text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE MULLEN, Defendant-Appellant.
    First District (5th Division)
    No. 1—86—3326
    Opinion filed June 2, 1989.
    Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and James M. Sanford, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Willie Mullen appeals his conviction for murder and his sentence of 24 years’ imprisonment, arguing that (1) he was denied a fair trial because the State, in “defiance” of a specific ruling of the trial court, commented in closing argument that a witness was afraid to testify and (2) the trial court erred in entering judgment and sentence on two counts of murder since there was only one victim. For the reasons set forth below, we reverse and remand the cause for a new trial.

In the early morning hours of August 19, 1985, Ernest Jones was fatally shot. Defendant, James Crockett, and Manuel Rios were charged with Jones’ murder. On April 24, 1986, Crockett pleaded guilty to the murder and was sentenced to 22 years’ imprisonment. Defendant and Rios were tried by separate juries during a simultaneous trial.

At trial, the State presented three eyewitnesses to the shooting; Cortez (Keith) Lee, age 15; Tyrone Carr, age 14; and Michael Howard, age 15. Lee testified that on August 18, 1985, at approximately 7:30 p.m., he, Carr and Howard went together to a roller-skating rink located on Pulaski Road in Chicago. They left the rink at midnight and went to a tavern located at Ohio and St. Louis Streets. Lee saw Willie (Lee Lee) Ford at the tavern; he knew him “from around the neighborhood.” Ford appeared nervous. Lee then heard a gunshot, turned to a gangway where it appeared to have come from, and saw Manuel Rios and Ernest Jones. Jones was walking or running when Lee saw Rios shoot him “two more times.” Lee then ran to Tyrone Carr’s house, which was nearby. Lee further stated on cross-examination that he saw a car turn out of an alley and that after Rios shot Jones he jumped into Mullen’s (defendant’s) car. On objection by defense counsel, the jury was told to disregard these statements since there had been no testimony on direct examination concerning a car.

Tyrone Carr’s testimony mirrored Lee’s concerning the rollerskating rink, except for his further testimony that James Rios was also with them. Immediately after this testimony, Carr refused to testify further. As a result, the court, outside the presence of the jury, appointed a public defender to advise Carr of the consequences of his continuing refusal to testify After Carr consulted with the public defender, the court held an in-chambers conference during which Carr stated he was afraid to testify. The court then explained the Witness Protection Program to him and continued the case until he could consult with his father. When Carr agreed to testify the next day, the court instructed counsel not to ask Carr any questions or make any reference concerning his reluctance to testify and, if they did, it would grant any motion for a mistrial.

Carr subsequently testified that he left the roller-skating rink on foot with Lee and Michael Howard, intending to go to a friend’s house at St. Louis and Ohio Streets. While in the area of that intersection, he saw Ernest Jones coming out of the alley between St. Louis and Drake Streets; Rios was in a crouching position behind Jones; Rios said something to Jones and Jones stopped walking and turned around; he heard Jones say “Forget about it” and start to walk away; Rios then shot Jones; Jones started to run and Rios fired again; Rios and Lee Lee Ford then ran to a blue Chevy, which had pulled up, and, as the car drove off, he ran to his home.

Carr further stated he had known Rios from around the neighborhood for three to four years; he had seen the blue Chevy in the neighborhood 10 or 30 times; he had seen several different people driving the car, including defendant, and that the car belonged to defendant; and that he did not see defendant driving the car on the night of the shooting. Carr also admitted that he lied about the incident to the police on August 19 because he was afraid to get involved, but that he told the police the truth on August 21.

Michael Howard testified that he and Carr went to the roller-skating rink together, met Keith Lee there, and the three of them left the rink on foot for Carr’s house at midnight. As they were walking down Ohio Street approaching St. Louis, he saw Rios in the alley between St. Louis and Drake Streets on the same side of the street as a tavern. (Howard also stated on cross-examination that he did not see Rios until after he heard a gunshot.) At the same time, he also saw a blue Chevy in the alley, but he was 15 feet away from it and could not see who was in it. He then slowed down because he was afraid of Rios; he heard a gunshot and turned around; he saw Rios standing with a gun in his hand next to a body; he then saw defendant standing next to Rios; Rios handed the gun to defendant and he saw a flash and heard two more shots; and that Rios, defendant, and a third person whom he did not know drove off in the Chevy, the driver of which was defendant. Howard then ran to Carr’s house.

Howard’s testimony also indicated that his friends ran away after hearing the first shot, but he only continued walking and then turned around to look; he did not begin to run until after the third shot; when Rios handed the gun to defendant, he (Howard) was 35 feet away from him; he saw Lee Lee Ford, whom he knew from around the neighborhood, standing in front of a tavern on the comer; and he did not see Ford get into the Chevy but had told the police on August 20 that he saw someone else enter the car.

Also testifying for the State was Detective James Elliot. He stated that he interviewed four youths at the scene of the shooting and subsequently obtained arrest warrants for defendant, Rios, and Crockett. With respect to his interview with Michael Howard, Elliot stated that his police report contained “pretty much everything” Howard reported on August 20 about the August 19 shooting; Howard told him that he saw both Rios and defendant at the scene, but he did not say that Rios passed the gun to defendant and that he would have included such information in his police report; Howard told him that Lee Lee Ford entered the car with defendant and Rios after the shooting; he did not think that Howard ever said that defendant drove the car; Howard never told him that defendant fired the gun; and Howard never told him he was walking slowly, looking behind him at the shooting.

Detective Terence Thedford and Assistant State’s Attorney Michael Kelly testified concerning their custodial interrogation of defendant; defendant had surrendered himself to the police, accompanied by his mother, who had been contacted by the police that an arrest warrant had been issued for her son. Thedford testified that defendant admitted lying to the police in a previous interview, fearing gang retaliation; that, according to defendant’s court-reported signed statement obtained by Assistant State’s Attorney Kelly and defendant’s oral statement to him, defendant, age 20, was at Mitch’s Tavern at St. Louis and Ohio Streets on August 19 at 12:15 a.m. in the company of five fellow members of the Black Gangsters, including Crockett, Rios and Lee Lee Ford. As they were talking, they saw Ernest Jones, a Vice Lord, standing across the street talking to some girls. The group then began teasing Ford about not having ever retaliated against Jones, who had five months earlier struck him in the head with an iron, resulting in a five-day hospitalization and causing a scar. Someone then asked Ford if he wanted to shoot Jones, and Ford stated he would shoot him if he had a gun. Crockett produced a gun and gave it to another member of the group, who in turn gave it to Ford. Ford walked toward Jones, but returned, explaining that there were too many people around. Rios then volunteered to shoot Jones and Ford gave him the gun. When Jones began to walk west on Ohio, Rios told defendant to cross the street and stop him by asking for a cigarette. Defendant did so and, meanwhile, Rios went across the street and hid behind some bushes in an alley. As Jones walked by the alley, Rios came out from behind the bushes and fired toward Jones’ head. Jones started running west and Rios fired again. After a third shot, Jones fell down. Defendant and Rios then ran to a gangway where they met the rest of their group and the gun was returned to Crockett. They then went home separately.

Dr. Yuksel Konacki also testified for the State. His autopsy of Jones revealed that he was a 19-year-old black male who died as a result of a gunshot wound in his back; he had been struck with only one bullet.

Following closing arguments, defendant’s jury found him guilty of murder. Rios was acquitted by his jury. Defendant’s post-trial motions were denied. At defendant’s sentencing hearing, the State argued that the only factors in aggravation consisted of the facts of the case. In mitigation, defendant’s counsel pointed out that defendant had a history of mental problems; at age 13 he attempted to hang himself and was committed to a mental health center for one year where he was placed on daily medication, which he was also required to take after his release from the center. In addition, defendant had no prior felony convictions and no history of violent behavior. The court subsequently imposed a sentence of 24 years, and this appeal followed.

Defendant first argues that he was denied a fair trial as a result of the State’s comments in closing rebuttal argument that Tyrone Carr was afraid to testify, which the trial court had previously specifically forbidden any reference to. The complained-of comments followed the State’s argument to the jury that defendant was guilty of the murder of Ernest Jones on an accountability theory, i.e.:

“Do we want a civilized society, a civilized city, *** a law-abiding one, to be governed and dictated by the laws of the court, or do we want the laws of Willie Mullen [defendant] and Manuel Rios to run the streets?
Because, when you consider your verdict, a guilty or not guilty is a message; it is a message, not only to Manuel Rios and Willie Mullen, what they can do in a bad part of the city where kids who are scared and frightened are going to have to come into court and testify.
And, when you consider that, remember perhaps one of the most powerful things in this case was when Tyrone Carr got up on the stand the first time, and he said he did not want to answer.
And use your common sense why he did not want to answer. The same reason that no one wanted to talk, at first; they do not want to get involved.
Why don’t they want to get involved? They do not want one of these (indicating) in their back. Is this going to be what runs the streets of the City of Chicago?” (Emphasis added.)

