed a petition for injunctive relief or a temporary restraining order requesting that the circuit court of Du Page County restrain and enjoin plaintiffs from proceeding with the citations filed in the circuit court of Cook County, prevent plaintiffs from issuing citations to discover assets other than those belonging, to the judgment debtor and grant defendants fees and costs resulting from plaintiffs’ bad-faith actions. Plaintiffs responded to defendants’ motion and defended their asset discovery citations by asserting that they believed defendants possessed property of the judgment debtor.

The circuit court of Du Page County did not rule upon the defendant’s petition for injunctive relief. However, the court did grant defendants’ motion to quash the citation to discover assets of James, Janice, Jeanine, Gerald, and Carl, Jr., based upon plaintiffs’ inability to specifically identify assets in the hands of the defendants’ prior to the interrogation of defendants by plaintiffs. We disagree. We determine that a judgment creditor need not identify specific property, holdings or assets in order to begin supplementary proceedings to discover assets belonging to a judgment debtor which are held by a third party. Instead, a judgment creditor need only have a belief that the third party possesses such assets.

Section 2 — 1402 of the Code of Civil Procedure specifically entitles a judgment creditor to prosecute supplementary proceedings:

“[F]or the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement of the judgment *** and of compelling the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 110, par. 2—1402(a).)

As emphasized above, it is apparent that, for purposes of an initial citation to discover assets, a judgment creditor need not specifically identify the assets or income sought. Instead, the language indicates that the supplementary proceedings can be used against any person to discover a judgment debtor’s assets or income. Indeed, the joint committee comments following this section indicate that the section “is designed to provide a statutory foundation for an efficient and expeditious procedure for discovery of assets and income of the judgment debtor and compelling their application to payment of the judgment or decree.” (Emphasis added.) Ill. Ann. Stat., ch. 110, par. 2—1402, Joint Committee Comments, at 862 (Smith-Hurd 1983); see also Bank of Aspen v. Fox Cartage, Inc. (1989), 126 Ill. 2d 307, 313; O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061.

Furthermore, Supreme Court Rule 277 dictates that a proceeding “may be against *** any third party the judgment creditor believes has property of or is indebted to the judgment debtor.” (Emphasis added.) (134 Ill. 2d R. 277(a).) In the present case, plaintiffs’ citation to discover assets was based upon the belief that the judgment debtor’s children possessed property of or were indebted to the judgment debtor. This belief was justified in light of the past financial interactions between the judgment debtor and his children, and, since these individuals can be categorized as “any third party,” the citation against them was proper. Thus, contrary to the determination of the trial court, a “fishing expedition” for assets is permissible in the context of an initial proceeding to discover assets, if it is based on a belief that such assets are in the third party’s possession. (See Federal Loan Corp. v. Harris (1974), 17 Ill. App. 3d 49, 50.) In light of the language of these cases interpreting and applying section 2 — 1402, we determine that specific assets need not be identified prior to the initiation of supplementary proceedings.

We next address plaintiffs’ contention that the trial court committed error in quashing the citations to discover assets issued in the circuit court of Cook County against James and Janice Ivanelli.

According to Supreme Court Rule 277(d), a supplementary proceeding against a third party “must *** be commenced in a county *** in which the party against whom it is brought resides.” (134 Ill. 2d R. 277(d).) Thus, plaintiffs were correct in bringing the citation to discover assets against James and Janice Ivanelli in the circuit court of Cook County because both Janice and James are residents of Cook County. The circuit court of Du Page County, resting its decision on principles of comity, determined that it could quash the citations which were filed in Cook County. We do not agree with this reasoning. Courts in one county should not attempt to control the decisions of courts in other counties by relying upon principles of comity. To allow such acts would be an abrogation of the clear mandate contained in Supreme Court Rule 277(d) and the law relative to venue. 134 Ill. 2d R. 277(d).

We determine that the trial court erred when it quashed plaintiff’s citation to discover assets of Jerry Ivanelli and Carl Ivanelli in Du Page County, and the trial court erred when it quashed the citation against James and Janice Ivanelli, which was properly filed in Cook County.

Therefore, the order of the circuit court of Du Page County is reversed, and the cause is remanded to a different judge for further proceedings.