The State contends that defendant waived this issue by failing to object during trial or raise the issue in a motion for a new trial or, alternatively, that the complained-of comments were properly based on the evidence. Additionally, it argues that if the comments were error, the error was harmless beyond a reasonable doubt in light of defendant’s detailed confession.

In response to the State’s waiver argument, defendant asserts that we may consider this issue under the plain error rule; “[p]lain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court” (107 Ill. 2d R. 615(a)). We agree with defendant. While it is well settled that a prosecutor has great latitude in making closing argument to a jury (People v. Weatherspoon (1978), 63 Ill. App. 3d 315, 379 N.E.2d 847), statements that are so prejudicial that they in effect deny a defendant a fair trial may warrant a reversal of a conviction even where there is considerable evidence against the defendant (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880). Statements that a witness is reluctant to testify because of fear of retaliation or involvement where no evidence was presented that an accused had in fact threatened a witness have been held to be so prejudicial and inflammatory as to require a reversal. People v. Thomas (1986), 146 Ill. App. 3d 1087, 497 N.E.2d 803; People v. Brown (1983), 113 Ill. App. 3d 625, 447 N.E.2d 1011.

In the instant case, there is absolutely no evidence that Carr’s or the other two boys’ fear of testifying was based on any threats by defendant. Clearly, the comments were error. We also reject the State’s assertion that the error did not affect defendant’s substantial rights and therefore was harmless beyond a reasonable doubt in light of defendant’s detailed confession. We first observe, as defendant points out, that the three eyewitnesses’ account of the murder was at variance with his confession. For example, none of the eyewitnesses saw anyone act as a set-up man for Rios and two of the three witnesses did not even place defendant at the scene. Howard, who did place defendant at the scene, was impeached based on discrepancies between his trial testimony and his previous statements to police officers in which he never told them defendant fired the gun. Additionally, Carr’s and Lee’s testimony and defendant’s confession statement that Rios fired all three shots contradicted Howard’s version that defendant fired the gun at the victim. We further observe that while the three witnesses testified that they saw the victim’s assailants enter a getaway car, defendant stated in his confession that he and Rios ran to a gangway to join their group after the shooting and then went home separately, thus indicating there was no car at the scene.

Based on these numerous discrepancies between defendant’s confession and the three eyewitnesses’ testimony, without the complained-of comments by the State we believe the jury could have reasonably concluded that while defendant was present at the scene of the shooting, he in fact was not a participant in the murder, but merely stated he was in order to satisfy some need to feel important — an act of bragging by a young gang member — without realizing he could be held accountable if he were believed to have participated as he so confessed. That this is a possibility is bolstered by the fact that defendant had no serious contact with the criminal justice system, he did not finish high school, and he had severe mental problems for which he was under medication. On the other hand, the jury could have believed that the discrepancies could be explained by the witnesses’ fear of defendant and being shot in the back like the victim, as implied by the State’s comments, and that but for their fear of defendant they would have testified that defendant participated in the murder as Rios’ set-up man. Accordingly, we hold that the complained-of comments substantially prejudiced defendant (see People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200); they were not harmless beyond a reasonable doubt and constituted reversible error, requiring a new trial.

In light of our disposition of the foregoing issue, we find it unnecessary to address any other arguments raised by the parties.

Reversed and remanded.

PINCHAM and COCCIA, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    WALTER J. MILLER, Plaintiff-Appellant, v. SUBURBAN MEDICAL CENTER AT HOFFMAN ESTATES, INC., d/b/a Humana Hospital Hoffman Estates, et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—87—3470
    Opinion filed June 2, 1989.

      Gregory A. Adamski, of Chicago, for appellant.
    John .M. Duczynski and Brent J. Graber, both of Peterson, Ross, Schloerb & Seidel, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Walter J. Miller, appeals from an order striking his third-amended complaint because it did not contain a plain and concise statement of his cause of action as required under section 2 — 603 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 603). Because we find the order was not final and appealable, we dismiss plaintiff’s appeal for lack of jurisdiction.

Plaintiff, a medical doctor, filed a complaint against defendants for damages resulting from the revocation of his intra-abdominal surgical privileges with defendant Suburban Medical Center. Defendants moved to strike and dismiss plaintiff’s third-amended complaint pursuant to section 2 — 615 (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), arguing it was substantially insufficient at law.

At the hearing on defendants’ motion, the trial judge found that plaintiff’s complaint was not a plain and concise statement of his cause of action as required under section 2 — 603. The judge stated, “The motion to dismiss will be granted, and that will be the extent of the order. You can file an amended complaint, if you so desire, within 30 days. If you do not, you can appeal the decision.” The order entered stated:

“It is hereby ordered that the plaintiff’s third amended complaint fails to contain a plain and concise statement of the plaintiff’s claim, and is therefore stricken. The plaintiff is given leave to file a further amended complaint within 30 days, or to stand on the third amended complaint and appeal.”

Plaintiff filed a timely notice of appeal from the order.

Opinion

On appeal the parties devote their arguments to whether plaintiff’s complaint stated a cause of action. Defendants even assert that the issue on appeal is whether the trial court erred when it found plaintiff’s complaint failed to state a cause of action. These arguments are incorrect. The trial judge’s comments at the hearing on the motion and the order entered establish that plaintiff’s complaint was stricken, not dismissed, because it did not contain a plain and concise statement of his cause of action. The judge granted plaintiff 30 days to amend. Rather than amend, plaintiff appealed from that order.

The appellate court must ascertain whether it has jurisdiction to consider an appeal even though the parties do not raise the issue. (Ben Kozloff, Inc. v. Leahy (1986), 149 Ill. App. 3d 504, 501 N.E.2d 238.) In this case, plaintiff asserts our jurisdiction is conferred under Supreme Court Rule 301, which requires that the order appealed from is final. (107 Ill. 2d R. 301.) A final and appealable order terminates the litigation between the parties on the merits of the cause. (Schoen v. Caterpillar Tractor Co. (1966), 77 Ill. App. 2d 315, 316, 222 N.E.2d 332, quoting Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, 147 N.E.2d 371.) This court has previously held “an order dismissing or striking a complaint is not final and thus not appealable unless the language of the order also indicates that the litigation is terminated and that the plaintiff will not be permitted to plead over.” Ben Kozloff 149 Ill. App. 3d at 506, 501 N.E.2d at 240.

When a party is granted leave to amend his pleading, the trial court retains jurisdiction to permit the filing of an amended pleading beyond the time granted and, therefore, the order is not final. Richardson v. Economy Fire & Casualty Co. (1985), 109 Ill. 2d 41, 485 N.E.2d 327; County of Knox v. Switzer (1987), 151 Ill. App. 3d 873, 503 N.E.2d 841. See Wick Building Systems, Inc., Agri-Buildings Division v. Bunning (1982), 107 Ill. App. 3d 61, 437 N.E.2d 341; Martin v. Marks (1980), 80 Ill. App. 3d 915, 400 N.E.2d 711; Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785.

When a plaintiff subsequently elects to stand on his complaint rather than amend, the order striking or dismissing the complaint is not appealable until an order dismissing the action is entered. County of Knox, 151 Ill. App. 3d 873, 503 N.E.2d 841; Ben Kozloff, 149 Ill. App. 3d 504, 501 N.E.2d 238; Wick, 107 Ill. App. 3d 61, 437 N.E.2d 341; Martin, 80 Ill. App. 3d 915, 400 N.E.2d 711; Schoen, 77 Ill. App. 2d 315, 222 N.E.2d 332. See Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20.

In the present case, plaintiff filed a notice of appeal from an order striking his complaint and granting him leave to amend. No order was subsequently entered dismissing the action. Before appealing, plaintiff should have either moved the court for an order dismissing the action or waited until such an order was entered rather than appeal from the order which merely struck his complaint and granted him leave to amend. That order was not final and appealable, and therefore, this court does not have jurisdiction to consider plaintiff’s appeal.

We are aware of authority which holds that a party is not required to inform the trial court of his intention to stand on his pleading. (See A. Charles & Co. v. Bishop (1979), 75 Ill. App. 3d 556, 394 N.E.2d 650; Campbell v. Harrison (1973), 16 Ill. App. 3d 570, 306 N.E.2d 643.) We believe both of these cases involved different factual situations than the present case but our holding today is consistent with those decisions.

In A. Charles, an order was entered striking defendants’ counterclaim. Subsequently, judgment was entered against defendants assessing monetary damages and costs. Defendants appealed, and the reviewing court found that the initial order striking the counterclaim was subject to review because the subsequent judgment was final and appealable. The court found that under that factual situation, defendants were not required to inform the court of their intention to stand on the pleading.

Similarly, in Campbell, an order was entered striking plaintiff’s complaint for failure to state a cause of action. Subsequently, an order was entered dismissing plaintiff’s suit. Plaintiff appealed and the reviewing court found that, although plaintiff did not inform the trial court of her intention to stand on her complaint, she preserved her right to appeal by waiting until a final order was entered.

Unlike A. Charles and Campbell, plaintiff in this case did not wait until a final and appealable order was entered to file a notice of appeal. Plaintiff instead appealed from an order which was not final and appealable, and therefore, the appeal must be dismissed for lack of jurisdiction.

Additionally, should plaintiff inform the trial court of his intention to stand on this third-amended complaint and a final and appeal-able order is entered, if either party appeals from that order, the parties may move this court to consider the appeal on the existing briefs and record as supplemented. See First National Bank v. Lewis (1987), 163 Ill. App. 3d 160, 516 N.E.2d 552.

Appeal dismissed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE McNAMARA

text:
    CORRUGATED METALS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Christopher Clay et al., Appellees).
    First District (Industrial Commission Division)
    No. 1—88—1706WC
    Opinion filed June 2, 1989.

      Sweeney & Riman, Ltd., of Chicago, for appellant.
    Sidney Z. Karasik and William H. Martay, both of Chicago, for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Christopher Clay, filed a claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) against respondents, Corrugated Metals, Inc. (Corrugated), and Manpower-Ready Men, Inc. (Ready-Men). The arbitrator and the Industrial Commission awarded claimant benefits and found that Ready-Men and Corrugated had entered into a risk-shifting agreement pursuant to which Ready-Men agreed to provide workers’ compensation insurance for the employees which it loaned to Corrugated. The trial court reversed the decision of the Commission as to the risk-shifting agreement. Neither employer disputes the award to claimant. Corrugated appeals, contending that the trial court applied an incorrect standard of review; that the trial court erred in concluding that Ready-Men had not agreed to provide workers’ compensation insurance for the loaned employee; that claimant’s “work ticket” limiting the types of work in which he could engage was an invalid attempt to modify the contract; and that if the modification was valid, the trial court’s conclusion that claimant was operating a machine in violation of the contract was erroneous.

This appeal arises from the following facts. In June or July 1986, Thomas Schmitz, the midwest operations manager of Corrugated, contacted Stanley Estwin, the office manager of the Ready-Men office located in Chicago. Corrugated is in the business of processing sheet metal, and Ready-Men is in the business of providing temporary labor to employers in various types of business. Schmitz inquired about obtaining temporary help for Corrugated. Estwin quoted a fee of $5 per hour per temporary worker. Schmitz testified that during the initial conversation, he asked Estwin about insurance. Estwin replied that the $5-per-hour fee covered everything. Specifically, Estwin stated:

“That covers everything. Covers EI.C.A. You don’t have any records, payroll records, and it also covers workmen’s compensation.”

Estwin did not indicate that there were any limitations on the workers’ compensation insurance. Schmitz stated that he did not ask for a written agreement regarding the insurance because it did not come to his mind. Subsequently, Corrugated accepted the services of Ready-Men.

On February 16, 1987, Ready-Men sent claimant to Corrugated for work. Claimant reported to work at 7:30 a.m. He presented a Ready-Men work ticket to Corrugated and proceeded to work. The work ticket is a preprinted form which is used to direct the laborer to his daily assignment. The borrowing employer also uses it to certify the number of hours worked. The ticket contains the following language:

“We are introducing herewith our READY-MEN INC., personnel. At the completion of the assignment would you kindly verify the hours of work performed by each individual per day and sign this certificate that the above is correct and the work has been performed in a satisfactory manner. READY-MEN, INC. employees are not to operate machinery, automotive, truck equipment or mechanical devices unless agreed to in advance.”

Claimant was assigned to work at a metal-bending machine. He worked with Dan Murphy, a machine operator employed by Corrugated, and another Ready-Men temporary worker. He was assigned to help feed long sheets of metal through a machine. He also was assigned to help clean the machine. Cleaning the machine involved the use of banding equipment to scrape debris from the machine rollers while the machine was running. During the cleaning process, claimant’s right-hand glove became caught in the roller and his hand was pulled into and crushed by the machine’s rollers. Murphy stopped the machine and ran the machine back to remove claimant’s hand. As a result of the accident, claimant sustained severe injuries and eventually a portion of his right hand was amputated.

Schmitz testified that after the accident, he contacted the Ready-Men office. Although he did not receive any specific information regarding workers’ compensation coverage, he was informed by an employee at Ready-Men that they usually would handle that type of thing. Schmitz then spoke with Estwin and informed him that he would send the information regarding what had happened. Estwin replied that he would forward the information to the main office.

Schmitz also testified that in December 1986, another Ready-Men employee had been injured while working at Corrugated. That employee was stacking equipment on a roll-former machine when he sustained an injury. Schmitz stated that Corrugated did not receive any billing for the medical treatment which the employee received, nor did it receive any notification of a workers’ compensation claim with regard to that incident.

Estwin testified that after claimant’s accident he spoke with Schmitz, but nothing was mentioned about insurance. Estwin admitted that the substance of Schmitz’ testimony regarding their initial conversation was accurate. Estwin believed, however, that the conversation took place in June 1985 rather than June or July 1986.

On February 19, 1987, claimant sought benefits. At the hearing before the arbitrator, the parties stipulated that claimant was an employee of Ready-Men, loaned to Corrugated on February 16, 1987. The arbitrator found that claimant was entitled to benefits, and that pursuant to section 1(a)(4) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(a)(4)), Corrugated and Ready-Men were jointly and severally liable on this claim. Between themselves, however, the arbitrator found that Ready-Men had primary liability and Corrugated had secondary liability. The arbitrator further found that with regard to the Ready-Men work ticket, claimant was not operating a machine as that term ordinarily would be understood. Accordingly, the arbitrator determined that Corrugated had not breached the contract and, therefore, that Ready-Men had not been relieved of its obligation to provide claimant with workers’ compensation benefits. The Commission adopted the findings of the arbitrator. Ready-Men appealed, and the trial court reversed the decision of the Commission.

Corrugated first argues that the trial court erred in concluding as a matter of law that the only inference which reasonably could be drawn from the conversation between Schmitz and Estwin was that they had not contracted to have Ready-Men provide workers’ compensation insurance for its loaned employees. Corrugated maintains that more than one inference reasonably could be made from that conversation, and that, accordingly, the issue was one of fact, and not one of law.

The trial court stated that the only reasonable inference which could be drawn from the conversation between Schmitz and Estwin was that Schmitz had inquired as to what costs were included in the $5 fee, and that Estwin had responded that it included workers’ compensation. The court further stated that no reasonable inference could be drawn that the reply shifted workers’ compensation liability from Corrugated to Ready-Men.

The existence of a contract is a question reserved for the trier of fact. (Commonwealth Edison Co. v. Industrial Comm’n (1988), 167 Ill. App. 3d 229, 521 N.E.2d 159.) Only if the undisputed facts permit but a single inference can the question be characterized as one of law. (A.J. Johnson Paving Co. v. Industrial Comm’n (1980), 82 Ill. 2d 341, 412 N.E.2d 477.) We cannot say that it is not possible to draw more than one reasonable inference from the conversation between Schmitz and Estwin. Thus, we find that the trial court erred to the extent that it reviewed this issue under a “contrary to law” standard, and further find that the standard to be applied is whether the decision of the Commission is contrary to the manifest weight of the evidence. See Granite City Steel Co. v. Industrial Comm’n (1983), 97 Ill. 2d 402, 454 N.E.2d 1011.

Corrugated contends that the trial court erred in concluding that Ready-Men did not agree to provide workers’ compensation insurance for the employees which it loaned to Corrugated. Corrugated maintains that such agreement existed and that, pursuant to the agreement, Ready-Men was primarily liable to claimant for the benefits awarded.

Ready-Men and Corrugated agree that the relationship between the two companies was one of lender employer (Ready-Men) and borrowing employer (Corrugated). Section 1(a)(4) of the Act provides a statutory scheme pertaining to liability in the event an employee sustains a compensable injury while in the employ of the borrowing employer. The section states:

“Where an employer operating under and subject to the provisions of this Act loans an employee to another such employer and such loaned employee sustains a compensable accidental injury in the employment of such borrowing employer and where such borrowing employer does not provide or pay the benefits or payments due such injured employee, such loaning employer is liable to provide or pay all benefits or payments due such employee under this Act and as to such employee the liability of such loaning and borrowing employers is joint and several, provided that such loaning employer is in the absence of agreement to the contrary entitled to receive from such borrowing employer full reimbursement for all sums paid or incurred pursuant to this paragraph together with reasonable attorneys’ fees and expenses in any hearing before the Industrial Commission or in any action to secure such reimbursement.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(a)(4).)