Reversed and remanded.

INGLIS, P.J., and GEIGER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUSTACIO DIAZ, Defendant-Appellant.
    Second District
    No. 2—92—0391
    Opinion filed July 29, 1993.
    Donald J. Ramsell, of Ramsell & Associates, and Ricardo J. Bird and David Sotomayor, both of Sotomayor & Bird, P.C., both of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Eustacio Diaz, appeals the order of the circuit court of Du Page County confirming the statutory summary suspension of his driver’s license. Defendant contends that the court erred in finding that the arresting officer had reasonable grounds to stop defendant’s car and in finding that the breath test defendant took complied with the 20-minute waiting period required by the Department of Public Health (Department) standards. We affirm.

Defendant was arrested and charged with driving under the influence of alcohol (Ill. Rev. Stat. 1991, et. 951/2, par. 11—501 (now 625 ILCS 5/11—501 (West 1992))) and was given notice of the statutory summary suspension of his driver’s license. Defendant filed a petition to revoke the summary suspension, raising two issues: whether the officer had reasonable grounds to stop defendant’s car and whether defendant’s breath test complied with the Department standards.

On March 9, 1992, the court conducted a hearing on defendant’s petition. The only witnesses at the hearing were officers Donald Yates and Dominic Bellini of the Glen Ellyn police department.

Yates testified that on December 5, 1991, he made a traffic stop on Main Street just south of Geneva Road. As he finished the traffic stop, an unknown citizen pulled up behind him and said that a man “had just come from the White Hen *** had been getting rowdy, was intoxicated and smelled of alcohol.” The informant said that the suspect got in a car and drove north on Main Street, describing the vehicle as a brown car, possibly an Oldsmobile.

Yates drove north on Main Street and looked left down Geneva, where he saw a cluster of vehicles. Among those vehicles he observed a “small brown car *** swerving all over the curb side roadway.” Yates pulled over the brown car, which defendant was driving. Yates eventually arrested defendant for driving under the influence of alcohol.

On cross-examination, after refreshing his recollection with his report of the incident, Yates stated that the informant told him only that the suspect “appeared to be intoxicated.” Yates also testified that he observed the brown Oldsmobile cross the white line into the adjacent lane. However, on his report, Yates stated only that the car was weaving within its own lane.

Officer Bellini testified that he administered a breathalyzer test to defendant at 6:24 a.m. on December 5. Prior to this test, he had observed defendant for 20 minutes. However, defendant failed to blow enough air into the machine to produce a reading. Bellini administered a second test at 6:35 a.m. which did produce a valid result.

At the close of the evidence, the court granted the State’s motion for a directed finding. The court found that Officer Yates had reasonable grounds to make the initial stop, although “he did not document it very well, if at all.” The court also found that the breathalyzer test comported with the Department’s standards, as required by law. Defendant filed a timely notice of appeal.

Defendant’s first contention on appeal is that the court’s finding that the officer had reasonable grounds to effectuate the traffic stop was manifestly erroneous. Defendant contends that the officer did nothing to verify the reliability of the anonymous informant’s tip and was thoroughly impeached concerning his observations of defendant’s erratic driving. Defendant contends that the discrepancies between Yates’ trial testimony and his police report render his testimony highly suspect.

A summary suspension rescission hearing is a civil proceeding in which the motorist bears the burden of proof to establish a prima facie case for rescission. (People v. Orth (1988), 124 Ill. 2d 326, 337-38.) The trial court’s determination in a rescission proceeding will be overturned only if the finding is against the manifest weight of the evidence. (Orth, 124 Ill. 2d at 341.) This court will not disturb the trial court’s determinations regarding the credibility of the witnesses or the weight to be given their testimony. People v. Strickland (1992), 154 Ill. 2d 489, 521.

A police officer may make an investigatory stop, even though probable cause for an arrest is lacking, where the officer’s decision is based on specific and articulable facts which reasonably warrant the investigative intrusion. A mere suspicion or hunch is insufficient. City of Lake Forest v. Dugan (1990), 206 Ill. App. 3d 552, 555; People v. Thomas (1990), 200 Ill. App. 3d 268, 280.