Thus, with respect to an injured employee, the loaning and borrowing employers are jointly liable, and as between the employers, the borrowing employer is primarily liable and the loaning employer is secondarily liable. (Fort Dearborn Cartage Co. v. Rooks Transfer Co. (1985), 136 Ill. App. 3d 371, 483 N.E.2d 618.) The loaning employer is required to pay only when the borrowing employer fails to do so, and then is entitled to reimbursement from the borrowing employer. (Fort Dearborn Cartage Co. v. Rooks Transfer Co. (1985), 136 Ill. App. 3d 371, 483 N.E.2d 618.) This right to reimbursement, however, may be waived by an agreement between the employers. Lachona v. Industrial Comm’n (1981), 87 Ill. 2d 208, 429 N.E.2d 858; Albert Mojonnier, Inc. v. Industrial Comm’n (1968), 41 Ill. 2d 128, 242 N.E.2d 184.

Here, the parties orally contracted for Ready-Men to supply, and Corrugated to employ, temporary workers. Ready-Men and Corrugated agree that while discussing the price element of the contract, Corrugated’s manager, inquired as to insurance and was informed that the price included workers’ compensation insurance. The Commission found that this conversation amounted to an agreement by Ready-Men to assume primary liability for compensable injuries sustained by its loaned employees.

Corrugated maintains that the Commission was correct, and that there was an “agreement to the contrary” within the meaning of the Act. Formation of a valid contract between two parties requires that there be mutual assent by the contracting parties on the essential terms and conditions of the subject about which they are contracting. (Loeb v. Gray (1985), 131 Ill. App. 3d 793, 475 N.E.2d 1342.) Whether an oral contract exists, its terms and conditions, and intent of the parties are questions of fact (Estate of Kern (1986), 142 Ill. App. 3d 506, 491 N.E.2d 1275), and a reviewing court will not disturb the Commission’s decision on a factual issue unless it is against the manifest weight of the evidence. Luckenbill v. Industrial Comm’n (1987), 155 Ill. App. 3d 106, 507 N.E.2d 1185.

We believe there was sufficient evidence to support the Commission’s determination that an agreement to shift primary liability existed between Corrugated and Ready-Men, and thus, its decision was not contrary to the manifest weight of the evidence.

Ready-Men relies on the holdings in Commonwealth Edison Co. v. Industrial Comm’n and in Evans v. Abbott Products, Inc. (1986), 150 Ill. App. 3d 845, 502 N.E.2d 341, in support of its position that there was no agreement. Those cases, however, are distinguishable from the present case. In Commonwealth Edison Co., plaintiffs alleged a purchase order containing “hold harmless” language was evidence of a contract to shift liability for workers’ compensation benefits to the lending employer. The court found that it did not. The court noted that the record failed to indicate that the lending employer acknowledged or understood that the purchase order was to shift liability for workers’ compensation benefits. (Commonwealth Edison Co., 167 Ill. App. 3d 229, 521 N.E.2d 159.) In Evans, the plaintiff contended that a circular stating the lending employer would provide workers’ compensation insurance for its employees established the existence of an agreement to shift the statutory payment priority. The court found that the circular was insufficient to establish such a risk-shifting agreement. The court noted that the complaint contained only a conclusory allegation regarding the existence of any such agreement. Evans v. Abbott Products, Inc. (1986), 150 Ill. App. 3d 845, 502 N.E.2d 341.

Here, however, Corrugated’s assertions regarding the existence of a risk-shifting agreement are more than conclusory allegations. Both Estwin and Schmitz testified that there was a specific discussion regarding insurance and that Estwin specifically stated that the Ready-Men price included FICA, payroll taxes and workers’ compensation insurance coverage. We believe this conversation adequately establishes that the parties arrived at an understanding regarding their respective liability. Moreover, we are unpersuaded by Ready-Men’s contention that Schmitz’ failure to ask for a written agreement, because “[i]t didn’t come to mind,” requires us to find that there was no meeting of the minds, the primary test of any contract. Rather, we believe that statement demonstrates that Schmitz saw no need to have a written contract because the borrowing employment was on a day-to-day basis.

In our judgment, the Commission’s determination that a risk-shifting agreement had been entered into was not against the manifest weight of the evidence. Accordingly, we believe the trial court erred in setting aside the Commission’s decision on this issue.

We rejected Corrugated’s assertion that the work ticket presented by claimant reciting that he was not to operate machinery was an improper attempt to modify the contract between it and Ready-Men. A modification of a contract may be ratified by acquiescence in a course of conduct consistent with the existence of that modification (cf. Terminal Freezers, Inc. v. Roberts Frozen Foods, Inc. (1976), 41 Ill. App. 3d 981, 354 N.E.2d 904), and a contract modification which has been executed will not be disturbed by the court even in the absence of consideration. Davison v. Board of Trustees (1985), 132 Ill. App. 3d 980, 478 N.E.2d 3.

In the present case, there is evidence the Corrugated ratified the modification by acquiescence. Prior to beginning work each day, claimant presented a work ticket to the person in Corrugated’s office. He followed this practice on the day of his injury. Corrugated cannot now disclaim knowledge of the contents of the work ticket. Corrugated engaged in a course of conduct consistent with acceptance of the modification, and accordingly, acquiesced in the modification. See Gateway Co. v. Charlotte Theatres, Inc. (1st Cir. 1961), 297 F.2d 483.

Nevertheless, there is sufficient evidence to support the Commission’s conclusions that Corrugated did not violate the modification by permitting claimant to assist in feeding metal into a machine and to assist in cleaning the machine. The Commission found that these actions did not amount to operation of machinery as that term ordinarily is understood.

The claimant himself testified that he did not operate the machine. He stated that he did not know how to operate the machine, and that although he was working around the machine, he never actually touched any buttons or levers. Rather, he merely fed metal into the machine and. pressed a metal band against the machine rollers while a Corrugated employee actually operated and controlled the machine. Based on this testimony, we cannot say that the Commission’s decision was contrary to the manifest weight of the evidence. Accordingly, we must hold that Corrugated did not breach its contract with Ready-Men and that the modification did not relieve Ready-Men of its obligation to provide workers’ compensation benefits to claimant.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

BARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.


author: JUSTICE BUCKLEY

text:
    ROBERT C. KING, Plaintiff-Appellant, v. PAUL LEVIN, Defendant-Appellee.
    First District (1st Division)
    No. 1—87—3756
    Opinion filed June 5, 1989.

      Holleb & Goff, of Chicago (Michael A. Reiter and Lori A. Goldstein, of counsel), for appellant.
    Letvin & Stein, of Chicago (David J. Letvin and David M. Stein, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Robert King (plaintiff), who is engaged in the business of subsidized real estate development, learned of a Housing and Urban Development (HUD) funding opportunity for low and moderate income housing developments. In pursuit of this opportunity, plaintiff executed an option to purchase two buildings containing 54 units located at 2630-44 North Spaulding and 2219-23 North Kedzie Boulevard in Chicago (hereinafter the Lorington). In September 1983, HUD awarded plaintiff the subsidies for the development, and plaintiff thereafter submitted loan applications for the project to the Illinois Housing Development Authority (IHDA) and the Chicago Metropolitan Housing Development Corporation. In May 1984, IHDA included the Lorington in an upcoming bond sale, through which it would finance the development. On May 21, 1984, four days before the scheduled bond sale, Paul Levin (defendant), a resident of the neighborhood, telephoned IHDA and threatened to institute litigation to stop the project. IHDA subsequently decided to exclude the Lorington from the bond sale.

Plaintiff then filed an action in the circuit court against defendant for tortious interference with prospective economic advantage, alleging that as a result of defendant’s malicious threat of baseless litigation to IHDA, he incurred damages from the loss of IHDA’s financing. After five days of trial before a jury, the trial judge granted defendant’s motion for a directed verdict at the close of plaintiff’s case in chief because plaintiff failed to establish that defendant’s actions were not privileged under the first amendment right to petition government for redress of grievances, as defendant had alleged in his affirmative defense.

Plaintiff appeals from the trial court’s order, contending that the trial court, in directing the verdict against him on first amendment grounds, committed several reversible procedural errors, as well as erroneously concluding plaintiff had not met his burden on the merits. Plaintiff also raises as error the trial court’s exclusion of evidence on the issue of damages. We affirm on the ground that plaintiff did not meet his burden of proving the absence of a first amendment privilege.

The first amendment right to petition government for redress of grievances has been invoked as a qualified privilege in- the Federal courts and in Illinois to protect persons engaged in activities designed to influence government action from civil liability. Eastern R.R. Presidents Conference y. Noerr Motor Freight, Inc. (1961), 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523, established the “Noerr-Pennington doctrine,” in invoking this first amendment right to protect efforts to lobby or influence public-officials from antitrust liability. The Supreme Court qualified the privilege, however, by excluding from protection lobbying activities constituting a “mere sham” — “nothing more than an attempt to interfere directly with the business relationships of a competitor.” Eastern R.R., 365 U.S. at 144, 5 L. Ed. 2d at 475, 81 S. Ct. at 533.

The Supreme Court further expanded the doctrine to protect efforts to seek redress through the judicial process in California Motor Transport Co. v. Trucking Unlimited (1972), 404 U.S. 508, 30 L. Ed. 2d 642, 92 S. Ct. 609. The Court recognized there that the right to petition includes the institution of administrative and adjudicatory proceedings. It also applied Eastern R.R.’s “sham” lobbying activities exception to “sham litigation,” situations involving a pattern of baseless, repetitive claims. Thereafter, a number of lower Federal courts held in antitrust actions that a single lawsuit or claim may constitute “sham litigation.” See, e.g., MCI Communications Corp. v. American Telephone & Telegraph Co. (7th Cir. 1983), 708 F.2d 1081; Clipper Ex press v. Rocky Mountain Motor Tariff Bureau, Inc. (9th Cir. 1982), 690 F.2d 1240.

Federal and State courts did not limit application of the NoerrPennington doctrine and its “sham litigation” exception to antitrust actions, but adopted the doctrine for civil claims outside the antitrust area. See, e.g., Protect Our Mountain Environment, Inc. v. District Court (Colo. 1984), 677 P.2d 1361; Sierra Club v. Butz (N.D. Cal. 1972), 349 F. Supp. 934; Landmarks Holding Corp. v. Bermant (2d Cir. 1981), 664 F.2d 891.

The Illinois Supreme Court invoked the first amendment right to petition government for redress of grievances in a tortious interference with contract action, but applied a different “exception” than that which the Federal courts have adopted. In Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514, the court addressed the extent to which acts petitioning a legislative body were privileged under the petitioning clause. It found that the right to petition is not absolute and that wrongful conduct by a person who has “actual malice” is outside the ambit of the privilege. Arlington Heights, 37 Ill. 2d at 551, 229 N.E.2d at 518.

With this constitutional foundation, we address plaintiff’s claims, beginning with his procedural contentions. Plaintiff initially contends that the trial court improperly shifted defendant’s burden of proving his affirmative defense of a qualified privilege to plaintiff by prematurely granting a directed verdict. He argues that by directing the verdict at the close of plaintiff’s case in chief, the court improperly required plaintiff to prove “actual malice” or “sham” as an element of his case in chief once the petition privilege became an issue. Notwithstanding our concurrence with defendant’s argument that plaintiff has waived this issue by failing to raise it at trial or in post-trial motions and by his arguments before the trial court, we believe plaintiff’s contention is without merit.

Aside from citing cases which set forth general principles as to the order of proof relating to affirmative defenses (Capitol Plumbing & Heating Supply, Inc. v. Van’s Plumbing & Heating (1978), 58 Ill. App. 3d 173, 373 N.E.2d 1089; Harwood v. Attella (1963), 44 Ill. App. 2d 280, 194 N.E.2d 520 (abstract of opinion)), plaintiff relies solely on a Federal district court case analyzing Illinois law to support his position that the plaintiff does not have the burden of proving this qualified privilege as an element of his cause of action. In Haupt v. International Harvester Co. (N.D. Ill. 1984), 582 F. Supp. 545, 550, the court stated that “Illinois courts consider privilege a defense to tortious interference, and not an element whose absence must be pleaded (or, more importantly, proved) by plaintiff.”

In our judgment, Haupt incorrectly states Illinois law. The district court in Haupt cited a single Illinois Appellate Court case from the fifth district for its assertion. The primary issue in that case, Kemper v. Worcester (1982), 106 Ill. App. 3d 121, 435 N.E.2d 827, was whether the plaintiff’s position with the bank constituted a sufficient relationship upon which to base an action for tortious interference with contractual relations. The defendants, individual directors of a bank, further argued that they were privileged to urge the entire board of directors to dismiss the plaintiff, an officer of the bank. The Kemper court’s cursory response that defendant would have the burden of establishing a privilege as a defense was not supported by any Illinois case law.

Illinois law is to the contrary. Illinois courts have consistently held in tortious interference actions involving conditional privileges that the plaintiff bears the affirmative burden of pleading and proving the absence of the privilege. In affirming the circuit court’s granting of a motion to dismiss, the Illinois Supreme Court in Arlington Heights stated that the plaintiff must show “actual malice” on the part of the defendant in order to sustain a cause of action for interference with contract where the alleged wrongful conduct is conditionally privileged. (Arlington Heights, 37 Ill. 2d 546, 229 N.E.2d 514.) Similarly, in Swager v. Couri (1979), 77 Ill. 2d 173, 395 N.E.2d 921, the Illinois Supreme Court held in a tortious interference action that the absence of a privilege of a corporate officer to act for the corporation must be pleaded and proven in the plaintiff’s case in chief.

Illinois appellate courts are in harmony with supreme court precedent. In American Pet Motels, Inc. v. Chicago Veterinary Medical Association (1982), 106 Ill. App. 3d 626, 435 N.E.2d 1297, the court affirmed summary judgment against plaintiffs for defamation and tortious interference with prospective business advantage because the plaintiff did not meet its burden of pleading and proving “actual malice” under the privilege of a veterinary member to report the unauthorized practice of medicine. In an opinion that this court filed after hearing oral arguments in the case at bar, we found, in a tortious interference with economic advantage action, that once a qualified privilege is shown to exist, plaintiff has the burden to overcome the privilege by alleging facts from which “actual malice” may be inferred. Genelco, Inc. v. Bowers (1989), 181 Ill. App. 3d 1.

We reject plaintiff’s argument that the above cases are distinguishable from the instant case because they involve complaints clearly placing the privilege in issue either because the person was in a privileged position as a matter of law or because the privilege was necessarily implicated by the nature of the conduct alleged in the complaint. These Illinois cases do not articulate any distinction between privileges. Moreover, the conduct alleged in Arlington Heights no more implicates the first amendment privilege than the conduct alleged in the case at bar. The conduct alleged in plaintiffs complaint here — telephoning a government body to oppose a neighborhood development and informing the government body of intentions to bring litigation to stop a neighborhood development — implicates the very heart of first amendment activity. Thus, we conclude that the trial court properly followed Illinois case law in placing the burden on plaintiff to establish “actual malice” or “sham” as an element of his tortious interference action.

Next, plaintiff next argues that this court must reverse the trial court because it failed to specify the standard it applied in granting the directed verdict. At trial, the parties disputed whether the Illinois Pedrick standard for directed verdicts (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504) or the Anderson clear-and-convincing-evidence standard, which the United States Supreme Court adopted in libel actions (Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505), should apply to the issue of “actual malice” or “sham” on the directed verdict motion. Contrary to plaintiffs contention, the transcript indicates that the court articulated its selection of a standard in rejecting the more stringent Anderson standard and thereby applying the Pedrick standard. Because the court applied the less stringent Pedrick standard in evaluating plaintiff’s evidence and because we find that plaintiff did not meet its burden under this standard, it is unnecessary for us to determine whether Illinois is required to or should follow the Anderson standard.

The final procedural issue for our review is whether the “actual malice” or “sham” determination is a question of fact for the jury or one of law for the court to decide. Plaintiff’s related contention is that the court denied him his right to a jury trial in entering the directed verdict because factual questions existed on this issue which the jury should have determined. Defendant argues that this question is one of law for the court to decide.

We agree with plaintiff that the question is one of fact. Trial courts dealing with “actual malice” or “sham” in the first amendment area have so treated the issue. (Haupt, 582 F. Supp. 545; Central Telecommunications, Inc. v. TCI Cablevision, Inc. (W.D. Mo. 1985), 610 F. Supp. 891; Resudek v. Sberna (1985), 132 Ill. App. 3d 783, 477 N.E.2d 789.) Defendant misplaces his reliance on Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 80 L. Ed. 2d 502, 104 S. Ct. 1949, and Time, Inc. v. Pape (1971), 401 U.S. 279, 28 L. Ed. 2d 45, 91 S. Ct. 633, to support his position that the question is one of “ultimate fact” or a “constitutional rule” for the trial judge. Bose and Time address appellate review of findings of fact that are deemed to have constitutional significance. These cases hold that reviewing courts should conduct an independent review of the record, recognizing the need to ensure that decisions by triers of fact do not inhibit the expression of protected ideas. (See Bose, 466 U.S. at 505, 80 L. Ed. 2d at 519, 104 S. Ct. at 1962.) They do not stand for the proposition that the question of “actual malice” is not one of fact for the jury.