While reasonable grounds for an investigative stop may be based on an informant’s tip, some indicia of reliability must be present to justify the stop. (Dugan, 206 Ill. App. 3d at 555; Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69-70.) However, the officer’s own observations may corroborate the tip or may provide an independent basis for the stop. Specifically, an observation of erratic driving, such as weaving between lanes, is sufficient to justify a traffic stop. (People v. Alvarez (1993), 243 Ill. App. 3d 933.) Even weaving within a single lane is sufficient to justify the stop. People v. Decker (1989), 181 Ill. App. 3d 427, 430; People v. Loucks (1985), 135 Ill. App. 3d 530, 532-33.

In the instant case, the trial court’s determination that Officer Yates had reasonable grounds to make the traffic stop is not against the manifest weight of the evidence. The reliability of the informant’s tip is immaterial, because the officer’s own observation of defendant’s erratic driving provided a sufficient basis for the stop. This is true regardless of whether defendant crossed the white line or stayed within the same lane, since weaving within a lane is sufficient grounds for a stop. The discrepancies between the officer’s police report and trial testimony went only to the credibility and the weight of the evidence, a matter which the trial court properly resolved.

The cases defendant cites are distinguishable. In Dugan (206 Ill. App. 3d 552), an informant told the officer that the driver of a white Honda was intoxicated, but offered no details to support that conclusion. The officer spotted the Honda and immediately pulled it over. The officer did not personally observe any erratic driving, and the driver stopped the car immediately upon the officer’s request. This court held that the unverified tip, devoid of specific facts, was insufficient to support the stop. Dugan, 206 Ill. App. 3d at 555-56.

In Gross (174 Ill. App. 3d 66), which defendant attempts to distinguish, this court upheld the validity of the stop. In that case, the officer received a tip concerning reckless driving. The officer confirmed the tip by observing a car matching the description given by the informant in the immediate vicinity. Moreover, the driver failed to pull over immediately when requested to do so. (Gross, 174 Ill. App. 3d at 70.) Defendant contends that Gross is distinguishable because in this case the description of the car was extremely vague and defendant did not delay in pulling over when requested to do so.

Contrary to defendant’s assertion, the instant case is even stronger than Gross. Officer Yates not only saw a car matching the general description given him by the informant, but observed it being driven erratically. Even discounting the value of the tip, the officer’s independent observations provided a valid basis for the stop.

Defendant’s second appellate issue is that the breathalyzer test administered to him failed to comply with the Department standards where the interval between the first and second tests was 11 minutes. Defendant contends that this interval failed to comply with the 20-minute waiting period mandated by the Department. The State responds that the 20-minute period was complied with.

Evidence of a breath test is admissible in a proceeding arising out of an arrest for driving under the influence of alcohol, but only if the operator complies with standards promulgated by the Department. (Ill. Rev. Stat. 1991, ch. 951/2, par. ll-501.2(a)(l) (now 625 ILCS 5/ 11 — 501.2(a)(1) (West 1992)); People v. Hamilton (1987), 118 Ill. 2d 153, 160.) The regulations provide that, prior to a test being given, the officer must observe the defendant for a continuous period of at least 20 minutes, during which the subject must not have ingested any alcohol, food or drink, regurgitated, vomited or smoked. 77 Ill. Adm. Code §510.60 (1985); Orth, 124 Ill. 2d at 340.

Here, Officer Bellini observed defendant for 20 minutes before administering the abortive first test. He apparently continued to observe him for 11 minutes until the second test. Thus, he complied with the observation period. Defendant does not contend that he engaged in one of the prohibited activities during this period. The only arguable basis for triggering a new 20-minute period was the ineffectual first test. However, as the State notes, the Department’s regulations only prohibit the subject from smoking, regurgitating or drinking during the observation period. “Blowing air into a machine is not one of the prohibited activities.” The mere attempt at taking the first test was not a prohibited activity and did not require a new observation period.

For the foregoing reasons, the order of the circuit court of Du Page County confirming the statutory summary suspension is affirmed.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE WELCH

text:
    PAUL LANNOM et al., Plaintiffs, v. ROBERT KOSCO, Defendant and Third-Party Plaintiff-Appellant (The County of Williamson, Third-Party Defendant-Appellee).
    Fifth District
    No. 5—92—0137
    Opinion filed July 20, 1993.