Nonetheless, because the “actual malice” or “sham” question may be one of fact for the jury does not preclude a trial court from entering a directed verdict as to that question. “[T]he right to a jury trial includes the right to a jury verdict only if there are factual disputes of some substance,” even where there is “the presence of some slight evidence to the contrary.” (Pedrick, 37 Ill. 2d at 505, 229 N.E.2d at 513-14.) With this in mind, we turn to the evidence presented by plaintiff at trial to establish the absence of a first amendment privilege and his contention on appeal that the evidence was sufficient to withstand a directed verdict.

The tests applied by the courts to resolve this first amendment issue have been outlined above. The trial court here appears to have applied the “actual malice” test as articulated by the Illinois Supreme Court in Arlington Heights. On appeal, while plaintiff argues that the Arlington Heights “actual malice” test is inapplicable here because it involves petitioning a legislative body and not threatening baseless litigation as in the instant case, both parties have analyzed the issue applying the “actual malice” and the “sham” tests. Defendant, though, has set forth the “mere sham” petitioning test as articulated in East ern R.R. (365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523), while plaintiff, the “sham litigation” test as articulated in California Motor (404 U.S. 508, 30 L. Ed. 2d 642, 92 S. Ct. 609) and cases involving the bringing of administrative and adjudicatory proceedings. We hold that plaintiff has failed to present sufficient evidence to prima facie defeat defendant’s qualified privilege under any of these tests.

In applying the Pedrick standard to evaluate whether plaintiff produced sufficient evidence showing defendant’s actions were unprotected conduct under the above tests, we are mindful that defendant must demonstrate that all the evidence, when viewed in aspects most favorable to plaintiff, so overwhelmingly favors defendant that no contrary verdict based on that evidence could ever stand. (Pedrick, 37 Ill. 2d 494, 229 N.E.2d 504.) Plaintiff insists that the evidence introduced at trial survived Pedrick scrutiny, pointing out that a trial court may not substitute its judgment for that of the jury as to the weight of the evidence or the credibility of the witnesses, but must draw all inferences in favor of plaintiff and deny the motion where any evidence or reasonable inferences therefrom support plaintiff’s claim. Roedl v. Lane (1976), 41 Ill. App. 3d 1062, 355 N.E.2d 354; Tarzian v. West Bend Mutual Fire Insurance Co. (1966), 74 Ill. App. 2d 314, 221 N.E.2d 293; Johnson v. Sleaford (1963), 39 Ill. App. 2d 228, 188 N.E.2d 230.

The following pertinent evidence was adduced at trial. Defendant, testifying as an adverse witness, stated that he was opposed to the Lorington project because it was his belief 100% subsidized housing was ill-advised in the Logan Square neighborhood, a belief which he had held prior to 1983. He knew of IHDA’s plan to sell municipal bonds to finance the Lorington prior to February 1984. In an attempt to gather information, defendant telephoned John Ward, an attorney at the law firm of Chapman and Cutler in Chicago, in February or March 1984 to obtain information concerning the workings of the bonding process. He also telephoned Robert Fiando at HUD to obtain information from HUD’s perspective.

Defendant expressed his opposition to numerous government officials. In mid-March, defendant and other citizens opposing the project met with the then city housing director, Brenda Gaines, and expressed their concerns. Defendant prepared notes in anticipation of this meeting, which state, “But Mr. King can’t be stopped — his deal is all in place.” This statement, defendant explained, was a response to a hypothetical assertion and not an assertion of any understanding on his part that the Lorington project could not be stopped at that time.

On April 9, 1984, IHDA received a packet of material from defendant in which he expressed opposition to the financing. Included in the packet was a letter from an urban planner raising issues of overconcentration of subsidized housing in the area and Gautreaux compliance. In this letter, the urban planner stated that in his opinion the development would be “contrary to the non-segregation goals of the Gautreaux court order.”

IHDA published a notice inviting comments concerning the Lorington at a public hearing, scheduled one hour before the bond sale on May 25, 1984. Subsequently, on May 14, 1984, defendant telephoned John Glennon, the general counsel for IHDA at the time. Glennon testified that defendant expressed his opposition to IHDA’s financing the Lorington and asked various informational questions. Glennon’s notes of that conversation provide that there “might be litigation” “if necessary.”

On May 21, 1984, defendant again telephoned Glennon. Defendant mentioned the packet of materials which had been delivered to IHDA in April, but Glennon had not seen the packet up until that time. Defendant threatened litigation, reiterating his objections to the Lorington project. Glennon testified that during their conversation defendant told him that he had no problem with the developer, only with his development. He stated that defendant did not mention any basis for filing suit, but admitted that he did not inquire into a basis. Defendant admitted that he was unaware of matters concerning the condition of the building, the people living there, or the units in the building at the time of this conversation and that he had never spoken to plaintiff personally about the project.

Glennon testified that because insufficient time remained before the sale to redraft documents to disclose to potential investors the existence of threatened litigation or to procure a “no merit” letter from IHDA counsel, IHDA excluded the Lorington from the May 25 bond sale. Glennon further stated that he did not believe any legal basis existed for challenging IHDA’s funding of the Lorington, but that IHDA counsel would not issue a “no merit” letter because “there might be merit to the proposed litigation” due to the many theoretical problems which could arise with a project and the fact that IHDA counsel had not seen the complaint. James T. Albrecht, HUD’s Regional Director of Housing, also testified that at the time HUD approved the funding for the development, it believed the Lorington had met Gautreaux requirements.

Subsequent to defendant’s May 21 conversation with Glennon, Terry Hilliard, an attorney representing defendant, telephoned Glen-non and requested background information concerning IHDA’s participation in the Lorington project.

Although IHDA did not plan to take action on May 25, it invited public comment concerning the Lorington at the public hearing. At the hearing, defendant and other members of the public voiced their opposition to the Lorington, raising issues of site control, density, economic feasibility, management control plans, and other issues.

This evidence, viewed in aspects most favorable to plaintiff, is insufficient for a trier of fact to find “actual malice” on defendant’s part. In elaborating on the “actual malice” test, the supreme court has stated that “[i]ll-will alone is not enough to establish actual malice *** there must be a desire to harm, which is independent of and unrelated to a desire to protect the acting parties’ rights and is not reasonably related to the defense of a recognized property or social interest.” (Arlington Heights, 37 111. 2d at 551, 229 N.E.2d at 518.) Plaintiff presented no facts from which a reasonable inference could be drawn that defendant harbored a desire to harm which was independent of and unrelated to the neighborhood interest which he was seeking to protect. In fact, no reasonable inference as to defendant’s state of mind at the time he telephoned IHDA on May 21 can be drawn from this evidence.

Plaintiff argues that the evidence demonstrates that defendant knew plaintiff was a real estate developer who relied on funding from the IHDA bond sale; that defendant, when he realized his efforts would be unsuccessful, communicated with numerous public officials to learn details of IHDA’s bond financing; and that defendant threatened baseless litigation days before the bond sale to logistically prevent the sale. These inferences, which plaintiff has drawn from the evidence, are not reasonable or founded in factual evidence.

Plaintiff presented no evidence as to defendant’s purpose in gathering the information on the bonding process, that defendant learned how to prevent a bond sale with a single telephone call, or that defendant had any knowledge of the potential effect of his May 21 telephone call. The only factual, nonspeculative evidence plaintiff refers to is a note defendant wrote in anticipation of a meeting in March, stating that plaintiff “can’t be stopped.” One cannot reasonably infer defendant’s state of mind on May 21 or his knowledge of the potential effect of his telephone call from this note, especially in view of evidence that defendant mentioned the possibility of litigation to Glennon a week earlier, in time for IHDA to redraft documents or procure a “no merit” letter before the bond sale, evidence that defendant continued his opposition efforts by sending a packet of material to IHDA after he had gathered information concerning the bond process, and evidence that defendant continued to voice his opposition at a public hearing after he telephoned IHDA on May 21.

Nor has plaintiff presented sufficient evidence from which a jury could find that the Noerr-Pennington sham exception would apply under either the “sham petitioning” test or the “sham litigation” test. Defendant’s telephone call threatening litigation to a government agency appears to involve both the “petitioning to a government body” and the “litigation” components of the Noerr-Pennington doctrine.