      William Kent Brandon and Christy Solverson, both of Brandon, Schmidt & Palmer, of Carbondale, for appellant.
    Dennis E. Rose, of Donovan, Rose, Nester & Szewczyk, P.C., of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This action was brought by Paul and Nadine Lannom to recover damages for personal injuries to Paul and loss of consortium to Nadine as a result of the alleged negligence of Robert Kosco. Paul Lannom was injured while working for the County of Williamson highway department when the car being driven by Kosco struck him. Kosco filed a third-party complaint for contribution against the County of Williamson (County), Lannom’s employer, alleging that the County was guilty of willful and wanton misconduct in parking a County truck on the wrong side of the road without hazard lights or warning devices.

Lannom was allegedly injured on November 15, 1988. His complaint against Kosco was filed February 16, 1989. Kosco’s third-party complaint against Williamson County was originally filed on March 9, 1989. The case was set for trial on December 10, 1991.

On April 18, 1991, the Illinois Supreme Court announced its decision in Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155, 585 N.E.2d 1023, holding that an employer’s liability in contribution is limited to the amount of its workers’ compensation liability. On December 2, 1991, a petition for rehearing of the Kotecki decision was denied. The mandate in Kotecki issued on December 12,1991.

On December 3, 1991, relying on Kotecki, the County of Williamson filed a motion to strike the ad damnum clause of Kosco’s third-party complaint. Plaintiffs Paul and Nadine Lannom objected to the motion, arguing that the decision in Kotecki should be applied prospectively only and not to the case at bar. Defendant and third-party plaintiff Kosco also objected to the motion to strike for the same reason.

On December 9, 1991, again relying on Kotecki, Williamson County filed a motion to limit its liability to the amount of its workers’ compensation lien. At a hearing held December 10, 1991, the County made an oral motion to dismiss the third-party complaint against it, stipulating that it would waive its workers’ compensation lien. All motions were argued at this hearing. The court concluded that Kotecki had application to the case before it, finding nothing in the supreme court’s decision to indicate the court intended it to have only prospective application. The court granted the County’s motion to dismiss the third-party complaint upon waiver of its workers’ compensation lien. A written order was filed on February 7, 1992, finding that the County’s potential liability for contribution is limited to the amount of its obligation under the workers’ compensation statute, that Kotecki is not of prospective application only, and that Kotecki is equally applicable where willful and wanton misconduct rather than negligence is alleged.

Robert Kosco, defendant and third-party plaintiff, appeals, presenting four issues for our review: (1) whether the trial court erred in ruling that Kotecki is not of prospective application only; (2) whether the County of Williamson waived its Kotecki defense (limited liability) by purchasing liability insurance for unlimited contribution protection; (3) whether the trial court erred in dismissing the contribution action against plaintiff’s employer, the County of Williamson, where the County allegedly committed willful and wanton misconduct; and (4) whether the trial court erred in dismissing the third-party complaint and not requiring the County of Williamson to participate in the trial.

As a general rule, a decision will be applied retrospectively unless the court expressly declares its decision to be a clear break with the past, such as when the court explicitly overrules its own past precedent, disapproves a practice it had previously sanctioned, or overturns a well-established body of lower-court authority. (People v. Boswell (1985), 132 Ill. App. 3d 52, 56, 476 N.E.2d 1154, 1158, rev’d, on other grounds (1986), 111 Ill. 2d 571, 488 N.E.2d 273 (supervisory order).) It is within a court’s inherent power to give a decision prospective or retrospective application. (Boswell, 132 Ill. App. 3d at 56, 476 N.E.2d at 1158.) A new rule or decision will be given prospective operation whenever injustice or hardship due to justifiable reliance on the overruled decisions would thereby be averted. Elg v. Whittington (1987), 119 Ill. 2d 344, 357, 518 N.E.2d 1232, 1238.

The general test for prospective application is whether the decision establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. If this criterion is met, that is, if the decision sought to be applied prospectively establishes a new principle of law, prospective or retrospective application will depend on whether, given the purpose and prior history of the newly established rule, its operation will be retarded or promoted by prospective or retroactive application and whether prospective application is mandated by the balance of equities. Elg, 119 Ill. 2d at 357, 518 N.E.2d at 1238.

The first district and third district of this court have decided the issue of whether Kotecki should be given prospective or retrospective application. In Norberg v. Centex Homes Corp. (1993), 247 Ill. App. 3d 267 (modified opinion on rehearing), the first district of our court stated, “We read the majority opinion in Kotecki to be a recognition that its holding constitutes a change in the law,” and “We conclude, therefore, that the supreme court recognized that in Kotecki it established a new principle of law.” (247 Ill. App. 3d at 272-73.) The court further found that retrospective application of the Kotecki decision would hinder its application and result in prejudice to many defendants and held that the Kotecki decision applies only to cases in which trial had not yet commenced on the date the Kotecki opinion was released.

In Kocik v. Commonwealth Edison Co. (1993), 242 Ill. App. 3d 679, 610 N.E.2d 766, the third district of this court found that, in Kotecki, the supreme court specifically rejected the argument that its holding was changing the law, the supreme court stating that its decision simply reflected the natural accommodation necessary to reconcile the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) and the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.), which accommodation had been foreshadowed in the court’s earlier opinion in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382. The third district held that Kotecki did not establish a new principle of law but was merely a reconciliation of two potentially conflicting statutes which had been foreshadowed in Doyle. The court held that Kotecki should be retrospectively applied to cases which had not come to trial prior to the Kotecki decision.

It is clear that, under either of these analyses, the decision in Kotecki would apply to the case at bar, which had not come to trial prior to the Kotecki decision. Indeed, even the petition for rehearing was denied prior to the instant case coming to trial, although the mandate did not issue until two days after the scheduled trial date.

In any event, we find the reasoning and analysis of the Kocik decision to be persuasive. We agree with the third district that the supreme court in Kotecki took pains to emphasize that its decision therein did not reflect a change in the law in that it did not overrule clear past precedent on which litigants may have relied nor did it decide an issue of first impression whose resolution was not clearly foreshadowed. The supreme court explicitly stated that there is no clear past precedent to be overruled on this issue because, although Doyle did hold that a negligent employer is liable for contribution to a third party regardless of the Workers’ Compensation Act, Doyle did not answer the question as to the amount of contribution for which an employer may be liable under the Contribution Act. The supreme court also explicitly recognized in Kotecki that its decision therein had been clearly foreshadowed by its decision in Doyle, in which the court stated that “some accommodation” between the Contribution Act and the Workers’ Compensation Act would be necessary in the future. The court stated that the Kotecki decision is that “natural accommodation” which was foreshadowed in Doyle. Finally, we are reassured of the correctness of our analysis by the supreme court’s denial of the petition for rehearing in Kotecki, which specifically asked the court to announce whether its ruling was of prospective or retrospective application. The supreme court’s silence on this question indicates to us that the court intended its decision to have retrospective application according to the general rule.

We cannot agree with the conclusion of the first district of our court that the supreme court considered Kotecki to constitute a change in the law. The first district has, in our opinion, misunderstood the language of the supreme court and has misread the Kotecki opinion. See also Kalp v. American National Can Co. (N.D. Ill. May 17, 1991), No. 90—4910 (which held that Kotecki does not overrule clear past precedent upon which litigants may have relied or decide an issue of first impression whose resolution was not clearly foreshadowed); Doran v. Corn Products-U.S., a Division of C P C, International, Inc. (N.D. Ill. 1991), 776 F. Supp. 368 (same holding).

In any event, even were we to agree with appellant that Kotecki does establish new law, we do not agree that operation of the Kotecki rule will be promoted by prospective application of the decision or retarded by retrospective application of the decision or that the balance of equities mandates prospective application. To the contrary, we think that, given its purpose and prior history, operation of the Kotecki rule will be promoted by retrospective application and retarded by prospective application. The purpose of the Kotecki rule is to reconcile the potential conflict between the Workers’ Compensation Act and the Contribution Act. The rule established in Kotecki was found by the supreme court to be the fairest and most equitable balance between the competing interests of the employer and the third-party plaintiff as reflected in these conflicting statutes. By applying Kotecki to all pending cases, the purpose of the rule is advanced. We see no advantage to applying the rule only to cases arising after the Kotecki decision.