To establish “sham petitioning” to defeat defendant’s first amendment privilege, plaintiff must demonstrate that defendant did not act for the purpose of seeking favorable governmental action, but his actions were merely a ruse to otherwise injure the plaintiff. (Eastern R.R., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523; Havoco of America, Limited v. Hollobow (7th Cir. 1983), 702 F.2d 643.) As stated above, plaintiff did not present sufficient evidence from which the jury could reasonably infer that defendant made the May 21 telephone call, not for the purpose of seeking favorable government action, but knowing his “petitioning” would logistically prevent the Lorington from inclusion in the May 25 bond sale.

Plaintiff had the burden under the “sham litigation” test to demonstrate that the lawsuit, or the threat of lawsuit as applied to the case at bar, lacked any reasonable basis in fact or law and was brought, not to genuinely influence government action, but primarily to harass or to improperly deter another’s legitimate activities. (Protect Our Mountain, 677 P.2d at 1367; Clipper Express, 690 F.2d at 1253.) We have already concluded that the evidence here was insufficient to reasonably infer that defendant’s intent in threatening IHDA with litigation was not for the purpose of genuinely influencing government action. Courts, however, have held that this intent may be inferred from a showing that the litigation was baseless and made without regard to merit. Clipper Express, 690 F.2d at 1254.

Plaintiff argues that he proved that defendant’s statement that he intended to file a lawsuit was falsely made, that no reasonable basis existed to challenge IHDA, and that defendant had not made inquiry into the merits or hired an attorney to represent him. We disagree. First, no evidence was presented that defendant did not intend to file a lawsuit. Second, the only evidence introduced as to the merits of the threatened lawsuit was the testimony of Albrech that HUD believed the Lorington met Gautreaux requirements and the testimony of Glennon that he did not believe defendant had a basis for the suit. Glennon never asked defendant, or defendant’s attorney, for the basis of the suit. Glennon himself admitted that there were many problems that could arise from such a project and that its counsel refused to issue a “no merit” letter without having seen the complaint. Finally, plaintiff did not present facts from which a jury could reasonably infer that defendant did not take steps to inquire into whether he had a basis for the suit. Contrarily, the evidence indicated that defendant had been in communication with attorneys before and after his telephone call. Defendant’s attorney also telephoned IHDA seeking information after defendant’s May 21 telephone call. Defendant himself had gathered information and sent a packet of such materials to IHDA raising Gautreaux and overconcentration problems, including a letter from an urban planner expressing these views.

Accordingly, we hold that the trial court did not err in directing the verdict against plaintiff at the close of his case in chief because plaintiff failed to meet his affirmative burden of proving the absence of a first amendment privilege. Our holding renders it unnecessary to inquire into whether plaintiff established the other elements of his tortious interference action or to address the claimed evidentiary errors on the issue of damages. Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and QUINLAN, JJ., concur.

      Plaintiff’s complaint alleged that defendant, who opposed subsidized housing, “telephoned IHDA and threatened IHDA and [plaintiff] with litigation as a result of plaintiff’s development.”

      Unlike the complaint in Central Telecommunications, Inc. v. TCI Cablevision, Inc. (W.D. Mo. 1985), 610 F. Supp. 891, wherein the court found that threats of fraudulent conduct and threats “to ruin the career” of a city employee could not be characterized as “lobbying” in the first instance, in the case at bar, defendant’s threat was to engage in “petitioning” activity itself.

        “Gautreaux order” was mentioned throughout the trial court proceedings. Although the specifics of the order from this Federal litigation (Gautreaux v. Landrieu (N.D. Ill. 1981), 523 F. Supp. 665) were not introduced at trial, the record indicates that the order provided requirement for funding of subsidized housing, including matters relating to nonsegregation and overconcentration.


author: PRESIDING JUSTICE BILANDIC

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARINA BROWN, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—0569
    Opinion filed June 6, 1989.
    — Rehearing denied July 11, 1989.

      Michael J. Pelletier and Karen Daniel, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil Partee, State’s Attorney, of Chicago (Inge Fryklund and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Marina Brown, was jointly indicted with codefendants Sherman Addison and Annie Robinson for murder, armed robbery, home invasion and residential burglary. Defendant Brown and Addison were tried together before the same jury. Robinson was tried simultaneously before a separate jury. Defendant Brown was found guilty of armed robbery, home invasion and residential burglary and not guilty of murder. She was sentenced to two concurrent extended-term sentences of 50 years. Addison and Robinson were found guilty of all offenses, including murder. Defendant Brown appeals her conviction and sentence.

The evidence presented at trial by the State against defendant Marina Brown was as follows.

On Valentine’s Day, February 14, 1985, Della Hamilton and her grandson went to visit her best friend, 69-year-old Helen Smith, at Smith’s home at 5235 W. Washington, Chicago, Illinois. Della helped Smith tidy up the house. Nyona Barton, Della’s granddaughter, had also been to Smith’s home a few days earlier.

Nyona knew defendant Marina Brown for about four years. A few months prior to February 1985, defendant lived with Nyona and Della. During this time, defendant went with Della to Smith’s home to help her do things around the house, including rearranging the bedroom and drawers.

During the six days following Valentine’s Day, Della tried to reach Smith by telephone but without success. On February 20, 1989, Della and Nyona went to Smith’s home, where they found her dead. The home was in shambles.

Detective Richard Schak arrived at Smith’s home to investigate her death. His investigation revealed that there were no signs of forced entry. The detective also observed the condition of Smith’s body. She was naked from the waist up. Her bra was pulled down around her waist. Her slip was soaked in body fluids and what appeared to be blood. An elastic bandage was used to bind her ankles. A scarf, coiled around her neck, bound her shoulders and continued under her armpits in a full Nelson pattern. The scarf was tied in a knot at the center of her back and then connected to a door knob with another knot. The detective also observed egg shells on the body. A can of red paint had been tipped onto the floor next to the body. A small hunting knife, with traces of blood on it, was found in the front porch area. Also, a lVa-foot-long plumbing pipe, with traces of blood and hair on it, was found about 12 feet from the body.

The medical examiner testified that the body was in a state of post-mortem decomposition. Cause of death was ligature strangulation and blunt head trauma. He also noted a stab wound on the left calf.

The investigation into Smith’s death continued with no progress for one month. A significant development occurred when a Larry Minniefield was arrested for shoplifting in March of 1985. Minniefield had a record of prior convictions for robbery, armed robbery, and possession of marijuana. At this time, he told police that he could provide them ■ with some information regarding a murder and that certain items of evidence could be found at his apartment.

At trial, Minniefield’s testimony established that in February 1985, codefendant Annie Robinson was his girlfriend. Shortly after Valentine’s Day, Robinson, Addison and defendant went to his apartment. Robinson introduced Addison as “Lewis” and defendant as “Sugar.”

Robinson was wearing a radio headset, and defendant and Addison were each carrying a pillowcase filled with items. Robinson was covered with a red, dye-like substance, and Addison had some light red substance on his boots. Robinson had teeth marks on her right hand. Minniefield accompanied Robinson into the bathroom, where she went to wash off the dye. In the other room, defendant and Addison were arguing over who would keep which items of property, which included an answering machine, a portable television, a tiny television, jewelry and a small caliber pistol.

Minniefield stated that the others were drinking liquor and defendant and Addison were saying that they had searched Smith’s room but had not found the money. Robinson was trying to tell Minniefield what had happened but defendant told her to shut up. Everyone was taking off their clothes and sorting through the items, which included some credit cards, saying they had to burn everything. At that point, Minniefield went to sleep.

When he woke up the next morning, Robinson and Addison were in his apartment and defendant was coming in saying she had burned everything. The four of them then went to the Bryn Mawr Hotel, where they met a man named William Smith to whom they sold some of the items for $80.

William Smith testified that in February 1985, the defendants came to the Bryn Mawr Hotel, where he lived and worked as a security guard, with some merchandise. He arranged for two Walkmans, a Walkman television, a portable television and a pistol to be sold. His commission was $10.

On March 21, 1985, defendant was identified by Minniefield and arrested. Later that same day, Addison was brought into the police station. Defendant identified Addison as “Lewis.” Addison was placed under arrest. At approximately 10:55 a.m., Addison gave a 15-page confession in the presence of two assistant State’s Attorneys, a detective, and a court reporter. Sometime later, Brown gave a 15-page confession before the same persons.

Both confessions essentially stated that defendant, Addison and Robinson met in February 1985 in Addison’s apartment to talk about going to get some money from an old woman on the West side. Defendant stated that she did not know the woman. Addison stated that it was defendant Brown who told them this woman kept money at her home. Addison also stated that defendant Brown gave Robinson a pistol. Defendant Brown, however, stated that Robinson took the pistol from her own pocket.

The three of them took the “el” to the West side. When they reached the home of Smith, Addison checked the mailbox. He stated that defendant told him to do this. Defendant stated that Robinson told him to check the mailbox because earlier in the day, there was a package in it and they wanted to be sure that Smith had come home.

Robinson went up to the door and gained entrance. Addison and defendant followed. Inside, they saw Robinson on top of Smith trying to tie her up. Defendant Brown stated that Robinson was beating Smith in the face with her fists. Addison and defendant went straight to the bedroom to search for money. Defendant asked Addison to go check on Robinson and the victim. Addison stated that he saw Robinson slapping Smith. Smith was tied up and there was blood on her face. He went back to the bedroom and told defendant Brown that everything was “O.K.” Defendant Brown could hear the woman grunting. They did not find any money but took some merchandise.

Defendant stated that Robinson came into the back room and said “Sugar, the lady is out cold. I tied her up the best way possible.” Defendant then went to go look at the victim, whom she referred to as “Miss Helen.” Defendant then described “Miss Helen’s” condition:

“I seen egg shells, blood, paint. Her feet was bound. I think her hands were bound. I seen a blue scarf tied around her neck, from the neck to the doorknob.”

Defendant said she then went back to Addison and Robinson. Defendant stated, “[W]e got a murder, you killed the lady.” Defendant asked Robinson what she had done to the victim and Robinson answered “punched her in her eyes, her mouth, and her nose.”

When they left the victim’s home, they went to Minniefield’s apartment. The account of the events that transpired hereafter essentially follows the testimony of Minniefield except that defendant states that she did burn the clothes. Defendant stated that Minniefield burned them. Addison stated that defendant, Robinson and Minniefield burned them.

At trial, the assistant State’s Attorney read both confessions to the jury. Neither defendant Brown nor Addison testified or presented any evidence.

The jury found defendant guilty of armed robbery, home invasion and residential burglary. She was found not guilty of murder. The court found the residential burglary count was superseded by the home invasion count and entered judgment on the remaining counts. The same jury found Addison guilty of all offenses including murder.

At sentencing, the trial court imposed concurrent extended terms of 50 years in the Illinois Department of Corrections for armed robbery and home invasion. This appeal followed.

Defendant contends that: (1) the trial court erred in denying her a separate trial; (2) the court’s comments during voir dire amounted to reversible error; and (3) the court abused its discretion in sentencing.

I

Defendant contends that under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and Cruz v. New York (1987) , 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714, a severance should have been granted because the confession of the nontestifying codefendant admitted into evidence at their joint trial constituted a violation of her sixth amendment right to confrontation.

Prior to trial, the court denied defendant’s motion to sever, apparently relying on Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132, citing the interlocking nature of the codefendants’ confessions. Since the time of the court’s ruling, however, Parker has been overruled by Cruz.

In Cruz, the Supreme Court held that the sixth amendment bars the admission at a joint trial of a nontestifying codefendant’s pretrial confession which incriminates and is not directly admissible against the defendant even though: (1) the jury is instructed not to consider the confession against the defendant; and (2) the defendant’s own confession, corroborating that of there codefendant, is admitted against the defendant. (Cruz, 481 U.S. at 192, 95 L. Ed. 2d at 171, 107 S. Ct. at 1718.) The State challenges this application of Cruz.

Defendant also asserts that even if the sixth amendment was not violated, admission of the nontestifying codefendant’s statement violated Illinois evidentiary law prohibiting hearsay. In People v. Duncan (1988) , 124 Ill. 2d 400, 530 N.E.2d 423, the Illinois Supreme Court held that admission of such statements at joint trials have been allowed only reluctantly with proper limiting instructions, and only if the statements are cleansed of all references to a nondeclaring defendant. Thus, the choices in such circumstances are severance, nonuse of a nontestifying codefendant’s admissions, or redaction to eliminate all reference to the implicated defendant. 124 Ill. 2d at 412.

In the instant case, assuming the violation of defendant’s sixth amendment rights and the Illinois hearsay rule, defendant’s conviction can be affirmed because, under the facts of this case, the violations are harmless beyond a reasonable doubt.

In Schneble v. Florida (1972), 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056, the United States Supreme Court held that a violation of the Bruton rule does not automatically require reversal of the conviction.

“In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Schneble, 405 U.S. at 430, 31 L. Ed. 2d at 344, 92 S. Ct. at 1059.

See also People v. Nunn (1989), 184 Ill. App. 3d 253 (failure to sever is not ground for reversal if it can be said that such failure was harmless beyond a reasonable doubt).

Thus, in the case sub judiee, we conclude that failure to sever was harmless beyond a reasonable doubt.

Judgment against defendant was entered for armed robbery and home invasion. Codefendants Addison and Robinson were convicted of the same plus the murder of Helen Smith. All defendants were convicted under the theory of accountability. A person is accountable for the actions of another when “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1985, ch. 38, par. 5 — 2(c).) The offense of armed robbery is committed when by use of force or by threatening the imminent use of force while armed with a dangerous weapon one takes property from a person or presence of another. (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 2.) The offense of home invasion is committed when a person, not a peace officer in the line of duty, without authority “knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and *** (2) [ijntentionally causes any injury to any person or persons within such dwelling place.” Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(2).

Defendant Brown’s own confession states how she, Addison and Robinson formulated a plan to get money from “the old lady.” One of the defendants had a pistol. They-checked to be sure the victim was at home. After they entered the home, it was agreed that Addison and Robinson “would tie the lady up ***. We agreed I was to go to the back and find the money.” Defendant Brown saw Robinson beating the victim with her fist in the face. She saw egg shells, blood, and paint on the victim. The victim’s feet and hands were bound and a blue scarf was wrapped around her neck and tied to the door knob.

This resulted in death by strangulation. When they left the home, they took credit cards, two televisions, a telephone and telephone answering machine, a bag of wine, underwear and jewelry.

In addition, defendant’s own statement is corroborated by other witnesses. The testimony of Minniefield and Smith regarding the gun and the property taken from the victim’s home matches defendant’s statement. A detective testified regarding the condition of the murder scene which supported defendant’s description. The testimony of Hamilton and Barton also corroborate the property taken from the home.

In light of the foregoing, we find the evidence of defendant’s guilt of armed robbery and home invasion to be so overwhelming and the prejudicial effect of codefendant’s confession so insignificant by comparison that any improper use of codefendant’s statement was harmless beyond a reasonable doubt.

II

Defendant also argues that certain comments by the trial court during voir dire amount to reversible error. Defendant first contends that the court improperly commented on the fact that the State was not seeking the death penalty against her. Defendant, however, did not object at trial to this statement nor was it included in her motion for a new trial. It is well established that the absence of both an objection at trial and in a written post-trial motion constitutes a waiver of the issue. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988),_U.S__, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Thus, defendant has waived this issue on appeal.

Second, defendant contends that the court improperly commented that “most of these cases, depending on the outcome of them, a great majority of them are appealed.” However, due to the overwhelming evidence of guilt of defendant’s convictions for armed robbery and home invasion, we cannot say that such comments resulted in any prejudice or materially affected the outcome of the trial, especially in light of the jury’s acquittal on the murder charge. (See People v. Cobbins (1987), 162 Ill. App. 3d 1010, 516 N.E.2d 382.) Thus, we find any error to be harmless beyond a reasonable doubt.

III

Defendant contends that in sentencing, the court: (1) improperly sentenced her to an extended term; and (2) imposed an excessive sentence.

When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, or when the felony was committed against a person 60 years of age or older, the court may consider an extended-term sentence. Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2.

In the instant case, the evidence illustrates that the victim was 69 years of age. Further, defendant’s own statement asserts that she saw codefendant Robinson beating this 69-year-old woman in the face with her fist. She saw the victim covered with egg shells, paint, blood, bound at the feet and hands, and tied to a door knob with a scarf wrapped around her neck. Defendant left this 69-year-old woman in this condition, taking a few of the victim’s possessions. The court, in addition to the victim’s age, considered these surrounding circumstances and found them to be exceptionally brutal or heinous indicative of wanton cruelty and, therefore, imposed an extended term.

Armed robbery and home invasion are both Class X offenses with a permissible range of 6 to 30 years. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 11(b), 18 — 2(b), 1005 — 8—1(a)(3).) The range of extended-term sentences is 30 to 60 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—2(a)(2).) Defendant received two concurrent sentences of 50 years.

Absent an abuse of discretion by the trial court, a sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) An appellate court may not substitute its judgment for that of the trial court merely because it would have balanced the factors differently, especially where the sentence imposed is within the statutory limitations. People v. Lambrechts (1977), 69 Ill. 2d 544, 559, 372 N.E.2d 641.

In light of the foregoing, we cannot say that the court abused its discretion in sentencing defendant to two 50-year, concurrent, extended-term sentences.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SCARIANO and DiVITO, JJ., concur.