Finally, the balance of equities does not mandate prospective application. We see no great detriment to injured plaintiffs or direct defendants as a result of retrospective application of the Kotecki rule. It is highly unlikely that either injured plaintiffs or negligent defendants relied to their detriment on what they thought the law was prior to Kotecki. As our supreme court stated in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 26, 163 N.E.2d 89, 96:

“It should be borne in mind that we are not dealing with property law or other fields of the law where stability and predictability may be of the utmost concern. We are dealing with the law of torts where there can be little, if any, justifiable reliance and where the rule of stare decisis is admittedly limited.”

The supreme court recognized in Molitor that it is not likely that parties to a negligence action have somehow controlled their actions based upon a rule of law. While in Molitor it was found that school districts did detrimentally rely on the prior rule of law in failing to purchase liability insurance, the case at bar is not such a case. It is not likely that either the injured plaintiff or the negligent direct defendant somehow acted in detrimental reliance on the supposed rule of law that a negligent employer had unlimited liability in contribution.

We reject as speculative the opinion of the first district of our court that, unable to foresee the result in Kotecki, many defendants chose a trial strategy they would not otherwise have chosen. That court adopted the reasoning that defendants might be better served by abstaining from filing a third-party action against a negligent employer because a jury, unaware of the employer’s limited liability, might be more likely to return a larger verdict against two defendants than it would against only the direct defendant. The option of not filing a third-party action against the employer has always been available to the direct defendant and remains available. However, the direct defendant thereby gives up his right to seek contribution, which right to contribution remains available, although on a limited basis.

On the other hand, it is unfair to require employers to pay amounts in contribution over and above what is statutorily required of them, that is, the limit of their workers’ compensation liability. To hold otherwise would effectively subvert the entire scheme of the Workers’ Compensation Act, which established a trade-off between the employer and employee. Under the scheme of the Act, the employee gave up his common-law right to sue his employer in tort, but recovery for injuries became automatic without regard to fault on his part. The employer gave up its right to plead common-law defenses and was compelled to pay, but its liability was limited and fixed. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 180, 384 N.E.2d 353, 356.

We agree with the trial court that the decision in Kotecki should not be limited to prospective application but should apply to the case at bar, which had not yet come to trial at the time the Kotecki decision was rendered.

Appellant’s second argument is that Williamson County has waived its Kotecki defense, limited contribution liability, by purchasing liability insurance for unlimited contribution protection. We note that this argument was not raised before the trial court, and we find that it is thereby waived. It is axiomatic that questions not raised in the trial court are deemed waived and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872, 879.) As we have stated, this issue was never raised before the trial court, the parties did not argue it before the trial court, and the trial court did not have an opportunity to decide this question and in fact did not decide it. We further note that the record does not support appellant’s contention that Williamson County had purchased liability insurance for unlimited contribution protection. We therefore find that this issue is waived for purposes of review and decline to address it.

The third argument raised on appeal is that the trial court erred in finding that Kotecki applied where willful and wanton misconduct, not mere negligence, was alleged on the part of the employer and in dismissing the contribution action against the County of Williamson on the basis of Kotecki. Appellant argues that Kotecki does not apply where a direct defendant seeks contribution for the willful and wanton misconduct, rather than the simple negligence, of the third-party employer.

Although the contribution action in Kotecki alleged negligence by the third-party employer, we find nothing in the language or logic of Kotecki which limits its holding only to cases involving claims of negligence against the third-party employer. The aim of the Kotecki decision was to reconcile potentially conflicting provisions of the Workers’ Compensation Act and the Contribution Act. The decision in Kotecki sought to establish a fair and equitable balance between the competing interest of the direct defendant in not paying more than its established fault and the interest of the employer in not losing the protection that the Workers’ Compensation Act is designed to provide. The balance struck by the court in Kotecki allows the direct defendant to obtain limited contribution but substantially preserves the employer’s interest in not paying more than its workers’ compensation liability. As the court pointed out in Kotecki, the Workers’ Compensation Act clearly shows an intent that the employer only be required to pay an employee the statutory benefits. Kotecki, 146 Ill. 2d at 165, 585 N.E.2d at 1028.

The Workers’ Compensation Act provides for limited liability on the part of the employer for any “accident” resulting in injury to an employee while at work, whether that accident and injury are a result of negligence or willful and wanton misconduct. Only intentionally caused injuries are outside the bounds of the Workers’ Compensation Act. (Mier v. Staley (1975), 28 Ill. App. 3d 373, 381, 329 N.E.2d 1, 8.) Appellant’s third-party complaint against Williamson County does not allege that the county intentionally caused plaintiffs injuries. Indeed, the original third-party complaint alleged only negligence on the part of Williamson County; it was amended to allege willful and wanton misconduct only in response to the County’s motion to dismiss based on the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.), which provides immunity to governmental units for negligence, but not for willful and wanton misconduct.

Accordingly, the Workers’ Compensation Act applies to the injuries received by the plaintiff and serves to limit the amount for which the plaintiff’s employer, Williamson County, can be held liable to plaintiff. Under Kotecki, we think that it also limits the amount for which the employer can be held liable in contribution, and we reject appellant’s argument that Kotecki should not apply to claims for contribution alleging willful and wanton misconduct on the part of the employer. The trial court did not err in holding that the Kotecki decision applies to the case at bar.

• 4 Appellant’s final argument on appeal is that the trial court erred in dismissing the third-party complaint and in not requiring Williamson County to participate in the trial. Appellant argues that the absence of Williamson County as a party will complicate discovery, production of witnesses and documents, and inspection of the employer’s premises, resulting in delay and additional expense. We think this is insufficient reason to require the third-party employer, who has waived its right to recoup any amounts paid in workers’ compensation and agreed to pay its total liability under the Workers’ Compensation Act, to remain a party to the action. Witnesses and other evidence remain available to the plaintiff and direct defendant through subpoena and an action for production or to enter upon real estate. (See Supreme Court Rule 214 (134 Ill. 2d R. 214).) Any additional expense to plaintiff and defendant as a result of the dismissal of the third-party defendant is outweighed by the savings in cost to that third-party defendant, who has already agreed to pay the limit of its liability.

Appellant also argues that dismissal of the third-party claim thwarts the purpose of the joint liability statute, which provides as follows:

“[A]ll defendants found liable are jointly and severally liable for plaintiff’s past and future medical and medically related expenses. Any defendant whose fault, as determined by the trier of fact, is less than 25% of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendant who could have been sued by the plaintiff, shall be severally liable for all other damages. Any defendant whose fault, as determined by the trier of fact, is 25% or greater of the total fault attributable to the plaintiff, the defendants sued by the plaintiff, and any third party defendants who could have been sued by the plaintiff, shall be jointly and severally liable for all other damages.” (Ill. Rev. Stat. 1989, ch. 110, par. 2-1117.)

Appellant argues that where the third-party employer is dismissed from the action, the direct defendant may be found more than 25% at fault, making him jointly and severally liable for all plaintiff’s damages, whereas if the third-party employer remains in the case, the direct defendant might be found to be less than 25% at fault, and be only severally liable for certain damages. Thus, for example, where the employer remains a party to the action, the direct defendant may be found to be 20% at fault and the employer 80% at fault. In such a case, the direct defendant would be liable for only 20% of certain damages. However, where the employer is dismissed out of the action, the defendant will be found 100% at fault and will be jointly and severally liable for 100% of those damages.

It occurs to us that this argument may be made anytime a codefendant or third-party defendant settles with the plaintiff and is dismissed from the lawsuit. Where one defendant settles with plaintiff, the remaining defendant’s liability is reduced by the amount of the settlement, not the amount of the dismissed defendant’s pro rata liability. (Snoddy v. Teepak, Inc. (1990), 198 Ill. App. 3d 966, 970, 556 N.E.2d 682, 685.) In the instant case, the direct defendant’s ultimate liability to plaintiff will be reduced by the amount of the employer’s workers’ compensation payments to plaintiff. (See Ill. Rev. Stat. 1989, ch. 70, par. 302(c).) Thus, we do not find that the joint liability statute precludes the dismissal of the third-party action against the plaintiff’s employer.

In the instant case, where the employer agrees to waive its workers’ compensation lien, thereby essentially conceding its liability for contribution, we think dismissal of the action against the employer was proper.

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

Affirmed.

GOLDENHERSH and MAAG, JJ., concur.